Exhibit 4.4
AMTROL ACQUISITION, INC.
REGISTRATION AGREEMENT
November 7, 1996
Morgan Stanley & Co. Incorporated
BT Securities Corporation
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Dear Sirs and Mesdames:
AMTROL Acquisition, Inc., a Rhode Island corporation ("Acquisition"),
proposes to issue and sell to Morgan Stanley & Co. Incorporated and BT
Securities Corporation (collectively, the "Purchasers"), upon the terms set
forth in a placement agreement of even date herewith (the "Placement
Agreement"), $115,000,000 principal amount of its 10-5/8% Senior Subordinated
Notes Due 2006 (the "Notes"). The Notes will be issued pursuant to the
provisions of an Indenture, dated as of November 1, 1996 (the "Indenture"),
between Acquisition, as issuer, and The Bank of New York, as Trustee (the
"Trustee").
Immediately prior to or concurrent with the consummation of the sale
of the Notes, pursuant to a Merger Agreement dated as of August 28, 1996, among
AMTROL Holdings, Inc., a Delaware corporation, Acquisition and AMTROL Inc., a
Rhode Island corporation ("AMTROL"), Acquisition will merge with and into
AMTROL (the "Merger"), and AMTROL will assume, by operation of law, all of
Acquisition's obligations under this Agreement, the Placement Agreement, the
Indenture and the Notes. As used herein, the "Company" means Acquisition and,
after the Merger, AMTROL.
As an inducement to the Purchasers to enter into the Placement
Agreement and in satisfaction of a condition to your obligations thereunder, the
Company agrees with the Purchasers, for the benefit of the registered holders of
the Notes (including, without limitation, the Purchasers), the
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Exchange Notes (as defined below) and the Private Exchange Notes (as defined
below) (collectively, the "Holders"), as follows:
SECTION 1. REGISTERED EXCHANGE OFFER. The Company shall use its best
efforts to prepare and file with the Securities and Exchange Commission (the
"Commission") a registration statement (the "Exchange Offer Registration
Statement") on an appropriate form under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to an offer (the "Registered Exchange
Offer") to the Holders of Transfer Restricted Notes (as defined in Section 6
hereof), who are not prohibited by any law or policy of the Commission from
participating in the Registered Exchange Offer, to issue and deliver to such
Holders, in exchange for the Notes, a like aggregate principal amount of debt
securities (the "Exchange Notes") of the Company issued under the Indenture and
identical in all material respects to the Notes (except for the transfer
restrictions relating to the Notes) that would be registered under the
Securities Act. The Company shall use its best efforts to cause such Exchange
Offer Registration Statement to become effective under the Securities Act within
150 days after the date of original issue of the Notes and shall keep the
Exchange Offer Registration Statement effective for not less than 30 days (or
longer, if required by applicable law) after the date notice of the Registered
Exchange Offer is mailed to the Holders (such period being called the "Exchange
Offer Registration Period").
If the Company effects the Registered Exchange Offer, the Company will
be entitled to close the Registered Exchange Offer 30 days after the
commencement thereof provided that the Company has accepted all the Notes
theretofore validly tendered in accordance with the terms of the Registered
Exchange Offer.
Following the declaration of 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 of Transfer Restricted Notes (as defined below) electing to
exchange such Transfer Restricted Notes for Exchange Notes (assuming that such
Holder is not an affiliate of the Company within the meaning of the Securities
Act, acquires the Exchange Notes in the ordinary course of such Holder's
business and has no arrangements
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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 Securities Act and
without material restrictions under the securities laws of the several states of
the United States. In connection with such Registered Exchange Offer, the
Company shall use its best efforts to consummate the Registered Exchange Offer
and shall comply with the applicable requirements of the Securities Exchange Act
of 1934, as amended (the "Exchange Act") and other applicable laws and
regulations in connection with the Registered Exchange Offer.
The Company acknowledges that, pursuant to current interpretations by
the Commission's staff of Section 5 of the Securities Act, in the absence of an
applicable exemption therefrom, (i) each Holder which is a broker-dealer
electing to exchange Notes, acquired for its own account as a result of
market-making activities or other trading activities, for Exchange Notes (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 Notes received by such
Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) if the
Purchasers are permitted to and elect to sell Exchange Notes acquired in
exchange for Notes constituting any portion of an unsold allotment, they are
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 sale.
The Company shall include within the prospectus contained in the
Exchange Offer Registration Statement a section entitled "Plan of Distribution",
reasonably acceptable to the Purchasers, which shall contain a summary statement
of the positions taken or policies made by the staff of the Commission with
respect to the potential "underwriter" status of any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange
Notes received by such broker-dealer in the Registered Exchange Offer (a
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"Participating Broker-Dealer"), whether such positions or policies have been
publicly disseminated by the staff of the Commission or such positions or
policies, in the reasonable judgment of the Purchasers based upon advice of
counsel (which may be in-house counsel), represent the prevailing views of the
staff of the Commission.
The Company shall use its 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 lawfully delivered
by the Purchasers and all Exchanging Dealers subject to the prospectus delivery
requirements of the Securities Act and shall make such prospectuses available to
the Purchasers and such Exchanging Dealers for such period of time after the
consummation of the Registered Exchange Offer as such persons must comply with
such requirements in order to resell the Exchange Notes; PROVIDED, HOWEVER, that
such period shall not exceed 120 days (unless extended pursuant to Section 3(j)
below); and, PROVIDED FURTHER, that such persons shall not be authorized by the
Company to deliver and shall not deliver any such prospectus after the
expiration of such period in connection with the resales contemplated by this
paragraph.
The Company shall make available for a period of 90 days after the
consummation of the Registered Exchange Offer, a copy of the prospectus, and any
amendment or supplement thereto, forming part of the Exchange Offer Registration
Statement to any broker-dealer for use in connection with any resale of any
Exchange Notes.
If, upon consummation of the Registered Exchange Offer, any Purchaser
holds Notes acquired by it as part of its initial distribution, the Company,
simultaneously with the delivery of the Exchange Notes pursuant to the
Registered Exchange Offer, shall issue and deliver to such Purchaser upon the
written request of such Purchaser, in exchange (the "Private Exchange") for the
Notes held by such Purchaser, a like principal amount of debt securities of the
Company issued under the Indenture and identical in all material respects
(including the existence of restrictions on transfer under the Securities Act
and the securities laws of the several states of the United States) to the Notes
(the "Private Exchange Notes"). The Notes, the Exchange Notes and the Private
Exchange Notes are herein collectively called the "Securities".
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In connection with the Registered 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 Registered Exchange Offer open for not less than 30 days
(or longer, if required by applicable law) after the date notice thereof is
mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York,
which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Notes at any time prior to the
close of business, New York time, on the last business day on which the
Registered Exchange Offer shall remain open; and
(e) otherwise comply in all material respects with all applicable
laws.
As soon as practicable after the close of the Registered Exchange
Offer or the Private Exchange, as the case may be, the Company shall:
(i) accept for exchange all the Notes validly tendered and not
withdrawn pursuant to the Registered Exchange Offer and the Private
Exchange;
(ii) deliver, or cause to be delivered, to the Trustee for cancellation
all the Notes so accepted for exchange; and
(iii) issue, and cause the Trustee to authenticate and deliver promptly
to each Holder of the Notes, Exchange Notes or Private Exchange Notes, as
the case may be, equal in principal amount to the Notes of such Holder so
accepted for exchange.
The Indenture will provide that the Exchange Notes will not be subject
to the transfer restrictions set forth in the Indenture and that all the
Securities will vote and
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consent together on all matters as one class and that none of the Securities
will have the right to vote or consent as a class separate from one another on
any matter.
Interest on each Exchange Note and Private Exchange Note issued
pursuant to the Registered Exchange Offer and in the Private Exchange will
accrue from the last interest payment date on which interest was paid on the
Notes surrendered in exchange therefor or, if no interest has been paid on the
Notes, from the date of original issue of the Notes.
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
arrangements or understanding with any person to participate in the distribution
of the Notes or the Exchange Notes within the meaning of the Securities Act,
(iii) such Holder is not an "affiliate," as defined in Rule 405 of the
Securities Act, of the Company or if it is an affiliate, such Holder will comply
with the registration and prospectus delivery requirements of the Securities Act
to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is
not engaged in, and does not intend to engage in, the distribution of the
Exchange Notes and (v) if such Holder is a broker-dealer, that it will receive
Exchange Notes for its own account in exchange for Notes that were acquired as a
result of market-making activities or other trading activities and that it will
be required to acknowledge that it will deliver a prospectus in connection with
any resale of such Exchange Notes.
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, in light of the circumstances under
which they were made, not misleading and (iii) any prospectus forming part of
any Exchange Offer Registration Statement, and any
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supplement to such prospectus, at the time of issuance does not include an
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 light
of the circumstances under which they were made, not misleading.
SECTION 2. SHELF REGISTRATION. If (i) the Company determines that a
Registered Exchange Offer, as contemplated by Section 1 hereof, is not available
or may not be consummated as soon as practicable after the last date the
Registered Exchange Offer is open because it would violate applicable law or the
applicable interpretations of the staff of the Commission, (ii) the Registered
Exchange Offer is not consummated within 180 days of the date of original issue
of the Notes, (iii) the Purchasers so request with respect to the Notes (or the
Private Exchange Notes) not eligible to be exchanged for Exchange Notes in the
Registered Exchange Offer and held by them following consummation of the
Registered Exchange Offer or (iv) any Holder (other than an Exchanging Dealer)
is not eligible to participate in the Registered Exchange Offer or, in the case
of any Holder (other than an Exchanging Dealer) that participates in the
Registered Exchange Offer, such Holder does not receive freely tradeable
Exchange Notes on the date of the exchange for validly tendered (and not
withdrawn) Notes, the Company shall take the following actions:
(a) The Company shall use all reasonable efforts to prepare and file,
as promptly as practicable, with the Commission and thereafter to cause to
be declared effective a registration statement (the "Shelf Registration
Statement" and, together with the Exchange Offer Registration Statement, a
"Registration Statement") on an appropriate form under the Securities Act
relating to the offer and sale of the Transfer Restricted Notes (as defined
below), by the Holders thereof from time to time in accordance with the
methods of distribution set forth in the Shelf Registration Statement and
Rule 415 under the Securities Act (hereinafter, the "Shelf Registration");
PROVIDED, HOWEVER, that no Holder (other than the Purchasers) shall be
entitled to have any Securities held by it covered by such Shelf
Registration Statement unless such Holder agrees in writing to be bound by
all the provisions of this Agreement applicable to such Holder.
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(b) The Company shall use all reasonable efforts to keep the Shelf
Registration Statement continuously effective in order to permit the
prospectus included therein to be lawfully delivered by the Holders of the
relevant Securities, until the period referred to in Rule 144(k) under the
Securities Act after the original issue date of the Notes expires (or for
such longer period if extended pursuant to Section 3(j) below) or such
shorter period that will terminate when all the Securities covered by the
Shelf Registration Statement have been sold pursuant thereto.
(c) Notwithstanding any other provisions of this Agreement to the
contrary, 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, amendment or
supplement, (i) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission and (ii) 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 light of the circumstances
under which they were made, not misleading.
SECTION 3. REGISTRATION PROCEDURES. In connection with any Shelf
Registration contemplated by Section 2 hereof and, to the extent applicable, any
Registered Exchange Offer contemplated by Section 1 hereof, the following
provisions shall apply:
(a) The Company shall (i) furnish to the Purchasers, 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 not file any such Registration Statement or
amendment thereto or any prospectus or any supplement thereto (including
such documents which, upon filing, would be incorporated or deemed to be
incorporated by reference therein and amendments to such documents other
than documents required to be filed pursuant to the Exchange Act) to which
the Purchasers shall reasonably object, except for any Registration
Statement or amendment thereto or prospectus or supplement thereto (a copy
of which has
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been previously furnished to the Purchasers and their counsel (and, in the
case of a Shelf Registration Statement, the Holders and their counsel))
which counsel to the Company has advised the Company in writing is required
to be filed in order to comply with applicable law; (ii) include
information substantially to the effect set forth (A) in Annex A hereto on
the cover, (B) in Annex B hereto in the "Exchange Offer Procedures" section
and the "Purpose of the Exchange Offer" section, (C) in Annex C hereto in
the "Plan of Distribution" section of the prospectus forming a part of the
Exchange Offer Registration Statement and (D) include the information set
forth in Annex D hereto in the Letter of Transmittal delivered pursuant to
the Registered Exchange Offer; (iii) to the extent required by law or
interpretation of the staff of the Commission, if requested by the
Purchasers, 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; and (iv) to
the extent required by law or interpretation of the staff of the
Commission, in the case of a Shelf Registration Statement, include the
names of the Holders who propose to sell Securities pursuant to the Shelf
Registration Statement as selling securityholders.
(b) The Company shall notify the Purchasers, the Holders and any
Participating Broker-Dealer from whom the Company has received prior
written notice stating that it will be a Participating Broker-Dealer in the
Registered Exchange Offer (which notice pursuant to clauses (ii) through
(v) hereof shall be accompanied by an instruction to suspend the use of the
prospectus until the requisite changes have been made) promptly, and, if
requested by the Purchasers, the Holders or any such Participating
Broker-Dealer, confirm such notice in writing:
(i) when the Registration Statement or 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 amendments or
supplements to the Registration
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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 the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of any
notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose;
(v) of the happening of any event that requires the Company to
make changes in the Registration Statement or the prospectus in order
that the Registration Statement or the prospectus do not contain an
untrue statement of a material fact nor omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and
(vi) of any determination by the Company that a post-effective
amendment to a Registration Statement would be appropriate.
(c) The Company shall make every reasonable effort to prevent the
issuance, and if issued to obtain the withdrawal at the earliest possible
time, of any order suspending the effectiveness of the Registration
Statement and shall provide prompt written notice to the Purchasers and
each Holder of the withdrawal of any such order.
(d) The Company shall furnish to each Holder of Securities included
within the coverage of the Shelf Registration, without charge, at least one
conformed copy of the Shelf Registration Statement and any post-effective
amendment thereto, including financial statements and schedules (without
documents incorporated therein by reference or exhibits thereto, unless a
Holder so requests in writing).
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(e) The Company shall deliver to the Purchasers, and to any other
Holder that so requests, without charge, at least one conformed copy of the
Exchange Offer Registration Statement and any post-effective amendment
thereto, including financial statements and schedules (without documents
incorporated therein by reference or exhibits thereto, unless the
Purchasers or any such Holder so request in writing).
(f) The Company shall deliver to each Holder of Securities included
within the coverage of the Shelf Registration, without charge, as many
copies of the prospectus (including each preliminary prospectus) included
in the Shelf Registration Statement and any amendment or supplement thereto
as such person may reasonably request. The Company consents, subject to
the provisions of this Agreement, to the use of the prospectus or any
amendment or supplement thereto by each of the selling Holders of the
Securities in connection with the offering and sale of the Securities
covered by, and as contemplated by, the prospectus, or any amendment or
supplement thereto, included in the Shelf Registration Statement.
(g) The Company shall deliver to the Purchasers, any Participating
Broker-Dealer or any Exchanging Dealer, without charge, as many copies of
the final prospectus included in the Exchange Offer Registration Statement
and any amendment or supplement thereto as such person may reasonably
request, during the period not exceeding 120 days following the
consummation of the Registered Exchange Offer. The Company consents,
subject to the provisions of this Agreement, to the use of the prospectus
or any amendment or supplement thereto by the Purchasers, if necessary, any
Participating Broker-Dealer or Exchanging Dealer and such other persons
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 such
Exchange Offer Registration Statement; PROVIDED, HOWEVER, that such persons
shall not be authorized by the Company to deliver and shall not deliver any
such prospectus after the expiration of the period referred to in the
immediately preceding sentence, in connection with the resales contemplated
by this paragraph.
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(h) Prior to any public offering of the Securities pursuant to any
Registration Statement, the Company shall use its best efforts to register
or qualify or cooperate with the Holders of the Securities included therein
and their respective counsel in connection with the registration or
qualification of the Securities for offer and sale under the securities or
Blue Sky laws of such states of the United States as any Holder of the
Securities reasonably requests in writing and do any and all other acts or
things necessary or advisable to enable such Holder to offer and sell in
such jurisdictions the Securities covered by such Registration Statement
owned by such Holder; PROVIDED, HOWEVER, that the Company shall not be
required to (i) qualify generally or as a foreign corporation to do
business in any jurisdiction where it is not then so qualified or (ii) take
any action which would subject it to general service of process or to
taxation in any jurisdiction where it is not then so subject.
(i) The Company shall cooperate with the Holders of the Securities to
facilitate the timely preparation and delivery of certificates representing
the Securities to be sold pursuant to any Shelf Registration Statement free
of any restrictive legends and in such denominations (consistent with the
provisions of the Indenture) and registered in such names as the Holders
may request at least two business days prior to closing of any sale of the
Securities pursuant to such Shelf Registration Statement.
(j) If any event contemplated by paragraphs (ii) through (vi) of
Section 3(b) above occurs during the period for which the Company is
required to maintain an effective Registration Statement, the Company shall
promptly prepare and file a post-effective amendment to the Registration
Statement or a supplement to the related prospectus and any other required
document so that, as thereafter delivered to Holders of the Notes or
purchasers of Securities, the prospectus will not contain 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 light of
the circumstances under which they were made, not misleading. If the
Company notifies the Purchasers, the Holders of the Securities and any
known Participating Broker-Dealer in accordance with
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paragraphs (ii) through (vi) of Section 3(b) above to suspend the use of
the prospectus until the requisite changes to the prospectus have been
made, then the Purchasers, the Holders of the Securities and any such
Participating Broker-Dealers shall suspend use of such prospectus until the
Company has amended or supplemented the prospectus to correct such
misstatement or omission, and the period of effectiveness of the Shelf
Registration Statement provided for in Section 2(b) above and the Exchange
Offer Registration Statement provided for in Section 1 above shall each be
extended by the number of days from and including the date of the giving of
such notice to and including the date when the Purchasers, the Holders of
the Securities and any known Participating Broker-Dealer shall have
received such amended or supplemented prospectus pursuant to this
Section 3(j); PROVIDED, HOWEVER, that the minimum time period before the
Company shall be entitled to close the Registered Exchange Offer shall be
extended only to the extent required by the Commission. The Purchasers,
each Holder and any Participating Broker-Dealers agree that upon receipt of
any such notice from the Company it will not distribute copies of the
prospectus that are the subject of such notice and will retain such copies
in its files.
(k) Not later than the effective date of the applicable Registration
Statement, the Company will obtain a CUSIP number for the Transfer
Restricted Notes, the Exchange Notes or the Private Exchange Notes, as the
case may be, and provide the Trustee with printed certificates for the
Notes, the Exchange Notes or the Private Exchange Notes, as the case may
be, in a form eligible for deposit with The Depository Trust Company.
(l) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the
Registered Exchange Offer or the Shelf Registration and will make generally
available to its securities holders (or otherwise provide in accordance
with Section 11(a) of the Securities Act) an earnings statement satisfying
the provisions of Section 11(a) of the Securities Act, no later than 45
days after the end of a 12-month period (or 90 days, if such period is a
fiscal year) beginning
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with the first month of the Company's first fiscal quarter commencing after
the effective date of the Registration Statement, which statement shall
cover such 12-month period.
(m) The Company shall cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended, in a timely manner and containing
such changes, if any, as shall be necessary for such qualification. In the
event that such qualification would require the appointment of a new
trustee under the Indenture, the Company shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Indenture.
(n) The Company may require each Holder of Securities to be sold
pursuant to the Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of the Securities as
the Company may from time to time reasonably request for inclusion in the
Shelf Registration Statement, and the Company may exclude from such
registration the Securities of any Holder that unreasonably fails to
furnish such information within a reasonable time after receiving such
request.
(o) In the case of any Shelf Registration, 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 the
Holders of a majority of the Securities being sold shall reasonably request
in order to facilitate the disposition of the Securities pursuant to such
Shelf Registration.
(p) In the case of any Shelf Registration, the Company shall make
available for inspection by a representative of the Holders of Securities
being sold, its counsel and an accountant retained by such Holders, in a
manner designed to permit underwriters to satisfy their due diligence
investigation under the Securities Act, all financial and other records,
pertinent corporate documents and properties of the Company customarily
inspected by underwriters in primary underwritten offerings and cause the
officers, directors and employees of the Company and its subsidiaries to
supply all information reasonably
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requested by, and customarily supplied in connection with primary
underwritten offerings to, any such representative, attorney or accountant
in connection with such registration; PROVIDED, HOWEVER, that any records,
information or documents that are designated by the Company as confidential
at the time of delivery of such records, information or documents shall be
kept confidential by such persons, unless (i) such records, information or
documents are in the public domain or otherwise publicly available, (ii)
disclosure of such records, information or documents is required by court
or administrative order or (iii) disclosure of such records, information or
documents, in the written opinion of counsel to such person, is otherwise
required by law (including, without limitation, pursuant to the
requirements of the Securities Act).
(q) In the case of any Shelf Registration, the Company, if requested
by any Holder of Securities covered thereby, shall (i) cause its counsel to
deliver an opinion and updates thereof relating to the Securities in
customary form addressed to such Holders and the managing underwriters, if
any, and dated, in the case of the initial opinion, the effective date of
such Shelf Registration Statement covering matters customarily covered in
opinions requested in underwritten offerings, (ii) cause its officers to
execute and deliver such documents and certificates and updates thereof as
may be reasonably requested by any underwriters of the applicable
Securities, and which are customarily delivered in underwritten offerings,
to evidence the continued validity of the representations and warranties of
the Company made pursuant to, and to evidence compliance with any customary
conditions contained in, an underwriting agreement and (iii) cause its
independent public accountants to provide to the selling Holders of the
applicable Securities and any underwriter therefor a comfort letter in
customary form and covering matters of the type customarily covered in
comfort letters in connection with primary underwritten offerings, subject
to receipt of appropriate documentation as contemplated, and only if
permitted, by Statement of Auditing Standards No. 72.
(r) If a Registered Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Notes by Holders to the Company (or to
such other
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Person as directed by the Company) in exchange for the Exchange Notes or
the Private Exchange Notes, as the case may be, the Company shall mark, or
caused to be marked, on the Notes so exchanged that such Notes are being
canceled in exchange for the Exchange Notes or the Private Exchange Notes,
as the case may be, and in no event shall the Notes be marked as paid or
otherwise satisfied.
(s) The Company will use its best efforts to cause the Securities
covered by a Registration Statement to be rated by two nationally
recognized statistical rating organizations (as such term is defined in
Rule 436(g)(2) under the Securities Act) if so requested by Holders of a
majority in aggregate principal amount of Securities covered by such
Registration Statement, or by the managing underwriters, if any.
(t) In the event that any broker-dealer registered under the Exchange
Act shall underwrite any Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the distribution"
(within the meaning of the Conduct Rules of the National Association of
Securities Dealers, Inc. ("NASD")) thereof, whether as a Holder of such
Securities 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 requirements of such Rules and By-Laws,
including by (i) if such Rules, including Rule 2720, shall so require,
engaging a "qualified independent underwriter" (as defined in such Rule) to
participate in the preparation of the Registration Statement relating to
such Securities, to exercise usual standards of due diligence in respect
thereto and, if any portion of the offering contemplated by such
Registration Statement is an underwritten offering or is made through a
placement or sales agent, to recommend the yield of such Securities,
(ii) indemnifying any such qualified independent underwriter to the extent
of the indemnification of underwriters provided in Section 5 hereof and
(iii) providing such information to such broker-dealer as may be required
in order for such broker-dealer to comply with the requirements of the
Conduct Rules of the NASD.
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SECTION 4. REGISTRATION EXPENSES. The Company shall pay all fees and
expenses incident to the performance of or compliance with this Agreement by the
Company including, without limitation, (i) all Commission, stock exchange or
NASD registration and filing fees, (ii) all fees and expenses incurred in
connection with compliance with state securities or Blue Sky laws (including
reasonable fees and disbursements of counsel for any underwriters or holders in
connection with Blue Sky qualification of any of the Securities), (iii) all
expenses of any persons in preparing or assisting in preparing, word processing,
printing and distributing any Registration Statement, any prospectus, any
amendments or supplements thereto, any underwriting agreements, securities sales
agreements and other documents relating to the performance of and compliance
with this Agreement, (iv) all rating agency fees, and (v) the fees and
disbursements of counsel for the Company and in the event of a Shelf
Registration, the reasonable fees and disbursements of one firm of counsel
designated by the Holders of a majority in principal amount of the Securities
covered thereby and of the independent public accountants of the Company,
including the expense of any special audits or "cold comfort" letters required
by or incident to such performance and compliance, but excluding fees and
expenses of counsel to the underwriters and underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
Securities by a Holder.
SECTION 5. INDEMNIFICATION. (a) The Company agrees to indemnify and
hold harmless each Holder of the Securities, any Participating Broker-Dealer,
and each person, if any, who controls such Holder or such Participating
Broker-Dealer within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, or is under common control with, or is
controlled by, such Holder or such Participating Broker-Dealer, from and against
any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in a
Registration Statement or prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto), or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
18
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to such Holder or Participating Broker-Dealer furnished to the Company
in writing by such Holder or Participating Broker-Dealer expressly for use
therein; PROVIDED that the foregoing indemnity with respect to any preliminary
prospectus shall not inure to the benefit of any Holder or Participating
Broker-Dealer from whom the person asserting any such losses, claims, damages or
liabilities purchased Securities, or any person controlling or affiliated with
such Holder or Participating Broker-Dealer, if a copy of the final prospectus
(as then amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf of such
Holder or Participating Broker-Dealer to such person, if required by law so to
have been delivered, at or prior to the written confirmation of the sale of the
Securities to such person, and if the final prospectus (as so amended or
supplemented) would have cured the defect giving rise to such loss, claim,
damage or liability.
(b) Each Holder of the Securities, severally and not jointly, agrees
to indemnify and hold harmless the Company, other selling Holders, directors of
the Company, the officers of the Company who sign a Registration Statement and
each person, if any, who controls the Company or any selling Holders, within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the foregoing indemnity from the Company to such
Holder, but only with reference to information relating to such Holder furnished
to the Company in writing by such Holder expressly for use in a Registration
Statement, any preliminary prospectus, prospectus or any amendments or
supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) above, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the
19
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any indemnified party 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 party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings 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 such indemnified
parties and that all such fees and expenses shall be reimbursed as they are
incurred. If an indemnified party includes (x) the Purchasers or such
controlling persons of the Purchasers, such firm shall be designated in writing
by Morgan Stanley & Co. Incorporated or (y) Holders of Securities (other than
the Purchasers) or controlling persons of such Holders, such firm shall be
designated in writing by Holders of a majority in aggregate principal amount of
such Securities. In all other cases, such firm shall be designated by the
Company. The indemnifying party 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
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 90 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any
20
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or
(b) of this Section 5 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party 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 indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand 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 indemnifying party or
parties on the one hand and the indemnified party or parties on the other hand
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 benefits received by the Company on the one hand
and any such Holder, Participating Broker-Dealer or other party on the other
hand shall be deemed to be in the same respective proportions as the net
proceeds from the offering of the Notes (before deducting expenses) received by
the Company and the total discounts and commissions received or realized by such
Holder, Participating Broker-Dealer or other party in respect thereof, in each
case as set forth in the Final Memorandum, bear to the aggregate offering price
of such Securities. The relative fault of the parties 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 such Holder, Participating
Broker-Dealer or other party and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Holders' respective obligations to contribute
21
pursuant to this Section 5 are several in proportion to the respective amount of
Notes they have purchased, not joint.
(e) The Company and each Holder agree that it would not be just or
equitable if contribution pursuant to this Section 5 were determined by PRO RATA
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) of this Section 5.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, 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 5, no Holder of Securities shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities were sold by such Holder pursuant to a Registration Statement
exceeds the amount of any damages that such Holders have 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 indemnity and contribution provisions contained in this
Section 5 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 any Holder or Participating Broker-Dealer or any person controlling
such Holder or Participating Broker-Dealer or by or on behalf of the Company,
its officers or directors or any person controlling the Company and (iii) the
sale of the Securities. The remedies provided for in this Section 5 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
SECTION 6. ADDITIONAL INTEREST UNDER CERTAIN CIRCUMSTANCES. (a)
Additional interest (the "Additional Interest") with respect to the Securities
shall be assessed as follows if any of the following events occur (each such
event in clauses (i) through (iii) below a "Failure to Register"):
22
(i) If by December 28, 1996, neither the Exchange Offer Registration
Statement nor a Shelf Registration Statement has been filed with the
Commission;
(ii) If by May 12, 1997, neither the Registered Exchange Offer is
consummated nor, if required in lieu thereof, the Shelf Registration
Statement is declared effective by the Commission; or
(iii) If, after May 12, 1997, and after either the Exchange Offer
Registration Statement or the Shelf Registration Statement is declared
effective, (A) such Registration Statement thereafter ceases to be
effective prior to completion of the Exchange Offer or the sale of all the
Transferred Restricted Notes registered pursuant to the Shelf Registration
Statement, as the case may be; or (B) such Registration Statement or the
related prospectus ceases to be usable in connection with resales of
Transfer Restricted Notes during the periods specified in this Agreement
(except as permitted in paragraph (b) of this Section 6) because either
(1) any event occurs as a result of which the related prospectus forming
part of such Registration Statement would include any 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 or (2) it shall be necessary to amend such Registration
Statement, or supplement the related prospectus, to comply with the
Securities Act or the Exchange Act or the respective rules thereunder.
Additional Interest shall accrue on the Notes over and above the
interest set forth in the title of the Notes from and including the date on
which any such Failure to Register shall occur to but excluding the date on
which all such Failures to Register have been cured, at a rate of 0.50% per
annum.
(b) A Failure to Register referred to in Section 6(a)(iii) shall be
deemed not to have occurred and be continuing in relation to a Registration
Statement or the related prospectus if (i) such Failure to Register has occurred
solely as a result of (x) the filing of a post-effective amendment to such
Registration Statement to incorporate annual audited financial information with
respect to the Company where such post-effective amendment
23
is not yet effective and needs to be declared effective to permit Holders to
use the related prospectus or (y) the occurrence of other material events or
developments with respect to the Company that would need to be described in
such Registration Statement or the related prospectus and (ii) in the case of
clause (y), the Company is proceeding promptly and in good faith to amend or
supplement such Registration Statement and related prospectus to describe
such events or, in the case of material developments that the Company
determines in good faith must remain confidential for business reasons, the
Company is proceeding promptly and in good faith to take such steps as are
necessary so that such developments need no longer remain confidential;
PROVIDED, HOWEVER, that in any case, if such Failure to Register occurs for a
continuous period in excess of 45 days, Additional Interest shall be payable
in accordance with the above paragraph from the day following such 45 day
period until the date on which such Failure to Register is cured.
(c) Any amounts of Additional Interest due pursuant to clause (a)(i),
(a)(ii) or (a)(iii) of Section 6 above will be payable in cash on the regular
interest payment dates with respect to the Notes. The amount of Additional
Interest will be determined by multiplying the applicable Additional Interest
rate by the principal amount of the Notes, multiplied by a fraction, the
numerator of which is the number of days such Additional Interest rate was
applicable during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months), and the denominator of which is 360.
(d) "Transfer Restricted Notes" means each Security until (i) the date
on which such Transfer Restricted Note has been exchanged by a person other than
a broker-dealer for a freely transferrable Exchange Note in the Registered
Exchange Offer, (ii) following the exchange by a broker-dealer in the Registered
Exchange Offer of a Transfer Restricted Note for an Exchange Note, the date on
which such Exchange Note is sold to a purchaser who receives from such
broker-dealer on or prior to the date of such sale a copy of the prospectus
contained in the Exchange Offer Registration Statement, (iii) the date on which
such Transfer Restricted Note has been effectively registered under the
Securities Act and disposed of in accordance with the Shelf Registration
Statement or (iv) the date on which such Transfer Restricted Note is distributed
to the public
24
pursuant to Rule 144 under the Securities Act or is saleable pursuant to Rule
144(k) under the Securities Act.
SECTION 7. RULES 144 AND 144A. The Company shall use its best
efforts to 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 request of any Holder of
Transfer Restricted Notes, make publicly available other information so long as
necessary to permit sales of Securities pursuant to Rules 144 and 144A. The
Company covenants that it will take such further action as any Holder of
Transfer Restricted Notes may reasonably request, all to the extent required
from time to time to enable such Holder to sell Transfer Restricted Notes
without registration under the Securities Act within the limitation of the
exemptions provided by Rules 144 and 144A (including the requirements of
Rule 144A(d)(4)). The Company will provide a copy of this Agreement to
prospective purchasers of Notes identified to the Company by the Purchasers upon
request. Upon the request of any Holder of Transfer Restricted Notes, 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.
SECTION 8. UNDERWRITTEN REGISTRATIONS. If any of the Transfer
Restricted Notes covered by any Shelf Registration are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering ("Managing Underwriters") will be
selected by the Holders of a majority in aggregate principal amount of such
Transfer Restricted Notes included in such offering; PROVIDED, HOWEVER, that the
Managing Underwriters shall be reasonably satisfactory to the Company.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted Notes on
the basis reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
25
SECTION 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,
except by the Company and the written consent of the Holders of a majority in
principal amount of the Securities affected by such amendment, modification,
supplement, waiver or consent.
(b) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to a Holder of the Securities, 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 to which confirmation of the sale of the Notes
to such Holder was first sent by the Purchasers, with a copy in like manner
to you as follows:
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Facsimile: (212) 761-0359
Attention: Managing Director, Syndicate
with a copy to:
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
Facsimile: (212) 474-3700
Attention: Kris F. Heinzelman
(2) if to the Company, at the following address:
c/o The Cypress Group L.L.C.
65 East 55th Street (19th Floor)
New York, NY 10022
Facsimile: (212) 705-0199
Attention: David P. Spalding
26
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, NY 10017
Facsimile: (212) 455-2502
Attention: Vincent Pagano, Jr.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
(c) NO INCONSISTENT AGREEMENTS. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its Securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Company and its successors and assigns.
(e) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
(h) SEVERABILITY. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining
27
provisions contained herein shall not be affected or impaired thereby.
(i) SECURITIES HELD BY THE COMPANY. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Securities is
required hereunder, Securities held by the Company or its affiliates (other than
subsequent Holders of Securities if such subsequent Holders are deemed to be
affiliates solely by reason of their holdings of such Securities) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
28
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Purchasers and the Company in accordance with its terms.
Very truly yours,
AMTROL ACQUISITION, INC.,
By:/s/ Anthony D. Tutrone
-------------------------------
Name: Anthony D. Tutrone
Title: Secretary
Accepted as of the date hereof
Morgan Stanley & Co. Incorporated
BT Securities Corporation
Acting severally on behalf of
themselves and the several
Purchasers
By MORGAN STANLEY & CO. INCORPORATED,
By:/s/Charles J. Ditkoff
----------------------------------
Name: Charles J. Ditkoff
Title: Vice President
ANNEX A
Each broker-dealer that receives Exchange Notes 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 Notes. 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 brokerdealer in connection with
resales of Exchange Notes received in exchange for Existing Notes where such
Existing Notes were acquired by such broker-dealer as a result of marketmaking
activities or other trading activities. The Company has agreed that, for a
period of 120 days after the Expiration Date (as defined herein), it will make
this Prospectus available to any broker-dealer for use in connection with any
such resale. See "Plan of Distribution".
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Notes, where such Notes were acquired by such broker-dealer as a
result of marketmaking activities or other trading activities, must acknowledge
that it will deliver a prospectus in connection with any resale of such Exchange
Notes. See "Plan of Distribution".
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes 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 Notes. 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 Notes received in
exchange for Existing Notes where such Existing Notes were acquired as a result
of market-making activities or other trading activities. The Company has agreed
that, for a period of 120 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 , 1997, all
dealers effecting transactions in the Exchange Notes may be required to deliver
a prospectus.(*)
The Company will not receive any proceeds from any sale of Exchange
Notes by broker-dealers. Exchange Notes 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 Notes 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 or the purchasers of any such Exchange Notes. Any broker-dealer
that resells Exchange Notes 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 Notes may be deemed to be an "underwriter" within
the meaning of the Securities Act and any profit on any such resale of Exchange
Notes 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
- -----------------------
(*) 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.
2
it is an "underwriter" within the meaning of the Securities Act.
For a period of 120 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
Holders of the Notes) 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
Securities Act.
ANNEX D
/ / CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:
Address:
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Notes. If the undersigned is a broker-dealer that will receive Exchange Notes
for its own account in exchange for Notes 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 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 Securities Act.