EXHIBIT 4.5
$175,000,000
NECTAR MERGER
CORPORATION
To be merged with and
into
FTD, INC.
7.75% Senior Subordinated Notes
due 2014
REGISTRATION RIGHTS
AGREEMENT
February 6, 2004
Credit Suisse First Boston
LLC
UBS Securities LLC
Wells Fargo Securities,
LLC
c/o Credit Suisse First Boston
LLC
Eleven
Madison Avenue
New
York, New York 10010-3629
Dear Sirs:
Nectar Merger Corporation, a
Delaware corporation (the “Issuer”), proposes to issue
and sell to Credit Suisse First Boston LLC, UBS Securities LLC and
Wells Fargo Securities, LLC (collectively, the “Initial
Purchasers”), upon the terms set forth in a purchase
agreement of even date herewith (the “Purchase
Agreement”), $175,000,000 aggregate principal amount of its
7.75% Senior Subordinated Note due 2014 (the “Initial
Securities”) to be unconditionally guaranteed (the
“Guarantees”) upon consummation of the Merger (as
defined below) by the Guarantors (as defined in the Indenture). The
Initial Securities will be issued pursuant to an Indenture, dated
as of the date hereof, (the “Indenture”) among the
Issuer, FTD, Inc., a Delaware corporation (“FTD”) and
U.S. Bank National Association (the
“Trustee”).
The Issuer has entered into an
Agreement and Plan of Merger, dated October 5, 2003, among the
Issuer, FTD and Mercury Man Holdings Corporation (the
“Merger”), pursuant to which the Issuer will merge with
and into FTD and FTD will be the surviving corporation and a
direct, wholly owned subsidiary of Mercury Man Holdings
Corporation. As a result of the Merger, FTD will expressly assume
all of the obligations of the Issuer under this Registration Rights
Agreement (this “Agreement”) which will become
obligations of FTD and all references in this Agreement to the
“Issuer” shall refer to FTD. The Issuer hereby agrees
that it shall cause the Guarantors to execute and deliver a joinder
to this Agreement substantially in the form of Exhibit A
attached hereto upon the consummation of the Merger, and this
Agreement shall thereupon constitute the binding obligation of the
Guarantors, enforceable against the Guarantors in accordance with
the terms hereof. Notwithstanding anything to the contrary
contained herein or in any of the Purchase Agreement, the
Indenture, the Initial Securities, unless and until the Merger is
consummated, none of the Guarantors shall have any obligation or
liability arising under or related to this Agreement or any of the
Purchase Agreement, the Indenture or the Initial Securities, or
arising in connection with a related offering of the Initial
Securities.
As an inducement to the Initial
Purchasers, the Issuer and the Guarantors agree with the Initial
Purchasers, for the benefit of the holders of the Initial
Securities (including, without limitation, the Initial Purchasers),
the Exchange Securities (as defined below) and the Private Exchange
Securities (as defined below) (collectively the
“Holders”), as follows:
1. Registered Exchange Offer
. The Issuer and the Guarantors shall, at their own cost, prepare
and, on or prior to the later of the dates (a) 200 days after the
Issue Date (as defined in the Indenture) and (b) 120 days after the
closing of the Merger, file with the Securities and Exchange
Commission (the “Commission”) a registration statement
(the “Exchange Offer Registration Statement”) on an
appropriate form under the Securities Act of 1933, as amended (the
“Securities Act”), with respect to a proposed offer
(the “Registered Exchange Offer”) to the Holders of
Transfer Restricted Securities (as defined in Section 6 hereof),
who are not prohibited by any law or policy of the Commission from
participating in the Registered Exchange Offer, to issue and
deliver to such Holders, in exchange for the Initial Securities, a
like aggregate principal amount of debt securities (the
“Exchange Securities”) of the Issuer and the Guarantors
issued under the Indenture and identical in all material respects
to the Initial Securities (except for the transfer restrictions
relating to the Initial Securities and the provisions relating to
the matters described in Section 6 hereof) that would be registered
under the Securities Act. The Issuer and the Guarantors shall use
their respective commercially reasonable best efforts to cause such
Exchange Offer Registration Statement to become effective under the
Securities Act on or prior to the date 90 days after such filing.
The Issuer and the Guarantors shall use their respective
commercially reasonable best efforts to keep the Exchange Offer
Registration Statement effective continuously during the Registered
Exchange Offer and to keep the Registered Exchange Offer open for a
period of not less than 20 business days (or longer, if required by
applicable law) after the date notice of the Registered Exchange
Offer is mailed to the Holders (such period being called the
“Exchange Offer Registration Period”).
Following the declaration of the
effectiveness of the Exchange Offer Registration Statement, the
Issuer and the Guarantors shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange
Offer to enable each Holder of Transfer Restricted Securities (as
defined in Section 6 hereof) electing to exchange the Initial
Securities for Exchange Securities (assuming that such Holder is
not an affiliate of the Issuer and 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 with any person to participate in the distribution of
the Exchange Securities and is not prohibited by any law or policy
of the Commission from participating in the Registered Exchange
Offer) 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 Issuer and the Guarantors
acknowledge that, pursuant to current interpretations by the
Commission’s staff of Section 5 of the Securities Act, in the
absence of an applicable exemption therefrom, (i) each Holder which
is a broker-dealer electing to exchange Initial 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 (a) Annex A
hereto on the cover, (b) Annex B hereto in the “Exchange
Offer Procedures” section and the “Purpose of the
Exchange Offer” section, and (c) 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) an Initial Purchaser that elects to sell Exchange
Securities acquired in exchange for Initial Securities constituting
any portion of an unsold allotment is required to deliver a
prospectus containing the information required by Items 507 or 508
of Regulation S-K under the Securities Act, as applicable, in
connection with such sale.
The Issuer and the Guarantors shall
use their respective commercially reasonable best efforts to keep
the Exchange Offer Registration Statement effective and to amend
and supplement the prospectus contained therein, in order to permit
such prospectus to be lawfully delivered by all persons subject to
the prospectus delivery requirements of the Securities Act for such
period of time as such persons must comply with such requirements
in order to resell the Exchange Securities; provided, however, that
(i) in the case where such prospectus and any amendment or
supplement thereto must be delivered by an Exchanging Dealer or an
Initial Purchaser, such period shall be the lesser of 180 days and
the date on which all
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Exchanging Dealers and the Initial Purchasers
have sold all Exchange Securities held by them (unless such period
is extended pursuant to Section 3(j) below) and (ii) the Issuer and
the Guarantors shall make such prospectus and any amendment or
supplement thereto, available to any broker-dealer for use in
connection with any resale of any Exchange Securities for a period
of not less than 90 days after the consummation of the Registered
Exchange Offer.
If, upon consummation of the
Registered Exchange Offer, any Initial Purchaser holds Initial
Securities acquired by it as part of its initial distribution, the
Issuer and the Guarantors, simultaneously with the delivery of the
Exchange Securities pursuant to the Registered Exchange Offer,
shall issue and deliver to such Initial Purchaser upon the written
request of such Initial Purchaser, in exchange (the “Private
Exchange”) for the Initial Securities held by such Initial
Purchaser, a like principal amount of debt securities of the Issuer
and the Guarantors issued under the Indenture and identical in all
material respects (including the existence of restrictions on
transfer under the Securities Act and the securities laws of the
several states of the United States, but excluding provisions
relating to the matters described in Section 6 hereof) to the
Initial Securities (the “Private Exchange Securities”).
The Initial Securities, the Exchange Securities and the Private
Exchange Securities are herein collectively called the
“Securities”.
In connection with the Registered
Exchange Offer and subject to the terms and conditions hereof, the
Issuer and the Guarantors, directly or through one or more agents,
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) use their respective
commercially reasonable best efforts to keep the Registered
Exchange Offer open during the Exchange Offer Registration
Period;
(c) utilize the services of a
depositary for the Registered Exchange Offer with an address in the
Borough of Manhattan, The City of New York, which may be the
Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw
tendered 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 with all
applicable laws.
As soon as practicable after the
close of the Registered Exchange Offer or the Private Exchange, as
the case may be, the Issuer and the Guarantors shall:
(x) accept for exchange all the
Securities validly tendered and not withdrawn pursuant to the
Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for
cancellation all the Initial Securities so accepted for exchange;
and
(z) cause the Trustee to
authenticate and deliver promptly to each Holder of the Initial
Securities, Exchange Securities or Private Exchange Securities, as
the case may be, equal in principal amount to the Initial
Securities of such Holder so accepted for exchange.
The Indenture will provide that the
Exchange Securities will not be subject to the transfer
restrictions set forth in the Indenture and that all the Securities
will vote and consent together on all matters as one class and that
none of the Securities will have the right to vote or consent as a
class separate from one another on any matter.
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Interest on each Exchange Security
and Private Exchange Security issued pursuant to the Registered
Exchange Offer and in the Private Exchange will accrue from the
last interest payment date on which interest was paid on the
Initial Securities surrendered in exchange therefor or, if no
interest has been paid on the Initial Securities, from the date of
original issue of the Initial Securities.
Each Holder participating in the
Registered Exchange Offer shall be required to represent to the
Issuer 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,” as defined in
Rule 405 of the Securities Act, of the Issuer and the Guarantors or
if it is an affiliate, such Holder will comply with the
registration and prospectus delivery requirements of the Securities
Act to the extent applicable, (iv) if such Holder is not a
broker-dealer, that it is not engaged in, and does not intend to
engage in, the distribution of the Exchange Securities and (v) if
such Holder is a broker-dealer, that it will receive Exchange
Securities for its own account in exchange for Initial Securities
that were acquired as a result of market-making activities or other
trading activities and that it will be required to acknowledge that
it will deliver a prospectus in connection with any resale of such
Exchange Securities.
Notwithstanding any other provisions
hereof, the Issuer 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 required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
2. Shelf Registration . If,
(i) the Registered Exchange Offer is not permitted by applicable
law or Commission policy or (ii) any holder of Transfer Restricted
Securities notifies the Issuer and the Guarantors prior to the
20 th business day following the
consummation of the Registered Exchange Offer that (a) it is
prohibited by law or Commission policy from participating in the
Registered Exchange Offer, (b) it may not resell the Exchange
Securities acquired by it in the Registered Exchange Offer to the
public without delivering a prospectus, and the prospectus
contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by it, or (c) it is a
broker-dealer and holds any Securities acquired directly from the
Company or any of the Company’s affiliates, the Company and
the Guarantors will take the following actions:
(a) The Issuer and the Guarantors
shall, at their cost, as promptly as practicable (but in no event
more than 30 days after so required or requested pursuant to this
Section 2) file with the Commission and thereafter shall use their
commercially reasonable best efforts to cause to be declared
effective a registration statement (the “Shelf Registration
Statement” and, together with the Exchange Offer Registration
Statement, a “Registration Statement”) on an
appropriate form under the Securities Act relating to the offer and
sale of the Transfer Restricted Securities (as defined in Section 6
hereof) by the Holders thereof from time to time in accordance with
the methods of distribution set forth in the Shelf Registration
Statement and Rule 415 under the Securities Act (hereinafter, the
“Shelf Registration”); provided, however, that no
Holder (other than an Initial Purchaser) shall be entitled to have
the Securities held by it covered by such Shelf Registration
Statement unless such Holder agrees in writing to be bound by all
the provisions of this Agreement applicable to such
Holder.
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(b) The Issuer and the Guarantors
shall use their commercially reasonable best efforts to keep the
Shelf Registration Statement continuously effective in order to
permit the prospectus included therein to be lawfully delivered by
the Holders of the relevant Securities, for a period of two years
(or for such longer period if extended pursuant to Section 3(j)
below) from the date of its effectiveness or such shorter period
that will terminate when all the Securities covered by the Shelf
Registration Statement (i) have been sold pursuant thereto or (ii)
are no longer restricted securities (as defined in Rule 144 under
the Securities Act, or any successor rule thereof). The Issuer and
the Guarantors shall be deemed not to have used their commercially
reasonable best efforts to keep the Shelf Registration Statement
effective during the requisite period if they voluntarily take any
action that would result in Holders of Securities covered thereby
not being able to offer and sell such Securities during that
period, unless such action is required by applicable
law.
(c) Notwithstanding any other
provisions of this Agreement to the contrary, the Issuer and the
Guarantors shall cause the Shelf Registration Statement and the
related prospectus and any amendment or supplement thereto, as of
the effective date of the Shelf Registration Statement, amendment
or supplement, (i) to comply in all material respects with the
applicable requirements of the Securities Act and the rules and
regulations of the Commission and (ii) not to contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
3. Registration Procedures .
In connection with any Shelf Registration contemplated by Section 2
hereof and, to the extent applicable, any Registered Exchange Offer
contemplated by Section 1 hereof, the following provisions shall
apply:
(a) The Issuer and the Guarantors
shall (i) furnish to each Initial Purchaser, 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 an Initial
Purchaser (with respect to any portion of an unsold allotment from
the original offering) is participating in the Registered Exchange
Offer or the Shelf Registration Statement, the Issuer and the
Guarantors shall use their commercially reasonable best efforts to
reflect in each such document, when so filed with the Commission,
such comments as such Initial Purchaser reasonably may propose
within five business days of such furnishing; (ii) include the
information set forth in Annex A hereto on the cover, in Annex B
hereto in the “Exchange Offer Procedures” section and
the “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; (iii) if requested by an Initial Purchaser within
the time period referred to in (i) above, include the information
required by Items 507 or 508 of Regulation S-K under the Securities
Act, as applicable, in the prospectus forming a part of the
Registration Statement; (iv) include within the prospectus
contained in the Exchange Offer Registration Statement a section
entitled “Plan of Distribution,” reasonably acceptable
to the Initial Purchasers, which shall contain a summary statement
of the positions taken or policies made by the staff of the
Commission with respect to the potential “underwriter”
status of any broker-dealer that is the beneficial owner (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”)) of Exchange Securities
received by such broker-dealer in the Registered Exchange Offer (a
“Participating Broker-Dealer”), whether such positions
or policies have been publicly disseminated by the staff of the
Commission or such positions or policies, in the reasonable
judgment of the Initial Purchasers based upon advice of counsel
(which may be in-house counsel), represent the prevailing views of
the staff of the Commission; and (v) in the case of a Shelf
Registration Statement, include the names of the Holders, who
propose to sell Securities pursuant to the Shelf Registration
Statement, as selling securityholders.
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(b) The Issuer and the Guarantors
shall give written notice to the Initial Purchasers, and to the
Holders of the Securities who will have Transfer Restricted
Securities registered pursuant to the Shelf Registration Statement
and who have complied with Section 3(n) and any Participating
Broker-Dealer from whom the Issuer and the Guarantors have received
prior written notice that it will be a Participating Broker-Dealer
in the Registered Exchange Offer (which notice 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
or any amendment thereto has been filed with the Commission and
when the Registration Statement or any post-effective amendment
thereto has become effective;
(ii) of any request by the
Commission for amendments or supplements to the Registration
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 Issuer
and the Guarantors or their legal counsel of any notification with
respect to the suspension of the qualification of the Securities
for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and
(v) of the happening of any event
that requires the Issuer and the Guarantors to make changes in the
Registration Statement or the prospectus in order that the
Registration Statement or the prospectus do not contain an untrue
statement of a material fact nor omit to state a material fact
required to be stated therein or necessary to make the statements
therein (in the case of the prospectus, in light of the
circumstances under which they were made) not
misleading.
(c) The Issuer and the Guarantors
shall make every reasonable effort to obtain the withdrawal at the
earliest possible time, of any order suspending the effectiveness
of the Registration Statement.
(d) The Issuer and the Guarantors
shall notify each Holder of Securities included within the coverage
of the Shelf Registration of the filing of the Shelf Registration
Statement on EDGAR, and, if requested in writing, will furnish to
such Holder, without charge one copy of the Shelf Registration
Statement and any post-effective amendment thereto, including
financial statements and schedules, and, if the Holder so requests
in writing, all exhibits thereto (including those, if any,
incorporated by reference).
(e) Upon request in writing, the
Issuer and the Guarantors shall deliver to each Exchanging Dealer
and each Initial Purchaser, and to any other Holder, without
charge, one copy of the Exchange Offer Registration Statement and
any post-effective amendment thereto, including financial
statements and schedules, and, if any Initial Purchaser or any such
Holder requests, all exhibits thereto (including those incorporated
by reference).
(f) The Issuer and the Guarantors
shall, during the Shelf Registration Period, deliver to each Holder
of Securities included within the coverage of the Shelf
Registration, without charge, as many copies of the prospectus
(including each preliminary prospectus) included in the
Shelf
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Registration Statement and any
amendment or supplement thereto as such person may reasonably
request. The Issuer and the Guarantors consent, subject to the
provisions of this Agreement, to the use of the prospectus or any
amendment or supplement thereto by each of the selling Holders of
the Securities in connection with the offering and sale of the
Securities covered by the prospectus, or any amendment or
supplement thereto, included in the Shelf Registration
Statement.
(g) The Issuer and the Guarantors
shall deliver to each Initial Purchaser, any Exchanging Dealer, any
Participating Broker-Dealer and such other persons required to
deliver a prospectus following the Registered Exchange Offer,
without charge, as many copies of the final prospectus included in
the Exchange Offer Registration Statement and any amendment or
supplement thereto as such persons may reasonably request. The
Issuer and the Guarantors consent, subject to the provisions of
this Agreement, to the use of the prospectus or any amendment or
supplement thereto by any Initial Purchaser, if necessary, any
Participating Broker-Dealer and such other persons required to
deliver a prospectus following the Registered Exchange Offer in
connection with the offering and sale of the Exchange Securities
covered by the prospectus, or any amendment or supplement thereto,
included in such Exchange Offer Registration Statement.
(h) Prior to any public offering of
the Securities, pursuant to any Registration Statement, the Issuer
and the Guarantors shall register or qualify or cooperate with the
Holders of the Securities included therein and their respective
counsel in connection with the registration or qualification of the
Securities for offer and sale under the securities or “blue
sky” laws of such states of the United States as any Holder
of the Securities reasonably requests in writing and do any and all
other acts or things necessary or advisable to enable the offer and
sale in such jurisdictions of the Securities covered by such
Registration Statement; provided, however, that the Issuer and the
Guarantors shall not be required to (i) qualify generally to do
business in any jurisdiction where they are not then so qualified
or (ii) take any action which would subject them to general service
of process or to taxation in any jurisdiction where they are not
then so subject.
(i) The Issuer and the Guarantors
shall cooperate with the Holders of the Securities to facilitate
the timely preparation and delivery of certificates representing
the Securities to be sold pursuant to any Registration Statement
free of any restrictive legends and in such denominations and
registered in such names as the Holders may request a reasonable
period of time prior to sales of the Securities pursuant to such
Registration Statement.
(j) Upon the occurrence of any event
contemplated by paragraphs (ii) through (v) of Section 3(b) above
during the period for which the Issuer and the Guarantors are
required to maintain an effective Registration Statement, the
Issuer and the Guarantors shall promptly prepare and file a
post-effective amendment to the Registration Statement or a
supplement to the related prospectus and any other required
document so that, as thereafter delivered to Holders of the
Securities or purchasers of Securities, the prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading. If the Issuer and the Guarantors
notify the Initial Purchasers, the Holders of the Securities and
any known Participating Broker-Dealer in accordance with paragraphs
(ii) through (v) of Section 3(b) above to suspend the use of the
prospectus until the requisite changes to the prospectus have been
made, then the Initial Purchasers, the Holders of the Securities
and any such Participating Broker-Dealers shall suspend use of such
prospectus, and the period of effectiveness of the Shelf
Registration Statement provided for in Section 2(b) above and the
Exchange Offer Registration Statement provided for in Section 1
above shall each be extended by the number of days from and
including the date of the giving of such notice to and including
the date when the Initial Purchasers, the Holders of the Securities
and any known Participating Broker-Dealer shall have received such
amended or supplemented prospectus pursuant to this Section
3(j).
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(k) Not later than the effective
date of the applicable Registration Statement, the Issuer and the
Guarantors will provide a CUSIP number for the Initial Securities,
the Exchange Securities or the Private Exchange Securities, as the
case may be, and provide the applicable trustee with certificates
for the Initial Securities, the Exchange Securities or the Private
Exchange Securities, as the case may be, in a form eligible for
deposit with The Depository Trust Company.
(l) The Issuer and the Guarantors
will comply with all rules and regulations of the Commission to the
extent and so long as they are applicable to the Registered
Exchange Offer or the Shelf Registration and will make
