EXHIBIT 10.2
EXECUTION COPY
THE VALSPAR CORPORATION
5.100% Notes due 2015
Registration Rights Agreement
-----------------------------
As of July 15, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Barclays Capital Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The Valspar Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell to you, as initial purchasers (the "Initial
Purchasers") its 5.100% Notes due 2015 (the "Notes") upon the terms set forth in
the Purchase Agreement between the Company and the Initial Purchasers dated July
12, 2005 (the "Purchase Agreement") relating to the initial placement (the
"Initial Placement") of the Notes. To induce the Initial Purchasers to enter
into the Purchase Agreement and to satisfy a condition to your obligations
thereunder, the Company agrees with you for your benefit and the benefit of the
holders from time to time of the Notes (including the Initial Purchasers) (each
a "Holder" and, collectively, the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the terms set forth below shall have the following meanings:
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Additional Interest" shall have the meaning set forth in Section 8
hereof.
"Affiliate" shall have the meaning specified in Rule 405 under the Act
and the terms "controlling" and "controlled" shall have meanings correlative
thereto.
"Broker-Dealer" shall mean any broker or dealer registered as such
under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or required by law or regulation to close in The City of New York.
"Closing Date" shall mean the date of the first issuance of the Notes.
"Commission" shall mean the Securities and Exchange Commission.
"Company" shall have the meaning set forth in the preamble hereto.
"Deferral Period" shall have the meaning indicated in Section 4(k)(ii)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Notes" shall mean debt securities of the Company identical in
all material respects to the Notes (except that the transfer restrictions shall
be modified or eliminated, as appropriate) to be issued under the Indenture.
"Exchange Offer Registration Period" shall mean the one-year period
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" shall mean a registration
statement of the Company on an appropriate form under the Act with respect to
the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments thereto, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchanging Dealer" shall mean any Holder (which may include any
Initial Purchaser) that is a Broker-Dealer and elects to exchange for Exchange
Notes any Notes that it acquired for its own account as a result of
market-making activities or other trading activities (but not directly from the
Company or any Affiliate of the Company) for Exchange Notes.
"Holder" shall have the meaning set forth in the preamble hereto.
"Indenture" shall mean the Indenture relating to the Notes, dated as of
July 15, 2005 between the Company and The Bank of New York Trust Company, N.A.,
as trustee, as the same may be amended from time to time in accordance with the
terms thereof.
"Initial Placement" shall have the meaning set forth in the preamble
hereto.
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"Initial Purchasers" shall have the meaning set forth in the preamble
hereto.
"Losses" shall have the meaning set forth in Section 6(d) hereof.
"Majority Holders" shall mean, on any date, Holders of a majority of
the aggregate principal amount of Notes registered under a Registration
Statement.
"Managing Underwriters" shall mean the investment banker or investment
bankers and manager or managers that administer an underwritten offering, if
any, under a Registration Statement.
"NASD Rules" shall mean the Conduct Rules and the By-Laws of the
National Association of Securities Dealers, Inc.
"Notes" shall have the meaning set forth in the preamble hereto.
"Offering Memorandum" shall mean the offering memorandum, dated July
12, 2005, relating to the Notes, including any and all exhibits thereto and any
information incorporated by reference therein as of such date.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Notes or the Exchange Notes covered by such
Registration Statement, and all amendments and supplements thereto, including
any and all exhibits thereto and any information incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
hereto.
"Registered Exchange Offer" shall mean the proposed offer of the
Company to issue and deliver to the Holders of the Notes that are not prohibited
by any law or policy of the Commission from participating in such offer, in
exchange for the Notes, a like aggregate principal amount of the Exchange Notes.
"Registrable Securities" shall mean (i) Notes other than those that
have been (A) registered under a Registration Statement and disposed of in
accordance therewith or (B) distributed to the public pursuant to Rule 144 under
the Act or any successor rule or regulation thereto that may be adopted by the
Commission and (ii) any Exchange Notes the resale of which by the Holder thereof
requires compliance with the prospectus delivery requirements of the Act.
"Registration Statement" shall mean any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Notes or the
Exchange Notes pursuant to the provisions of this Agreement, any amendments and
supplements to such registration statement, including post-effective amendments
(in each case including the Prospectus contained therein), all exhibits thereto
and all material incorporated by reference therein.
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"Shelf Registration" shall mean a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b)
hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 3 hereof which
covers some or all of the Notes or Exchange Notes, as applicable, on an
appropriate form under Rule 415 under the Act, or any similar rule that may be
adopted by the Commission, amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Trustee" shall mean the trustee with respect to the Notes under the
Indenture.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"underwriter" shall mean any underwriter of Notes in connection with an
offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer. (a) The Company shall prepare and, not
later than 120 days following the Closing Date, shall file with the Commission
the Exchange Offer Registration Statement with respect to the Registered
Exchange Offer. The Company shall use its best efforts to cause the Exchange
Offer Registration Statement to become effective under the Act, and the Exchange
Offer to be commenced, within 180 days of the Closing Date. The Company shall
use its best efforts to cause the Exchange Offer to be completed within 210 days
of the Closing Date.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Registered Exchange Offer, it
being the objective of such Registered Exchange Offer to enable each Holder
electing to exchange Notes for Exchange Notes (assuming that such Holder is not
an Affiliate of the Company, acquires the Exchange Notes in the ordinary course
of such Holder's business, has no arrangements with any person to participate in
the distribution of the Exchange Notes and is not prohibited by any law or
policy of the Commission from participating in the Registered Exchange Offer) to
trade such Exchange Notes from and after their receipt without any limitations
or restrictions under the Act and without material restrictions under the
securities laws of a substantial proportion of the several states of the United
States.
(c) In connection with the Registered Exchange Offer, the Company
shall:
(i) mail or cause to be mailed to each Holder a copy of the
Prospectus forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and related
documents;
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(ii) keep the Registered Exchange Offer open for not less than
20 Business Days and not more than 30 Business Days after the date
notice thereof is mailed to the Holders (or, in each case, longer if
required by applicable law);
(iii) use its best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act,
supplemented and amended as required, under the Act to ensure that it
is available for sales of Exchange Notes by Exchanging Dealers during
the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan in The City
of New York, which may be the Trustee or an Affiliate of the Trustee;
(v) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York City time, on the last
Business Day on which the Registered Exchange Offer is open;
(vi) prior to effectiveness of the Exchange Offer Registration
Statement, provide a supplemental letter to the Commission (A) stating
that the Company is conducting the Registered Exchange Offer in
reliance on the position of the Commission in Exxon Capital Holdings
Corporation (pub. avail. May 13, 1988), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co.,
Inc. (pub. avail. June 5, 1991); and (B) including a representation
that the Company has not entered into any arrangement or understanding
with any person to distribute the Exchange Notes to be received in the
Registered Exchange Offer and that, to the best of their information
and belief, each Holder participating in the Registered Exchange Offer
is acquiring the Exchange Notes in the ordinary course of business and
has no arrangement or understanding with any person to participate in
the distribution of the Exchange Notes; and
(vii) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the Registered Exchange
Offer, the Company shall:
(i) accept for exchange all Notes tendered and not validly
withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation in accordance
with Section 4(r) all Notes so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver
to each Holder of Notes a principal amount of Exchange Notes equal to
the principal amount of the Notes of such Holder so accepted for
exchange.
(e) Each Holder hereby acknowledges and agrees that any Broker-Dealer
and any such Holder using the Registered Exchange Offer to participate in a
distribution of the Exchange Notes (x) could not under Commission policy as in
effect on the date of this
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Agreement rely on the position of the Commission in Exxon Capital Holdings
Corporation (pub. avail. May 13, 1988) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (pub.
avail. June 5, 1991), as interpreted in the Commission's letter to Shearman &
Sterling dated July 2, 1993 and similar no-action letters; and (y) must comply
with the registration and prospectus delivery requirements of the Act in
connection with any secondary resale transaction, which must be covered by an
effective registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation S-K under
the Act if the resales are of Exchange Notes obtained by such Holder in exchange
for Notes acquired by such Holder directly from the Company or one of its
Affiliates. Accordingly, each Holder participating in the Registered Exchange
Offer shall be required to represent to the Company that, at the time of the
consummation of the Registered Exchange Offer:
(i) any Exchange Notes received by such Holder will be
acquired in the ordinary course of business;
(ii) such Holder will have no arrangement or understanding
with any person to participate in the distribution of the Notes or the
Exchange Notes within the meaning of the Act; and
(iii) such Holder is not an Affiliate of the Company.
(f) If any Initial Purchaser fails to make such representations or
determines that it is not eligible to participate in the Registered Exchange
Offer with respect to the exchange of Notes constituting any portion of an
unsold allotment, at the request of such Initial Purchaser, the Company shall
issue and deliver to such Initial Purchaser or the person purchasing Exchange
Notes registered under a Shelf Registration Statement as contemplated by Section
3 hereof from such Initial Purchaser, in exchange for such Notes, a like
principal amount of Exchange Notes. The Company shall use its best efforts to
cause the CUSIP Service Bureau to issue the same CUSIP number for such Exchange
Notes as for Exchange Notes issued pursuant to the Registered Exchange Offer.
3. Shelf Registration. (a) If (i) due to any change in law or
applicable interpretations thereof by the Commission's staff, the Company
determines upon advice of its outside counsel that it is not permitted to effect
the Registered Exchange Offer as contemplated by Section 2 hereof; or (ii) for
any other reason the Registered Exchange Offer is not consummated within 210
days of the date hereof; (iii) any Initial Purchaser so requests with respect to
Notes that are not eligible to be exchanged for Exchange Notes in the Registered
Exchange Offer and that are held by it following consummation of the Registered
Exchange Offer; (iv) any Holder (other than an Initial Purchaser) is not
eligible to participate in the Registered Exchange Offer; or (v) in the case of
any Initial Purchaser that participates in the Registered Exchange Offer or
acquires Exchange Notes pursuant to Section 2(f) hereof, such Initial Purchaser
does not receive freely tradeable Exchange Notes in exchange for Notes
constituting any portion of an unsold allotment (it being understood that (x)
the requirement that an Initial Purchaser deliver a Prospectus containing the
information required by Item 507 or 508 of Regulation S-K under the Act in
connection with sales of
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Exchange Notes acquired in exchange for such Notes shall result in such Exchange
Notes being not "freely tradeable"; and (y) the requirement that an Exchanging
Dealer deliver a Prospectus in connection with sales of Exchange Notes acquired
in the Registered Exchange Offer in exchange for Notes acquired as a result of
market-making activities or other trading activities shall not result in such
Exchange Notes being not "freely tradeable"), the Company shall effect a Shelf
Registration Statement in accordance with subsection (b) below.
(b) (i) The Company shall as promptly as practicable (but in no event
more than 60 days after so required or requested pursuant to this Section 3),
file with the Commission and shall use its best efforts to cause to be declared
effective under the Act within 120 days after so required or requested, a Shelf
Registration Statement relating to the offer and sale of the Notes or the
Exchange Notes, as applicable, by the Holders thereof from time to time in
accordance with the methods of distribution elected by such Holders and set
forth in such Shelf Registration Statement; provided, however, that no Holder
(other than an Initial Purchaser) shall be entitled to have the Notes held by it
covered by such Shelf Registration Statement unless such Holder agrees in
writing to be bound by all of the provisions of this Agreement applicable to
such Holder; and provided further, that with respect to Exchange Notes received
by an Initial Purchaser in exchange for Notes constituting any portion of an
unsold allotment, the Company may, if permitted by current interpretations by
the Commission's staff, file a post-effective amendment to the Exchange Offer
Registration Statement containing the information required by Item 507 or 508 of
Regulation S-K, as applicable, in satisfaction of its obligations under this
subsection with respect thereto, and any such Exchange Offer Registration
Statement, as so amended, shall be referred to herein as, and governed by the
provisions herein applicable to, a Shelf Registration Statement.
(ii) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective, supplemented and amended
as required by the Act, in order to permit the Prospectus forming part
thereof to be usable by Holders for a period (the "Shelf Registration
Period") from the date the Shelf Registration Statement is declared
effective by the Commission until the earliest of (A) the second
anniversary thereof, (B) the date upon which all the Notes or Exchange
Notes, as applicable, covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement or (C) the date
upon which the Notes or the Exchange Notes, as applicable, covered by
the Shelf Registration Statement become eligible for resale, without
regard to volume, manner of sale or other restrictions contained in
Rule 144(k) under the Act. The Company shall be deemed not to have used
its best efforts to keep the Shelf Registration Statement effective
during the Shelf Registration Period if it voluntarily takes any action
that would result in Holders of Notes covered thereby not being able to
offer and sell such Notes at any time during the Shelf Registration
Period, unless such action is (x) required by applicable law or
otherwise undertaken by the Company in good faith and for valid
business reasons (not including avoidance of its obligations
hereunder), including the acquisition or divestiture of assets, and (y)
permitted pursuant to Section 4(k)(ii) hereof.
(iii) The Company shall cause the Shelf Registration Statement
and the related Prospectus and any amendment or supplement thereto, as
of the effective date of the Shelf Registration Statement or such
amendment or supplement, (A) to
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comply in all material respects with the applicable requirements of the
Act; and (B) not to contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein (in the case of the
Prospectus, in the light of the circumstances under which they were
made) not misleading; provided, however, that the Company shall have no
responsibility for any information provided by any selling
securityholder and contained in a Shelf Registration Statement.
4. Additional Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply.
(a) The Company shall:
(i) furnish to each of the Initial Purchasers and to counsel
for the Holders, not less than five Business Days prior to the filing
thereof with the Commission, a copy of any Exchange Offer Registration
Statement and any Shelf Registration Statement, and each amendment
thereof and each amendment or supplement, if any, to the Prospectus
included therein (including all documents incorporated by reference
therein after the initial filing) and shall use its best efforts to
reflect in each such document, when so filed with the Commission, such
comments as the counsel for the Holders or counsel for the Initial
Purchasers reasonably propose;
(ii) include the information set forth in Annex A hereto on
the facing page of the Exchange Offer Registration Statement, in Annex
B hereto in the forepart of the Exchange Offer Registration Statement
in a section setting forth details of the Exchange Offer, in Annex C
hereto in the underwriting or plan of distribution section of the
Prospectus contained in the Exchange Offer Registration Statement, and
in Annex D hereto in the letter of transmittal delivered pursuant to
the Registered Exchange Offer;
(iii) if requested by an Initial Purchaser, include the
information required by Item 507 or 508 of Regulation S-K, as
applicable, in the Prospectus contained in the Exchange Offer
Registration Statement or Shelf Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include
the names of the Holders that propose to sell Notes pursuant to the
Shelf Registration Statement as selling security holders.
(b) The Company shall ensure that:
(i) any Registration Statement and any amendment thereto and
any Prospectus forming part thereof and any amendment or supplement
thereto complies in all material respects with the Act; and
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(ii) any Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that the Company shall have no responsibility for
any information provided by any selling securityholder and contained in
a Shelf Registration Statement.
(c) The Company shall advise the Initial Purchasers, the Holders of
Notes covered by any Shelf Registration Statement and any Exchanging Dealer
under any Exchange Offer Registration Statement that has provided in writing to
the Company a telephone or facsimile number and address for notices, and, if
requested by any Initial Purchaser or any such Holder or Exchanging Dealer,
shall confirm such advice in writing (which notice pursuant to clauses (ii)-(v)
hereof shall be accompanied by an instruction to suspend the use of the
Prospectus until the Company shall have remedied the basis for such suspension):
(i) when a Registration Statement and any amendment thereto
has been filed with the Commission and when the Registration Statement
or any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for
additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities
included therein for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires any change in
the Registration Statement or the Prospectus so that, as of such date,
they (A) do not contain any untrue statement of a material fact and (B)
do not omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in the light of the circumstances under which they were
made) not misleading(.)
(d) The Company shall use its best efforts to prevent the issuance of
any order suspending the effectiveness of any Registration Statement or the
qualification of the securities therein for sale in any jurisdiction and, if
issued, to obtain as soon as possible the withdrawal thereof.
(e) The Company shall furnish to each Holder of Notes covered by any
Shelf Registration Statement, without charge, at least one copy of such Shelf
Registration Statement and any post-effective amendment thereto, including all
material incorporated therein by
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reference, and, if the Holder so requests in writing, all exhibits thereto
(including exhibits incorporated by reference therein).
(f) The Company shall, during the Shelf Registration Period, deliver to
each Holder of Notes covered by any Shelf Registration Statement, without
charge, as many copies of the Prospectus (including the Preliminary Prospectus)
included in such Shelf Registration Statement and any amendment or supplement
thereto as such Holder may reasonably request. The Company consents to the use
of the Prospectus or any amendment or supplement thereto by each of the selling
Holders of Notes in connection with the offering and sale of the Notes covered
by the Prospectus, or any amendment or supplement thereto, included in the Shelf
Registration Statement.
(g) The Company shall furnish to each Exchanging Dealer which so
requests, without charge, at least one conformed copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including all
material incorporated by reference therein, and, if the Exchanging Dealer so
requests in writing, all exhibits thereto (including exhibits incorporated by
reference therein).
(h) The Company shall promptly deliver to each Initial Purchaser, each
Exchanging Dealer and each other person required to deliver a Prospectus during
the Exchange Offer Registration Period, without charge, as many copies of the
Prospectus included in such Exchange Offer Registration Statement and any
amendment or supplement thereto as any such person may reasonably request. The
Company consents to the use of the Prospectus or any amendment or supplement
thereto by any Initial Purchaser, any Exchanging Dealer and any such other
person that may be required to deliver a Prospectus following the Registered
Exchange Offer in connection with the offering and sale of the Exchange Notes
covered by the Prospectus, or any amendment or supplement thereto, included in
the Exchange Offer Registration Statement.
(i) Prior to the Registered Exchange Offer or any other offering of
Notes pursuant to any Registration Statement, the Company shall arrange, if
necessary, for the registration or qualification of the Notes or the Exchange
Notes for sale under the laws of such jurisdictions as any Holder shall
reasonably request and shall maintain such qualification in effect so long as
required; provided that in no event shall the Company be obligated to qualify to
do business in any jurisdiction where it is not then so qualified or to take any
action that would subject it to service of process in suits, other than those
arising out of the Initial Placement, the Registered Exchange Offer or any
offering pursuant to a Shelf Registration Statement, in any such jurisdiction
where it is not then so subject.
(j) The Company shall cooperate with the Holders of Notes to facilitate
the timely preparation and delivery of certificates representing Exchange Notes
or Notes to be issued or sold pursuant to any Registration Statement free of any
restrictive legends and in such denominations and registered in such names as
Holders may request.
(k) (i) Upon the occurrence of any event contemplated by subsections
(c)(ii) through (v) above, the Company shall promptly (or within the time period
provided for by clause (ii) hereof, if applicable) prepare a post-effective
amendment to the
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applicable Registration Statement or an amendment or supplement to the related
Prospectus or file any other required document so that, as thereafter delivered
to Initial Purchasers of the Notes included therein, the Prospectus will not
include an untrue statement of a material fact or omit to state any 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
such circumstances, the period of effectiveness of the Exchange Offer
Registration Statement provided for in Section 2 shall be extended by the number
of days from and including the date of the giving of a notice of suspension
pursuant to Section 4(c) to and including the date when the Initial Purchasers,
the Holders of the Notes and any known Exchanging Dealer shall have received
such amended or supplemented Prospectus pursuant to this Section.
(ii) Upon the occurrence or existence of any pending corporate
development or any other material event that, in the reasonable
judgment of the Company, makes it appropriate to suspend the
availability of a Shelf Registration Statement and the related
Prospectus, the Company shall give notice (without notice of the nature
or details of such events) to the Holders that the availability of the
Shelf Registration is suspended and, upon actual receipt of any such
notice, each Holder agrees not to sell any Registrable Securities
pursuant to the Shelf Registration until such Holder's receipt of
copies of the supplemented or amended Prospectus provided for in
Section 3(i) hereof, or until it is advised in writing by the Company
that the Prospectus may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed
incorporated by reference in such Prospectus. The period during which
the availability of the Shelf Registration and any Prospectus is
suspended (the "Deferral Period") shall not exceed 30 days in any
three-month period or 60 days in any twelve-month period. In no event
shall the Company indicate to any Holder the particulars of the
corporate development or other material event unless and until the
Prospectus has been publicly amended or supplemented to address the
development or event.
(l) Not later than the effective date of any Registration Statement,
the Company shall provide a CUSIP number for the Notes or the Exchange Notes, as
the case may be, registered under such Registration Statement and provide the
Trustee with printed certificates for such Notes or Exchange Notes, in a form
eligible for deposit with The Depository Trust Company.
(m) The Company shall comply with all applicable rules and regulations
of the Commission and shall make generally available to its security holders an
earnings statement satisfying the provisions of Section 11(a) of the Act as soon
as practicable after the effective date of the applicable Registration Statement
and in any event no later than 45 days after the end of a 12-month period (or 90
days, if such period is a fiscal year) beginning with the first month of the
Company's first fiscal quarter commencing after the effective date of the
applicable Registration Statement.
(n) The Company shall cause the Indenture to be qualified under the
Trust Indenture Act in a timely manner.
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(o) The Company may require each Holder of Notes to be sold pursuant to
any Shelf Registration Statement to furnish to the Company such information
regarding the Holder and the distribution of such Notes as the Company may from
time to time reasonably require for inclusion in such Registration Statement.
The Company may exclude from such Shelf Registration Statement the Notes of any
Holder that unreasonably fails to furnish such information within a reasonable
time after receiving such request.
(p) In the case of any Shelf Registration Statement, the Company shall
enter into customary agreements (including, if requested, an underwriting
agreement in customary form) and take all other appropriate actions in order to
expedite or facilitate the registration or the disposition of the Notes, and in
connection therewith, if an underwriting agreement is entered into, cause the
same to contain indemnification provisions and procedures no less favorable than
those set forth in Section 6 hereof.
(q) In the case of any Shelf Registration Statement, the Company shall:
(i) make reasonably available for inspection by the Holders of
Notes to be registered thereunder, any underwriter participating in any
disposition pursuant to such Registration Statement, and any attorney,
accountant or other agent retained by the Holders or any such
underwriter all relevant financial and other records and pertinent
corporate documents of the Company and its subsidiaries;
(ii) cause the officers, directors, employees, accountants and
auditors of the Company to supply all relevant information reasonably
requested by the Holders or any such underwriter, attorney, accountant
or agent in connection with any such Registration Statement as is
customary for similar due diligence examinations;
(iii) make such representations and warranties to the Holders
of Notes registered thereunder and the underwriters, if any, in form,
substance and scope as are customarily made by companies to
underwriters in primary underwritten offerings and covering matters
including, but not limited to, those set forth in the Purchase
Agreement;
(iv) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Managing Underwriters, if any)
addressed to each selling Holder and the underwriters, if any, covering
such matters as are customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably
requested by such Holders and Managing Underwriters;
(v) obtain "comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required
to be, included in the Registration Statement),
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addressed to each selling Holder of Notes registered thereunder and the
underwriters, if any, in customary form and covering matters of the
type customarily covered in "comfort" letters in connection with
primary underwritten offerings; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders or the Managing
Underwriters, if any, including those to evidence compliance with
Section 4(k) and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this paragraph (q)
shall be performed at (A) the effectiveness of such Registration Statement and
each post-effective amendment thereto; and (B) each closing under any
underwriting or similar agreement as and to the extent required thereunder.
(r) If a Registered Exchange Offer is to be consummated, upon delivery
of the Notes by Holders to the Company (or to such other person as directed by
the Company) in exchange for the Exchange Notes, the Company shall ▇▇▇▇, or
caused to be marked, on the Notes so exchanged that such Notes are being
cancelled in exchange for the Exchange Notes. In no event shall the Notes be
marked as paid or otherwise satisfied.
(s) The Company shall use its best efforts if the Notes have been rated
prior to the initial sale of such Notes, to confirm such ratings will apply to
the Notes or the Exchange Notes, as the case may be, covered by a Registration
Statement.
(t) In the event that any Broker-Dealer shall underwrite any Notes or
participate as a member of an underwriting syndicate or selling group or "assist
in the distribution" (within the meaning of the NASD Rules) thereof, whether as
a Holder of such Notes or as an underwriter, a placement or sales agent or a
broker or dealer in respect thereof, or otherwise, the Company shall assist such
Broker-Dealer in complying with the NASD Rules.
(u) The Company shall use its best efforts to take all other steps
necessary to effect the registration of the Notes or the Exchange Notes, as the
case may be, covered by a Registration Statement.
5. Registration Expenses. The Company shall bear all expenses incurred
in connection with the performance of its obligations under Sections 2, 3 and 4
hereof and, in the event of any Shelf Registration Statement, will reimburse the
Holders for the reasonable fees and disbursements of one firm or counsel (which
shall initially be ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, but which may be another
nationally recognized law firm experienced in securities matters designated by
the Majority Holders) to act as counsel for the Holders in connection therewith.
6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Initial
Purchaser and each Holder, their respective affiliates, directors and officers
and each Person, if any, who controls any Initial Purchaser or any Holder within
the meaning of Section 15 of the
13
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, legal
fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted, as such fees and expenses are incurred), that
arise out of, or are based upon, any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or any
Prospectus or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except insofar as such losses, claims, damages or liabilities arise
out of, or are based upon, any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with any
information relating to any Initial Purchaser or information relating to any
Holder furnished to the Company in writing through Banc of America Securities
LLC, Barclays Capital Inc., or any selling Holder expressly for use therein. In
connection with any underwritten offering permitted by this Agreement, the
Company will also indemnify the underwriters, if any, selling brokers, dealers
and similar securities industry professionals participating in the distribution,
their respective affiliates and each Person who controls such Persons (within
the meaning of the Securities Act and the Exchange Act) to the same extent as
provided above with respect to the indemnification of the Holders, if requested
in connection with any Registration Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company, the Initial Purchasers and the other selling Holders,
the directors of the Company, each officer of the Company who signed the
Registration Statement and each Person, if any, who controls the Company, any
Initial Purchaser and any other selling Holder within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act to the same extent as
the indemnity set forth in Section 6(a) above, but only with respect to any
losses, claims, damages or liabilities that arise out of, or are based upon, any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information relating to such Holder
furnished to the Company in writing through Banc of America Securities LLC,
Barclays Capital Inc., or any selling Holder expressly for use in any
Registration Statement or any Prospectus.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnification may be sought pursuant to either
Section 6(a) or 6(b) above, such Person (the "Indemnified Person") shall
promptly notify the Person against whom such indemnification may be sought (the
"Indemnifying Person") in writing; provided that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have
under this Section 6 except to the extent that it has been prejudiced by such
failure; and provided, further, that the failure to notify the Indemnifying
Person shall not relieve it from any liability that it may have to an
Indemnified Person otherwise than under this Section 6. If any such proceeding
shall be brought or asserted against an Indemnified Person and it shall have
notified the Indemnifying Person thereof, the Indemnifying Person shall be
entitled to participate therein and, to the extent it wishes, jointly with any
other similarly notified Indemnifying Party, to assume the defense thereof with
counsel reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others entitled to indemnification pursuant to this
Section 6 that the Indemnifying Person may designate in such proceeding and
shall pay the fees and expenses of such counsel related to such proceeding, as
incurred. After notice from the Indemnifying Party to the Indemnified Party of
its
14
election to assume the defense of such proceeding, the Indemnifying Party shall
not be liable to the Indemnified Party under this Section 6 for any legal or
other expenses subsequently incurred by the Indemnified Party in connection with
the defense thereof other than reasonable costs of investigation; provided,
however, that in any such proceeding, any Indemnified Person shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such Indemnified Person unless (i) the Indemnifying Person
and the Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; or (iii) the named parties in
any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel, in the judgment of the Indemnified Person, would be
inappropriate due to actual or potential differing interests between them or
differing legal defenses available to them. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm (x) for any Initial Purchaser, its affiliates,
directors and officers and any control Persons of such Initial Purchaser shall
be designated in writing by Banc of America Securities LLC and Barclays Capital
Inc., (y) for any Holder, its directors and officers and any control Persons of
such Holder shall be designated in writing by the Majority Holders and (z) in
all other cases shall be designated in writing by the Company. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify each
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested that an Indemnifying Person reimburse
the Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by the Indemnifying Person of such
request and (ii) the Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnification could have been sought hereunder by such Indemnified
Person, unless such settlement (A) includes an unconditional release of such
Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of
such proceeding and (B) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
(d) If the indemnification provided for in Sections 6(a) and 6(b) above
is unavailable to an Indemnified Person or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company from the offering of the Notes and the Exchange
Notes, on the one hand, and by the Holders from
15
receiving Notes or Exchange Notes registered under the Securities Act, on the
other hand, or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) but also the relative fault of the
Company on the one hand and the Holders on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company on the one hand and the Holders on the other shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the Holders
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Company and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 6 were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable
considerations referred to in Section 6(d) above. The amount paid or payable by
an Indemnified Person as a result of the losses, claims, damages and liabilities
referred to in Section 6(d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with any such action or claim. Notwithstanding
the provisions of this Section 6, in no event shall a Holder be required to
contribute any amount in excess of the amount by which the total price at which
the Notes or Exchange Notes sold by such Holder exceeds the amount of any
damages that such Holder 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.
(f) The remedies provided for in this Section 5 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to any
Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained in this Section
6 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Initial Purchasers or any Holder or any Person controlling any Initial
Purchaser or any Holder, or by or on behalf of the Company or the officers or
directors of or any Person controlling the Company, (iii) acceptance of any of
the Exchange Notes and (iv) any sale of Registrable Notes pursuant to a Shelf
Registration Statement.
7. Underwritten Registrations. (a) If any of the Notes or Exchange
Notes, as the case may be, covered by any Shelf Registration Statement are to be
sold in an underwritten offering, the Managing Underwriters shall be selected by
the Majority Holders.
(b) No person may participate in any underwritten offering pursuant to
any Shelf Registration Statement, unless such person (i) agrees to sell such
person's Notes or Exchange Notes, as the case may be, on the basis reasonably
provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements; and
16
(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. Registration Defaults. If any of the following events shall occur,
then the Company shall pay additional interest ("Additional Interest") to the
Holders of Notes in respect of the Notes as follows:
(a) if any Exchange Offer Registration Statement required by this
Agreement is not filed with the Commission on or prior to the date 120 days
after the Closing Date, then Additional Interest shall accrue on the Registrable
Securities at a rate of 0.25% per annum for the first 90 days from and including
such specified date and 0.50% per annum thereafter; or
(b) if any Exchange Offer Registration Statement required by this
Agreement is not declared effective by the Commission, or the Exchange Offer not
commenced, on or prior to the date 180 days after the Closing Date, then
commencing on the day after such specified date, Additional Interest shall
accrue on the Registrable Securities at a rate of 0.25% per annum for the first
90 days from and including such specified date and 0.50% per annum thereafter;
or
(c) if the Exchange Offer is not completed on or prior to the date 210
days after the Closing Date, then commencing on the day after such specified
date, Additional Interest shall accrue on the Registrable Securities at a rate
of 0.25% per annum for the first 90 days from and including such date on which
the Registration Statement ceases to be effective and 0.50% per annum
thereafter; or
(d) if any Shelf Registration Statement required by this Agreement is
not filed with the Commission on or prior to the date 60 days after the date the
obligation for such filing arose, then Additional Interest shall accrue on the
Registrable Securities at a rate of 0.25% per annum for the first 90 days from
and including such specified date and 0.50% per annum thereafter; or
(e) if any Shelf Registration Statement required by this Agreement is
not declared effective by the Commission on or prior to the date 120 days after
the date the obligation for such filing arose, then Additional Interest shall
accrue on the Registrable Securities at a rate of 0.25% per annum for the first
90 days from and including such specified date and 0.50% per annum thereafter;
or
(f) if any Registration Statement required by this Agreement has been
declared effective but ceases to be effective at any time at which it is
required to be effective under this Agreement, then commencing on the day the
Registration Statement ceases to be effective, Additional Interest shall accrue
on the Registrable Securities at a rate of 0.25% per annum for the first 90 days
from and including such date on which the Registration Statement ceases to be
effective and 0.50% per annum thereafter;
provided, however, that (1) upon the filing of the Registration Statement (in
the case of paragraphs (a) and (d) above), (2) upon the effectiveness of the
Registration Statement (in the case of paragraphs (b) and (e) above), (3) upon
the completion of the Exchange Offer (in the case of paragraph (c) above), (3)
upon the effectiveness of the Registration Statement which had ceased to remain
effective (in the case
17
of paragraph (f) above), Additional Interest shall cease to accrue; provided,
further, that the Company shall not be obligated to pay Additional Interest for
more than one of the above-described defaults at any given time.
9. No Inconsistent Agreements. The Company has not entered into, and
agrees not to enter into, any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders herein or that otherwise
conflicts with the provisions hereof.
10. Amendments and Waivers. The provisions of this Agreement may not be
amended, qualified, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the Company has
obtained the written consent of the Holders of a majority of the aggregate
principal amount of the Registrable Securities outstanding; provided that, with
respect to any matter that directly or indirectly adversely affects the rights
of any Initial Purchaser hereunder, the Company shall obtain the written consent
of each such Initial Purchaser against which such amendment, qualification,
supplement, waiver or consent is to be effective; provided, further, that no
amendment, qualification, supplement, waiver or consent with respect to Section
8 hereof shall be effective as against any Holder of Registered Securities
unless consented to in writing by such Holder; and provided, further, that the
provisions of this Section 10 may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of the
Initial Purchasers and each Holder. Notwithstanding the foregoing (except the
foregoing provisos), a waiver or consent to departure from the provisions hereof
with respect to a matter that relates exclusively to the rights of Holders whose
Notes or Exchange Notes, as the case may be, are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by the Majority Holders, determined on the
basis of Notes or Exchange Notes, as the case may be, being sold rather than
registered under such Registration Statement.
11. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such holder to
the Company in accordance with the provisions of this Section 11, which address
initially is, with respect to each Holder, the address of such Holder maintained
by the Registrar under the Indenture;
(b) if to the Initial Purchasers, initially at the addresses of the
Initial Purchasers set forth in the Purchase Agreement; and
(c) if to the Company, initially at the address set forth in the
Purchase Agreement.
All such notices and communications shall be in writing and shall be
deemed to have been given (a) upon personal delivery, if delivered by hand, (b)
three days after the date of deposit in the mails, postage prepaid, if mailed by
certified or registered mail, or (c) the next
18
business day if sent by facsimile transmission (if receipt is electronically
confirmed) or by a prepaid overnight courier service.
The Initial Purchasers or the Company by notice to the other parties
may designate additional or different addresses for subsequent notices or
communications.
12. Remedies. Each Holder, in addition to being entitled to exercise
all rights provided to it herein, in the Indenture or in the Purchase Agreement
or granted by law, will be entitled to specific performance of its rights under
this Agreement. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agrees to waive in any action for specific
performance the defense that a remedy at law would be adequate.
13. Successors. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their respective successors and assigns,
including, without the need for an express assignment or any consent by the
Company thereto, subsequent Holders of Notes and the Exchange Notes, and the
indemnified persons referred to in Section 6 hereof. The Company hereby agrees
to extend the benefits of this Agreement to any Holder of Notes and the Exchange
Notes (other than with respect to Notes or Exchange Notes, a Holder and any such
Holder may specifically enforce the provisions of this Agreement as if an
original party hereto.
14. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
15. Headings. The section headings used herein are for convenience only
and shall not affect the construction hereof.
16. Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York. The parties hereto each
hereby waive any right to trial by jury in any action, proceeding or
counterclaim arising out of or relating to this Agreement.
17. Severability. In the event that any one of more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
18. Notes Held by the Company, etc. Whenever the consent or approval of
Holders of a specified percentage of principal amount of Notes or Exchange Notes
is required hereunder, Notes or Exchange Notes, as applicable, held by the
Company or its Affiliates (other than subsequent Holders of Notes or Exchange
Notes if such subsequent Holders are deemed to be Affiliates solely by reason of
their holdings of such Notes or Exchange Notes) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
19
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Initial Purchasers.
Very truly yours,
THE VALSPAR CORPORATION
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
& Chief Financial Officer
20
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
BANC OF AMERICA SECURITIES LLC
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
BARCLAYS CAPITAL INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
21
ANNEX A
Each broker-dealer that receives new securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such new securities. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Act. This prospectus, as it may be amended or supplemented from
time to time, may be used by a broker-dealer in connection with resales of new
securities received in exchange for securities where such securities were
acquired by such broker-dealer as a result of market-making activities or other
trading activities. The Company has agreed that, starting on the expiration date
of the exchange offer and ending on the close of business one year after the
expiration date, it will make this prospectus available to any broker-dealer for
use in connection with any such resale. See "Plan of Distribution".
A-1
ANNEX B
Each broker-dealer that receives new securities for its own account in
exchange for securities, where such securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such new securities. See "Plan of Distribution".
B-1
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives new securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such new securities. This
prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of new securities received in
exchange for securities where such securities were acquired as a result of
market-making activities or other trading activities. The Company has agreed
that, starting on the expiration date and ending on the close of business one
year after the expiration date, it will make this prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any such
resale. In addition, until ______________, 20__, all dealers effecting
transactions in the new securities may be required to deliver a prospectus.
The Company will not receive any proceeds from any sale of new
securities by brokers-dealers. New securities received by broker-dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the new securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer and/or the purchasers of any such new
securities. Any broker-dealer that resells new securities that were received by
it for its own account pursuant to the Exchange Offer and any broker or dealer
that participates in a distribution of such new securities may be deemed to be
an "underwriter" within the meaning of the Act and any profit of any such resale
of new securities and any commissions or concessions received by any such
persons may be deemed to be underwriting compensation under the Act. The Letter
of Transmittal states that by acknowledging that it will deliver and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Act.
For a period of one year after the expiration date, the Company will
promptly send additional copies of this prospectus and any amendment or
supplement to this prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
holder of the securities) other than commissions or concessions of any brokers
or dealers and will indemnify the holders of the securities (including any
broker-dealers) against certain liabilities, including liabilities under the
Act.
[If applicable, add information required by Regulation S-K Items 507
and/or 508.]
C-1
ANNEX D
Rider A
-------
PLEASE FILL IN YOUR NAME AND ADDRESS BELOW IF YOU ARE A BROKER-DEALER AND WISH
TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
------------------------------
Address:
------------------------------
------------------------------
Rider B
-------
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the Exchange Notes in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of Exchange Notes
and it has no arrangements or understandings with any person to participate in a
distribution of the Exchange Notes. If the undersigned is a Broker-Dealer that
will receive Exchange Notes for its own account in exchange for Notes, it
represents that the Notes to be exchange for Exchange Notes were acquired by it
as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Notes; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Act.
D-1