EXHIBIT 4.2
MAAX Corporation
9 3/4% Senior Subordinated Notes due 2012
unconditionally guaranteed as to the
payment of principal, premium,
if any, and interest by
the Guarantors listed on the signature pages hereof
Exchange and Registration Rights Agreement
June 4, 2004
Goldman, Sachs & Co.
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
As representatives of the several Purchasers
named in Schedule I to the Purchase Agreement,
c/o Goldman Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
MAAX Corporation, a Nova Scotia unlimited company (the "Company"),
proposes to issue and sell to the Purchasers (as defined herein) upon the terms
set forth in the Purchase Agreement (as defined herein) an aggregate of
US$150,000,000 principal amount of its 9 3/4% Senior Subordinated Notes due
2012, which are unconditionally guaranteed by Beauceland Corporation (the
"Parent Guarantor"), certain of the Company's subsidiaries listed on the
signature pages hereof (the "Subsidiary Guarantors", together with the Parent
Guarantor the "Guarantors," and such Guarantors, together with the Company, the
"Issuers"). As an inducement to the Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to the obligations of the
Purchasers thereunder, the Issuers, jointly and severally, agree with the
Purchasers for the benefit of holders (as defined herein) from time to time of
the Registrable Securities (as defined herein) as follows:
1. Certain Definitions. For purposes of this Exchange and
Registration Rights Agreement, the following terms shall have the following
respective meanings:
"Base Interest" shall mean the interest that would otherwise accrue
on the Securities under the terms thereof and the Indenture, without giving
effect to the provisions of this Exchange and Registration Rights Agreement.
The term "broker-dealer" shall mean any broker or dealer registered
as such under the Exchange Act.
"Canadian Securities Laws" shall mean the securities laws, rules,
regulations and policies applicable in the provinces and territories of Canada.
"Closing Date" shall mean the date on which the Securities are
initially issued.
"Commission" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Exchange
Act or the Securities Act, whichever is the relevant statute for the particular
purpose.
"Effective Time," in the case of (a) an Exchange Registration, shall
mean the time and date as of which the Commission declares the Exchange
Registration Statement effective or as of which the Exchange Registration
Statement otherwise becomes effective and (b) a Shelf Registration, shall mean
the time and date as of which the Commission declares the Shelf Registration
Statement effective or as of which the Shelf Registration Statement otherwise
becomes effective.
"Electing Holder" shall mean any holder of Registrable Securities
that has returned a completed and signed Notice and Questionnaire to the Company
in accordance with Section 3(d)(ii) or 3(d)(iii) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or
any successor thereto, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be amended from time to time.
"Exchange Offer" shall have the meaning assigned thereto in Section
2(a) hereof.
"Exchange Registration" shall have the meaning assigned thereto in
Section 3(c) hereof.
"Exchange Registration Statement" shall have the meaning assigned
thereto in Section 2(a) hereof.
"Exchange Securities" shall have the meaning assigned thereto in
Section 2(a) hereof.
The term "holder" shall mean each of the Purchasers and other
persons who acquire Registrable Securities from time to time (including any
successors or assigns), in each case for so long as such person owns any
Registrable Securities.
"Indenture" shall mean the Indenture, dated as of June 4, 2004,
between the Issuers and U.S. Bank Trust, N.A., as trustee (the "Trustee"), as
the same shall be amended from time to time.
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"Notice and Questionnaire" means a Notice of Registration Statement
and Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
The term "person" shall mean any individual, corporation,
association, partnership, limited liability company, unlimited company, trust or
unincorporated organization, business, individual, government or political
subdivision thereof or governmental agency.
"Purchase Agreement" shall mean the Purchase Agreement, dated as of
May 27, 2004 between the Purchasers and the Issuers relating to the Securities.
"Purchasers" shall mean the Purchasers named in Schedule I to the
Purchase Agreement.
"Registrable Securities" shall mean each Security until the earlier
to occur of: (a) the date on which such Security has been exchanged by a person
other than a broker-dealer for an Exchange Security in the Exchange Offer; (b)
following the exchange by a broker-dealer in the Exchange Offer of a Security
for an Exchange Security, the date on which such Exchange Security is sold to a
purchaser who receives from such broker-dealer on or prior to the date of such
sale a copy of the prospectus contained in the Exchange Registration Statement;
(c) the date on which such Security has been effectively registered under the
Securities Act and disposed of in accordance with the Shelf Registration
Statement; or (d) the date on which such Security is distributed to the public
pursuant to Rule 144.
"Registration Default" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in Section
2(a) hereof.
"Restricted Holder" shall mean (a) a holder that is an affiliate of
the Company within the meaning of Rule 405, (b) a holder who acquires Exchange
Securities outside the ordinary course of such holder's business, (c) a holder
who has arrangements or understandings with any person to participate in the
Exchange Offer for the purpose of distributing Exchange Securities and (d) a
holder that is a broker-dealer, but only with respect to Exchange Securities
received by such broker-dealer pursuant to an Exchange Offer in exchange for
Registrable Securities acquired by the broker-dealer directly from the Company.
"Rule 144," "Rule 144A," "Rule 405" and "Rule 415" shall mean, in
each case, such rule promulgated under the Securities Act (or any successor
provision), as the same shall be amended from time to time.
"Securities" shall mean, collectively, the 9 3/4% Senior
Subordinated Notes due 2012 of the Company to be issued and sold to the
Purchasers, and notes of the Company issued in exchange therefor or in lieu
thereof pursuant to the Indenture and this Exchange and
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Registration Rights Agreement. Each Security is entitled to the benefit of the
guarantees provided for in the Indenture (the "Guarantees") and, unless the
context otherwise requires, any reference herein to a "Security," an "Exchange
Security" or a "Registrable Security" shall include a reference to the related
Guarantees.
"Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, and the rules and regulations of the Commission promulgated
thereunder, all as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto in
Section 2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned
thereto in Section 2(b) hereof.
"Special Interest" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Exchange and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Issuers agree
to file under the Securities Act, as soon as practicable, but no later than 150
days after the Closing Date, a registration statement relating to an offer to
exchange (such registration statement, the "Exchange Registration Statement",
and such offer, the "Exchange Offer") any and all of the Registrable Securities
for a like aggregate principal amount of debt securities issued by the Company
and guaranteed by the Guarantors, which debt securities and guarantees are
substantially identical to the Securities and the related Guarantees,
respectively (and are entitled to the benefits of a trust indenture which is
substantially identical to the Indenture or is the Indenture and which has been
qualified under the Trust Indenture Act) (other than such changes to the
Indenture or any such trust indenture as are necessary to comply with any
requirements of the Commission to effect or maintain the qualification thereof
under the Trust Indenture Act or which eliminate the transfer restrictions on
the Securities or provisions for the payment of additional interest contemplated
in Section 2(c) below), except that they have been registered pursuant to an
effective registration statement under the Securities Act and do not contain a
restrictive legend or provisions for the additional interest contemplated in
Section 2(c) below (such new debt securities hereinafter called "Exchange
Securities"). The Issuers agree to use their commercially reasonable efforts to
cause the Exchange Registration Statement to become
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effective under the Securities Act as soon as practicable, but no later than 300
days after the Closing Date. The Exchange Offer will be registered under the
Securities Act on the appropriate form and will comply with all applicable
tender offer rules and regulations under the Exchange Act. The Issuers further
agree to (A) complete the Exchange Offer promptly, but no later than 30 days
after such Exchange Registration Statement has become effective, or such later
date as is required by the Securities Act, (B) hold the Exchange Offer open for
at least 30 days and (C) exchange Exchange Securities for all Registrable
Securities that have been properly tendered and not withdrawn on or prior to the
expiration of the Exchange Offer. The Exchange Offer will be deemed to have been
"completed" only if the debt securities and related guarantees received by
holders other than Restricted Holders in the Exchange Offer for Registrable
Securities are, upon receipt, transferable by each such holder without
restriction under the Securities Act and the Exchange Act and without material
restrictions under the blue sky or securities laws of a substantial majority of
the States of the United States of America. Subject to the preceding sentence,
the Exchange Offer shall be deemed to have been completed upon the earlier to
occur of (i) the Issuers having exchanged the Exchange Securities for all
outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the
Issuers having exchanged, pursuant to the Exchange Offer, Exchange Securities
for all Registrable Securities that have been properly tendered and not
withdrawn before the expiration of the Exchange Offer. Each holder who
participates in the Exchange Offer will be required to represent (i) that any
Exchange Securities received by it will be acquired in the ordinary course of
its business, (ii) that at the time of the consummation of the Exchange Offer,
such holder will have no arrangement or understanding with any Person to
participate in the distribution of the Exchange Securities, (iii) that such
holder is not an affiliate of any Issuer within the meaning of the Securities
Act, and (iv) any additional representations that in the written opinion of
counsel to the Issuers are necessary under then-existing rules or regulations
(or interpretations thereof) of the Commission in order for the Exchange
Registration Statement to be declared effective. The Issuers agree (x) to
include in the Exchange Registration Statement a prospectus for use in any
resales by any holder of Exchange Securities that is a broker-dealer and (y) to
use their commercially reasonable efforts to keep such Exchange Registration
Statement effective for a period (the "Resale Period") beginning when Exchange
Securities are first issued in the Exchange Offer and ending upon the earlier of
the expiration of the 180th day after the Exchange Offer has been completed or
such time as such broker-dealers are no longer required to comply with the
prospectus delivery requirements in connection with offers and sales of the
Exchange Securities. With respect to such Exchange Registration Statement, such
holders shall have the benefit of the rights of indemnification and contribution
set forth in Sections 6(a), (c), (d) and (e) hereof.
(b) If (i) the Issuers are not permitted to consummate the
Exchange Offer because the Exchange Offer is not permitted by applicable law or
Commission policy or (ii) any holder of Registrable Securities notifies the
Issuers prior to the 20th day following consummation of the Exchange Offer that:
(a) it is prohibited by applicable law in the United States or Canada or policy
of the Commission or securities regulatory authorities in Canada from
participating in the Exchange Offer; (b) it may not resell the Exchange
Securities acquired by it in the Exchange Offer to the public without delivering
a prospectus and the prospectus contained in the Exchange Registration Statement
is not appropriate or available for such resales or (c) it is a broker-dealer
and owns Exchange Securities acquired directly from the Issuers or an affiliate
of
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any Issuer, the Issuers shall, in lieu of (or, in the case of clause (ii), in
addition to) conducting the Exchange Offer contemplated by Section 2(a) hereof,
file under the Securities Act as soon as practicable, but no later than the
later of 150 days after the time such obligation to file arises, a "shelf"
registration statement providing for the registration of, and the sale on a
continuous or delayed basis by the holders of, all applicable Registrable
Securities, pursuant to Rule 415 or any similar rule that may be adopted by the
Commission (such filing, the "Shelf Registration" and such registration
statement, the "Shelf Registration Statement"). The Issuers agree to use their
commercially reasonable efforts (x) to cause the Shelf Registration Statement to
become or be declared effective no later than 300 days after such obligation
arises and to keep such Shelf Registration Statement continuously effective for
a period ending on the earlier of the second anniversary of the Effective Time
or such time as there are no longer any applicable Registrable Securities
outstanding, provided, however, that no holder shall be entitled to be named as
a selling securityholder in the Shelf Registration Statement or to use the
prospectus forming a part thereof for resales of Registrable Securities unless
such holder is an Electing Holder, and (y) on no more than one occasion after
the Effective Time of the Shelf Registration Statement, promptly upon the
request of any holder of Registrable Securities that is not then an Electing
Holder (1) mail the Notice and Questionnaire to all holders of Registrable
Securities that are not then Electing Holders and (2) not more than 60 nor less
than 45 days after mailing the Notice and Questionnaire, take any action
reasonably necessary to enable any such holders providing a completed and signed
Notice and Questionnaire to the Company to use the prospectus forming a part of
the Shelf Registration Statement for resales of Registrable Securities,
including, without limitation, any action necessary to identify such holder as a
selling security holder in the Shelf Registration Statement, provided, however,
that nothing in this clause (y) shall relieve any such holder of the obligation
to return a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(d)(iii) hereof, provided, further, that the failure of
a Shelf Registration Statement to remain effective due to the filing of any
amendment to such Shelf Registration Statement pursuant to this clause (y) shall
not constitute a Registration Default (as defined below) or a breach of this
Exchange and Registration Rights Agreement, so long as the Issuers use their
commercially reasonable efforts to cause such Shelf Registration Statement, as
so amended, to be declared effective as soon as reasonably practicable. The
Issuers further agree to supplement or make amendments to the Shelf Registration
Statement, as and when required by the rules, regulations or instructions
applicable to the registration form used by the Issuers for such Shelf
Registration Statement or by the Securities Act for shelf registration, and the
Issuers agree to furnish to each Electing Holder copies of any such supplement
or amendment prior to its being used or promptly following its filing with the
Commission.
(c) In the event that (i) the Issuers have not filed the Exchange
Registration Statement or Shelf Registration Statement on or before the date on
which such registration statement is required to be filed pursuant to Section
2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or
Shelf Registration Statement has not become effective or been declared effective
by the Commission on or before the date on which such registration statement is
required to become or be declared effective pursuant to Section 2(a) or 2(b),
respectively, or (iii) the Exchange Offer has not been consummated within 30
days after the initial effective date of the Exchange Registration Statement
relating to the Exchange Offer (if the Exchange Offer is then required to be
made) or (iv) any Exchange Registration Statement or
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Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed
and declared effective but shall thereafter either be withdrawn by the Issuers
or shall become subject to an effective stop order issued pursuant to Section
8(d) of the Securities Act suspending the effectiveness of such registration
statement (except as specifically permitted herein) without being succeeded
immediately by an additional registration statement filed and declared effective
(each such event referred to in clauses (i) through (iv), a "Registration
Default" and each period during which a Registration Default has occurred and is
continuing, a "Registration Default Period"), then, as liquidated damages for
such Registration Default, subject to the provisions of Section 9(b), special
interest ("Special Interest"), in addition to the Base Interest, shall accrue at
a per annum rate of 0.25% for the first 90 days of the Registration Default
Period, increasing by 0.25% for each successive 90 days of the Registration
Default Period, to a maximum Special Interest rate of 2.0% for the remaining
portion of the Registration Default Period. Notwithstanding anything to the
contrary set forth herein, (w) upon filing of the Exchange Registration
Statement or the Shelf Registration Statement, as the case may be, in the case
of clause (i) above, (x) upon the effectiveness of the Exchange Registration
Statement or the Shelf Registration Statement, as the case may be, in the case
of clause (ii) above, (y) upon consummation of the Exchange Offer, in the case
of clause (iii) above, or (z) upon the occurrence of any event (including the
filing of an appropriate amendment to the relevant Registration Statement, the
declaring effective of another Registration Statement or the taking of other
appropriate action) that causes the Exchange Registration Statement or the Shelf
Registration Statement, as the case may be, to again be declared effective or
made usable in the case of clause (iv) above, the Special Interest payable as a
result of such clause (i), (ii), (iii) or (iv), as applicable, shall cease to
accrue. Any amounts of Special Interest due pursuant to this Section 2(c) shall
be payable by the Issuers to the Trustee, on behalf of the holders of the
relevant Securities, in cash on the interest payment dates specified in the
relevant Securities, commencing with the first such interest payment date
occurring after any such Special Interest commences to accrue. The Special
Interest provided for in this Section 2(c) shall be the exclusive monetary
remedy available to holders of Securities for Registration Defaults.
(d) The Issuers shall use their commercially reasonable efforts to
take all actions reasonably necessary or advisable to be taken by them to ensure
that the transactions contemplated herein are effected as so contemplated,
including all actions reasonably necessary or desirable to register the
Guarantees under the registration statement contemplated in Section 2(a) or 2(b)
hereof, as applicable.
(e) Any reference herein to a registration statement as of any
time shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time and any reference herein to
any post-effective amendment to a registration statement as of any time shall be
deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time.
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3. Registration Procedures. If the Issuers file a registration
statement pursuant to Section 2(a) or 2(b) hereof, the following provisions
shall apply:
(a) At or before the Effective Time of the Exchange Registration
Statement or the Shelf Registration Statement, as the case may be, the Issuers
shall qualify either the Indenture or such other substantially identical
indenture under the Trust Indenture Act.
(b) In the event that such qualification would require the
appointment of a new trustee under either the Indenture or such other
substantially identical indenture, the Issuers shall appoint a new trustee
thereunder pursuant to the applicable provisions of either the Indenture or such
other substantially identical indenture.
(c) In connection with the Issuers' obligations with respect to
the registration of Exchange Securities as contemplated by Section 2(a) (the
"Exchange Registration"), if applicable, the Issuers shall, as soon as
practicable (or as otherwise specified):
(i) prepare and file with the Commission, as soon as
practicable but no later than 150 days after the Closing Date, an Exchange
Registration Statement on any form which may be utilized by the Issuers,
and, if a prospectus contained in an Exchange Registration Statement is
required to be delivered under the Securities Act by any broker-dealer who
seeks to sell Exchange Securities during the Resale Period and has advised
the Issuers of such fact before the filing of any Exchange Registration
Statement, which shall permit the Exchange Offer and resales of Exchange
Securities by broker-dealers during the Resale Period to be effected as
contemplated by Section 2(a), and use their commercially reasonable
efforts to cause such Exchange Registration Statement to become effective
as soon as practicable thereafter, but no later than 300 days after the
Closing Date;
(ii) prepare and file with the Commission such amendments and
supplements to such Exchange Registration Statement and the prospectus
included therein as may be necessary to effect and maintain the
effectiveness of such Exchange Registration Statement for the periods and
purposes contemplated in Section 2(a) hereof and as may be required by the
applicable rules and regulations of the Commission and the instructions
applicable to the form of such Exchange Registration Statement, and
promptly provide each broker-dealer holding Exchange Securities with such
number of copies of the prospectus included therein (as then amended or
supplemented, if applicable), in conformity in all material respects with
the requirements of the Securities Act and the Trust Indenture Act (and,
in the case of holders in Canada, the Canadian wrapper (if the delivery of
one is required by Canadian Securities Laws) used in connection with the
private placement of the Exchange Securities in Canada), as such
broker-dealer reasonably may request prior to the expiration of the Resale
Period, for use in connection with resales of Exchange Securities;
(iii) promptly notify each broker-dealer holding Exchange
Securities that has requested copies of the prospectus included in such
Exchange Registration Statement, and confirm such advice in writing, (A)
when such Exchange Registration
8
Statement or the prospectus included therein or any prospectus amendment
or supplement or post-effective amendment has been filed, and, with
respect to such Exchange Registration Statement or any post-effective
amendment, when the same has become effective, (B) of any request by the
Commission for amendments or supplements to such Exchange Registration
Statement or prospectus, (C) of the issuance by the Commission of any stop
order suspending the effectiveness of such Exchange Registration Statement
or the initiation or threatening of any proceedings for that purpose, (D)
if at any time the representations and warranties of the Issuers
contemplated by Section 5 cease to be true and correct in all material
respects, (E) of the receipt by the Issuers of any notification with
respect to the suspension of the qualification of the Exchange Securities
for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, or (F) at any time during the Resale Period
when a prospectus is required to be delivered under the Securities Act,
that such Exchange Registration Statement, prospectus, prospectus
amendment or supplement or post-effective amendment does not conform in
all material respects to the applicable requirements of the Securities Act
and the Trust Indenture Act or contains an untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing;
(iv) in the event that the Issuers would be required,
pursuant to Section 3(c)(iii)(F) above, to notify any broker-dealers
holding Exchange Securities, without delay prepare and furnish to each
such broker-dealer a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to purchasers of
such Exchange Securities during the Resale Period, such prospectus shall
conform in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and shall not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(v) use their commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of such Exchange
Registration Statement or any post-effective amendment thereto at the
earliest practicable date;
(vi) use their commercially reasonable efforts to (A)
register or qualify the Exchange Securities under the securities laws or
blue sky laws of such jurisdictions as are contemplated by Section 2(a)
and comply with any requirements under Canadian Securities Laws in respect
of the exchange and distribution of Exchange Securities to be received by
holders in Canada no later than the commencement of the Exchange Offer,
(B) keep such registrations or qualifications in effect and comply with
such laws so as to permit the continuance of offers, sales and dealings
therein in such jurisdictions until the expiration of the Resale Period
and (C) take any and all other actions as may be reasonably necessary or
advisable to enable each broker-dealer holding Exchange Securities to
consummate the disposition thereof in such jurisdictions; provided,
however, that no Issuer shall be required for any such purpose to (1)
qualify as a foreign corporation in any jurisdiction wherein it would not
otherwise be required to qualify but
9
for the requirements of this Section 3(c)(vi), (2) consent to general
service of process in any such jurisdiction, (3) take any other action
that would subject it to general service of process or to taxation in
excess of a nominal amount in respect of doing business in any
jurisdiction in which it is not otherwise subject or (4) make any changes
to its organizational documents or any agreement between it and its
equityholders;
(vii) use their commercially reasonable efforts to obtain the
consent or approval of each governmental agency or authority, whether
federal, state, provincial or local, which may be required to effect the
Exchange Registration, the Exchange Offer and the offering and sale of
Exchange Securities by broker-dealers during the Resale Period;
(viii) provide a CUSIP number for all Exchange Securities, not
later than the applicable Effective Time; and
(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as soon as
practicable but no later than eighteen months after the effective date of
such Exchange Registration Statement, an earning statement of the Company
and its subsidiaries or the Parent Guarantor and its subsidiaries
complying with Section 11(a) of the Securities Act (including, at the
option of the Company, Rule 158 thereunder).
(d) In connection with the Issuers' obligations with respect to
the Shelf Registration, if applicable, the Issuers shall, as soon as practicable
(or as otherwise specified):
(i) prepare and file with the Commission, as soon as
practicable but in any case within the time periods specified in Section
2(b), a Shelf Registration Statement on any form which may be utilized by
the Company and which shall register all of the applicable Registrable
Securities for resale by the holders thereof in accordance with such
method or methods of disposition as may be specified by such of the
holders as, from time to time, may be Electing Holders and use their
commercially reasonable efforts to cause such Shelf Registration Statement
to become effective as soon as practicable but in any case within the time
periods specified in Section 2(b);
(ii) not less than 30 calendar days prior to the Effective
Time of the Shelf Registration Statement, mail the Notice and
Questionnaire to the holders of Registrable Securities; no holder shall be
entitled to be named as a selling securityholder in the Shelf Registration
Statement as of the Effective Time, and no holder shall be entitled to use
the prospectus forming a part thereof for resales of Registrable
Securities at any time, unless such holder has returned a completed and
signed Notice and Questionnaire to the Company by the deadline for
response set forth therein; provided, however, holders of Registrable
Securities shall have at least 28 calendar days from the date on which the
Notice and Questionnaire is first mailed to such holders to return a
completed and signed Notice and Questionnaire to the Company;
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(iii) on no more than one occasion after the Effective Time of
the Shelf Registration Statement, upon the request of any holder of
Registrable Securities that is not then an Electing Holder, promptly send
a Notice and Questionnaire to all remaining holders of Registrable
Securities that are not then Electing Holders; provided that the Issuers
shall not be required to take any action to name any such holder as a
selling securityholder in the Shelf Registration Statement or to enable
any such holder to use the prospectus forming a part thereof for resales
of Registrable Securities until any such holder has returned a completed
and signed Notice and Questionnaire to the Company;
(iv) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Shelf Registration
Statement and the prospectus included therein as may be necessary to
effect and maintain the effectiveness of such Shelf Registration Statement
for the period specified in Section 2(b) hereof and as may be required by
the applicable rules and regulations of the Commission and the
instructions applicable to the form of such Shelf Registration Statement,
and promptly furnish to each Electing Holder who so requests one copy of
any such supplement or amendment; provided, however, that notwithstanding
the foregoing, the Issuers may allow any such Shelf Registration Statement
to cease to become effective and usable for no more than 90 days in any
360 day period if (A) the Board of Directors of the Company determines in
good faith that such action would impede, delay or otherwise interfere
with any proposed or pending material corporate transaction involving the
Company or that such action would require the disclosure of material
non-public information, the disclosure of which at such time would not be
in the best interests of the Company or its stockholders, and the Company
notifies the holders within two business days after the Board of Directors
makes such determination or (B) the prospectus contained in any such Shelf
Registration Statement contains an untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, provided that, the periods referred to in Section 2(b) hereof
during which such Shelf Registration Statement is required to be effective
and usable shall be extended by the number of days during which such Shelf
Registration Statement was not effective or usable pursuant to the
foregoing provisions (but in no event past the second anniversary of the
Effective Time);
(v) provide (A) the underwriters (which term, for purposes
of this Exchange and Registration Rights Agreement, shall include a person
deemed to be an underwriter within the meaning of Section 2(a)(11) of the
Securities Act), if any, thereof, (B) any sales or placement agent
therefor and (C) counsel for any such underwriter or agent the opportunity
to participate in the preparation of such Shelf Registration Statement,
each prospectus included therein or filed with the Commission and each
amendment or supplement thereto;
(vi) for a reasonable period prior to the filing of such
Shelf Registration Statement, and throughout the period specified in
Section 2(b), make available at reasonable times at the Company's
principal place of business or such other reasonable place for inspection,
during reasonable business hours, by the persons referred to in
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Section 3(d)(v) who shall certify to the Company that they have a current
intention to sell the Registrable Securities pursuant to the Shelf
Registration such financial and other information and pertinent corporate
books and records of the Company, and cause the officers, employees,
counsel and independent certified public accountants of the Company to
respond to such inquiries, as shall be reasonably necessary, in the
judgment of the respective counsel referred to in such Section, to conduct
a reasonable investigation within the meaning of Section 11 of the
Securities Act; provided, however, that each such party shall be required
to maintain in confidence and not to disclose to any other person any
information or records reasonably designated by the Company as being
confidential, until such time as (A) such information becomes a matter of
public record other than as a result of a disclosure or failure to
safeguard by any such party, or (B) such person shall be required so to
disclose such information pursuant to a subpoena or order of any court or
other governmental agency or body having jurisdiction over the matter
(subject to the requirements of such order, and only after such person
shall have given the Company prompt prior written notice of such
requirement and allowed the Company to undertake appropriate action to
obtain a protective order or otherwise prevent disclosure of the
information at its expense), or (C) such information is required to be set
forth in such Shelf Registration Statement or the prospectus included
therein or in an amendment to such Shelf Registration Statement or an
amendment or supplement to such prospectus in order that such Shelf
Registration Statement, prospectus, amendment or supplement, as the case
may be, complies with applicable requirements of the United States federal
securities laws and the rules and regulations of the Commission and does
not contain an untrue statement of a material fact or omit to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then
existing;
(vii) promptly notify each of the Electing Holders, any sales
or placement agent therefor and any underwriter thereof (which
notification may be made through any managing underwriter that is a
representative of such underwriter for such purpose) and confirm such
advice in writing, (A) when such Shelf Registration Statement or the
prospectus included therein or any prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect to such Shelf
Registration Statement or any post-effective amendment, when the same has
become effective, (B) of any request by the Commission for amendments or
supplements to such Shelf Registration Statement or prospectus, (C) of the
issuance by the Commission of any stop order suspending the effectiveness
of such Shelf Registration Statement or the initiation or threatening of
any proceedings for that purpose, (D) if at any time the representations
and warranties of the Issuers contemplated by Section 3(d)(xvi) or Section
5 cease to be true and correct in all material respects, (E) of the
receipt by the Issuers of any notification with respect to the suspension
of the qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, or (F) if at any time when a prospectus is required to be
delivered under the Securities Act, that such Shelf Registration
Statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act
or contains
12
an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
(viii) use their commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of such Shelf
Registration Statement or any post-effective amendment thereto at the
earliest practicable date;
(ix) if requested by any managing underwriter or
underwriters, any placement or sales agent or any Electing Holder,
promptly incorporate in a prospectus supplement or post-effective
amendment such information as is required by the applicable rules and
regulations of the Commission and as such managing underwriter or
underwriters, such agent or such Electing Holder specifies should be
included therein relating to the terms of the sale of such Registrable
Securities, including information with respect to the principal amount of
Registrable Securities being sold by such Electing Holder or agent or to
any underwriters, the name and description of such Electing Holder, agent
or underwriter, the offering price of such Registrable Securities and any
discount, commission or other compensation payable in respect thereof, the
purchase price being paid therefor by such underwriters and with respect
to any other terms of the offering of the Registrable Securities to be
sold by such Electing Holder or agent or to such underwriters; and make
all required filings of such prospectus supplement or post-effective
amendment promptly after notification of the matters to be incorporated in
such prospectus supplement or post-effective amendment;
(x) furnish to each Electing Holder, each placement or sales
agent, if any, therefor, each underwriter, if any, thereof and the
respective counsel referred to in Section 3(d)(v), upon request, an
executed copy (or, in the case of an Electing Holder, a conformed copy) of
such Shelf Registration Statement, each such amendment and supplement
thereto (in each case including all exhibits thereto (in the case of an
Electing Holder of Registrable Securities, upon request) and documents
incorporated by reference therein to the extent such exhibits or documents
are not available on the Commission's EDGAR system) and such number of
copies of such Shelf Registration Statement (excluding exhibits thereto
and documents incorporated by reference therein unless specifically so
requested by such Electing Holder, agent or underwriter, as the case may
be, and in such cases only to the extent such exhibits or documents are
not available on the Commission's EDGAR system) and of the prospectus
included in such Shelf Registration Statement (including each preliminary
prospectus and any summary prospectus), in conformity in all material
respects with the applicable requirements of the Securities Act and the
Trust Indenture Act, and such other documents, as such Electing Holder,
agent, if any, and underwriter, if any, may reasonably request in order to
facilitate the offering and disposition of the Registrable Securities
owned by such Electing Holder, offered or sold by such agent or
underwritten by such underwriter and to permit such Electing Holder, agent
and underwriter to satisfy the prospectus delivery requirements of the
Securities Act; and the Issuers hereby consent to the use of such
prospectus (including such preliminary and summary prospectus) and any
amendment or
13
supplement thereto by each such Electing Holder and by any such agent and
underwriter, in each case in the form most recently provided to such
person by the Company, in connection with the offering and sale of the
Registrable Securities covered by the prospectus (including such
preliminary and summary prospectus) or any supplement or amendment
thereto;
(xi) use their commercially reasonable efforts to (A)
register or qualify the Registrable Securities to be included in such
Shelf Registration Statement under such securities laws or blue sky laws
of such jurisdictions as any Electing Holder and each placement or sales
agent, if any, therefor and underwriter, if any, thereof shall reasonably
request in writing; provided that where Securities are offered pursuant to
an underwritten offering, counsel to the underwriters shall, at the cost
and expense of the Company, perform Blue Sky investigations and file
registrations and qualifications required to be filed pursuant to this
Section 3(d)(xi), prior to any public offering of Registrable Securities
or any delivery of a prospectus contained in the Shelf Registration
Statement, if so required, (B) keep such registrations or qualifications
in effect and comply with such laws so as to permit the continuance of
offers, sales and dealings therein in such jurisdictions during the period
the Shelf Registration is required to remain effective under Section 2(b)
above and for so long as may be necessary to enable any such Electing
Holder, agent or underwriter to complete its distribution of Securities
pursuant to such Shelf Registration Statement and (C) take any and all
other actions as may be reasonably necessary or advisable to enable each
such Electing Holder, agent, if any, and underwriter, if any, to
consummate the disposition in such jurisdictions of such Registrable
Securities; provided, however, that no Issuer shall be required for any
such purpose to (1) qualify as a foreign corporation in any jurisdiction
wherein it would not otherwise be required to qualify but for the
requirements of this Section 3(d)(xi), (2) consent to general service of
process in any such jurisdiction, (3) take any other action that would
subject it to general service of process or to taxation in excess of a
nominal amount in respect of doing business in any jurisdiction in which
it is not otherwise subject or (4) make any changes to its organizational
documents or any agreement between it and its equityholders;
(xii) use their commercially reasonable efforts to obtain the
consent or approval of each governmental agency or authority, whether
federal, state or local, which may be required to effect the Shelf
Registration or the offering or sale in connection therewith or to enable
the selling holder or holders to offer, or to consummate the disposition
of, their Registrable Securities;
(xiii) unless any Registrable Securities shall be in
book-entry only form, cooperate with the Electing Holders and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold, which
certificates, if so required by any securities exchange upon which any
Registrable Securities are listed, shall be penned, lithographed or
engraved, or produced by any combination of such methods, on steel
engraved borders, and which certificates shall not bear any restrictive
legends; and, in the case of an underwritten offering, enable
14
such Registrable Securities to be in such denominations and registered in
such names as the managing underwriters may request at least two business
days prior to any sale of the Registrable Securities;
(xiv) provide a CUSIP number for all Registrable Securities,
not later than the applicable Effective Time;
(xv) enter into one or more underwriting agreements,
engagement letters, agency agreements, "best efforts" underwriting
agreements or similar agreements as are customary in underwritten
offerings of debt securities similar to the Securities, as appropriate,
including customary provisions relating to indemnification and
contribution, and take such other actions in connection therewith as any
Electing Holders aggregating at least 25% in aggregate principal amount of
the Registrable Securities at the time outstanding shall request in order
to expedite or facilitate the disposition of such Registrable Securities;
(xvi) if an agreement of the type referred to in Section
3(d)(xv) hereof is entered into, (A) make such representations and
warranties to the Electing Holders and the placement or sales agent, if
any, therefor and the underwriters, if any, thereof in form, substance and
scope as are customarily made in connection with an offering of debt
securities pursuant to any appropriate agreement or to a registration
statement filed on the form applicable to the Shelf Registration; (B)
obtain an opinion of counsel to the Issuers in customary form and covering
such matters, of the type customarily covered by such an opinion, as the
managing underwriters, if any, or as any Electing Holders of at least 25%
in aggregate principal amount of the Registrable Securities at the time
outstanding may reasonably request, addressed to such Electing Holder or
Electing Holders and the placement or sales agent, if any, therefor and
the underwriters, if any, thereof and dated the effective date of such
Shelf Registration Statement covering such matters customarily covered in
opinions requested in underwritten offerings of debt securities similar to
the Securities (and if such Shelf Registration Statement contemplates an
underwritten offering of a part or all of the Registrable Securities,
dated the date of the closing under the underwriting agreement relating
thereto); (C) obtain a "cold comfort" letter or letters from the
independent certified public accountants ------------ of the Company
addressed to the selling Electing Holders, the placement or sales agent,
if any, therefor or the underwriters, if any, thereof, dated (i) the
effective date of such Shelf Registration Statement and (ii) the effective
date of any prospectus supplement to the prospectus included in such Shelf
Registration Statement or post-effective amendment to such Shelf
Registration Statement which includes unaudited or audited financial
statements as of a date or for a period subsequent to that of the latest
such statements included in such prospectus (and, if such Shelf
Registration Statement contemplates an underwritten offering pursuant to
any prospectus supplement to the prospectus included in such Shelf
Registration Statement or post-effective amendment to such Shelf
Registration Statement which includes unaudited or audited financial
statements as of a date or for a period subsequent to that of the latest
such statements included in such prospectus, dated the date of the closing
under the underwriting agreement relating thereto), such letter or
15
letters to be in customary form and covering such matters of the type
customarily covered by letters of such type; (D) deliver such documents
and certificates, including officers' certificates, as may be reasonably
requested by any Electing Holders of at least 25% in aggregate principal
amount of the Registrable Securities at the time outstanding or the
placement or sales agent, if any, therefor and the managing underwriters,
if any, thereof to evidence the accuracy of the representations and
warranties made pursuant to clause (A) above or those contained in Section
5(a) hereof and the compliance with or satisfaction of any agreements or
conditions contained in the underwriting agreement or other agreement
entered into by any Issuer; and (E) undertake such obligations relating to
expense reimbursement, indemnification and contribution as are provided in
Section 6 hereof;
(xvii) notify in writing each holder of Registrable Securities
of any proposal by the Issuers to amend or waive any provision of this
Exchange and Registration Rights Agreement pursuant to Section 9(h) hereof
and of any amendment or waiver effected pursuant thereto, each of which
notices shall contain the text of the amendment or waiver proposed or
effected, as the case may be;
(xviii) in the event that any broker-dealer registered under
the Exchange Act shall underwrite any Registrable Securities or
participate as a member of an underwriting syndicate or selling group or
"assist in the distribution" (within the meaning of the Conduct Rules (the
"Conduct Rules") of the National Association of Securities Dealers, Inc.
("NASD") or any successor thereto, as amended from time to time) thereof,
whether as a holder of such Registrable Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or
otherwise, assist such broker-dealer in complying with the requirements of
such Conduct Rules, including by (A) if such Conduct Rules shall so
require, engaging a "qualified independent underwriter" (as defined in
such Conduct Rules) to participate in the preparation of the Shelf
Registration Statement relating to such Registrable Securities, to
exercise usual standards of due diligence in respect thereto and, if any
portion of the offering contemplated by such Shelf Registration Statement
is an underwritten offering or is made through a placement or sales agent,
to recommend the yield of such Registrable Securities, (B) indemnifying
any such qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 6 hereof (or to such
other customary extent as may be requested by such underwriter), and (C)
providing such information to such broker-dealer as may be required in
order for such broker-dealer to comply with the requirements of the
Conduct Rules; and
(xix) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as soon as
practicable but in any event not later than eighteen months after the
effective date of such Shelf Registration Statement, an earning statement
of the Company and its subsidiaries or the Parent Guarantor and its
subsidiaries complying with Section 11(a) of the Securities Act
(including, at the option of the Company, Rule 158 thereunder).
16
(e) In the event that the Issuers would be required, pursuant to
Section 3(d)(vii)(F) above, to notify the Electing Holders, the placement or
sales agent, if any, therefor and the managing underwriters, if any, thereof,
the Issuers shall without delay prepare and furnish to each of the Electing
Holders, to each placement or sales agent, if any, and to each such underwriter,
if any, in each case, upon request, a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter delivered to
purchasers of Registrable Securities, such prospectus shall conform in all
material respects to the applicable requirements of the Securities Act and the
Trust Indenture Act and shall not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing. Each Electing Holder agrees, by acquisition of Securities, that upon
receipt of any notice from the Issuers pursuant to Section 3(d)(vii)(C),
3(d)(vii)(E) or 3(d)(vii)(F) hereof, such Electing Holder shall forthwith
discontinue the disposition of Registrable Securities pursuant to the Shelf
Registration Statement applicable to such Registrable Securities until such
Electing Holder is advised in writing by the Issuers that the disposition of
Registrable Securities pursuant to the Shelf Registration Statement may be
resumed, and has received copies of such amended or supplemented prospectus, and
if so directed by the Issuers, such Electing Holder shall deliver to the Company
(at the Company's expense) all copies, other than permanent file copies, then in
such Electing Holder's possession of the prospectus covering such Registrable
Securities at the time of receipt of such notice.
(f) In the event of a Shelf Registration, in addition to the
information required to be provided by each Electing Holder in its Notice and
Questionnaire, the Company may require such Electing Holder to furnish to the
Company such additional information regarding such Electing Holder and such
Electing Holder's intended method of distribution of Registrable Securities as
the Company may reasonably request in order to comply with the Securities Act.
Each such Electing Holder agrees to notify the Company as promptly as
practicable of any inaccuracy or change in information previously furnished by
such Electing Holder to the Company or of the occurrence of any event in either
case as a result of which any prospectus relating to such Shelf Registration
contains or would contain an untrue statement of a material fact regarding such
Electing Holder or such Electing Holder's intended method of disposition of such
Registrable Securities or omits to state any material fact regarding such
Electing Holder or such Electing Holder's intended method of disposition of such
Registrable Securities required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing,
and promptly to furnish to the Company any additional information required to
correct and update any previously furnished information or required so that such
prospectus shall not contain, with respect to such Electing Holder or the
disposition of such Registrable Securities, an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the circumstances then
existing. The Company may exclude from such registration the Registrable
Securities of any seller who fails to furnish such information within a
reasonable time after receiving such request.
17
4. Registration Expenses.
The Issuers, jointly and severally, agree to bear and to pay or
cause to be paid promptly all expenses incident to the Issuers' performance of
or compliance with this Exchange and Registration Rights Agreement, including
(a) all Commission and any NASD registration, filing and review fees and
expenses including reasonable fees and disbursements of counsel for the
placement or sales agent or underwriters in connection with such registration,
filing and review, (b) all fees and expenses in connection with the
qualification of the Securities for offering and sale under the State securities
and blue sky laws and compliance with the other requirements referred to in
Sections 3(c)(vi) and 3(d)(xi) hereof and determination of their eligibility for
investment under the laws of such jurisdictions as any managing underwriters or
the Electing Holders may designate, including any reasonable fees and
disbursements of counsel for the Electing Holders or underwriters in connection
with such qualification and determination, (c) all filing fees in respect of any
initial trade in Exchange Securities by way of a private placement in Canada,
(d) all expenses relating to the preparation, printing, production, distribution
and reproduction of each registration statement required to be filed hereunder,
each prospectus included therein or prepared for distribution pursuant hereto,
each amendment or supplement to the foregoing (including, without limitation,
any Canadian wrapper), the expenses of preparing the Securities for delivery and
the expenses of printing or producing any underwriting agreements, agreements
among underwriters, selling agreements and blue sky or legal investment
memoranda and all other documents in connection with the offering, sale or
delivery of Securities to be disposed of (including certificates representing
the Securities), (e) messenger, telephone and delivery expenses relating to the
offering, sale or delivery of Securities and the preparation of documents
referred in clause (d) above, (f) fees and expenses of the Trustee under the
Indenture, any agent of the Trustee and any counsel for the Trustee and of any
collateral agent or custodian, (g) internal expenses (including all salaries and
expenses of the Company's officers and employees performing legal or accounting
duties), (h) fees, disbursements and expenses of counsel and independent
certified public accountants of the Company (including the expenses of any
opinions or "cold comfort" letters required by or incident to such performance
and compliance), (i) fees, disbursements and expenses of any "qualified
independent underwriter" engaged pursuant to Section 3(d)(xviii) hereof, (j)
fees, disbursements and expenses of one counsel for the Electing Holders
retained in connection with a Shelf Registration, as selected by the Electing
Holders of at least a majority in aggregate principal amount of the Registrable
Securities held by Electing Holders (which counsel shall be reasonably
satisfactory to the Company), (k) any fees charged by securities rating services
for rating the Securities, and (l) fees, expenses and disbursements of any other
persons, including special experts, retained by any Issuer in connection with
such registration (collectively, the "Registration Expenses"). To the extent
that any Registration Expenses are incurred, assumed or paid by any holder of
Registrable Securities or any placement or sales agent therefor or underwriter
thereof, the Issuers shall reimburse such person for the full amount of the
Registration Expenses so incurred, assumed or paid promptly after receipt of a
request therefor. Notwithstanding the foregoing, the holders of the Registrable
Securities being registered shall pay all agency fees and commissions and
underwriting discounts and commissions and transfer taxes attributable to the
sale of such Registrable Securities and the fees and disbursements of any
18
counsel or other advisors or experts retained by such holders (severally or
jointly), other than the counsel and experts specifically referred to above.
5. Representations and Warranties.
The Issuers, jointly and severally, represent and warrant to, and
agree with, each Purchaser and each of the holders from time to time of
Registrable Securities that:
(a) Each registration statement covering Registrable Securities
and each prospectus (including any preliminary or summary prospectus) contained
therein or furnished pursuant to Section 3(d) or Section 3(c) hereof and any
further amendments or supplements to any such registration statement or
prospectus, when it becomes effective or is filed with the Commission, as the
case may be, and, in the case of an underwritten offering of Registrable
Securities, at the time of the closing under the underwriting agreement relating
thereto, will conform in all material respects to the requirements of the
Securities Act and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; and at all times subsequent to the Effective Time when a
prospectus would be required to be delivered under the Securities Act, other
than from (i) such time as a notice has been given to holders of Registrable
Securities pursuant to Section 3(c)(iii)(C), 3(c)(iii)(E) or 3(c)(iii)(F) or
Section 3(d)(vii)(C), 3(d)(vii)(E), 3(d)(vii)(F) hereof until (ii) such time as
the Issuers furnish an amended or supplemented prospectus pursuant to Section
3(e) or Section 3(c)(iv) hereof, each such registration statement, and each
prospectus (including any summary prospectus) contained therein or furnished
pursuant to Section 3(d) or Section 3(c) hereof, as then amended or
supplemented, will conform in all material respects to the requirements of the
Securities Act and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading in the light of the circumstances then existing; provided,
however, that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information furnished
in writing to the Issuers by a holder of Registrable Securities or by a
broker-dealer, agent or underwriter expressly for use therein.
(b) Any documents incorporated by reference in any prospectus
referred to in Section 5(a) hereof, when they become or became effective or are
or were filed with the Commission, as the case may be, will conform or conformed
in all material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and none of such documents will contain or
contained an untrue statement of a material fact or will omit or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Issuers by a holder of
Registrable Securities or by a broker-dealer, agent or underwriter expressly for
use therein.
19
(c) The compliance by the Issuers with all of the provisions of
this Exchange and Registration Rights Agreement and the consummation of the
transactions herein contemplated will not (i) conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Issuers or any subsidiaries of the Issuers
are a party or by which the Issuers or any subsidiaries of the Issuers are bound
or to which any of the property or assets of the Issuers or any subsidiaries of
the Issuers are subject, (ii) result in any violation of the provisions of the
organizational documents of the Issuers or any subsidiaries of the Issuers,
(iii) (assuming compliance with all applicable state securities or "Blue Sky"
laws) result in any violation of the provisions of any law or statute or any
order, rule, regulation, judgment or decree of any court or governmental agency
or body having jurisdiction over the Issuers or any subsidiaries of the Issuers
or any of their properties or assets, except in the case of clauses (i) and
(iii) for such conflicts, breaches, violations, defaults or liens that,
individually or in the aggregate, would not reasonably be expected to have a
material adverse effect on the current or future business management, financial
position, shareholders' equity or results of operations of the Issuers, taken as
a whole; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the consummation by the Issuers of the transactions contemplated by
this Exchange and Registration Rights Agreement, except the registration under
the Securities Act of the Securities, qualification of the Indenture under the
Trust Indenture Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under State securities or blue sky laws or
the Canadian Securities Laws in connection with the offering and distribution of
the Securities.
(d) This Exchange and Registration Rights Agreement has been duly
authorized, executed and delivered by the Issuers and constitutes a valid and
legally binding obligation of the Issuers, enforceable against the Issuers in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors' rights or limiting the availability of, and public
policy against, indemnification and contribution and to general equity
principles.
6. Indemnification.
(a) Indemnification by the Issuers. The Issuers, jointly and
severally, will indemnify and hold harmless each of the holders of Registrable
Securities included in an Exchange Registration Statement and each of the
Electing Holders of Registrable Securities included in a Shelf Registration
Statement against any losses, claims, damages or liabilities, joint or several,
to which such holder may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Exchange Registration Statement or
Shelf Registration Statement, as the case may be, under which such Registrable
Securities were registered under the Securities Act, or any preliminary, final
or summary prospectus contained therein or furnished by the Company to any such
holder or Electing Holder or any amendment or supplement thereto if the Company
shall have furnished any amendments or supplements thereto, or arise out of or
are based upon the omission or
20
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and will reimburse such holder and such
Electing Holder for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that no Issuer shall be liable to any
such person in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission of material fact made in such
registration statement, or preliminary, final or summary prospectus, or
amendment or supplement thereto, in reliance upon and in conformity with written
information furnished to any of the Issuers by such person expressly for use
therein.
(b) Indemnification by the Holders and any Agents and
Underwriters. The Issuers may require, as a condition to including any
Registrable Securities in any registration statement filed pursuant to Section
2(b) hereof and to entering into any underwriting agreement with respect
thereto, that the Issuers shall have received an undertaking reasonably
satisfactory to it from the Electing Holder of such Registrable Securities and
from each underwriter named in any such underwriting agreement, severally and
not jointly, to (i) indemnify and hold harmless the Issuers, and all other
holders of Registrable Securities, against any losses, claims, damages or
liabilities to which the Issuers, or such other holders of Registrable
Securities may become subject, under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in such registration statement, or any preliminary,
final or summary prospectus contained therein or furnished by the Company to any
such Electing Holder, agent or underwriter, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Electing Holder or underwriter
expressly for use therein, and (ii) reimburse the Issuers for any legal or other
expenses reasonably incurred by the Issuers in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that no such Electing Holder shall be required to undertake liability
to any person under this Section 6(b) for any amounts in excess of the dollar
amount of the proceeds to be received by such Electing Holder from the sale of
such Electing Holder's Registrable Securities pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an
indemnified party under subsection (a) or (b) above of written notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party pursuant to the
indemnification provisions of or contemplated by this Section 6, notify such
indemnifying party in writing of the commencement of such action; but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under the
indemnification provisions of or contemplated by Section 6(a) or 6(b) hereof. In
case any such action shall be brought against any indemnified party and it shall
notify an indemnifying party of the commencement thereof, such indemnifying
21
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, such indemnifying party shall not be liable to such indemnified party
for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall, without the written consent of the indemnified party (which consent shall
not be unreasonably withheld or delayed), effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(d) Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) are unavailable to or insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this Section 6(d) were determined by
pro rata allocation (even if the holders or any agents or underwriters or all of
them were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 6(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), no holder shall be required to contribute any
amount in excess of the amount by which the dollar amount of the proceeds
received by such holder from the sale of any Registrable Securities (after
deducting any fees, discounts and commissions applicable thereto) exceeds the
amount of any damages which such holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission, and no underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Securities
22
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The holders' and any underwriters' obligations in this
Section 6(d) to contribute shall be several in proportion to the principal
amount of Registrable Securities registered or underwritten, as the case may be,
by them and not joint.
(e) The obligations of each Issuer under this Section 6 shall be
in addition to any liability which each Issuer may otherwise have and shall
extend, upon the same terms and conditions, to each officer, director and
partner of each holder, agent and underwriter and each person, if any, who
controls any holder, agent or underwriter within the meaning of the Securities
Act; and the obligations of the holders and any agents or underwriters
contemplated by this Section 6 shall be in addition to any liability which the
respective holder, agent or underwriter may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of each Issuer
(including any person who, with his consent, is named in any registration
statement as about to become a director of any Issuer and to each person, if
any, who controls any Issuer within the meaning of the Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable
Securities covered by the Shelf Registration are to be sold pursuant to an
underwritten offering, the managing underwriter or underwriters thereof shall be
designated by Electing Holders holding at least a majority in aggregate
principal amount of the Registrable Securities to be included in such offering,
provided that such designated managing underwriter or underwriters is or are
reasonably acceptable to the Company.
(b) Participation by Holders. Each holder of Registrable
Securities, by acceptance of Registrable Securities, agrees with each other such
holder that no such holder may participate in any underwritten offering
hereunder unless such holder (i) agrees to sell such holder's Registrable
Securities on the basis provided in any underwriting arrangements approved by
the persons entitled hereunder to approve such arrangements and (ii) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
8. Rule 144.
The Company covenants to the holders of Registrable Securities that
it shall comply with the reporting and information covenant in the Indenture.
Upon the request of any holder of Registrable Securities in connection with that
holder's sale pursuant to Rule 144, the Company shall deliver to such holder a
written statement as to whether it has complied with such requirements.
23
9. Miscellaneous.
(a) No Inconsistent Agreements. The Issuers represent, warrant,
covenant and agree that they have not granted, and shall not grant, registration
rights with respect to Registrable Securities or any other securities which
would be inconsistent with the terms contained in this Exchange and Registration
Rights Agreement.
(b) Specific Performance. The parties hereto acknowledge that
there would be no adequate remedy at law if any Issuer fails to perform any of
its obligations hereunder and that the Purchasers and the holders from time to
time of the Registrable Securities may be irreparably harmed by any such
failure, and accordingly agree that the Purchasers and such holders, in addition
to any other remedy to which they may be entitled at law or in equity, shall be
entitled to compel specific performance of the obligations of the Issuers under
this Exchange and Registration Rights Agreement in accordance with the terms and
conditions of this Exchange and Registration Rights Agreement, in any court of
the United States or any State thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and
other communications hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand, if delivered personally or by courier,
or three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested), or when sent by a nationally
recognized overnight courier service guaranteeing delivery on the next business
day as follows: If to any Issuer, to the Company at 640 Cameron Road,
Sainte-Marie (Quebec), Canada G6E 1B2, with a copy to Kaye Scholer LLP, 425 Park
Avenue, New York, NY 10022, Attention: Stephen C. Koval, and if to a holder, to
the address of such holder set forth in the security register or other records
of the Company, or to such other address as the Company or any such holder may
have furnished to the other in writing in accordance herewith, except that
notices of change of address shall be effective only upon receipt.
(d) Parties in Interest. All the terms and provisions of this
Exchange and Registration Rights Agreement shall be binding upon, shall inure to
the benefit of and shall be enforceable by the parties hereto and the holders
from time to time of the Registrable Securities and the respective successors
and assigns of the parties hereto and such holders. In the event that any
transferee of any holder of Registrable Securities shall acquire Registrable
Securities, in any manner, whether by gift, bequest, purchase, operation of law
or otherwise, such transferee shall, without any further writing or action of
any kind, be deemed a beneficiary hereof for all purposes and such Registrable
Securities shall be held subject to all of the terms of this Exchange and
Registration Rights Agreement, and by taking and holding such Registrable
Securities such transferee shall be entitled to receive the benefits of, and be
conclusively deemed to have agreed to be bound by all of the applicable terms
and provisions of this Exchange and Registration Rights Agreement. By taking and
holding Registrable Securities, any such successor, assign or transferee shall
be conclusively deemed to agree to acquire and hold the Registrable Securities
subject to all of the applicable terms hereof.
(e) Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this Exchange
and Registration Rights
24
Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof) made by
or on behalf of any holder of Registrable Securities, any director, officer or
partner of such holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and shall
survive delivery of and payment for the Registrable Securities pursuant to the
Purchase Agreement and the transfer and registration of Registrable Securities
by such holder and the consummation of an Exchange Offer.
(f) GOVERNING LAW. THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement are inserted for
convenience only, do not constitute a part of this Exchange and Registration
Rights Agreement and shall not affect in any way the meaning or interpretation
of this Exchange and Registration Rights Agreement.
(h) Entire Agreement; Amendments. This Exchange and Registration
Rights Agreement and the other writings referred to herein (including the
Indenture, the Purchase Agreement and the form of Securities) or delivered
pursuant hereto which form a part hereof (i) contain the entire understanding of
the parties with respect to its subject matter, and (ii) supersede all prior
agreements and understandings between the parties with respect to its subject
matter. This Exchange and Registration Rights Agreement may be amended and the
observance of any term of this Exchange and Registration Rights Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by the Issuers and the
holders of at least a majority in aggregate principal amount of the Registrable
Securities at the time outstanding. Each holder of any Registrable Securities at
the time or thereafter outstanding shall be bound by any amendment or waiver
effected pursuant to this Section 9(h), whether or not any notice, writing or
marking indicating such amendment or waiver appears on such Registrable
Securities or is delivered to such holder.
(i) Inspection. For so long as this Exchange and Registration
Rights Agreement shall be in effect, this Exchange and Registration Rights
Agreement and a complete list of the names and addresses of all the holders of
Registrable Securities shall be made available for inspection and copying on any
business day, during normal business hours, by any holder of Registrable
Securities for proper purposes only (which shall include any purpose related to
the rights of the holders of Registrable Securities under the Securities, the
Indenture and this Agreement) at the offices of the Company at the address
thereof set forth in Section 9(c) above and at the office of the Trustee under
the Indenture.
(j) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
25
(k) Judgment Currency. The Issuers, jointly and severally, agree
to indemnify each Purchaser, each of the holders of Registrable Securities
included in an Exchange Registration Statement and each of the Electing Holders
of Registrable Securities included in a Shelf Registration Statement and each of
their respective affiliates and each person, if any, who controls such parties
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act against any loss incurred by such party in respect of any judgment
or order given or made for any amount due hereunder that is expressed and paid
in a currency (the "judgment currency") other than United States dollars,
against any loss incurred by such party as a result of any variation as between
(i) the rate of exchange at which the United States dollar amount is converted
into the judgment currency for the purpose of such judgment or order and (ii)
the rate of exchange at which such party is able to purchase United States
dollars with the amount of judgment currency actually received by such party.
The foregoing indemnity shall constitute a separate and independent obligation
of each Issuer and shall continue in full force and effect notwithstanding any
such judgment or order as aforesaid. The term "rate of exchange" shall include
any premiums and costs of exchange payable in connection with the purchase of or
conversion into United States dollars.
If the foregoing is in accordance with your understanding, please sign and
return to us seven counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Purchasers, this letter and such acceptance hereof
shall constitute a binding agreement among the Purchasers and the Issuers. It is
understood that your acceptance of this letter on behalf of each of the
Purchasers is pursuant to the authority set forth in a form of Agreement among
Purchasers, the form of which shall be submitted to the Issuers for examination
upon request, but without warranty on your part as to the authority of the
signers thereof.
Very truly yours,
MAAX CORPORATION, as Issuer
By: /s/ James C. Rhee
---------------------------------------
Name: James C. Rhee
Title: Secretary
BEAUCELAND CORPORATION, as Parent
Guarantor
By: /s/ James C. Rhee
---------------------------------------
Name: James C. Rhee
Title: Secretary
26
4200217 Canada Inc., as a Guarantor
By: /s/ James C. Rhee
---------------------------------------
Name: James C. Rhee
Title: Secretary
MAAX HOLDING CO.
MAAX-KSD CORPORATION
PEARL BATHS, INC.
MAAX-HYDRO SWIRL MANUFACTURING CORP.
MAAX MIDWEST, INC.
MAAX SPAS (ARIZONA), INC.
AKER PLASTICS COMPANY INC.
MAAX (2004) LLC
MAAX CANADA INC.
CUISINE EXPERT - C.E. CABINETS INC.
9022-3751 QUEBEC INC.
MAAX SPAS (ONTARIO) INC.
MAAX SPAS (B.C.) INC., each as a Guarantor
By: /s/ Denis Aubin
---------------------------------------
Name: Denis Aubin
Title: Director & Officer
MAAX LLC, as a Guarantor
By: /s/ Denis Aubin
---------------------------------------
Name: Denis Aubin
Title: Director & Officer
27
Accepted as of the date hereof:
Goldman, Sachs & Co.
By: /s/ Goldman, Sachs & Co.
---------------------------------------
(Goldman, Sachs & Co.)
Merrill Lynch, Pierce, Fenner & Smith Incorporated
By: /s/ Greg Margolies
---------------------------------------
Name: Greg Margolies
Title: Managing Director
On behalf of each of the Purchasers
28
EXHIBIT A
MAAX CORPORATION
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE] *
The Depository Trust Company ("DTC") has identified you as a DTC
Participant through which beneficial interests in MAAX Corporation (the
"Company") 9 3/4% Senior Subordinated Notes due 2012 (the "Securities") are
held.
The Company is in the process of registering the Securities under
the Securities Act of 1933 for resale by the beneficial owners thereof. In order
to have their Securities included in the registration statement, beneficial
owners must complete and return the enclosed Notice of Registration Statement
and Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a
copy of the enclosed materials as soon as possible as their rights to have the
Securities included in the registration statement depend upon their returning
the Notice and Questionnaire by [Deadline For Response]. Please forward a copy
of the enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact MAAX Corporation,
640 Cameron Road, Sainte-Marie (Quebec) Canada G6E 1B2, Tel: (418) 387-4155.(1)
- ----------------
(1) Not Less than 28 calendar days from date of mailing.
A-1
MAAX CORPORATION
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Exchange and Registration Rights
Agreement (the "Exchange and Registration Rights Agreement") between MAAX
Corporation (the "Company"), the guarantors party thereto (the "Guarantors" and
together with the Company, the "Issuers") and the Purchasers named therein.
Pursuant to the Exchange and Registration Rights Agreement, the Issuers intend
to file or have filed with the United States Securities and Exchange Commission
(the "Commission") a registration statement on Form [__] (the "Shelf
Registration Statement") for the registration and resale under Rule 415 of the
Securities Act of 1933, as amended (the "Securities Act"), of the Issuers' 9 3/4
% Senior Subordinated Notes due 2012 (the "Securities"). A copy of the Exchange
and Registration Rights Agreement is attached hereto. All capitalized terms not
otherwise defined herein shall have the meanings ascribed thereto in the
Exchange and Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined below)
is entitled to have the Registrable Securities beneficially owned by it included
in the Shelf Registration Statement. In order to have Registrable Securities
included in the Shelf Registration Statement, this Notice of Registration
Statement and Selling Securityholder Questionnaire ("Notice and Questionnaire")
must be completed, executed and delivered to the Company's counsel at the
address set forth herein for receipt ON OR BEFORE [Deadline for Response].
Beneficial owners of Registrable Securities who do not complete, execute and
return this Notice and Questionnaire by such date (i) will not be named as
selling securityholders in the Shelf Registration Statement and (ii) may not use
the Prospectus forming a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and related Prospectus.
The term "Registrable Securities" is defined in the Exchange and
Registration Rights Agreement.
A-2
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable
Securities hereby elects to include in the Shelf Registration Statement the
Registrable Securities beneficially owned by it and listed below in Item (3).
The undersigned, by signing and returning this Notice and Questionnaire, agrees
to be bound with respect to such Registrable Securities by the terms and
conditions of this Notice and Questionnaire and the Exchange and Registration
Rights Agreement, including, without limitation, Section 6 of the Exchange and
Registration Rights Agreement, as if the undersigned Selling Securityholder were
an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf
Registration Statement, the Selling Securityholder will be required to deliver
to the Company and Trustee the Notice of Transfer set forth as Exhibit B to the
Exchange and Registration Rights Agreement.
The Selling Securityholder hereby provides the following information
to the Company and represents and warrants that such information is accurate and
complete:
A-3
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
(b) Full Legal Name of Registered Holder (if not the same as
in (a) above) of Registrable Securities Listed in Item (3) below:
(c) Full Legal Name of DTC Participant (if applicable and if
not the same as (b) above) Through Which Registrable Securities Listed in Item
(3) below are Held:
(2) Address for Notices to Selling Securityholder:
Telephone:
Fax:
Contact Person:
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Principal amount of Registrable Securities beneficially
owned:
CUSIP NO(S). OF SUCH REGISTRABLE SECURITIES:
A-4
(b) Principal amount of Securities other than Registrable
Securities beneficially owned:
CUSIP No(s). of such other Securities:
(c) Principal amount of Registrable Securities which the
undersigned wishes to be included in the Shelf Registration Statement:
CUSIP No(s). of such Registrable Securities to be included in the
Shelf Registration Statement:
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other securities
of the Company, other than the Securities listed above in Item (3).
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor
any of its affiliates, officers, directors or principal equity holders (5% or
more) has held any position or office or has had any other material relationship
with the Company (or its predecessors or affiliates) during the past three
years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in Item (3) only
as follows (if at all): Such Registrable Securities may be sold from time to
time directly by the undersigned Selling Securityholder or, alternatively,
through underwriters, broker-dealers or agents. Such Registrable Securities may
be sold in one or more transactions at fixed prices, at prevailing market prices
at the time of sale, at varying prices determined at the time of sale, or at
negotiated prices. Such sales may be effected in transactions (which may involve
crosses or block
A-5
transactions) (i) on any national securities exchange or quotation service on
which the Registered Securities may be listed or quoted at the time of sale,
(ii) in the over-the-counter market, (iii) in transactions otherwise than on
such exchanges or services or in the over-the-counter market, or (iv) through
the writing of options. In connection with sales of the Registrable Securities
or otherwise, the Selling Securityholder may enter into hedging transactions
with broker-dealers, which may in turn engage in short sales of the Registrable
Securities in the course of hedging the positions they assume. The Selling
Securityholder may also sell Registrable Securities short and deliver
Registrable Securities to close out such short positions, or loan or pledge
Registrable Securities to broker-dealers that in turn may sell such securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
provisions of the Exchange Act and the rules and regulations thereunder,
particularly Regulation M.
In the event that the Selling Securityholder transfers all or any
portion of the Registrable Securities listed in Item (3) above after the date on
which such information is provided to the Company, the Selling Securityholder
agrees to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the
disclosure of the information contained herein in its answers to Items (1)
through (6) above and the inclusion of such information in the Shelf
Registration Statement and related Prospectus. The Selling Securityholder
understands that such information will be relied upon by the Company in
connection with the preparation of the Shelf Registration Statement and related
Prospectus.
In accordance with the Selling Securityholder's obligation under
Section 3(d) of the Exchange and Registration Rights Agreement to provide such
information as may be required by law for inclusion in the Shelf Registration
Statement, the Selling Securityholder agrees to promptly notify the Company of
any inaccuracies or changes in the information provided herein which may occur
subsequent to the date hereof at any time while the Shelf Registration Statement
remains in effect. All notices hereunder and pursuant to the Exchange and
Registration Rights Agreement shall be made in writing, by hand-delivery,
first-class mail, or air courier guaranteeing overnight delivery as follows:
(i) To the Company:
MAAX CORPORATION
640 Cameron Road
Sainte-Marie, Quebec
Canada G6E 1B2
A-6
(ii) With a copy to:
KAYE SCHOLER LLP
425 Park Avenue
New York, NY 10022
Attn: Stephen C. Koval
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company's counsel, the terms of this Notice
and Questionnaire, and the representations and warranties contained herein,
shall be binding on, shall inure to the benefit of and shall be enforceable by
the respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder (with respect to the Registrable
Securities beneficially owned by such Selling Securityholder and listed in Item
(3) above. This Agreement shall be governed in all respects by the laws of the
State of New York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Dated:
Selling Securityholder
(Print/type full legal name of
beneficial owner of Registrable
Securities)
By: _____________________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE
FOR RECEIPT ON OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
MAAX CORPORATION
640 Cameron Road
Sainte-Marie, Quebec
Canada G6E 1B2
With a copy to:
KAYE SCHOLER LLP
425 Park Avenue
New York, NY 10022
Attn: Stephen C. Koval
A-7
EXHIBIT B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
U.S. Bank Trust National Association
100 Wall Street, Suite 1600
New York, NY 10005
Attention: Corporate Trust Services
Re: MAAX Corporation (the "Company")
9 3/4% Senior Subordinated Notes due 2012
Dear Sirs:
Please be advised that [ ] has transferred $[ ]
aggregate principal amount of the above-referenced Notes pursuant to an
effective Registration Statement on Form [ ] (File No. 333- ) filed by the
Issuers. We hereby certify that the prospectus delivery requirements, if any, of
the Securities Act of 1933, as amended, have been satisfied and that the
above-named beneficial owner of the Notes is named as a "Selling Holder" in the
Prospectus dated [date] or in supplements thereto, and that the aggregate
principal amount of the Notes transferred are the Notes listed in such
Prospectus opposite such owner's name.
Dated:
Very truly yours,
(Name)
By:________________________________________
(Authorized Signature)
B-1