EXHIBIT 4.8
CANANDAIGUA WINE COMPANY, INC.
$65,000,000
8 3/4% SERIES B SENIOR SUBORDINATED NOTES DUE 2003
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
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October 29, 1996
CHASE SECURITIES INC.
270 Park Avenue
New York, New York 10017
CS FIRST BOSTON CORPORATION
Park Avenue Plaza
55 East 52nd Street
New York, NY 10055
Dear Sirs:
Canandaigua Wine Company, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to certain purchasers (the "Initial
Purchasers"), upon the terms set forth in a purchase agreement dated October 24,
1996 (the "Purchase Agreement"), $65,000,000 principal amount of its 8 3/4%
Series B Senior Subordinated Notes due 2003 (the "Notes") to be unconditionally
guaranteed on a senior subordinated basis (the "Guarantees" and together with
the Notes, the "Securities") by certain of the Company's subsidiaries
signatories hereto (collectively, the "Guarantors"). The Securities are to be
issued pursuant to an indenture dated as of October 29, 1996 (the "Indenture"),
between the Company, the Guarantors and First Chicago Corporation, as trustee
(the "Trustee"). Capitalized terms used but not specifically defined herein are
defined in the Purchase Agreement. As an inducement to the Initial Purchasers
to enter into the Purchase Agreement and in satisfaction of a condition to your
obligations thereunder, the Company and the Guarantors agree with you, for the
benefit of the holders of the Securities (including the Initial Purchasers) (the
"Holders"), as follows:
1. Registered Exchange Offer. The Company and the Guarantors shall
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prepare and, not later than 45 days following the Closing Date, shall file with
the Commission a registration statement (the "Exchange Offer Registration
Statement") on an appropriate form under the Securities Act with respect to a
proposed offer (the "Registered Exchange Offer") to the Holders to issue and
deliver to such Holders, in exchange for the Securities, a like aggregate
principal amount of debt securities of the Company guaranteed by the Guarantors
(the "Exchange Securities") identical in all material respects to the
Securities, except for the transfer restrictions relating to the Securities,
shall use its best efforts to cause the Exchange Offer Registration Statement to
become effective under the Securities Act within 105 days of the Closing Date
and shall keep the Exchange Offer Registration Statement effective for not less
than 30 days (or longer, if required by applicable law) after the date notice of
the Exchange Offer is mailed to the Holders (such period being called the
"Exchange Offer Registration Period"). The Exchange Securities will be issued
under the Indenture or an indenture (the "Exchange Securities Indenture")
between the Company, the Guarantors and the Trustee or such other bank or trust
company reasonably satisfactory to you, as trustee (the "Exchange Securities
Trustee"), such indenture to be identical in all material respects with the
Indenture except for the transfer restrictions relating to the Securities (as
described above).
Upon the effectiveness of the Exchange Offer Registration Statement,
the Company and the Guarantors shall promptly commence the Registered Exchange
Offer, it being the objective of such Registered Exchange Offer to enable each
Holder electing to exchange Securities for Exchange Securities (assuming that
such Holder is not an affiliate of the Company or the Guarantors within the
meaning of the Securities Act, acquires the Exchange Securities in the ordinary
course of such Holder's business and has no arrangements or understandings with
any person to participate in the distribution of the Exchange Securities) to
trade such Exchange Securities from and after their receipt without any
limitations or restrictions under the Securities Act and without material
restrictions under the securities laws of the several states of the United
States. The Company and the Guarantors acknowledge that, pursuant to current
interpretations by the Commission's staff of Section 5 of the Securities Act,
(i) each Holder which is a broker-dealer electing to exchange Securities,
acquired for its own account as a result of market making activities or other
trading activities, for Exchange Securities (an "Exchanging Dealer"), is
required to deliver a prospectus containing the information set forth in Annex A
hereto on the cover, in Annex B hereto in the "Exchange Offer Procedures"
section and the "Purpose of the Exchange Offer" section, and in Annex C hereto
in the "Plan of Distribution" section of such prospectus in connection with a
sale of any such Exchange Securities received by such Exchanging Dealer,
pursuant to the Registered Exchange Offer and (ii) if any Initial Purchaser
elects to sell Exchange Securities acquired in
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exchange for Securities constituting any portion of an unsold allotment it is
required to deliver a prospectus, containing the information required by items
507 and/or 508 of Regulation S-K under the Securities Act, as applicable, in
connection with such a sale.
In connection with the Registered Exchange Offer, the Company and the
Guarantors shall:
(a) mail to each Holder a copy of the prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days
after the date notice thereof is mailed to the Holders (or longer if
required by applicable law);
(c) utilize the services of a Depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York;
(d) permit Holders to withdraw tendered Securities at any time prior
to the close of business, New York time, on the last business day on which
the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all applicable laws
applicable to the Registered Exchange Offer.
As soon as practicable after the close of the Registered Exchange
Offer, the Company and the Guarantors shall:
(a) accept for exchange all Securities tendered and not validly
withdrawn pursuant to the Registered Exchange Offer;
(b) deliver to the Trustee for cancellation all Securities so accepted
for exchange; and
(c) cause the Trustee or the Exchange Securities Trustee, as the case
may be, promptly to authenticate and deliver to each Holder of Securities,
Exchange Securities equal in principal amount to the Securities of such
Holder so accepted for exchange.
The Company and the Guarantors shall make available for a period of
180 days after the consummation of the Registered Exchange Offer, a copy of the
prospectus
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forming part of the Exchange Offer Registration Statement to any broker-dealer
for use in connection with any resale of any Exchange Securities.
Interest on each Exchange Security issued pursuant to the Registered
Exchange Offer will accrue from the last interest payment date on which interest
was paid on the Securities surrendered in exchange therefor or, if no interest
has been paid on the Securities, from the date of original issue of the
Securities.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company and the Guarantors that at the time of the
consummation of the Registered Exchange Offer (i) any Exchange Securities
received by such Holder will be acquired in the ordinary course of business,
(ii) such Holder will have no arrangements or understanding with any person to
participate in the distribution of the Securities or the Exchange Securities
within the meaning of the Securities Act, (iii) such Holder is not an affiliate
of the Company or any Guarantor within the meaning of the Securities Act and
(iv) if the Holder is a broker-dealer that will receive Exchange Securities for
its own account in exchange for Securities that were acquired as a result of
market-making activities or other trading activities, it will be required to
acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Securities to the extent required by the Commission.
Notwithstanding any other provisions hereof, the Company and the
Guarantors will ensure that (i) any Exchange Offer Registration Statement and
any amendment thereto and any prospectus forming part thereof and any supplement
thereto complies in all material respects with the Securities Act and the rules
and regulations thereunder, (ii) any Exchange Offer Registration Statement and
any amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) any prospectus forming part of any Exchange Offer Registration Statement,
and any supplement to such prospectus, does not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
2. Shelf Registration. If, (a) because of any change in law or
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applicable interpretations thereof by the Commission's staff, the Company and
the Guarantors determine that they are not permitted to effect the Registered
Exchange Offer as contemplated by Section 1 hereof, or (b) if for any other
reason the Registered Exchange Offer is not consummated within 135 days of the
date hereof, or (c) if any Initial Purchaser so requests with respect to
Securities not eligible to be exchanged for Exchange Securities in a Registered
Exchange Offer and held by it following consummation of the
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Registered Exchange Offer, or (d) if any applicable laws or applicable
interpretations do not permit any Holder (including an Initial Purchaser, but
excluding any Exchanging Dealer) to participate in such Registered Exchange
Offer, or (e) any Holder that participates in the Registered Exchange Offer
(other than an Exchanging Dealer), does not receive freely tradable Exchange
Securities in exchange for tendered Securities, then the following provisions
shall apply:
(a) The Company and the Guarantors shall use their best efforts as
promptly as practicable to file with the Commission and thereafter shall use its
best efforts to cause to be declared effective a registration statement on an
appropriate form under the Securities Act relating to the offer and sale of the
Transfer Restricted Securities (as defined below) by the Holders from time to
time in accordance with the methods of distribution elected by such Holders and
set forth in such registration statement (hereafter, a "Shelf Registration
Statement" and, together with any Exchange Offer Registration Statement, a
"Registration Statement").
(b) The Company and the Guarantors shall use their best efforts to
keep the Shelf Registration Statement continuously effective in order to permit
the prospectus forming part thereof to be usable by Holders for a period of
three years from the Closing Date or such shorter period that will terminate
when all the Securities covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement or pursuant to Rule 144 under
the Securities Act (in any such case, such period being called the "Shelf
Registration Period"). The Company and the Guarantors shall be deemed not to
have used their best efforts to keep the Shelf Registration Statement effective
during the requisite period if any of them voluntarily takes any action that
would result in Holders of Securities covered thereby not being able to offer
and sell such Securities during that period, unless such action, in the opinion
of the Company and the Guarantors after consulting with legal counsel, is
required by applicable law.
(c) Notwithstanding any other provisions hereof, the Company and the
Guarantors will ensure that (i) any Shelf Registration Statement and any
amendment thereto and any prospectus forming part thereof and any supplement
thereto complies in all material respects with the Securities Act and the rules
and regulations thereunder, (ii) any Shelf Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) any prospectus forming part of any Shelf Registration Statement, and any
supplement to such prospectus does not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
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3. Liquidated Damages. (a) The parties hereto agree that the
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Holders of Securities will suffer damages if the Company and the Guarantors fail
to fulfill their obligations under Section 1 or Section 2, as applicable, and
that it would not be feasible to ascertain the extent of such damages.
Accordingly, if (i) the applicable Registration Statement is not filed with the
Commission on or prior to 45 days after the Closing Date, (ii) the Exchange
Offer Registration Statement or, as the case may be, the Shelf Registration
Statement, is not declared effective within 105 days after the Closing Date,
(iii) the Exchange Offer is not consummated on or prior to 135 days after the
Closing Date, or (iv) the Shelf Registration Statement is filed and declared
effective within 105 days after the Closing Date but shall thereafter cease to
be effective (at any time that the Company and the Guarantors are obligated to
maintain the effectiveness thereof) without being succeeded within 30 days by an
additional Registration Statement filed and declared effective (each such event
referred to in clauses (i) through (iv), a "Registration Default"), the Company
and the Guarantors will pay liquidated damages to each holder of Transfer
Restricted Securities (as defined below) in an amount equal to $0.192 per week
per $1,000 principal amount of the Securities constituting Transfer Restricted
Securities held by such holder until (i) the applicable Registration Statement
is filed, (ii) the Exchange Registration Statement is declared effective and the
Exchange Offer is consummated, (iii) the Shelf Registration statement is
declared effective or (iv) the Shelf Registration Statement again becomes
effective, as the case may be. Following the cure of all Registration Defaults,
the accrual of liquidated damages will cease. "Transfer Restricted Securities"
means each Security until (i) the date on which such Security has been exchanged
for a freely transferable Exchange Security in the Exchange Offer, (ii) 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 (iii) the
date on which such Security is distributed to the public pursuant to Rule 144
under the Securities Act or is salable pursuant to Rule 144(k) under the
Securities Act. Notwithstanding anything to the contrary in this Section 3(a),
the Company and the Guarantors shall not be required to pay liquidated damages
to the holder of Transfer Restricted Securities if such holder: (a) failed to
comply with its obligations to make the representations in the second to last
paragraph of Section 1; or (b) failed to provide the information required to be
provided by it, if any, pursuant to Section 4(n).
The Exchange Offer shall be deemed "Consummated" for purposes of this
Agreement upon the occurrence of (i) the filing and effectiveness under the Act
of the Exchange Offer Registration Statement relating to the Exchange Securities
to be issued in the Exchange Offer, (ii) the maintenance of such Registration
Statement continuously effective and the keeping of the Exchange Offer open for
a period no less than the minimum period required pursuant to Section 1 of this
Agreement, and (iii) the delivery by the Company to the Registrar under the
Indenture of Exchange Securities in the same
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aggregate principal amount as the aggregate principal amount of Securities that
were tendered by Holders of Securities pursuant to the Exchange Offer.
(b) The Company shall notify the Trustee and Paying Agent under the
Indenture immediately upon the happening of each and every Registration Default.
The Company shall pay the liquidated damages due on the Transfer Restricted
Securities by depositing with the Paying Agent (which may not be the company for
these purposes), in trust, for the benefit of the Holders thereof, prior to
10:00 a.m. New York City time on the next interest payment date specified by the
Indenture and the Securities, sums sufficient to pay the liquidated damages then
due. The liquidated damages due shall be payable on each interest payment date
specified by the Indenture and the Securities to the record holder entitled to
receive this interest payment to be made on such date. Each obligation to pay
liquidated damages shall be deemed to accrue from and including the applicable
Registration Default.
(c) The parties hereto agree that the liquidated damages provided for
in this Section 3 constitute a reasonable estimate of and are intended to
constitute the sole damages that will be suffered by holders of Transfer
Restricted Securities by reason of the failure of (i) the Shelf Registration
Statement or the Exchange Offer Registration Statement to be filed, (ii) the
Shelf Registration Statement to be declared effective or to remain effective, or
(iii) the Exchange Offer Registration Statement to be declared effective and the
Exchange Offer to be consummated, to the extent required by this Agreement.
4. Registration Procedures. In connection with any Registration
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Statement, the following provisions shall apply:
(a) The Company and the Guarantors shall (i) furnish to you, prior to
the filing thereof with the Commission, a copy of the Registration Statement and
each amendment thereof and each supplement, if any, to the prospectus included
therein and, in the event that any of the Initial Purchasers (with respect to
any portion of an unsold allotment from the original offering) are participating
in the Registered Exchange Offer or the Shelf Registration, shall use reasonable
efforts to reflect in each such document, when so filed with the Commission,
such comments as you reasonably may propose; (ii) with respect to an Exchange
Offer Registration Statement, include the information set forth in Annex A
hereto on the cover, in Annex B hereto in the "Exchange Offer Procedures"
section and the "Purpose of the Exchange Offer" section and in Annex C hereto in
the "Plan of Distribution" section of the prospectus forming a part of the
Exchange Offer Registration Statement, and include the information set forth in
Annex D hereto in the Letter of Transmittal delivered pursuant to the Registered
Exchange Offer; and (iii) if requested by any Initial Purchaser, include the
information required by Items 507 or 508
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of Regulation S-K under the Securities Act, as applicable, in the prospectus
forming a part of the Exchange Offer Registration Statement.
(b) The Company and the Guarantors shall advise you and, in the case
of a Shelf Registration Statement, the Holders (if applicable), and, if
requested by you or any such Holder, confirm such advice in writing (which
advice pursuant to clauses (ii)-(v) hereof shall be accompanied by an
instruction to suspend the use of the prospectus until the requisite changes
have been made):
(i) when the Registration Statement and any amendment thereto has been
filed with the Commission and when the Registration Statement or any post-
effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or supplements to
the Registration Statement or the prospectus included therein or for
additional information;
(iii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose;
(iv) of the receipt by the Company or any Guarantor of any
notification with respect to the suspension of the qualification of the
Securities or the Exchange Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the making of any
changes in the Registration Statement or the prospectus so that, as of such
date, the statements therein are not misleading and do not omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(c) The Company and the Guarantors will use their best efforts to
obtain the withdrawal of any order suspending the effectiveness of any
Registration Statement at the earliest possible time.
(d) The Company and the Guarantors will furnish to each Holder of
Securities included within the coverage of any Shelf Registration Statement,
without charge, at least one copy of such Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and schedules,
and, if the Holder so requests in writing, all exhibits (including those
incorporated by reference).
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(e) The Company and the Guarantors will deliver to each Holder of
Securities included within the coverage of any Shelf Registration Statement,
without charge, as many copies of the prospectus (including each preliminary
prospectus) included in such Shelf Registration Statement and any amendment or
supplement thereto as such Holder may reasonably request; and the Company and
the Guarantors consent to the use of the prospectus or any amendment or
supplement thereto by each of the selling Holders of Securities in connection
with the offering and sale of the Securities covered by the prospectus or any
amendment or supplement thereto.
(f) The Company and the Guarantors will furnish to each Exchanging
Dealer or Initial Purchaser, as applicable, which so requests, without charge,
at least one copy of the Exchange Offer Registration Statement and any post-
effective amendment thereto, including financial statements and schedules, and,
if the Exchanging Dealer or Initial Purchaser, as applicable, so requests in
writing, all exhibits (including those incorporated by reference).
(g) The Company and the Guarantors will, during the Exchange Offer
Registration Period or the Shelf Registration Period, as applicable, promptly
deliver to each Exchanging Dealer or Initial Purchaser, as applicable, without
charge, as many copies of the prospectus included in such Exchange Offer
Registration Statement or Shelf Registration Statement, as applicable, and any
amendment or supplement thereto as such Exchanging Dealer or Initial Purchaser,
as applicable, may reasonably request for delivery by (i) such Exchanging Dealer
in connection with a sale of Exchange Securities received by it pursuant to the
Registered Exchange Offer or (ii) such Initial Purchaser in connection with a
sale of Exchange Securities received by it in exchange for Securities
constituting any portion of an unsold allotment; and the Company and the
Guarantors consent to the use of the prospectus or any amendment or supplement
thereto by any such Exchanging Dealer or Initial Purchaser, as applicable, as
aforesaid.
(h) Prior to any public offering of Securities or Exchange Securities
pursuant to any Registration Statement, the Company and the Guarantors will use
their best efforts to register or qualify or cooperate with the Holders of
Securities included therein and their respective counsel in connection with the
registration or qualification of such securities for offer and sale under the
securities or blue sky laws of such jurisdictions as any such Holder reasonably
requests in writing and do any and all other acts or things necessary or
advisable to enable the offer and sale in such jurisdictions of the Securities
or Exchange Securities covered by such Registration Statement; provided,
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however, that neither the Company nor any Guarantor will be required to qualify
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generally to do business in any jurisdiction where it is not then so qualified
or to take any
9
action which would subject it to general service of process or to taxation in
any such jurisdiction where it is not then so subject.
(i) The Company and the Guarantors will cooperate with the Holders of
Securities to facilitate the timely preparation and delivery of certificates
representing Securities or Exchange Securities to be sold pursuant to any
Registration Statement free of any restrictive legends and in such denominations
and registered in such names as Holders may request in writing prior to sales of
Securities or Exchange Securities pursuant to such Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraphs
(b)(ii) through (v) above during the period for which the Company and the
Guarantors are required to maintain an effective Registration Statement, the
Company and the Guarantors will promptly prepare a post-effective amendment to
the Registration Statement or a supplement to the related prospectus or file any
other required document so that, as so amended or supplemented, the prospectus
will not include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(k) Not later than the effective date of the applicable Registration
Statement, the Company will provide a CUSIP number for the Securities or
Exchange Securities, as the case may be, and provide the applicable trustee with
printed certificates for the Securities or Exchange Securities, as the case may
be, in a form eligible for deposit with The Depository Trust Company.
(l) The Company and the Guarantors will comply with all applicable
rules and regulations of the Commission and will make generally available to its
security holders as soon as practicable after the effective date of the
applicable Registration Statement an earnings statement (which need not be
audited) satisfying the provisions of Section 11(a) of the Securities Act.
(m) The Company and the Guarantors will cause the Indenture or the
Exchange Securities Indenture, as the case may be, to be qualified under the
Trust Indenture Act as required by applicable law in a timely manner.
(n) The Company and the Guarantors may require each Holder of
Securities to be sold pursuant to any Shelf Registration Statement to furnish to
the Company and the Guarantors such information regarding the Holder and the
distribution of such Securities as the Company and the Guarantors may from time
to time reasonably require for inclusion in such Registration Statement, and the
Company and the Guarantors
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may exclude from such registration the Securities of any Holder that
unreasonably fails to furnish such information within a reasonable time after
receiving such request.
(o) The Company and the Guarantors shall enter into such customary
agreements (including, if requested, an underwriting agreement in customary
form) and take all such other action, if any, as Holders of a majority in
aggregate principal amount of Securities or Exchange Securities being sold or
the managing underwriters (if any) shall reasonably request in order to
facilitate the disposition of Securities pursuant to any Shelf Registration
Statement. If CSI or an affiliate of CSI acts as a managing underwriter in any
such registered offering, to the extent required by applicable law or
regulations, a "qualified independent underwriter" (as defined in Rule
2720(b)(15) of the National Association of Securities Dealers, Inc. Conduct
Rules) shall be retained by the Company and the Guarantors with the consent of
CSI (which consent shall not be unreasonably withheld or delayed), and the
Company and the Guarantors shall pay all fees and expenses (other than
underwriting commissions and discounts) of such qualified independent
underwriter.
(p) In the case of a Shelf Registration Statement, the Company and the
Guarantors shall (i) make reasonably available for inspection by a
representative of, and Special Counsel (as defined) acting for, a majority in
aggregate principal amount of the Holders, and any underwriter participating in
any disposition pursuant to a Shelf Registration Statement, all relevant
financial and other records, pertinent corporate documents and properties of the
Company and the Subsidiaries and (ii) use reasonable efforts to have the
Company's and the Subsidiaries' officers, directors, employees, accountants and
auditors supply all relevant information reasonably requested by such
representative, counsel or any such underwriter (an "Inspector") in connection
with any such Registration Statement, subject to executing a confidentiality
undertaking in customary form with respect to confidential or proprietary
information of the Company or such Subsidiary.
(q) In the case of a Shelf Registration Statement, the Company and the
Guarantors, if requested by Holders of a majority in aggregate principal amount
of the Securities and Exchange Securities being sold, their Special Counsel, or
the managing underwriters (if any) in connection with any Shelf Registration
Statement, shall use their best efforts to cause (w) their counsel to deliver an
opinion relating to the Registration Statement and the Securities or the
Exchange Securities, as applicable, in customary
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form, (x) their officers to execute and deliver all customary documents and
certificates requested by Holders of a majority in aggregate principal amount of
the Securities and Exchange Securities being sold, their Special Counsel, or the
managing underwriters (if any) and (y) their independent public accountants to
provide a comfort letter in customary form, subject to receipt of appropriate
documentation as contemplated, and only if permitted, by Statement of Auditing
Standards No. 72.
(r) The Company and the Guarantors will use reasonable efforts to
cause the Securities or the Exchange Securities, as applicable, covered by a
Registration Statement to be rated with an appropriate rating agency, if so
requested by Holders of a majority in aggregate principal amount of Securities
covered by such Registration Statement or the Exchange Securities, as the case
may be, or by the managing underwriters, if any.
(s) The Company and the Guarantors will use reasonable efforts to
cause the Securities or the Exchange Securities, as applicable, relating to such
Registration Statement to be listed on each securities exchange, if any, on
which debt securities issued by the Company are then listed, if so requested by
Holders of a majority in aggregate principal amount of Securities covered by
such Registration Statement or the Exchange Securities, as the case may be, or
by the managing underwriters, if any.
(t) In the case of a Shelf Registration Statement, each Holder of
Securities agrees by acquisition of such Securities that, upon receipt of any
notice of the Company and the Guarantors pursuant to Section 4(b)(ii) through
(v) hereof, such Holder will discontinue disposition of such Securities covered
by such Registration Statement until such Holder's receipt of copies of the
supplemental or amended prospectus contemplated by Section 4(j) hereof, or until
advised in writing (the "Advice") by the Company and the Guarantors that the use
of the applicable prospectus may be resumed. If the Company and the Guarantors
shall give any notice under Section 4(b)(ii) through (v) during the period that
the Company and the Guarantors are required to maintain an effective
Registration Statement (the "Effectiveness Period"), such Effectiveness Period
shall be extended by the number of days during such period from and including
the date of the giving of such notice to and including the date when each seller
of Securities covered by such Registration Statement shall have received (x) the
copies of the supplemental or amended prospectus contemplated by Section 4(j)
(if an amended or supplemental prospectus is required) or (y) the Advice (if no
amended or supplemental prospectus is required).
5. Registration Expenses. The Company and the Guarantors will bear
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all expenses incurred in connection with the performance of their obligations
under Sections 1, 2, 3 and 4 hereof, including all fees and expenses of a
qualified independent underwriter, if any, and the Company and the Guarantors
will reimburse the Initial Purchasers and the Holders for the reasonable fees
and disbursements of one firm of attorneys (in addition to local counsel) chosen
by the Holders of a majority in aggregate principal amount of the Securities and
the Exchange Securities to be sold pursuant to a
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Registration Statement (the "Special Counsel") acting for the Initial Purchasers
or Holders in connection therewith, provided that the Company and the Guarantors
shall not be liable for more than an aggregate of $25,000 of fees and expenses
of Special Counsel. The Holders shall be responsible for all underwriting
commissions and discounts in the case of a Shelf Registration Statement.
6. Indemnification. (a) In the event of a Shelf Registration
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Statement or in connection with any prospectus delivery pursuant to an Exchange
Offer Registration Statement by an Exchanging Dealer or Initial Purchaser, as
applicable, as contemplated in Section 4(g) above, the Company and the
Guarantors, jointly and severally, shall indemnify and hold harmless each Holder
and each person, if any, who controls such Holder within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any such Registration
Statement or any prospectus forming part thereof or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and
(ii) against any and all expense whatsoever, as incurred (including,
subject to Section 6(c) hereof, the reasonable fees and disbursements of
counsel chosen by the indemnified party) reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental or regulatory agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission;
provided, however, that (i) this indemnity shall not apply to any loss,
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liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company and the
Guarantors by you or any Holder expressly for use in such Registration Statement
and (ii) this indemnity with respect to any untrue statement or alleged untrue
statement or omission or alleged omission in any related preliminary prospectus
shall not inure to the benefit of any indemnified party from whom the person
asserting any such loss, claim damage or liability received Securities or
Exchange Securities if such persons did not receive a copy of the final
prospectus at or prior to the confirmation of the sale of such Securities or
Exchange Securities to such person in any case where such delivery is required
by the Securities Act and the untrue statement or omission of material fact
contained in the related preliminary prospectus was
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corrected in the final prospectus unless such failure to deliver the final
prospectus was a result of noncompliance by the Company and the Guarantors with
Sections 4(d), 4(e), 4(f) or 4(g).
(b) In the event of a Shelf Registration Statement, each Holder agrees
to indemnify and hold harmless the Company, the Guarantors, each of their
respective directors, officers, agents and employees and each person, if any,
who controls the Company or each Guarantor within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act and the directors,
officers, agents and employees of such controlling persons against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in Section 6(a) hereof, as incurred, arising out of or based upon any untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment or supplement thereto) in reliance on
and in conformity with written information furnished to the Company and the
Guarantors by such Holder expressly for use in the Registration Statement (or in
such amendment or supplement); provided, however, that no such Holder shall be
-------- -------
liable for any indemnity claims hereunder in excess of the amount of net
proceeds received by such Holder from the sale of Securities or Exchange
Securities pursuant to the Registration Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any claim or action
commenced against it in respect of which indemnity may be sought hereunder;
provided, however, that failure to so notify an indemnifying party shall not
- -------- -------
relieve such indemnifying party from any obligation that it may have pursuant to
this Section except to the extent it has been materially prejudiced by such
failure; provided "further," however, that the failure to notify the
indemnifying party shall not relieve it from any liability that it may have to
an indemnified party otherwise than on account of this Section. If any such
claim or action shall be brought against an indemnified party, the indemnified
party shall notify the indemnifying party thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall not be
liable to the indemnified party under this Section 6 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided, however,
-------- -------
that an indemnified party will have the right to employ its own counsel in any
such action, but the fees, expenses and other charges of such counsel will be at
the expense of such indemnified party unless (1) the employment of counsel by
the indemnified party has been authorized in writing by the indemnifying party,
(2) the indemnified party has reasonably concluded (based on
14
advice of counsel) that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those available to
the indemnifying party, (3) a conflict or potential conflict exists (based on
advice of counsel to the indemnified party) between the indemnified party and
indemnifying party (in which case the indemnifying party will not have the right
to direct the defense of such action on behalf of the indemnified party) or (4)
the indemnifying party has not in fact employed counsel to assume the defense of
such action within a reasonable time after receiving notice of the commencement
of the action, in each of which cases the reasonable fees, disbursements and
other charges of counsel will be at the expense of the indemnifying party or
parties. It is understood that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees, disbursements and other charges of more than
one separate firm of attorneys (in addition to any local counsel) at any one
time for all such indemnified party or parties. Each indemnified party, as a
condition of the indemnity agreements contained in Sections 6(a) and 6(b), shall
use all reasonable efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall be liable for
any settlement of any such action effected without its written consent, but if
settled with its written consent (which consent shall not be unreasonably
withheld) or if there be a final judgment for the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(d) If a claim by an indemnified party for indemnification under this
Section 6 is found unenforceable in a final judgment by a court of competent
jurisdiction (not subject to further appeal or review) even though the express
provisions hereof provide for indemnification in such case, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses in such proportion as is appropriate to reflect the relative
fault of the indemnifying party and indemnified party in connection with the
actions, statements or omissions that resulted in such losses 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 any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission of a
material fact, has been taken or made by, or relates to information supplied by,
such indemnifying party or indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
15
such action, statement or omission. The amount paid or payable by a party as a
result of any losses shall be deemed to include, subject to the limitations set
forth in Section 6(c) hereof, any legal or other fees or expenses reasonably
incurred by such party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section, an indemnifying party that is a
holder of Transfer Restricted Securities or Exchange Securities shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Securities or Exchange Securities sold by such indemnifying
party and distributed to the public were offered to the public exceeds the
amount of any damages that such indemnifying party 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 any
contribution from any person who was not guilty of such fraudulent
misrepresentation.
7. Rules 144 and 144A. The Company shall use its best efforts to
------------------
file the reports required to be filed by it under the Securities Act and the
Exchange Act in a timely manner and, if at any time the Company is not required
to file such reports, it will, upon the written request of any holder of
Transfer Restricted Securities, make publicly available other information so
long as necessary to permit sales of their securities pursuant to Rules 144 and
144A. The Company covenants that it will take such further action as any holder
of Transfer Restricted Securities may reasonably request, all to the extent
required from time to time to enable such holder to sell Transfer Restricted
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rules 144 and 144A (including, without limitation,
the requirements of Rule 144A(d)(4)). Upon the written request of any holder of
Transfer Restricted Securities, the Company shall deliver to such holder a
written statement as to whether it has complied with such requirements.
8. Underwritten Registrations. If any of the Transfer Restricted
--------------------------
Securities covered by any Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be selected by the holders of a majority
in aggregate principal amount of such Transfer Restricted Securities included in
such offering, subject to the consent of the Company (which shall not be
unreasonably withheld or delayed). The Holders shall be responsible for all
underwriting commissions and discounts.
16
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
9. Miscellaneous. (a) Amendments and Waivers. The provisions of
------------- ----------------------
this Agreement may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, unless the
Company and the Guarantors have obtained the written consent of Holders of a
majority in aggregate principal amount of the Securities and the Exchange
Securities, taken as a single class. Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose Securities or Exchange
Securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other Holders may be given by
Holders of a majority in aggregate principal amount of the Securities or
Exchange Securities being sold by such Holders pursuant to such Registration
Statement.
(b) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the most current address given by such Holder
to the Company and the Guarantors in accordance with the provisions of this
Section 9(b), which address initially is, with respect to each Holder, the
address of such Holder maintained by the Registrar under the Indenture,
with a copy in like manner to Chase Securities Inc.;
(2) if to you, initially at the respective addresses set forth in the
Purchase Agreement; and
(3) if to the Company or any Guarantor, initially at the address set
forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one business day after
being delivered to a next-day air courier; five business days after being
deposited in the mail; when answered back, if faxed; and when receipt is
acknowledged by the recipient's telecopier machine, if telecopied.
17
(c) Successors And Assigns. This Agreement shall be binding upon the
----------------------
Company, the Guarantors and their successors and assigns.
(d) Counterparts. This Agreement may be executed in any number of
------------
counterparts (which may be delivered in original form or by telecopies) and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(e) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(f) Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.
---------------------------------------------------------------
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK AS APPLIED TO CONTRACTS MADE AND PERFORMED
WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
EACH OF THE COMPANY AND THE GUARANTORS HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID
COURTS. EACH OF THE COMPANY AND THE GUARANTORS IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND
ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF
ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT
ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY HOLDER
OF A TRANSFER RESTRICTED SECURITY TO SERVE PROCESS IN ANY MANNER PERMITTED BY
LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY OR
EACH GUARANTOR IN ANY OTHER JURISDICTION.
(g) Remedies. In the event of a breach by the Company, any Guarantor
--------
or by a holder of Transfer Restricted Securities, of any of their obligations
under this Agreement, each holder of Transfer Restricted Securities, the Company
or any Guarantor, as the case may be, in addition to being entitled to exercise
all rights granted by law,
18
including recovery of damages (other than the recovery of damages for a breach
by the Company or any Guarantor of its obligations under Sections 1 or 2 hereof
for which liquidated damages have been paid pursuant to Section 3 hereof), will
be entitled to specific performance of its rights under this Agreement. Each of
the Company, the Guarantor and the holders of Transfer Restricted Securities
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of any of the provisions of this Agreement
and hereby further agrees that, in the event of any action for specific
performance in respect of such breach, it shall waive the defense that a remedy
at law would be adequate.
(h) No Inconsistent Agreements. The Company and the Guarantors have
--------------------------
not, nor shall the Company or any Guarantor on or after the date of this
Agreement, enter into any agreement that is inconsistent with the rights granted
to the holders of Transfer Restricted Securities in this Agreement or otherwise
conflicts with the provisions hereof. The Company has not previously entered
into any agreement which remains in effect granting any registration rights with
respect to any of its debt securities to any person. Without limiting the
generality of the foregoing, without the written consent of the holders of a
majority in aggregate principal amount of the then outstanding Transfer
Restricted Securities, the Company shall not grant to any person the right to
request the Company to register any debt securities of the Company under the
Securities Act unless the rights so granted are subject in all respects to the
prior rights of the holders of Transfer Restricted Securities set forth herein,
and are not otherwise in conflict or inconsistent with the provisions of the
Agreement.
(i) No Piggyback on Registrations. Neither the Company nor any of its
-----------------------------
securityholders (other than the holders of Transfer Restricted Securities in
such capacity) shall have the right to include any securities of the Company in
any Shelf Registration or Exchange Offer other than Transfer Restricted
Securities.
(j) Severability. The remedies provided herein are cumulative and not
------------
exclusive of any remedies provided by law. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
19
Please confirm that the foregoing correctly sets forth the agreement
between the Company, the Guarantors and you.
Very truly yours,
CANANDAIGUA WINE COMPANY, INC.
By: /s/ Robert Sands
----------------------------
Name: Robert Sands
Title: Secretary
BATAVIA WINE CELLARS, INC.
By: /s/ Robert Sands
----------------------------
Name: Robert Sands
Title: Secretary
BISCEGLIA BROTHERS WINE CO.
By: /s/ Robert Sands
----------------------------
Name: Robert Sands
Title: Secretary
CALIFORNIA PRODUCTS COMPANY
By: /s/ Robert Sands
----------------------------
Name: Robert Sands
Title: Secretary
GUILD WINERIES & DISTILLERIES, INC.
By /s/ Robert Sands
---------------------------
Name: Robert Sands
Title: Secretary
TENNER BROTHERS, INC.
By /s/ Robert Sands
---------------------------
Name: Robert Sands
Title: Secretary
CANANDAIGUA WEST, INC.
By /s/ Robert Sands
---------------------------
Name: Robert Sands
Title: Secretary
WIDMER'S WINE CELLAR, INC.
By /s/ Robert Sands
---------------------------
Name: Robert Sands
Title: Secretary
BARTON INCORPORATED
By /s/ Robert Sands
---------------------------
Name: Robert Sands
Title: Secretary
BARTON BRANDS, LTD.
By /s/ Robert Sands
----------------------------
Name: Robert Sands
Title: Vice President
BARTON BEERS, LTD.
By /s/ Robert Sands
----------------------------
Name: Robert Sands
Title: Vice President
BARTON BRANDS OF CALIFORNIA, INC.
By /s/ Robert Sands
----------------------------
Name: Robert Sands
Title: Vice President
BARTON DISTILLERS IMPORT CORP.
By /s/ Robert Sands
----------------------------
Name: Robert Sands
Title: Vice President
BARTON FINANCIAL CORPORATION
By /s/ David Sorce
----------------------------
Name: David Sorce
Title: Vice President
STEVENS POINT BEVERAGE COMPANY
By /s/ Robert Sands
----------------------------
Name: Robert Sands
Title: Vice President
MONARCH WINE COMPANY, LIMITED
PARTNERSHIP
By BARTON MANAGEMENT, INC.,
as general partner
By /s/ Robert Sands
----------------------------
Name: Robert Sands
Title: Vice President
BARTON MANAGEMENT, INC.
By /s/ Robert Sands
----------------------------
Name: Robert Sands
Title: Vice President
THE VIKING DISTILLERY, INC.
By /s/ Robert Sands
----------------------------
Name: Robert Sands
Title: Vice President
VINTNERS INTERNATIONAL COMPANY, INC.
By /s/ Robert Sands
----------------------------
Name: Robert Sands
Title: Secretary
BARTON BRANDS OF GEORGIA, INC.
By /s/ Robert Sands
----------------------------
Name: Robert Sands
Title: Vice President
Accepted in New York, New York
CHASE SECURITIES INC.
By:
------------------------
Name:
Title:
CS FIRST BOSTON CORPORATION
By:
------------------------
Name:
Title:
VINTNERS INTERNATIONAL COMPANY, INC.
By
----------------------------
Name:
Title:
BARTON BRANDS OF GEORGIA, INC.
By
----------------------------
Name:
Title:
Accepted in New York, New York
CHASE SECURITIES INC.
By: /s/ David Fass
------------------------
Name: David Fass
Title: Vice President
CS FIRST BOSTON CORPORATION
By:
------------------------
Name:
Title:
VINTNERS INTERNATIONAL COMPANY, INC.
By
----------------------------
Name:
Title:
BARTON BRANDS OF GEORGIA, INC.
By
----------------------------
Name:
Title:
Accepted in New York, New York
CHASE SECURITIES INC.
By:
------------------------
Name:
Title:
CS FIRST BOSTON CORPORATION
By: /s/ Peter A. Fowler
------------------------
Name: Peter A. Fowler
Title: Director
ANNEX A
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The
Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of Exchange Securities received in exchange for
Securities where such Securities were acquired by such broker-dealer as a result
of market-making activities or other trading activities. The Company and the
Guarantors have agreed that, for a period of 180 days after the Expiration Date
(as defined herein), they will make this Prospectus available to any broker-
dealer for use in connection with any such resale. See "Plan of Distribution."
ANNEX B
Each broker-dealer that receives Exchange Securities for its own
account in exchange for Securities, where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Company and the
Guarantors have agreed that, for a period of 180 days after the Expiration Date,
they will make this prospectus, as amended or supplemented, available to any
broker-dealer for use in connection with any such resale. In addition, until
______________________, 199 , all dealers effecting transactions in the Exchange
Securities may be required to deliver a prospectus.*/
The Company and the Guarantors will not receive any proceeds from any
sale of Exchange Securities by broker-dealers. Exchange Securities received by
broker-dealers for their own account pursuant to the Exchange Offer may be sold
from time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the Exchange
Securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or negotiated prices. Any such resale may be made directly to purchasers
or to or through brokers or dealers who may receive compensation in the form of
commissions or concessions from any such broker-dealer or the purchasers of any
such Exchange Securities. Any broker-dealer that resells Exchange Securities
that were received by it for its own account pursuant to the Exchange Offer and
any broker or dealer that participates in a distribution of such Exchange
Securities may be deemed to be an "underwriter" within the meaning of the
Securities Act and any profit on any such resale of Exchange Securities and any
commission or concessions received by any such persons may be deemed to be
underwriting compensation under the Securities Act. The Letter of Transmittal
states that, by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
- ------------------
*/ In addition, the legend required by Item 502(e) of Regulation S-K
will appear on the back cover page of the Exchange Offer prospectus.
For a period of 180 days after the Expiration Date the Company and the
Guarantors will promptly send additional copies of this Prospectus and any
amendment or supplement to this Prospectus to any broker-dealer that requests
such documents in the Letter of Transmittal. The Company and the Guarantors
have agreed to pay all expenses incident to the Exchange Offer (including the
expenses of one counsel for the Holders of the Securities) other than
commissions or concessions of any brokers or dealers and will indemnify the
Holders of the Securities (including any broker-dealers) against certain
liabilities, including liabilities under the Securities Act.
2
ANNEX D
/ / CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO
RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND
10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
-----------------------------------------
Address:
-----------------------------------------
-----------------------------------------
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Securities that were acquired as
a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.