1
REGISTRATION RIGHTS AGREEMENT Exhibit 4.4
March 18, 1998
SOCIETE GENERALE SECURITIES CORPORATION
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
DAY INTERNATIONAL GROUP, INC., a Delaware corporation (the
"Company"), proposes to issue and sell to you (the "Initial Purchaser"), upon
the terms set forth in a purchase agreement dated March 13, 1997 (the "Purchase
Agreement"), $115,000,000 principal amount of its 9 1/2% Senior Subordinated
Notes due 2008 (the "Notes") and 35,000 shares of its 12 1/4% Senior
Exchangeable Preferred Stock due 2010 (Liquidation Preference $1,000 per share)
(the "Preferred Stock"). The Notes are to be issued pursuant to an Indenture
dated as of March 18, 1998 (the "Indenture") to be entered into among the
Company, the subsidiary listed on the signature page to the Purchase Agreement
(the "Guarantor") and The Bank of New York, as trustee (the "Trustee"). Pursuant
to the terms of the Company's Certificate of Designations for the Preferred
Stock (the "Certificate of Designations"), the Preferred Stock shall be
exchangeable, in whole and not in part, at the option of the Company, into 12
1/4% Exchange Debentures due 2010 (the "Debentures," together with the Notes and
the Preferred Stock, the "Securities"), which, when issued, shall be issued
pursuant to the provisions of an indenture (the "Debenture Indenture") between
the Company and The Bank of New York, as trustee (the "Debenture Trustee").
Payment of principal and interest on the Notes will be unconditionally
guaranteed (the "Guarantee"), jointly and severally, on a senior subordinated
basis by the Guarantor. Capitalized terms used but not specifically defined
herein have the respective meanings ascribed thereto in the Purchase Agreement.
As an inducement to the Initial Purchaser to enter into the Purchase Agreement
and in satisfaction of a condition to your obligations thereunder, the Company
agrees with you, for the benefit of the holders (including the Initial
Purchaser) of the Securities (collectively, the "Holders"), as follows:
2
1. Registered Exchange Offer. The Company shall prepare and, not
later than 60 days following the date of issuance of the Notes and the Preferred
Stock by the Company to the Initial Purchaser, or, if applicable, the date of
issuance of the Debentures by the Company to the Holders (in each case, the
"Issue Date"), the Company and the Guarantor shall file with the Commission a
registration statement (the "Exchange Offer Registration Statement") on Form S-1
or Form S-4, if the use of such form is then available, or on an appropriate
form under the Securities Act with respect to a registered exchange offer (the
"Exchange Offer") to the Holders to issue and deliver to such Holders: (i) in
exchange for the Notes, a like aggregate principal amount of debt securities of
the Company (the "Exchange Notes"), (ii) in exchange for the Preferred Stock, a
like aggregate liquidation preference of equity securities of the Company (the
"Exchange Preferred Stock") or (iii) in exchange for the Debentures, a like
aggregate principal amount of debt securities of the Company (the "Exchange
Debentures," together with the Exchange Notes and the Exchange Preferred Stock,
the "Exchange Securities"), as applicable, with such Exchange Securities being
identical in all material respects to the corresponding Securities, except for
the transfer restrictions relating to the Securities. The Company shall use its
best efforts to cause the Exchange Offer Registration Statement to (a) be
declared effective under the Securities Act no later than 150 days after the
Issue Date and (b) be consummated as promptly as practicable, but in any event
no later than 165 days after the Issue Date. The Company also shall keep the
Exchange Offer Registration Statement effective for not less than 30 business
days (or longer, if required by applicable law) after the date notice of the
Exchange Offer is mailed to the Holders (such period being called the "Exchange
Offer Registration Period").
The Exchange Notes will be issued under the Indenture or an
indenture (the "Exchange Notes Indenture") among the Company, the Guarantor and
the Trustee or such other bank or trust company reasonably satisfactory to you,
as trustee (the "Exchange Notes Trustee"), with such indenture to be identical
in all material respects to the Indenture except for the transfer restrictions
relating to the Notes (as described above). The Exchange Debentures will be
issued under the Debenture Indenture or an indenture (the "Exchange Debenture
Indenture") between the Company and the Debenture Trustee or such other bank or
trust company reasonably satisfactory to you, as trustee (the "Exchange
Debenture Trustee"), with such indenture to be identical in all material
respects to the Debenture Indenture except for the transfer restrictions
relating to the Debentures (as described above). The Exchange Preferred Stock
will be issued under the Certificate of Designations or a certificate of
designations (the "Exchange Certificate of Designations") by the Company, with
such certificate of designations to be identical in all material respects to the
Certificate of Designations except for the transfer restrictions relating to the
Preferred Stock (as described above).
2
3
As soon as practicable after the effectiveness of the Exchange
Offer Registration Statement, the Company shall commence the Exchange Offer, it
being the objective of such Exchange Offer to enable each Holder electing to
exchange Securities for Exchange Securities (assuming that such Holder (a) is
not (i) an affiliate of the Company within the meaning of the Securities Act or
(ii) an Exchanging Dealer (as defined below) not complying with the requirements
of the next sentence, (b) acquires the Exchange Securities in the ordinary
course of such Holder's business and (c) has no arrangements or understandings
with any person to participate in the distribution of the Exchange Securities)
and to trade such Exchange Securities from and after their receipt without any
limitations or restrictions under the Securities Act and without material
restrictions under the securities laws of the several states of the United
States. The Company, the Initial Purchaser and each Exchanging Dealer (as
defined below) acknowledge that, pursuant to current interpretations by the
Commission's staff of Section 5 of the Securities Act, (i) each Holder which is
a broker-dealer electing to exchange Securities, acquired for its own account as
a result of market making activities or other trading activities, for Exchange
Securities (an "Exchanging Dealer"), is required to deliver a prospectus
containing the information set forth in Annex A hereto on the cover, in Annex B
hereto in the "Exchange Offer Procedures" section and the "Purpose of the
Exchange Offer" section, and in Annex C hereto in the "Plan of Distribution"
section of such prospectus in connection with a sale of any such Exchange
Securities received by such Exchanging Dealer pursuant to the Exchange Offer and
(ii) if the Initial Purchaser elects to sell Exchange Securities acquired in
exchange for Securities constituting any portion of an unsold allotment it is
required to deliver a prospectus containing the information required by Items
507 or 508 of Regulation S-K under the Securities Act, as applicable, in
connection with such a sale.
In connection with the Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(b) keep the Exchange Offer open for not less than 30 days after
the date notice of the Exchange Offer is mailed to the Holders (or longer
if required by applicable law);
(c) utilize the services of a Depositary for the Exchange Offer
with an address in the Borough of Manhattan, The City of New York;
3
4
(d) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last business day on
which the Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws applicable to
the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the
Company shall:
(a) accept for exchange all Securities tendered and not validly
withdrawn pursuant to the Exchange Offer;
(b) deliver to the transfer agent (for the Preferred Stock) (the
"Transfer Agent"), the Trustee or the Debenture Trustee, as applicable, for
cancellation all Securities so accepted for exchange; and
(c) cause the Transfer Agent, the Trustee or the Exchange Notes
Trustee, as the case may be, or, if applicable, the Debenture Trustee or
the Exchange Debenture Trustee, as the case may be, promptly to
authenticate and deliver to each Holder of Securities, Exchange Securities
equal in principal amount or liquidation preference, as applicable, to the
Securities of such Holder so accepted for exchange.
The Company and the Guarantor shall use their best efforts to keep
the Exchange Offer Registration Statement effective and to amend and supplement
the prospectus contained therein in order to permit such prospectus to be used
by all persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as such persons must comply with such requirements
in order to resell the Exchange Securities; provided that (i) in the case where
such prospectus and any amendment or supplement thereto must be delivered by an
Exchanging Dealer, such period shall be the lesser of 180 days and the date on
which all Exchanging Dealers have sold all Exchange Securities held by them and
(ii) the Company shall make such prospectus and any amendment or supplement
thereto available to any broker-dealer for use in connection with any resale of
any Exchange Securities for a period of not less than 90 days after the
consummation of the Exchange Offer.
The Certificate of Designations or the Exchange Certificate of
Designations, as the case may be; the Indenture or the Exchange Notes Indenture,
as the case may be; or, if applicable, the Debenture Indenture or the Exchange
Debenture Indenture, as the case may be, shall provide that each general type of
Securities and the corresponding Exchange Securities thereto shall vote and
consent together on all matters as one class
4
5
and that none of each general type of Securities or the corresponding Exchange
Securities will have the right to vote or consent as a separate class on any
matter.
Interest or dividends, as the case may be, on each Exchange
Security issued pursuant to the Exchange Offer will accrue from the last
interest or dividend payment date on which interest or dividends were paid on
the Securities surrendered in exchange therefor or, if no interest or dividends
have been paid on the Securities, from the date of original issue of the
Securities.
Each Holder participating in the Exchange Offer shall be required
to represent to the Company that at the time of the consummation of the Exchange
Offer (i) any Exchange Securities received by such Holder will be acquired in
the ordinary course of business, (ii) such Holder will have no arrangements or
understanding with any person to participate in the distribution of the
Securities or the Exchange Securities within the meaning of the Securities Act
and (iii) such Holder is not an affiliate of the Company within the meaning of
the Securities Act, or if it is an affiliate, it will comply with the
registration and prospectus delivery requirements of the Securities Act to the
extent applicable.
Notwithstanding any other provisions hereof, the Company will
ensure that (i) any Exchange Offer Registration Statement and any amendment
thereto and any prospectus forming part thereof and any supplement thereto
complies in all material respects with the Securities Act and the rules and
regulations thereunder, (ii) any Exchange Offer Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) any prospectus forming part of any Exchange Offer Registration Statement,
and any supplement to such prospectus, does not include, as of the consummation
of the Exchange Offer, an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
2. Shelf Registration. If (i) because of any change in law or
applicable interpretations thereof by the Commission the Company is not
permitted to effect the Exchange Offer as contemplated by Section 1 hereof, or
(ii) for any other reason the Exchange Offer is not consummated within 165 days
after the Issue Date, or (iii) the Initial Purchaser so requests with respect to
Securities not eligible to be exchanged for Exchange Securities in the Exchange
Offer and held by it following the consummation of the Exchange Offer, or (iv)
any applicable law or interpretations do not permit any Holder to participate in
the Exchange Offer, or (v) any Holder that participates in the Exchange
5
6
Offer does not receive freely transferable Exchange Securities in exchange for
tendered Securities, or (vi) the Company so elects, then the following
provisions shall apply:
(a) The Company and the Guarantor shall use their best efforts to
as promptly as practicable file with the Commission and thereafter shall use
their best efforts to cause to be declared effective a shelf registration
statement on an appropriate form under the Securities Act relating to the offer
and sale of the Transfer Restricted Securities (as defined below) by the Holders
from time to time in accordance with the methods of distribution set forth in
such registration statement (hereafter, a "Shelf Registration Statement" and,
together with any Exchange Offer Registration Statement, a "Registration
Statement").
(b) The Company and the Guarantor shall use their best efforts to
keep the Shelf Registration Statement continuously effective in order to permit
the prospectus forming part thereof to be usable by Holders for a period of
three years from the Issue Date or such shorter period that will terminate when
all the Securities and Exchange Securities covered by the Shelf Registration
Statement (i) have been sold pursuant to the Shelf Registration Statement or
(ii) are distributed to the public pursuant to Rule 144 under the Securities Act
or are saleable pursuant to Rule 144(k) under the Securities Act (in any such
case, such period being called the "Shelf Registration Period"). The Company and
the Guarantor shall be deemed not to have used their reasonable best efforts to
keep the Shelf Registration Statement effective during the requisite period if
they voluntarily take any action that would result in Holders of Securities or
Exchange Securities covered thereby not being able to offer and sell such
Securities or Exchange Securities during that period, unless such action is
required by applicable law.
(c) Notwithstanding any other provisions hereof, the Company and
the Guarantor will ensure that (i) any Shelf Registration Statement and any
amendment thereto and any prospectus forming part thereof and any supplement
thereto complies in all material respects with the Securities Act and the rules
and regulations thereunder, (ii) any Shelf Registration Statement and any
amendment thereto (in either case, other than with respect to information
included therein in reliance upon or in conformity with written information
furnished to the Company by or on behalf of any Holder specifically for use
therein (the "Holders' Information")) does not, when it becomes effective,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading and (iii) any prospectus forming part of any Shelf Registration
Statement, and any supplement to such prospectus (in either case, other than
with respect to Holders' Information), does not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
6
7
3. Liquidated Damages. (a) The parties hereto agree that the
Holders of Securities will suffer damages if the Company and the Guarantor fail
to fulfill their obligations under Section 1 or Section 2, as applicable, and
that it would not be feasible to ascertain the extent of such damages.
Accordingly, if (i) the applicable Registration Statement is not filed with the
Commission on or prior to 60 days after the Issue Date, (ii) the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may be,
is not declared effective within 150 days after the Issue Date (or in the case
of a Shelf Registration Statement required to be filed in response to a change
in law or the applicable interpretations of Commission's Staff, if later, within
60 days after publication of the change in law or interpretation), (iii) the
Exchange Offer is not consummated on or prior to 165 days after the Issue Date,
or (iv) the Shelf Registration Statement is filed and declared effective within
150 days after the Issue Date (or in the case of a Shelf Registration Statement
required to be filed in response to a change in law or the applicable
interpretations of Commission's Staff, if later, within 60 days after
publication of the change in law or interpretation) but shall thereafter cease
to be effective (at any time that the Company is obligated to maintain the
effectiveness thereof) without being succeeded within 30 days by an additional
Registration Statement filed and declared effective (each such event referred to
in clauses (i) through (iv), a "Registration Default"), then as liquidated
damages, (x) the interest rate borne by the Transfer Restricted Securities (as
defined below), with respect to the first 90-day period immediately following
the occurrence of any Registration Default will increase by an amount equal to
$.05 per week per $1,000 aggregate principal amount of Transfer Restricted
Securities held by such Holder and (y) the interest rate borne by the Transfer
Restricted Securities will increase by an additional $.05 per week per $1,000
aggregate principal amount of Transfer Restricted Securities with respect to
each subsequent 90-day period until all Registration Defaults shall have been
cured, up to a maximum increase in the interest rate of $.30 per week per $1,000
aggregate principal amount of Transfer Restricted Securities held by such
Holder. Following the cure of all Registration Defaults, the accrual of
liquidated damages will cease. "Transfer Restricted Securities" means each
Security or Exchange Security until (i) the date on which such Security or
Exchange Security has been exchanged for a freely transferrable Exchange
Security in the Exchange Offer, (ii) the date on which such Security or Exchange
Security has been effectively registered under the Securities Act and disposed
of in accordance with the Shelf Registration Statement or (iii) the date on
which such Security or Exchange Security is distributed to the public pursuant
to Rule 144 under the Securities Act or is salable pursuant to Rule 144(k) under
the Securities Act. Notwithstanding anything to the contrary in this Section
3(a), the Company shall not be required to pay liquidated damages to the holder
of Transfer Restricted Securities if such holder: (a) failed to comply with its
obligations to make the representations in the second to last paragraph of
Section 1; or (b) failed to provide the information required to be provided by
it, if any, pursuant to Section 4(m).
7
8
(b) The Company shall notify the Transfer Agent and the Paying
Agent under the Certificate of Designations, the Trustee and the Paying Agent
under the Indenture and, if applicable, the Debenture Trustee and the Paying
Agent under the Debenture, immediately upon the happening of each and every
Registration Default. The Company shall pay the liquidated damages due on the
Transfer Restricted Securities by depositing with the respective Paying Agents
(which may not be the Company for these purposes), in trust, for the benefit of
the Holders thereof, prior to 10:00 a.m., New York City time on the next
interest or dividend payment date, as applicable, specified by the Certificate
of Designations, the Indenture, the Debenture Indenture and the Securities, sums
sufficient to pay the liquidated damages then due. The liquidated damages due
shall be payable on each interest or dividend payment date specified by the
Certificate of Designations, the Indenture or, if applicable, the Debenture
Indenture to the record holder entitled to receive the interest and dividend
payments to be made on such date. Each obligation to pay liquidated damages
shall be deemed to accrue from and including the applicable Registration
Default.
(c) The parties hereto agree that the liquidated damages provided
for in this Section 3 constitute a reasonable estimate of and are intended to
constitute the sole damages that will be suffered by holders of Transfer
Restricted Securities by reason of the failure of (i) the Shelf Registration
Statement or the Exchange Offer Registration Statement, as the case may be, to
be filed (ii) the Exchange Offer Registration Statement to be declared effective
and the Exchange Offer to be consummated (iii) the Shelf Registration Statement
to be declared effective or (iv) the Shelf Registration Statement to again
become effective, in each case to the extent required by this Agreement.
4. Registration Procedures. In connection with any Registration
Statement, the following provisions shall apply:
(a) The Company shall (i) furnish to you, prior to the filing
thereof with the Commission, a copy of the Registration Statement and each
amendment thereof and each supplement, if any, to the prospectus included
therein and shall use reasonable best efforts to reflect in each such document,
when so filed with the Commission, such comments as you reasonably may propose;
(ii) include the information set forth in Annex A hereto on the cover, in Annex
B hereto in the "Exchange Offer Procedures" section and the "Note Purpose of the
Exchange Offer" section and in Annex C hereto in the "Plan of Distribution"
section of the prospectus forming a part of the Exchange Offer Registration
Statement, and include the information set forth in Annex D hereto in the Letter
of Transmittal delivered pursuant to the Exchange Offer; and (iii) if requested
by the Initial Purchaser, include the information required by Items 507 or 508
of Regulation S-K under the Securities Act, as applicable, in the prospectus
forming a part of the Exchange Offer Registration Statement.
8
9
(b) The Company shall advise you, each Exchanging Dealer and the
Holders (if applicable) and, if requested by such person, confirm such advice in
writing (which advice pursuant to clauses (ii)-(iv) hereof shall be accompanied
by an instruction to suspend the use of the prospectus until the requisite
changes have been made):
(i) when any Registration Statement and any amendment thereto has been
filed with the Commission and when such Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or
supplements to any Registration Statement or the prospectus included
therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of any Registration Statement or the
initiation of any 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 or the
Exchange Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the making of
any changes in any Registration Statement or the prospectus so that, as
of such date, the statements therein are not misleading and do not omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
The Company will make every reasonable effort to obtain the
withdrawal at the earliest possible time of any order suspending the
effectiveness of any Registration Statement.
(c) The Company will furnish to each Holder of Transfer
Restricted Securities included within the coverage of any Shelf Registration
Statement, without charge, at least one copy of such Shelf Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, and, if the Holder so requests in writing, all
exhibits (including those incorporated by reference).
(d) The Company will, during the Shelf Registration Period,
promptly deliver to each Holder of Transfer Restricted Securities included
within the coverage of any Shelf Registration Statement, without charge, as many
copies of the prospectus
9
10
(including each preliminary prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder may reasonably
request; and the Company consents to the use of the prospectus or any amendment
or supplement thereto by each of the selling Holders of Transfer Restricted
Securities in connection with the offering and sale of the Transfer Restricted
Securities covered by the prospectus or any amendment or supplement thereto.
(e) The Company will furnish to each Exchanging Dealer and the
Initial Purchaser and to any other Holder who so requests, without charge, at
least one copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including financial statements and schedules,
and, if the Exchanging Dealer, Initial Purchaser or any such Holder so requests
in writing, all exhibits (including those incorporated by reference).
(f) The Company will, during the Exchange Offer Registration
Period, promptly deliver to each Exchanging Dealer or the Initial Purchaser, as
applicable, without charge, as many copies of the prospectus included within the
coverage of the Exchange Offer Registration Statement and any amendment or
supplement thereto as such Exchanging Dealer or the Initial Purchaser, as
applicable, may reasonably request for delivery by (i) such Exchanging Dealer in
connection with a sale of Exchange Securities received by it pursuant to the
Exchange Offer or (ii) the Initial Purchaser in connection with a sale of
Exchange Securities received by it in exchange for Securities constituting any
portion of an unsold allotment; and the Company consents to the use of the
prospectus or any amendment or supplement thereto by any such Exchanging Dealer
or the Initial Purchaser, as applicable, as aforesaid.
(g) Prior to any public offering of Securities or Exchange
Securities pursuant to any Registration Statement, the Company will use its
reasonable best efforts to register or qualify or cooperate with the Holders of
Securities included therein and its counsel in connection with the registration
or qualification of such securities for offer and sale under the securities or
blue sky laws of such jurisdictions as any such Holder reasonably requests in
writing and do any and all other acts or things necessary or advisable to enable
the offer and sale in such jurisdictions of the Securities or Exchange
Securities covered by such Registration Statement; provided, however, that the
Company will not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action which would
subject it to general service of process or to taxation in any such jurisdiction
where it is not then so subject.
(h) The Company will cooperate with the Holders of Securities or
Exchange Securities to facilitate the timely preparation and delivery of
certificates representing Securities or Exchange Securities to be sold pursuant
to any Registration
10
11
Statement free of any restrictive legends and in such denominations and
registered in such names as Holders may request in writing prior to sales of
Securities or Exchange Securities pursuant to such Registration Statement.
(i) If any event contemplated by paragraphs (b)(ii) through (v)
above occurs during the period in which the Company is required to maintain an
effective Registration Statement, the Company will promptly prepare a
post-effective amendment to the Registration Statement or a supplement to the
related prospectus or file any other required document so that, as thereafter
delivered to purchasers of the Securities or purchasers of Exchange Securities
from a Holder, the prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(j) Not later than the effective date of the applicable
Registration Statement, the Company will provide a CUSIP number for the Exchange
Securities and provide the applicable trustee with printed certificates for the
Securities or Exchange Securities, as the case may be, in a form eligible for
deposit with The Depository Trust Company.
(k) The Company and the Guarantor will comply with all applicable
rules and regulations of the Commission and will make generally available to the
Company's security holders as soon as practicable after the effective date of
the applicable Registration Statement an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act; provided that in no event
shall such earnings statement be delivered later than 45 days after the end of a
12-month period (or 90 days, if such period is a fiscal year) beginning with the
first month of the Company's first fiscal quarter commencing after the effective
date of the applicable Registration Statement, which statements shall cover such
12-month period.
(l) The Company will cause the Indenture or the Exchange Notes
Indenture, as the case may be, or, if applicable, the Debenture Indenture or the
Exchange Debenture Indenture, as the case may be, to be qualified under the
Trust Indenture Act as required by applicable law in a timely manner, and the
Company will cause the Certificate of Designations or the Exchange Certificate
of Designations, as the case may be, to be filed and effective with the
appropriate authorities.
(m) The Company may require each Holder of Transfer Restricted
Securities to be sold pursuant to any Shelf Registration Statement to furnish to
the Company such information regarding the Holder and the distribution of such
Transfer Restricted Securities as the Company may from time to time reasonably
require for
11
12
inclusion in such Registration Statement, and the Company may exclude from such
registration the Transfer Restricted Securities of any Holder that unreasonably
fails to furnish such information within a reasonable time after receiving such
request.
(n) In the case of a Shelf Registration Statement, each Holder of
Transfer Restricted Securities to be registered pursuant thereto agrees by
acquisition of such Transfer Restricted Securities that, upon receipt of any
notice from the Company pursuant to Section 4(b)(ii) through (iv) hereof, such
Holder will discontinue disposition of such Transfer Restricted Securities until
such Holder's receipt of copies of the supplemental or amended prospectus
contemplated by Section 4(i) hereof, or until advised in writing (the "Advice")
by the Company that the use of the applicable prospectus may be resumed. If the
Company shall give any notice under Section 4(b)(ii) through (v) during the
period that the Company is required to maintain an effective Registration
Statement (the "Effectiveness Period"), such Effectiveness Period shall be
extended by the number of days during such period from and including the date of
the giving of such notice to and including the date when each seller of Transfer
Restricted Securities covered by such Registration Statement shall have received
(x) the copies of the supplemental or amended prospectus contemplated by Section
4(i) (if an amended or supplemental prospectus is required) or (y) the Advice
(if no amended or supplemental prospectus is required).
(o) In the case of a Shelf Registration Statement, the Company
shall enter into such customary agreements (including, if requested, an
underwriting agreement in customary form) and take all such other action, if
any, as Holders of a majority in aggregate principal amount of the Securities
and Exchange Securities being sold or the managing underwriters (if any) shall
reasonably request in order to facilitate any disposition of Securities or
Exchange Securities pursuant to such Shelf Registration Statement.
(p) In the case of a Shelf Registration Statement, the Company
shall (i) make reasonably available for inspection by a representative of, and
Special Counsel (as defined below) acting for, Holders of a majority in
aggregate principal amount or aggregate liquidation preference, as the case may
be, of the Securities and Exchange Securities being sold and any underwriter
participating in any disposition of Securities or Exchange Securities pursuant
to such Shelf Registration Statement, all relevant financial and other records,
pertinent corporate documents and properties of the Company and its subsidiaries
and (ii) use its reasonable best efforts to have its officers, directors,
employees, accountants and counsel supply all relevant information reasonably
requested by such representative, Special Counsel or any such underwriter (an
"Inspector") in connection with such Shelf Registration Statement.
12
13
(q) In the case of a Shelf Registration Statement, the Company
shall, if requested by Holders of a majority in aggregate principal amount or
aggregate liquidation preference, as the case may be, of the Securities and
Exchange Securities being sold, their Special Counsel or the managing
underwriters (if any) in connection with such Shelf Registration Statement, use
its reasonable best efforts to cause (i) its counsel to deliver an opinion
relating to the Shelf Registration Statement and the Securities or Exchange
Securities, as applicable, in customary form, (ii) its officers to execute and
deliver all customary documents and certificates requested by Holders of a
majority in aggregate principal amount of the Securities and Exchange Securities
being sold, their Special Counsel or the managing underwriters (if any) and
(iii) its independent public accountants to provide a comfort letter in
customary form, subject to receipt of appropriate documentation as contemplated,
and only if permitted, by Statement of Auditing Standards No. 72.
5. Registration Expenses. The Company and the Guarantor will bear
all expenses incurred in connection with the performance of their obligations
under Sections 1, 2, 3 and 4 hereof and the Company and the Guarantor will
reimburse the Initial Purchaser and the Holders for the reasonable fees and
disbursements of one firm of attorneys chosen by the Holders of a majority in
aggregate principal amount or aggregate liquidation preference, as the case may
be, of the Securities and the Exchange Securities to be sold pursuant to each
Registration Statement (the "Special Counsel") acting for the Initial Purchaser
or Holders in connection therewith.
6. Indemnification. (a) Indemnification of Holders. In the event
of a Shelf Registration Statement or in connection with any prospectus delivery
pursuant to an Exchange Offer Registration Statement by an Exchanging Dealer or
the Initial Purchaser, as applicable, the Company and the Guarantor, jointly and
severally, shall indemnify and hold harmless each Holder (including, without
limitation, any such Initial Purchaser or Exchanging Dealer), their respective
officers, directors and employees and each person, if any, who controls such
Holder within the meaning of the Securities Act (collectively referred to for
the purposes of this Section 6 as a Holder) against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including,
without limitation, any loss, claim, damage, liability or action relating to
purchases and sales of Securities or Exchange Securities), to which that Holder
may become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in any such
Registration Statement or any prospectus forming part thereof or in any
amendment or supplement thereto or (ii) the omission or alleged omission to
state in any such Registration Statement or any prospectus forming part thereof
or in any amendment or supplement thereto a material fact required to be stated
therein or necessary to make the statements therein not misleading, and shall
reimburse each Holder
13
14
for any legal or other expenses reasonably incurred by that Holder in connection
with investigating or preparing to defend or defending against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that the foregoing
indemnification agreement with respect to any preliminary prospectus shall not
inure to the benefit of any Holder from whom the person asserting any such loss,
claim, damage or liability purchased Securities or Exchange Securities, if (i) a
copy of the preliminary prospectus (as then amended or supplemented) was
required by law to be delivered to such person at or prior to the written
confirmation of the sale of Securities or Exchange Securities to such person,
(ii) a copy of the final prospectus (as then amended or supplemented) was not
sent or given to such person by or on behalf of such Holder and (iii) the final
prospectus (as so amended or supplemented) would have cured the defect giving
rise to such loss, claim, damage or liability, unless, in the case of (i), (ii)
and (iii) occurring, such failure to deliver the final prospectus was a result
of non-compliance by the Company of Section 1 hereunder; and further provided,
however, that the Company and the Guarantor shall not be liable in any such case
to the extent that any such loss, claim, damage, liability or action arises out
of or is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any preliminary prospectus or Registration
Statement or any such amendment or supplement in reliance upon and in conformity
with any Holders' Information.
(b) Indemnification of Company, Guarantor, Directors and Officers.
In the event of a Shelf Registration Statement, each Holder, severally and not
jointly, agrees to indemnify and hold harmless the Company and the Guarantor,
their respective directors, and each person, if any, who controls the Company or
Guarantor within the meaning of the Securities Act (collectively referred to for
the purposes of this Section 6 as the Company), against any loss, claim, damage
or liability, joint or several, or any action in respect thereof, to which the
Company or the Guarantor may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of or is based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in a preliminary prospectus or such Registration
Statement or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, but in each case
only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
any Holders' Information furnished to the Company by or on behalf of that Holder
specifically for use therein, and shall reimburse the Company or the Guarantor
for any legal or other expenses reasonably incurred by the Company or the
Guarantor in connection with investigating or preparing to defend or defending
against or appearing as third party witness in connection with any such loss,
claim, damage, liability or action as such expenses are incurred; provided
however, that no such Holder shall be
14
15
liable for any indemnity claims hereunder in excess of the amount of net
proceeds received by such Holder from the sale of Securities or Exchange
Securities pursuant to such Shelf Registration Statement.
(c) Actions; Notification. Promptly after receipt by an
indemnified party under this Section 6 of notice of any claim or the
commencement of any action, the indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under this Section 6,
notify the indemnifying party in writing of the claim or the commencement of
that action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under this
Section 6 except to the extent it has been materially prejudiced by such
failure; and, provided, further, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 6. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 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
any indemnified party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) such indemnified party shall have been advised by such counsel
that there may be one or more legal defenses available to it which are different
from or additional to those available to the indemnifying party and in the
reasonable judgment of such counsel it is advisable for such indemnified party
to employ separate counsel or (iii) the indemnifying party has failed to assume
the defense of such action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys at any time for all such indemnified
parties, which firm shall be designated in writing by the Holders of a majority
in aggregate principal amount of the Securities or Exchange Securities, as the
case may be, if the
15
16
indemnified parties under this Section 6 consist of any Holder or any of their
respective officers, employees or controlling persons, or by the Company, if the
indemnified parties under this Section 6 consist of the Company or the Guarantor
or any of their respective directors, officers, employees or controlling
persons. Each indemnified party, as a condition of the indemnity agreements
contained in Sections 6(a) and 6(b), shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. Subject to the provisions of Section 6(d) below, no indemnifying party
shall be liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but if
settled with its written consent or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(d) Settlement without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested that an indemnifying party
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by this Section 6 effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the request for reimbursement, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
(e) Contribution. If the indemnification provided for in this
Section 6 is unavailable or insufficient to hold harmless an indemnified party
under Section 6(a) or (b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company and the Guarantor on the
one hand and a Holder with respect to the sale by such Holder of Securities or
Exchange Securities on the other or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Guarantor on the one
hand and such Holder on the other with respect to the statements or omissions
which resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Guarantor on the one hand and a Holder
on the other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Securities or
Exchange Securities (before deducting expenses) received by the Company and the
Guarantor as set
16
17
forth on the cover of the Offering Memorandum bear to the total proceeds
received by such Holder with respect to its sale of Securities or Exchange
Securities. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company and the Guarantor on the one hand or to any Holders'
Information supplied by such Holder on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Holders agree
that it would not be just and equitable if contributions pursuant to this
Section 6(e) were to be determined by pro rata allocation (even if the Holders
were treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 6(e) shall be deemed to include, for purposes
of this Section 6(e), any legal or other 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(e), no Holder shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities or Exchange Securities sold by such Holder to any
purchaser exceeds the amount of any damages which such Holder has otherwise paid
or become liable to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
Any Holder's obligations to contribute as provided in this Section
6(e) are several and not joint.
The obligations of the Company, the Guarantor and the Holders in
this Section 6 are in addition to any other liability which the Company, the
Guarantor or the Holders as the case may be, may otherwise have.
7. Rules 144 and 144A. The Company shall file the reports required
to be filed by it under the Securities Act and the Exchange Act in a timely
manner and, if at any time the Company is not required to file such reports, it
will, upon the written request of any Holder of Transfer Restricted Securities,
make publicly available other information so long as necessary to permit sales
of such Holder's securities pursuant to Rules 144 and 144A. The Company
covenants that it will take such further action as any Holder of Transfer
Restricted Securities may reasonably request, all to the extent required from
time to time to enable such Holder to sell Transfer Restricted Securities
without registration under the Securities Act within the limitation of the
exemptions provided by
17
18
Rules 144 and 144A (including, without limitation, the requirements of Rule
144A(d)(4)). Upon the written request of any Holder of Transfer Restricted
Securities, the Company shall deliver to such Holder a written statement as to
whether it has complied with such requirements. Notwithstanding the foregoing,
nothing in this Section 7 shall be deemed to require the Company to register any
of its securities pursuant to the Exchange Act.
8. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by any Shelf Registration Statement are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering will be selected by the Holders of
a majority in aggregate principal amount or aggregate liquidation preference, as
the case may be, of such Transfer Restricted Securities included in such
offering, subject to the consent of the Company (which shall not be unreasonably
withheld or delayed), and such Holders shall be responsible for all underwriting
commissions and discounts in connection therewith.
9. Miscellaneous. (a) Amendments and Waivers. The provisions of
this Agreement may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, unless the
Company has obtained the written consent of Holders of a majority in aggregate
principal amount and Holders of a majority in aggregate liquidation preference,
as the case may be, of the Securities and the Exchange Securities, taken as a
single class. Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to the
rights of the Holders of Securities or Exchange Securities whose Securities or
Exchange Securities are being sold pursuant to a Registration Statement and that
does not directly or indirectly affect the rights of other Holders may be given
by Holders of a majority in aggregate principal amount or aggregate liquidation
preference, as the case may be, of the Securities or Exchange Securities being
sold by such Holders pursuant to such Registration Statement.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this Section
9(b), which address initially is, with respect to each Holder, the
address of such Holder maintained by the Registrar under the Indenture,
the Debenture Indenture or the Certificate of Designations, as the case
may be, with a copy in like manner to Societe Generale Securities
Corporation;
18
19
(2) if to you, initially at your address set forth in the Purchase
Agreement; and
(3) if to the Company or the Guarantor, initially at the address
of the Company set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; one business day
after being delivered to a next-day air courier; five business days after being
deposited in the mail; and when receipt is acknowledged by the recipient's
telecopier machine, if telecopied.
(c) Successors and Assigns. This Agreement shall be binding upon
the Company and the Guarantor and their respective successors and assigns.
(d) Counterparts. This Agreement may be executed in any number of
counterparts (which may be delivered in original form or by telecopies) and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(e) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(f) Governing Law; Submission to Jurisdiction.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(g) No Inconsistent Agreements. The Company has not and shall not,
on or after the date of this Agreement, enter into any agreement that is
inconsistent with the rights granted to the holders of Transfer Restricted
Securities in this Agreement or otherwise conflicts with the provisions hereof.
The Company has not previously entered into any agreement which remains in
effect granting any registration rights with respect to any of its debt
securities to any person. Without limiting the generality of the foregoing,
without the written consent of the holders of a majority in aggregate principal
amount of the then outstanding Transfer Restricted Securities, the Company shall
not grant to any person the right to request the Company to register any debt
securities of the Company under the Securities Act unless the rights so granted
are not in conflict or inconsistent with the provisions of the Agreement.
19
20
(h) No Piggyback on Registrations. Neither the Company, nor any of
its security holders (other than the holders of Transfer Restricted Securities
in such capacity) shall have the right to include any securities of the Company
in any Shelf Registration or Exchange Offer other than Transfer Restricted
Securities.
(i) Severability. The remedies provided herein are cumulative and
not exclusive of any remedies provided by law. If any term, provision, covenant
or restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
the parties hereto shall use their reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
(j) Remedies. In the event of a breach by the Company or the
Guarantor, or by any holder of Transfer Restricted Securities, of any of their
obligations under this Agreement, each holder of Transfer Restricted Securities
or the Company and the Guarantor, as the case may be, in addition to being
entitled to exercise all rights granted by law, including recovery of damages
(other than the recovery of damages for a breach by the Company of its
obligations under Sections 1 or 2 hereof for which liquidated damages have been
paid pursuant to Section 3 hereof), will be entitled to specific performance of
its rights under this Agreement. The Company, the Guarantor and each holder of
Transfer Restricted Securities agree that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agree that, in the event of any
action for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
20
21
Please confirm that the foregoing correctly sets forth the
agreement among the Company and you.
Very truly yours,
DAY INTERNATIONAL GROUP, INC.
By:
Name:
Title:
DAY INTERNATIONAL, INC.
By:
Name:
Title:
Accepted in New York, New York
SOCIETE GENERALE SECURITIES CORPORATION
By:
-----------------------------------
Name:
Title:
21
22
ANNEX A
Each broker-dealer that receives Exchange 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 Exchange Securities. The Letter
of Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Securities received in exchange for Securities where
such Securities were acquired by such broker-dealer as a result of market-making
activities or other trading activities. The Company has agreed that, for a
period of 90 days after the Expiration Date (as defined herein), it will make
this Prospectus available to any broker-dealer for use in connection with any
such resale. See "Plan of Distribution."
22
23
ANNEX B
Each broker-dealer that receives Exchange Securities for its own
account in exchange for Securities, where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
23
24
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange 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 Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Company has agreed
that, for a period of 90 days after the Expiration Date, it will make this
Prospectus, as amended or supplemented, available to any broker-dealer for use
in connection with any such resale. In addition, until _______________, 199_,
all dealers effecting transactions in the Exchange Securities may be required to
deliver a prospectus.(1)
The Company will not receive any proceeds from any sale of
Exchange Securities by broker-dealers. Exchange Securities received by
broker-dealers for their own account pursuant to the Exchange Offer may be sold
from time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the Exchange
Securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or at negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such broker-dealer or the
purchasers of any such Exchange Securities. Any broker-dealer that resells
Exchange Securities that were received by it for its own account pursuant to the
Exchange Offer and any broker or dealer that participates in a distribution of
such Exchange Securities may be deemed to be an "underwriter" within the meaning
of the Securities Act and any profit on any such resale of Exchange Securities
and any commission or concessions received by any such persons may be deemed to
be underwriting compensation under the Securities Act. The Letter of Transmittal
states that, by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period of 90 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of
--------
(1) In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Exchange Offer prospectus.
24
25
Transmittal. The Company has agreed to pay all expenses incident to the Exchange
Offer (including the expenses of one counsel for the Holders of the Securities)
other than commissions or concessions of any broker-dealers and will indemnify
the Holders of the Securities (including any broker-dealers) against certain
liabilities, including liabilities under the Securities Act.
25
26
ANNEX D
/ / CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO
RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND
10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name:
------------------------------------------------
Address:
-----------------------------------------------
-----------------------------------------------
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Securities that were acquired as
a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
26