As Filed with the Securities and Exchange Commission on November 27, 1998
REGISTRATION NO. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SNYDER COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 7389 52-1983617
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of Classification Number) Identification
incorporation or Number)
organization)
Two Democracy Center
6903 Rockledge Drive, 15th Floor
Bethesda, Maryland 20817
(301) 468-1010
(Address, including ZIP code, and telephone number, including area code, of
registrant's principal executive offices)
A. Clayton Perfall
Chief Financial Officer
Two Democracy Center
6903 Rockledge Drive, 15th Floor
Bethesda, Maryland 20817
(301) 468-1010
(Name, address, including ZIP code, and telephone number,
including area code, of agent for service)
Copy to:
Norman D. Chirite, Esq.
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
(212) 310-8000
Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes effective.
If the securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box: |_|
If the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, please check the following box: |X|
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================================
Proposed
Amount Proposed Maximum Maximum
Title of Each Class of to be Offering Price Aggregate Amount of
Securities to be Registered Registered Per Unit(1) Offering Price(1) Registration Fee(2)
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 3,425,610 $34.875 $119,468,149 $33,213
==================================================================================================================
</TABLE>
(1) Calculated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, as amended (the
"Securities Act"), based on the average high and low sale prices of the
common stock, par value $0.001 per share, of Snyder Communications, Inc.
(the "Snyder Common Stock") as reported on the New York Stock Exchange,
Inc. (the "NYSE") Composite Tape on November 23, 1998.
(2) The registration fee for the Snyder Common Stock registered hereby,
$33,213, has been calculated pursuant to Section 6(b) of, and Rule 457(c)
under, the Securities Act, as follows: 0.000278, multiplied by the product
of: (x) $34.875, the average of the high and low sale prices per share of
Snyder Common Stock as reported on the NYSE Composite Tape on November 23,
1998 and (y) 3,425,610.
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
================================================================================
NYFS01...:\07\74807\0003\1819\REG0168J.16D
<PAGE>
The information contained in this prospectus is not complete and may be changed.
We may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
Subject to Completion, Dated November 27, 1998
PROSPECTUS
SNYDER COMMUNICATIONS, INC.
3,425,610 Shares of Common Stock
The stockholders identified in this Prospectus are offering to sell up to
3,425,610 shares of Common Stock of Snyder Communications, Inc. Snyder will not
receive any of the proceeds from such sales.
The selling stockholders propose to sell the shares from time to time in
public or private transactions occurring on or off the New York Stock Exchange,
at prevailing market prices or at negotiated prices. Sales may be made directly
to purchasers or through brokers or to dealers, who are expected to receive
customary commissions or discounts.
The selling stockholders and participating brokers or dealers may be
deemed to be "underwriters" within the meaning of the Securities Act of 1933, as
amended, in which event any profit on the sale of shares by those selling
stockholders and any commissions or discounts received by those brokers or
dealers may be deemed to be underwriting compensation under the Securities Act.
Snyder's Common Stock is listed on the New York Stock Exchange under the
symbol "SNC". On November 23, 1998, the closing price of the Common Stock was
$35.5625 per share.
You should consider carefully the risk factors beginning on page 5 before
making a decision to purchase our stock.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
Prospectus is truthful or complete. Any representation to the contrary is
criminal offense.
The date of this Prospectus is , 1998.
<PAGE>
You should rely only on the information provided or incorporated by
reference in this Prospectus or any supplement. We have not authorized anyone
else to provide you with additional or different information. The Common Stock
is not being offered in any state where the offer is not permitted. You should
not assume that the information in this Prospectus or any supplement is accurate
as of any date other than the date on the front of such documents.
--------------------
TABLE OF CONTENTS
Page
----
About This Prospectus..............................................2
Where You Can Find More Information................................2
The Company........................................................4
Risk Factors.......................................................5
Use of Proceeds....................................................11
Selling Stockholders...............................................12
Plan of Distribution...............................................14
Legal Matters......................................................15
Experts............................................................15
ABOUT THIS PROSPECTUS
This Prospectus is a part of a registration statement (the "Registration
Statement") that we have filed with the Securities and Exchange Commission (the
"SEC") utilizing a "shelf registration" process. You should read both this
Prospectus and any supplement together with additional information described
under "Where You Can Find More Information."
All references in this Prospectus to "Snyder, the "Company," "we," "us,"
or "our" mean Snyder Communications, Inc., including the entities acquired by
the Company and its other directly and indirectly owned subsidiaries. Unless
otherwise indicated, all information in this Prospectus assumes that each of the
entities acquired by the Company through a pooling of interests transaction was
a wholly-owned subsidiary of the Company.
WHERE YOU CAN FIND MORE INFORMATION
Snyder files annual, quarterly and special reports, proxy statements and
other information required by the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), with the SEC. You may read and copy any document we file
at the SEC's public reference rooms located at 450 5th Street, N.W., Washington,
D.C. 20549, at Seven World Trade Center 13th Floor, New York, New York 10048 and
at Northwest Atrium Center, 5000 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms. Our SEC filings are also available to
the public from the SEC's web site at: http://www.sec.gov. Copies of these
reports, proxy statements and other information also can be inspected at the
offices of the New York Stock Exchange (the "NYSE"), 20 Broad Street, New York,
New York 10005.
Snyder has filed with the SEC a registration statement on Form S-3 under
the Securities Act, with respect to the Common Stock. This Prospectus, which
constitutes a part of the Registration Statement, does not include all the
information contained in the Registration Statement and its exhibits. For
further information with respect to Snyder and the Common Stock, you should
consult the Registration Statement and its exhibits. Statements contained in
this Prospectus concerning the provisions of any documents are necessarily
summaries of those
2
<PAGE>
documents, and each statement is qualified in its entirety by reference to the
copy of the document filed with the SEC. The Registration Statement and any of
its amendments, including exhibits filed as a part of the Registration Statement
or an amendment to the Registration Statement, are available for inspection and
copying through the entities listed above.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to the other information we have filed with the SEC. The
information that we incorporate by reference is considered to be part of this
Prospectus, and information that we file later with the SEC will automatically
update and supersede this information.
The following documents filed by Snyder with the SEC pursuant to the
Securities Act of 1933, as amended (the "Securities Act") and the Exchange Act
(File No. 1-12145) and any future filings under Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act made prior to the termination of the offering are
incorporated by reference:
(i) Snyder's Registration Statement on Form S-3 (Registration No.
333-50929), as amended;
(ii) Snyder's Annual Report on Form 10-K for its fiscal year ended
December 31, 1997;
(iii) Snyder's Quarterly Reports on Form 10-Q for its fiscal quarters
ended March 31, 1998, June 30, 1998 and September 30, 1998;
(iv) Snyder's Current Reports on Form 8-K filed with the SEC on January
21, 1998, February 18, 1998, March 31, 1998, April 3, 1998 (filed,
as amended, on May 15, 1998), May 5, 1998, May 20, 1998, May 21,
1998, September 14, 1998 (filed, as amended, on November 13, 1998),
September 25, 1998 and November 27, 1998; and
(v) the description of the Common Stock contained in Snyder's
Registration Statement on Form 8-A, filed with the SEC on September
9, 1996, including any amendment or report filed for the purposes of
updating such description.
We will provide without charge to each person to whom a copy of this
Prospectus is delivered a copy of any or all documents incorporated by reference
into this Prospectus except the exhibits to such documents (unless such exhibits
are specifically incorporated by reference in such documents). Requests for
copies can be made by writing or telephoning us at Two Democracy Center, 6903
Rockledge Drive, 15th Floor, Bethesda, Maryland 20817; Attention: Secretary,
telephone number (301) 468-1010.
3
<PAGE>
THE COMPANY
Because this is a summary, it does not contain all the information about
Snyder that may be important to you. You should read the more detailed
information and the financial statements and related notes which are
incorporated by reference in this Prospectus.
Snyder is a rapidly growing international provider of complete marketing
solutions primarily to Fortune 500 size companies. We integrate our various
capabilities, including our proprietary distribution channels, producing
value-added marketing solutions. We identify high value market segments; design
and implement marketing programs to reach them; initiate and close sales on
behalf of our clients; and provide customer care, retention and loyalty
marketing services. Our resources include:
o proprietary databases of targeted consumers and small businesses
o database management services
o pharmaceutical detailing services
o pharmaceutical consulting
o medical educational communications
o proprietary product sampling programs and publications
o sponsored information displays in proprietary locations
o marketing program consultants
o creative services
o field sales and marketing representatives
o customer service representatives
o interactive services, and
o direct mail and fulfillment capabilities.
Since completing our initial public offering in September 1996, we have
significantly expanded the range of marketing and sales services we are able to
offer our clients. We have accomplished this expansion both by building and
initiating new programs or service offerings and by acquiring businesses that
offer complementary services. We have combined the service offerings of acquired
companies with those we previously offered to create three operating groups:
Healthcare Services; Direct Services; and Creative Services. Utilizing the
service offerings of our three operating groups, our goal is to provide
integrated marketing solutions for our clients.
During 1997 and 1998, we made strategic acquisitions to broaden the range
of services we provide to clients, to expand the geographic reach of our
services and to enhance our clients' access to strategic consumer groups. To
complement and supplement our existing management depth, we retained key members
of management at many of the acquired companies.
We believe that we are well positioned to capitalize on increased demand
for marketing services due to the outsourcing of marketing and sales functions,
changes in the regulatory environment and increased demand for marketing
services in Europe by providing our clients with integrated global marketing
solutions and the capability to reach strategic consumer groups, including aging
baby-boomers, multicultural populations and young consumers. In order to
capitalize on this increased demand for marketing services and to continue our
growth, we plan to broaden the range of services offered to existing and future
clients, expand our global presence, increase the scale of our services and
pursue strategic acquisitions.
Our corporate headquarters are located at Two Democracy Center, 6903
Rockledge Drive, Bethesda, Maryland, 20817, and our telephone number is (301)
468-1010.
-----------------------------
For additional information relating to our business, operations,
properties, certain acquisitions and other matters, see the documents referred
to above under "Where You Can Find More Information."
4
<PAGE>
RISK FACTORS
You should carefully consider the following risk factors in addition to the
other information contained and incorporated by reference in this Prospectus
before purchasing our shares. Certain statements in this Prospectus and in
documents incorporated by reference in this Prospectus are forward-looking and
are identified by the use of forward-looking words or phrases such as "plan,"
"planned," "intend," "intended," "will be positioned," "expect," is or are
"expected," "anticipate" and "anticipated." These forward-looking statements are
based on our current expectations. To the extent any of the information
contained or incorporated by reference in this Prospectus constitutes a
"forward-looking statement" as defined in Section 27A(i)(1) of the Securities
Act, the following risk factors are cautionary statements identifying important
factors that could cause actual results to differ materially from those in the
forward-looking statement.
Growth Through Acquisitions
We plan to continue to supplement our growth through acquisitions of
complementary businesses. Since the beginning of 1998, we have completed several
strategic acquisitions. In most instances, we have issued shares of Common Stock
as consideration. We are currently evaluating several additional acquisitions
and expect to continue to consider growth opportunities through additional
acquisitions that may involve payments in cash or the issuance of additional
shares of Common Stock, although there are no definitive arrangements or
agreements to do so at this time. We cannot assure you that we will have
sufficient capital resources to continue to pursue this aspect of our growth
strategy or that our Common Stock will remain an attractive acquisition
currency. We also cannot assure you that we will successfully identify, complete
or integrate additional acquisitions or that any companies that we have acquired
or may acquire, including our recent acquisitions, will perform as expected or
will contribute significant revenues or profits to us. We may also, in the
future, face increased competition for acquisition opportunities, which may
inhibit our ability to consummate suitable acquisitions on terms favorable to
us.
Integration of Acquisitions
Since our initial public offering in September 1996, we have completed
numerous acquisitions of complementary businesses. The services provided by the
acquired companies, although complementary, differ in varying degrees from the
services we offered prior to acquiring these companies. We cannot assure you
that we will achieve the anticipated benefits with respect to the clients and
targeted markets of these acquisitions. Prior to our initial public offering, we
had limited experience in acquiring businesses. We cannot give any assurance
that we will be able to manage successfully our new service areas, the employees
of such service areas or the client bases supported by such service areas. If we
are unable to integrate and manage acquired businesses successfully, this could
have a material adverse effect on our business, financial condition and results
of operations.
Management of Growth
We have grown rapidly over the past several years. Our continued growth
depends to a significant degree on our ability to successfully utilize our
existing infrastructure to perform services for other clients, as well as on our
ability to develop and successfully implement new marketing methods or channels
for new services. Our continued growth will also depend on a number of other
factors, including our ability to maintain the high quality of the services we
provide to our customers and to increase our penetration with existing
customers; to recruit, motivate and retain qualified personnel; and to
economically train existing sales representatives or recruit new sales
representatives. Our continued growth will also require us to implement enhanced
operational and financial systems and additional management resources. We cannot
assure you that we will be able to manage our expanding operations effectively
or that we will be able to maintain our growth. If we are unable to manage
growth effectively, this could materially adversely affect our business,
financial condition and results of operations.
5
<PAGE>
Risk Associated with International Operations and Expansion
In March 1997, we made our first international acquisition. We have since
acquired a number of companies in the United Kingdom and continental Europe. A
key component of our growth strategy is continued international expansion. We
cannot give any assurance that we will be able to successfully acquire
companies, integrate acquired companies or successfully introduce new services
into these markets in order to expand our international operations. In addition,
there are certain risks inherent in conducting international business,
including:
o exposure to currency fluctuations
o difficulties in complying with a variety of foreign laws
o unexpected changes in regulatory requirements
o difficulties in staffing and managing foreign operations, and
o potentially adverse tax consequences.
We cannot assure you that one or more of these factors will not have a
material adverse effect on our international operations and consequently on our
business, financial condition and results of operations.
Reliance on Significant Clients
Our ten largest current clients, based on revenues for the nine months
ended September 30, 1998, listed alphabetically, are Abbott Laboratories, Astra
Pharmaceuticals, Bayer, Bristol Myers Squibb, Eli Lilly, GTE, McDonald's,
Procter & Gamble, Volkswagen of America and Zeneca. These clients accounted for
31.6% of our revenues for the nine months ended September 30, 1998. We provide
services to many of our most significant clients under multi-year contracts. As
is typical in the industry, clients may cancel our multi-year contracts on
specified notice periods. As a result, we cannot assure you that our most
significant clients will continue to do business with us over the long term. If
any of our significant clients elect not to renew their contracts, it could have
a material adverse effect on our results of operations.
Adverse Effect of Foreign Exchange Rates on Results of Operations
As a result of a number of acquisitions in the United Kingdom and
continental Europe, approximately 30.9% of our revenues in 1997 were from
outside of the United States, the majority of which were denominated in British
pounds and French francs. The U.S. dollar value of our revenues varies with
currency exchange rate fluctuations. Significant increases in the value of the
U.S. dollar relative to the British pound or French franc could have a material
adverse effect on our results of operations. We continually evaluate our
exposure to exchange rate risk but do not currently hedge this risk.
Dependence on Trend Toward Outsourcing
Our business and growth depend in large part on the trend toward
outsourcing of marketing services. We can give no assurance that this trend in
outsourcing will continue, as companies may elect to perform such services
internally. A significant change in the direction of this trend generally, or a
trend in the pharmaceutical or telecommunications industries, not to use, or to
reduce the use of, outsourced marketing services, such as those that we provide,
would have a material adverse effect on our business.
Competitive and Fragmented Industry
The industry in which we compete is highly competitive and fragmented. We
compete with other providers of sales and marketing media, such as direct mail,
television, radio and other media. We also compete with the internal marketing
capabilities of clients and prospective clients. We compete as well with other
marketing services firms, ranging in size from very small firms offering special
applications or short-term projects to large independent firms. A number of
competitors have certain capabilities and resources equal to or greater than we
6
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do. We cannot assure you that, as our industry continues to evolve, additional
competitors with greater resources than us will not enter the industry (or
particular segments of the industry) or that our clients will not choose to
conduct more of their targeted marketing services internally or through
alternative marketing providers. Although we intend to monitor industry trends
and respond accordingly, we cannot assure you that we will be able to anticipate
and successfully respond to such trends in a timely manner. In addition, many of
our initial sources for names in our databases could also be available to a
competitor wishing to develop a data delivery business.
Dependence on Labor Force
Many aspects of our business are very labor intensive and experience high
personnel turnover. Many of our employees receive hourly wages plus commissions,
if earned. A higher turnover rate among our employees would increase our
recruiting and training costs and decrease operating efficiencies and
productivity. Our operations typically require specially trained persons, such
as those employees and independent contractors in the pharmaceutical detailing
business and those employees who market services and products in languages other
than English. Growth in our business will require us to recruit and train
qualified personnel at an accelerated rate from time to time. The labor markets
for quality personnel are competitive, and we cannot assure you that we will be
able to continue to hire, train and retain a sufficient labor force of qualified
persons.
Reliance on Technology; Risk of Business Interruption
We have invested significantly in sophisticated and specialized computer
and telecommunications technology and have focused on the application of this
technology to provide customized solutions to meet many of our clients' needs.
We have also invested significantly in sophisticated end-user databases and
software that enable us to market our clients' products to targeted markets. We
anticipate that it will be necessary to continue to select, invest in and
develop new and enhanced technology and end-user databases on a timely basis in
the future in order to maintain our competitiveness. In addition, our business
is dependent on our computer and telephone equipment and software systems, and
the temporary or permanent loss of these equipment or systems, through casualty
or operating malfunction, or a significant increase in the cost of telephone
services that is not recoverable through an increase in the price of our
services, could have a material adverse effect on our business. Our property and
business interruption insurance may not adequately compensate us for all losses
that we may incur in any such event.
Dependence on Key Personnel
Our success depends in large part upon the abilities and continued service
of our executive officers and other key employees, particularly Daniel M.
Snyder, our Chairman of the Board of Directors and Chief Executive Officer. We
cannot assure you that we will be able to retain the services of these officers
and employees. Failure by us to retain the services of Mr. Snyder or of other
key personnel could have a material adverse effect on our business. We have
employment agreements with certain executive officers, including Mr. Snyder, and
also have non-competition agreements with certain key personnel, including each
of our executive officers. Courts, however, are at times reluctant to enforce
such non-competition agreements. In addition, many of our executive officers and
other key personnel are either participants in our 1996 Stock Incentive Plan or
holders of a significant amount of Common Stock (as is the case with Mr.
Snyder). We believe that these interests increase the incentives these key
employees have to remain with us. In order to support our growth, we will need
to effectively recruit, hire, train and retain additional qualified management
personnel. Inability by us to attract and retain the necessary personnel could
have a material adverse effect on our business.
Government Regulation
Several industries in which our clients operate are subject to varying
degrees of governmental regulation, particularly the pharmaceutical, healthcare
and telecommunications industries. Generally, compliance with these regulations
is the responsibility of our clients. However, we could be subject to a variety
of enforcement or private actions for our failure or the failure of our clients
to comply with these regulations.
7
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In connection with the handling and distribution of samples of
pharmaceutical products, the Medical Services group is subject to regulation by
its clients, the Prescription Drug Marketing Act of 1987 and other applicable
federal, state and local laws and regulations in the United States and certain
regulations of the United Kingdom, France, Germany and the European Union.
Pharmaceutical manufacturers and the health care industry in general are subject
to significant U.S. federal and state, U.K., French, German and European Union
regulation. In particular, regulations affecting the pricing or marketing of
pharmaceuticals could make it uneconomic or infeasible for pharmaceutical
companies to market their products through medical marketing detailers. Other
changes in the domestic and international regulation of the pharmaceutical
industry could also have a material adverse effect on the Healthcare Services
group.
Our physician education services are also subject to a variety of federal
and state regulations relating to both the education of medical professionals
and sales of pharmaceuticals. Any changes in these regulations or their
application could have a material adverse effect on the Healthcare Services
group.
From time to time state and federal legislation is proposed with regard to
the use of proprietary databases of consumer and health groups. The fact that we
generate and receive data from many sources increases the uncertainty of the
regulatory environment. As a result, there are many ways both domestic and
foreign governments might attempt to regulate our use of our data. Any such
restriction could have a material adverse affect on the Direct Services group.
In addition, the Direct Services group is subject to a large number of
federal and state regulations. The Federal Communications Commission (the "FCC")
rules under the Federal Telephone Consumer Protection Act of 1991 limit the
hours during which telemarketers may call consumers and prohibit the use of
automated telephone dialing equipment to call certain telephone numbers. The
Federal Telemarketing and Consumer Fraud and Abuse Protection Act of 1994
broadly authorizes the Federal Trade Commission to issue regulations prohibiting
misrepresentation in telephone sales.
One of the significant regulations of the FCC applicable to long distance
carriers, including our telecommunication clients, prohibits the unauthorized
switching of subscribers' long distance carriers. The FCC may impose a fine of
up to $100,000 for each instance of unauthorized switching. In order to prevent
unauthorized switches, federal law requires that switches authorized over the
telephone, such as through our teleservices, be verified contemporaneously by a
third party. Third-party verification generally is not required for switches
obtained in person, such as those obtained by members of our Direct Services
field sales force. We designed our training and other procedures to prevent
unauthorized switching. However, as with any field sales force, we cannot
completely ensure that each employee will always follow our mandated procedures.
Accordingly, it is possible that employees may in some instances engage in
unauthorized activities, including unauthorized switching. To our knowledge, the
FCC has not brought any formal complaint against us or any of our clients as a
result of our services. If any complaints were brought, our clients might assert
that these complaints constituted a breach of their agreement with us and, if
material, seek to terminate the contract. Legislation currently pending in
Congress would increase penalties against carriers that engage in unauthorized
switching of subscribers' long distance carriers and would impose additional
procedural safeguards to ensure against such unauthorized switches. If such
proposed legislation is enacted, compliance with the additional procedural
safeguards could increase the costs associated with the Direct Services group's
marketing efforts on behalf of its telecommunications clients.
The services we offer outside the United States may be subject to certain
regulations of the United Kingdom, France, Germany and the European Union,
including regulations relating to inbound and outbound teleservices, advertising
content, promotions of financial products, activities requiring customers to
send money with mail orders and the maintenance and use of customer data held on
databases. In addition, we operate a small U.K. printing facility which is
subject to certain environmental regulations regarding the storage and disposal
of certain chemicals involved in the printing process. We believe that our
operations outside the United States are substantially in compliance with
applicable regulations. We can give no assurance, however, that additional U.K.,
French, German or European Union legislation, or changes in the regulatory
implementation, would not limit our international activities or significantly
increase the cost of regulatory compliance.
8
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Potential Fluctuations in Our Quarterly Operating Results
Our quarterly revenues and operating income may vary as a result of many
factors, including:
o the timing of clients' marketing campaigns
o the implementation of new products or services
o the general and administrative expenses to acquire and support new
business, and
o changes in our revenue mix among our various service offerings and
geographic locations.
In connection with certain contracts, we could incur costs in periods prior
to recognizing revenue under those contracts. In addition, we must plan our
operating expenditures based on revenue forecasts, and a revenue shortfall below
the forecast in any quarter would be likely to affect adversely our operating
results for that quarter.
Shares Eligible for Future Sale and Registration Rights
As of November 24, 1998, an aggregate of 69,767,111 shares of our Common
Stock were outstanding. Of the outstanding shares, 32,472,353 shares are freely
transferable without restriction or further registration under the Securities
Act, 3,425,610 shares owned by the selling stockholders identified in this
Prospectus (the "Selling Stockholders") are offered for resale pursuant to this
Prospectus and 33,869,148 shares are "restricted securities" within the meaning
of Rule 144 under the Securities Act and may not be sold other than pursuant to
an effective registration statement under the Securities Act, pursuant to an
exemption from the registration requirements of the Securities Act, or subject
to the volume limitations of Rule 144 under the Securities Act. In addition,
shares of Common Stock to be issued upon the exercise of certain options will be
freely transferable upon such exercise.
Pursuant to agreements, Daniel M. Snyder and certain other stockholders of
Snyder have registration rights with respect to their shares of Common Stock. If
these stockholders, by exercising their registration rights, cause a large
number of shares to be registered and sold in the public market, such sales
could have an adverse effect on the market price of the Common Stock.
Future sales of substantial amounts of Common Stock in the public market
could adversely affect the market price of the Common Stock and our ability to
raise additional capital or engage in business combinations through sales of
additional shares of Common Stock.
Control by Principal Stockholders
Daniel M. Snyder, our Chairman of the Board of Directors and Chief
Executive Officer, and Michele D. Snyder, our Vice Chairman, President, Chief
Operating Officer and a director, beneficially own approximately 13.8% and 4.8%,
respectively, of the outstanding shares of Common Stock. As a result, Mr. Snyder
individually, and he and Ms. Snyder if they act in concert, can exercise
substantial influence over our business through their voting power with respect
to the election of directors and all other matters requiring action by
stockholders. This concentration of share ownership may have the effect of
discouraging, delaying or preventing a change in control of Snyder.
Effect of Certain Charter and Bylaw Provisions
Our Certificate of Incorporation and Bylaws contain certain provisions that
could discourage potential takeover attempts and make attempts by our
stockholders to change management more difficult. These provisions include the
requirement that our stockholders follow an advance notification procedure for
certain stockholder nominations of candidates for our Board of Directors (the
"Board") and for new business to be conducted at any meeting of the
stockholders. In addition, the Certificate of Incorporation allows the Board to
issue up to 5,000,000 shares of preferred stock and to fix the rights,
privileges and preferences of those shares without any further vote or action by
the stockholders. The rights of the holders of any preferred shares that we may
issue in the future
9
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may adversely affect the rights of the holders of Common Stock. While we have no
present intention to issue any shares of preferred stock, any such issuance
could have the effect of making it more difficult for a third party to acquire a
majority of our outstanding voting stock. In addition, we are subject to certain
anti-takeover provisions of the Delaware General Corporation Law, which could
have the effect of discouraging, delaying or preventing a change of control of
Snyder.
Volatility of Our Stock Price and Absence of Dividends
The public trading market for our Common Stock was first established after
our initial public offering in September 1996. Between the date of our initial
public offering and November 26, 1998, the Common Stock has traded at a high of
$54.19 per share and a low of $17.75 per share.
Future announcements concerning Snyder or our competitors, including
quarterly results, innovations, new product introductions, governmental
regulation, litigation or changes in earnings estimates published by analysts
may cause the market price of the Common Stock to fluctuate significantly. The
stock market has at various times experienced extreme price and volume
fluctuations that have particularly affected the market price for many emerging
growth companies that often have been unrelated to the operating performance or
prospects of these companies. These fluctuations, as well as general economic,
political and market conditions, such as recessions or international currency
fluctuations, may adversely affect the market price of the Common Stock. We
cannot assure you that the market price of the Common Stock will not decline
below its present market price. The market price of the Common Stock is based on
anticipated future earnings growth. Furthermore, we rely on a core group of key
customers. Any loss of any of these customers could be detrimental to the market
price of the Common Stock. See "-Reliance on Significant Clients." The future
market price of the Common Stock will depend on delivering results anticipated
by public investors. Any failure to meet specific expectations may cause the
market price of the Common Stock to decline.
Year 2000
We are currently assessing our systems and equipment and are in the process
of making the modifications necessary to address the issues presented by the
Year 2000 issue. We expect to incur no more than $3.0 million in capital
expenditures in 1998 with respect to system upgrades which are designed in part
to address specific Year 2000 requirements. We do not expect expenditures
incurred after 1998 for Year 2000 compliance to be material. If we acquire
additional companies, we will need to evaluate how the Year 2000 issue will
impact our future acquirees. If such expenditures exceed expectations or if a
future acquiree requires substantial expenditures to address its Year 2000
issues, this could adversely affect our financial results. We cannot assure you
that our systems or the systems of other companies on which our systems rely
will be timely installed or converted. Although we are not certain of the impact
on us of failure of our significant customers or vendors to achieve Year 2000
compliance in a timely or effective manner, such failure could materially
adversely affect our business and results of operations.
The Euro Conversion
On January 1, 1999, eleven member countries of the European Union are
scheduled to establish fixed conversion rates between their national currencies
and the "euro," which will ultimately result in the replacement of the
currencies of these participating countries with the euro (the "Euro
Conversion"). Given the extent of the services we currently provide in
continental Europe and the nature of those services, we currently do not expect
the introduction of the euro to have a material impact on our operations or cash
flows. However, uncertainties exist as to the effects the euro currency may have
on our European clients, as well as the impact of the Euro Conversion on the
economies of the participating countries. In addition, the increased price
transparency that will be caused by the introduction of the euro may negatively
impact our pricing strategies in different participating countries. We will
continue to evaluate the impact of the introduction of the euro as we continue
to expand our services and the European locations in which we operate.
10
<PAGE>
USE OF PROCEEDS
The shares are being offered by this Prospectus only for the accounts of
the Selling Stockholders pursuant to certain registration rights agreements. We
will not receive any proceeds from the sale of the shares. See "Selling
Stockholders."
11
<PAGE>
SELLING STOCKHOLDERS
Certain Selling Shareholders listed below obtained their Snyder shares
when we acquired Clinical Communications Group Inc. on August 31, 1998, and
certain other Selling Stockholders listed below obtained their Snyder shares
when we acquired Response Marketing Group, LLC and Response Analytics, Inc. on
October 1, 1998. In connection with each of these acquisition, we entered into a
shelf registration rights agreement (collectively, the "Shelf Registration
Rights Agreements") with each of the Selling Stockholders, under which we filed
the Registration Statement of which this Prospectus forms a part and have also
agreed to bear certain related expenses and to indemnify each Selling
Stockholder against certain liabilities, including liabilities arising under the
federal securities laws.
We have filed with the SEC the Registration Statement of which this
Prospectus forms a part to enable the sale by the Selling Stockholders of their
Snyder shares from time to time on the NYSE, in the public market off the NYSE,
in privately negotiated transactions or otherwise, as more fully described below
under "Plan of Distribution." Under the Shelf Registration Rights Agreements, we
agreed to use our best efforts to keep the Registration Statement continuously
effective (subject to our right to require the Selling Stockholders to suspend
their use of this Prospectus under certain circumstances), until all of the
shares covered by the Registration Statement have been sold under the
Registration Statement, or until such time as the Registration Statement has
been effective for a period of up to 75 days in the aggregate, whichever comes
first.
The table below sets forth certain information regarding the
ownership of Snyder shares by each Selling Stockholder prior to the offering and
as adjusted to give effect to the sale of all of the shares offered hereby. The
shares are being registered to permit public secondary trading of the shares and
the Selling Stockholders may offer the shares for sale from time to time. See
"Plan of Distribution."
Former Shareholders of Acquired Companies Participating in this Registration
<TABLE>
<CAPTION>
Ownership at Number of Ownership
November 23, 1998(1) Shares After Offering
-------------------------- Covered ---------------------
Number Percent by this Number Percent
Selling Stockholders of Shares of Class Prospectus of Shares of Class
- -------------------- --------- -------- ---------- ---------- --------
<S> <C> <C> <C> <C> <C>
Bankers Trust 216,273 * 216,273 - -
Corporation
Bear, Stearns 866,286 1.2% 866,286 - -
International Limited
Brentwood Associates 664,223 * 664,223 - -
Buyout Fund II, L.P.
Brunton, Steve 14,210 * 14,210 - -
Carey, William 1,355 * 1,355 - -
Corey A. Kupersmith 700,848 1.0% 250,000 450,848 *
Trust
Coughlan, Tony 2,960 * 2,960 - -
Crocco, Keith 3,144 * 3,144 - -
Davidai, Giora 1,184 * 1,184 - -
du Toit, Clement 5,921 * 5,921 - -
du Toit, Mechiel 12,578 * 12,578 - -
Flanagan, Margaret 1,701 * 1,701 - -
Gandt, Lois 3,144 * 3,144 - -
12
<PAGE>
Ownership at Number of Ownership
November 23, 1998(1) Shares After Offering
-------------------------- Covered ---------------------
Number Percent by this Number Percent
Selling Stockholders of Shares of Class Prospectus of Shares of Class
- -------------------- --------- -------- ---------- ---------- --------
Garrett, James M. 69,862 * 34,931 34,931 *
Gaston, William C. 54,211 * 27,106 27,105 *
Goldman, Sachs & Co. 217,886 * 216,286 1,600 *
Hanig, James 6,804 * 6,804 - -
Hardcastle, Charles 1,184 * 1,184 - -
HLT, L.C. 27,875 * 13,937 13,938 *
Holmes, Steven 1,687 * 1,687 - -
Holt, B. Stuart, III 3,690 * 1,845 1,845 *
Jaeger, Stephen O. 28,943 * 28,943 - -
Kiratsous, Nicholas 12,578 * 12,578 - -
Kudzy, Lynne 12,578 * 12,578 - -
Kupersmith, Kenneth 12,578 * 12,578 - -
Lally, John P. 54,211 * 27,106 27,105 *
Mata, Pedro 12,934 * 12,934 - -
Merrill Lynch, Pierce, 234,786 * 216,286 18,500 *
Fenner & Smith
Incorporated
Meryash, Michael 1,701 * 1,701 - -
Mock, Bradley 24,420 * 24,420 - -
Morgan, George 2,046 * 2,046 - -
Owens, Thomas 1,701 * 1,701 - -
Popper, Richard 11,842 * 11,842 - -
Powell, Laurence H. 154,352 * 77,176 77,176 *
Reid, Martin 6,804 * 6,804 - -
Ruscoll, Jill 3,144 * 3,144 - -
Scott, Gregory 3,144 * 3,144 - -
Strapp, John 2,960 * 2,960 - -
Sullivan, John 13,160 * 13,160 - -
Stoughton, Thomas B. 54,211 * 27,106 27,105 *
Swift, Richard Ward 18,867 * 18,867 - -
T & H Enterprises, Inc. 1,096,237 1.6% 548,118 548,119 *
Topping, John A. 8,384 * 4,192 4,192 *
Trost, Peter A., III 3,690 * 1,845 1,845 *
Wallrabe, Horst 5,921 * 5,921 - -
1997 Tenebaum Family 1,701 * 1,701 - -
Trust
</TABLE>
- --------------------------------------------------------------
* Less than 1.0%
(1) Based upon 69,767,111 shares of Common Stock outstanding as of
November 24, 1998.
13
<PAGE>
PLAN OF DISTRIBUTION
The Selling Stockholders may sell the Snyder shares covered by this
Prospectus from time to time at market prices prevailing at the time of sale, at
prices related to such prevailing market prices or at negotiated prices. The
Selling Stockholders may offer their shares for sale in one or more of the
following transactions:
o on the NYSE
o through the facilities of any national securities exchange or U.S.
automated inter-dealer quotation system of a registered national
securities association on which any of the Snyder shares are then
listed, admitted to unlisted trading privileges or included for
quotation
o in privately negotiated transactions, or
o in a combination of such methods of sale.
The Selling Stockholders may sell their shares directly, or indirectly
through underwriters, broker-dealers or agents acting on their behalf, and in
connection with such sales, the broker-dealers or agents may receive
compensation in the form of commissions, concessions, allowances or discounts
from the Selling Stockholders and/or the purchasers of the shares for whom they
may act as agent or to whom they sell the shares as principal or both (which
commissions, concessions, allowances or discounts might be in excess of
customary amounts thereof). Sales will be made only through broker-dealers
registered as such in a subject jurisdiction or in transactions exempt from such
registration. We have not been advised of any definitive selling arrangement at
the date of this Prospectus between any Selling Stockholder and any
broker-dealer or agent. We will not receive any of the proceeds from the sale of
the shares by the Selling Stockholders.
In connection with the distribution of the shares, certain of the Selling
Stockholders may enter into hedging transactions with broker-dealers. In
connection with such transactions, broker-dealers may engage in short sales of
the shares in the course of hedging the positions they assume with the Selling
Stockholders. The Selling Stockholders may also sell the shares short and
redeliver the Shares to close out the short positions. The Selling Stockholders
may also enter into option or other transactions with broker-dealers which
require the delivery of the shares to the broker-dealer. The Selling
Stockholders may also loan or pledge the shares to a broker-dealer and the
broker-dealer may sell the shares so loaned, or upon a default, the
broker-dealer may effect sales of the pledged shares.
The Selling Stockholders and any dealer acting in connection with the
offering or any broker executing a sell order on behalf of a Selling Stockholder
may be deemed to be "underwriters" within the meaning of the Securities Act, in
which event any profit on the sale of shares by a Selling Stockholder and any
commissions or discounts received by any such broker or dealer may be deemed to
be underwriting compensation under the Securities Act. In addition, any such
broker or dealer may be required to deliver a copy of this Prospectus to any
person who purchases any of the shares from or through such broker or dealer.
Under the Shelf Registration Rights Agreements, Snyder is required to file
the reports required to be filed by it under the Securities Act and the Exchange
Act in a timely manner and to take such further action as any holder of
securities covered by the Shelf Registration Rights Agreements shall reasonably
request to enable such holder to sell his securities without registration,
including making publicly available the information necessary to permit sales of
the securities pursuant to Rules 144 and 144A under the Securities Act.
Under the Shelf Registration Rights Agreement, Snyder is required to bear
all fees and expenses incurred in connection with the registration of the Snyder
shares, except fees and expenses of the Selling Stockholders' counsel. Each of
Snyder and the Selling Stockholders has agreed to indemnify the other against
certain civil liabilities, including certain liabilities arising under the
Securities Act and Exchange Act, or, to the extent such indemnification is
unavailable or insufficient, to contribute to the amount paid or payable in
connection therewith.
14
<PAGE>
LEGAL MATTERS
The legality of the securities offered hereby will be passed upon for the
Company by Weil, Gotshal & Manges LLP, New York, New York.
EXPERTS
The consolidated financial statements of the Company and the supplemental
consolidated financial statements of the Company as of December 31, 1997 and
1996 and for each of the three years in the period ended December 31, 1997 and
the related schedule included in the Company's Current Report on Form 8-K dated
October 1, 1998 and incorporated by reference in this Prospectus and elsewhere
in the Registration Statement, have been audited by Arthur Andersen LLP,
independent public accountants, as set forth in their reports dated November 12,
1998 and November 25, 1998, respectively. In those reports, that firm states
that with respect to the operations of Brann Holdings Limited and its
subsidiaries and American List Corporation and its subsidiaries as of December
31, 1996 and for the years ended December 31, 1995 and 1996, their opinions are
based on the reports of other independent public accountants, namely Price
Waterhouse, Chartered Accountants and Registered Auditors and Grant Thornton
LLP. The financial statements and related schedule as of December 31, 1996 and
for the years ended December 31, 1995 and 1996 referred to above have been
incorporated by reference herein in reliance upon the authority of those firms
as experts in giving said reports.
The consolidated financial statements of Brann Holdings Limited and its
subsidiaries as of and for the two years ended December 31, 1996, have been
audited by Price Waterhouse, Chartered Accountants, as set forth in its report
thereon incorporated by reference herein.
The consolidated financial statements of American List Corporation and its
subsidiaries as of February 28, 1997 and for each of the years in the two-year
period then ended, have been audited by Grant Thornton LLP, independent
certified public accountants, as set forth in its report thereon incorporated by
reference herein.
15
<PAGE>
=========================================== ==================================
YOU SHOULD RELY ONLY ON THE INFORMATION SNYDER COMMUNICATIONS, INC.
PROVIDED OR INCORPORATED BY REFERENCE IN
THIS PROSPECTUS OR ANY SUPPLEMENT. WE
HAVE NOT AUTHORIZED ANYONE ELSE TO
PROVIDE YOU WITH ADDITIONAL OR DIFFERENT 3,425,610 Shares
INFORMATION. THE COMMON STOCK IS NOT
BEING OFFERED IN ANY STATE WHERE THE
OFFER IS NOT PERMITTED. YOU SHOULD NOT
ASSUME THAT THE INFORMATION IN THIS Common Stock
PROSPECTUS OR ANY SUPPLEMENT IS ACCURATE
AS OF ANY DATE OTHER THAN THE DATE ON
THE FRONT OF SUCH DOCUMENTS.
Table of Contents
Page
----
About This Prospectus..................... 2
Where You Can Find More Information....... 2 ------------
The Company............................... 4 PROSPECTUS
Risk Factors.............................. 5 ------------
Use of Proceeds...........................11
Selling Stockholders......................12
Plan of Distribution......................14
Legal Matters.............................15 , 1998
Experts...................................15
=========================================== ==================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The estimated amounts of the expenses of and related to offering are as
follows:
Registration Fee -- Securities and Exchange Commission...... $33,213
Accounting fees and expenses................................ 7,500
Legal fees and expenses..................................... 15,000
Miscellaneous............................................... $ 4,287
-------
Total....................................................... $60,000
=======
Item 15. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of Delaware (the
"DGCL") empowers a Delaware corporation to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of such corporation or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise. Such indemnification may
include expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding, provided that such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to the
best interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such person's conduct was
unlawful. A Delaware corporation is permitted to indemnify directors, officers,
employees and other agents of such corporation in an action by or in the right
of the corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the person to be indemnified has been
adjudged to be liable to the corporation. Where a director, officer, employee or
agent of the corporation is successful on the merits or otherwise in the defense
of any action, suit or proceeding referred to above or in defense of any claim,
issue or matter therein, the corporation must indemnify such person against the
expenses (including attorneys' fees) which he or she actually and reasonably
incurred in connection therewith.
Snyder's Bylaws provide that Snyder shall indemnify, to the full extent
and under the circumstances permitted by the DGCL in effect from time to time,
any past, present or future director or officer, made or threatened to be made a
party to any threatened, pending or completed action, suit or proceeding, by
reason of the fact that such person is or was a director, officer, employee or
agent, or was serving in such capacities at another entity at the specific
request of Snyder, on the same conditions provided by the DGCL. Snyder's Bylaws
further provide that Snyder shall indemnify any such person in any threatened,
pending or completed action or suit by or on behalf of Snyder under similar
conditions, except that no indemnification is permitted without judicial
approval if the person to be indemnified has been adjudged to be liable to
Snyder. In addition, Snyder's Bylaws provide that the Board of Directors may
also grant indemnification to any individual other than an officer or director,
as it may determine in its sole discretion.
As permitted by Section 102(b)(7) of the DGCL, Snyder's Certificate of
Incorporation contains a provision eliminating the personal liability of a
director to Snyder or its stockholders for monetary damages for breach of
fiduciary duty as a director, subject to certain exceptions.
Snyder maintains policies insuring its officers and directors against
certain civil liabilities, including liabilities under the Securities Act.
II-1
<PAGE>
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits
Exhibit No. Description
2.1 Agreement and Plan of Merger, dated as of March 18, 1997, among the
Registrant, Snyder G Acquisition, Inc. and American List
Corporation.(1)
2.2 Recommended Offer by the Registrant for Brann Holdings Limited,
dated March 21, 1997.(1)
2.3 Agreement and Plan of Merger among the Registrant, Snyder
Acquisition Corp., MMD, Inc. and the stockholders of MMD, Inc.,
dated as of January 6, 1997.(2)
2.4 Share Sale and Purchase Agreement among the Registrant and the
shareholders of Bounty Group Limited, dated as of July 13, 1997.(3)
2.5 Agreement and Plan of Merger among the Registrant, Snyder
Acquisition Corp. and Sampling Corporation of America, dated as of
July 14, 1998.(4)
2.6 Agreement and Plan of Merger among the Registrant, Snyder AR
Acquisition, LLC, Arnold Communications, Inc. and the stockholders
of Arnold Communications, Inc., dated as of March 25, 1998.(5)
2.7 Agreement and Plan of Merger among the Registrant, Snyder CC
Acquisition, Inc. and Clinical Communications Group Inc., dated as
of August 26, 1998.(6)
3.1 Certificate of Incorporation of the Registrant, as amended.(7)
3.2 By-laws of the Registrant.(8)
4.1 Instruments defining the rights of securityholders: Reference is
made to exhibits 3.1 and 3.2.
5 Opinion of Weil, Gotshal & Manges LLP as to the legality of the
Common Stock.
10.1 Shelf Registration Rights Agreement, dated August 31, 1998, among
the Registrant and the stockholders party thereto.
10.2 Shelf Registration Rights Agreement, dated October 1, 1998, among
the Registrant and the stockholders party thereto.
23.1 Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5). 23.2
Consent of Arthur Andersen LLP.
23.3 Consent of Grant Thornton LLP.
23.4 Consent of Price Waterhouse, Chartered Accountants and Registered
Auditors.
24 Power of Attorney (included as part of the signature page of this
Registration Statement).
- --------------
(1) Previously filed as an exhibit to the Registrant's Current Report on Form
8-K, dated March 18, 1997, and incorporated herein by reference.
(2) Previously filed as an exhibit to the Registrant's Current Report on Form
8-K, dated January 6, 1997, and incorporated herein by reference.
(3) Previously filed as an exhibit to the Registrant's Current Report on Form
8-K, dated July 13, 1997, and incorporated herein by reference.
(4) Previously filed as an exhibit to the Registrant's Current Report on Form
8-K, dated July 14, 1997, and incorporated herein by reference.
(5) Previously filed as an exhibit to the Registrant's Current Report on Form
8-K, dated March 25, 1998, and incorporated herein by reference.
(6) Previously filed as an exhibit to the Registrant's Current Report on Form
8-K, dated August 31, 1998, and incorporated herein by reference.
(7) Previously filed as an exhibit to the Registrant's Quarterly Report on
Form 10-Q for the quarter ended March 31, 1998, and incorporated herein by
reference.
(8) Previously filed as an exhibit to the Registrant's Registration Statement
on Form S-1, as amended (Registration No. 333-7495), and incorporated
herein by reference.
II-2
<PAGE>
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933, as amended, and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the
II-3
<PAGE>
question whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933, as amended, and will be governed by the
final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Bethesda, State of Maryland, on this 27th day of
November, 1998.
SNYDER COMMUNICATIONS, INC.
By: /s/ Daniel M. Snyder
----------------------------------
Daniel M. Snyder
Chairman of the Board of Directors
and Chief Executive Officer
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Daniel M. Snyder, Michele D. Snyder and A.
Clayton Perfall, and each and either of them, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including, without limitation, post-effective amendments) to
this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the date indicated.
Signature Title Date
--------- ----- ----
/s/ Daniel M. Snyder Chairman of the Board of November 27, 1998
- --------------------------- Directors and Chief
Daniel M. Snyder Executive Officer
/s/ Michele D. Snyder Vice Chairman, President, November 27, 1998
- --------------------------- Chief Operating Officer
Michele D. Snyder and Director
/s/ A. Clayton Perfall Chief Financial Officer November 27, 1998
- --------------------------- and Director
A. Clayton Perfall
/s/ David B. Pauken Chief Accounting Officer November 27, 1998
- --------------------------- and Secretary
David B. Pauken
/s/ Mortimer B. Zuckerman Director November 27, 1998
- ---------------------------
Mortimer B. Zuckerman
II-5
<PAGE>
/s/ Fred Drasner Director November 27, 1998
- ---------------------------
Fred Drasner
/s/ Philip Guarascio Director November 27, 1998
- ---------------------------
Philip Guarascio
/s/ Mark E. Jennings Director November 27, 1998
- ---------------------------
Mark E. Jennings
II-6
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
----------- -----------
2.1 Agreement and Plan of Merger, dated as of March 18, 1997, among the
Registrant, Snyder G Acquisition, Inc. and American List
Corporation.(1)
2.2 Recommended Offer by the Registrant for Brann Holdings Limited,
dated March 21, 1997.(1)
2.3 Agreement and Plan of Merger among the Registrant, Snyder
Acquisition Corp., MMD, Inc. and the stockholders of MMD, Inc.,
dated as of January 6, 1997.(2)
2.4 Share Sale and Purchase Agreement among the Registrant and the
shareholders of Bounty Group Limited, dated as of July 13, 1997.(3)
2.5 Agreement and Plan of Merger among the Registrant, Snyder
Acquisition Corp. and Sampling Corporation of America, dated as of
July 14, 1998.(4)
2.6 Agreement and Plan of Merger among the Registrant, Snyder AR
Acquisition, LLC, Arnold Communications, Inc. and the stockholders
of Arnold Communications, Inc., dated as of March 25, 1998.(5)
2.7 Agreement and Plan of Merger among the Registrant, Snyder CC
Acquisition, Inc. and Clinical Communications Group Inc., dated as
of August 26, 1998.(6)
3.1 Certificate of Incorporation of the Registrant, as amended.(7)
3.2 By-laws of the Registrant.(8)
4.1 Instruments defining the rights of securityholders: Reference is
made to exhibits 3.1 and 3.2.
5 Opinion of Weil, Gotshal & Manges LLP as to the legality of the
Common Stock.
10.1 Shelf Registration Rights Agreement, dated August 31, 1998, among
the Registrant and the stockholders party thereto.
10.2 Shelf Registration Rights Agreement, dated October 1, 1998, among
the Registrant and the stockholders party thereto.
23.1 Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5). 23.2
Consent of Arthur Andersen LLP.
23.3 Consent of Grant Thornton LLP.
23.4 Consent of Price Waterhouse, Chartered Accountants and Registered
Auditors.
24 Power of Attorney (included as part of the signature page of this
Registration Statement).
- --------------
(1) Previously filed as an exhibit to the Registrant's Current Report on Form
8-K, dated March 18, 1997, and incorporated herein by reference.
(2) Previously filed as an exhibit to the Registrant's Current Report on Form
8-K, dated January 6, 1997, and incorporated herein by reference.
(3) Previously filed as an exhibit to the Registrant's Current Report on Form
8-K, dated July 13, 1997, and incorporated herein by reference.
(4) Previously filed as an exhibit to the Registrant's Current Report on Form
8-K, dated July 14, 1997, and incorporated herein by reference.
(5) Previously filed as an exhibit to the Registrant's Current Report on Form
8-K, dated March 25, 1998, and incorporated herein by reference.
(6) Previously filed as an exhibit to the Registrant's Current Report on Form
8-K, dated August 31, 1998, and incorporated herein by reference.
(7) Previously filed as an exhibit to the Registrant's Quarterly Report on
Form 10-Q for the quarter ended March 31, 1998, and incorporated herein by
reference.
(8) Previously filed as an exhibit to the Registrant's Registration Statement
on Form S-1, as amended (Registration No. 333-7495), and incorporated
herein by reference.
II-7
Exhibit 5
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NY 10153
212-310-8000
(FAX) 212-310-8007
November 27, 1998
Board of Directors
Snyder Communciations, Inc.
6903 Rockledge Drive
15th Floor
Bethesda, Maryland 20817
Ladies and Gentlemen:
We have acted as counsel to Snyder Communications, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing by
the Company with the Securities and Exchange Commission of the Registration
Statement on Form S-3 (the "Registration Statement") under the Securities Act of
1933, as amended (the "Securities Act"), relating to the sale, from time to
time, by certain stockholders of the Company identified in the prospectus (the
"Prospectus") which forms a part of the Registration Statement (collectively,
the "Selling Stockholders"), in the manner described in the Prospectus, of up to
an aggregate of 3,425,610 shares of common stock, par value $.001 per share, of
the Company (the "Common Stock").
In so acting, we have reviewed the Registration Statement, including
the Prospectus contained therein, and the Certificate of Incorporation and the
Bylaws of the Company. In addition, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of such corporate
records, agreements, documents and other instruments, and such certificates or
comparable documents of public officials and of officers and representatives of
the Company, and have made such inquiries of such officers and representatives,
as we have deemed relevant and necessary as a basis for the opinions hereinafter
set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the
NYFS01...:\07\74807\0003\1819\OPNN188N.170
<PAGE>
Snyder Communications, Inc.
November 27, 1998
Page 2
conformity to original documents of all documents submitted to us as certified,
conformed or photostatic copies and the authenticity of the originals of such
latter documents. As to all questions of fact material to this opinion that have
not been independently established, we have relied upon certificates or
comparable documents of officers and representatives of the Company.
Based on the foregoing, and subject to the qualifications stated
herein, we are of the opinion that the shares of Common Stock to be sold by the
Selling Stockholders in the manner described in the Prospectus under the
captions "Selling Stockholders" and "Plan of Distribution" have been validly
issued and are fully paid and nonassessable.
The opinions expressed herein are limited to the corporate laws of
the State of Delaware and the federal laws of the United States, and we express
no opinion as to the effect on the matters covered by this letter of the laws of
any other jurisdiction.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Prospectus, without admitting that we are "experts" under the
Securities Act or the rules and regulations promulgated thereunder with respect
to any part of the Registration Statement or Prospectus contained therein.
Very truly yours,
WEIL, GOTSHAL & MANGES LLP
Exhibit 10.1
SHELF REGISTRATION RIGHTS AGREEMENT
August 31, 1998
To the Purchasers listed on
the signature pages hereof
Ladies and Gentlemen:
Snyder Communications, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the stockholders of Clinical Communications Group
Inc. listed on the signature pages hereto (collectively, the "Purchasers"), upon
the terms set forth in an Agreement and Plan of Merger dated August 26, 1998
date herewith by and among the Company, Snyder CC Acquisition, Inc., a wholly
owned subsidiary of the Company ("Acquisition") and Clinical Communications
Group Inc. ("CCG") (the "Merger Agreement") pursuant to which Acquisition will
be merged with and into CCG and the stockholders of CCG will receive as
consideration for all of the issued and outstanding stock of CCG, shares of
Common Stock, par value $0.001 per share, of the Company (the "Common Stock").
Pursuant to the terms of this Agreement, the Company has agreed to cause one
Shelf Registration Statement (as defined below) to be filed covering 2,868,433
of the shares of Common Stock issued to the Purchasers pursuant to the Merger
Agreement, less the number of any such shares of Common Stock sold or subject to
an effective registration statement pursuant to the Registration Rights
Agreement of even date herewith among the parties hereto (such number of the
shares of Common Stock being referred to herein as the "Securities"). As an
inducement to the Purchasers to enter into the Merger Agreement and in
accordance with the terms thereof, the Company agrees with the Purchasers, (i)
for the benefit of the Purchasers and (ii) for the benefit of the holders of the
Securities from time to time (provided that the Company has received an opinion
of counsel or appropriate certification reasonably acceptable to it that the
transfer from the Purchaser to the holder of the Securities was effected in a
transaction exempt from the registration requirements of the Securities Act of
1933, as amended (the "Securities Act")) until such time as such Securities have
been sold pursuant to a Shelf Registration Statement (each of the foregoing a
"Holder" and together the "Holders"), as follows:
1. Shelf Registration. The Company shall take the following
actions:
NYFS01...:\07\74807\0003\2145\AGR7278V.06F
<PAGE>
(a) The Company shall, at its cost, prepare and, within 90 days
following the Closing Date under the Merger Agreement (but in no event prior to
the publication of at least 30 days of post-merger combined operations of Snyder
and the Company), file with the United States Securities and Exchange Commission
(the "Commission"), and shall use its best efforts to cause to be declared
effective as soon as practicable, one registration statement on Form S-3 (or
other appropriate form) (the "Shelf Registration Statement") covering the offer
and sale of the Transfer Restricted Securities (as defined below) by the Holders
thereof from time to time in accordance with the methods of distribution elected
by such Holders and set forth in the Shelf Registration Statement and Rule 415
under the Securities Act (such registration of the Securities being hereinafter
referred to as a "Shelf Registration"); provided, however, that no Holder (other
than a 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 (or such
Holder's transferor agrees to be bound by such obligations in lieu thereof).
"Transfer Restricted Securities" means each Security until (i) 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 (ii) the date
on which such Security is distributed to the public pursuant to Rule 144 under
the Securities Act or is saleable pursuant to Rule 144(k) under the Securities
Act. The number of Transfer Restricted Securities to be registered pursuant to
the Shelf Registration hereunder shall be apportioned among the Holders in
proportion to the number of Transfer Restricted Securities held by each such
Holder, unless the Holders shall otherwise agree.
(b) The Company shall use its 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, until the earlier of (i) such time as all the Securities covered by
the Shelf Registration Statement have been sold pursuant thereto or (ii) such
time as the Shelf Registration Statement has been effective under the Securities
Act for a period of seventy-five (75) days in the aggregate (excluding any
period of less than ten (10) consecutive trading days) (in any case, such period
being called the "Shelf Registration Period"). The Company shall be deemed not
to have used its best efforts to keep the Shelf Registration Statement effective
during the requisite period if it 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 (i) such action is required by applicable
law or (ii) upon the occurrence of any event contemplated by paragraph 2(b)(v)
below, such action is taken by the Company in good faith and for valid
2
<PAGE>
business reasons (not including avoidance of the Company's obligations
hereunder) and the Company thereafter complies with the requirements of
paragraph 2(h) below.
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause (other than information required to be
supplied by the selling Holders pursuant to this Agreement) (i) the Shelf
Registration Statement and the related prospectus and any amendment or
supplement thereto to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission thereunder, (ii) the Shelf Registration Statement and any amendment
thereto not to contain, when it becomes effective, 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 a part of the Shelf Registration Statement, and any amendment or
supplement to such prospectus, not to contain, as of the date of such prospectus
or amendment or supplement, 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.
2. Registration Procedures. In connection with the Shelf
Registration contemplated by Section 1 hereof the following provisions shall
apply:
(a) The Company shall (i) furnish to each Purchaser, prior to the
filing thereof with the Commission, a copy of the Shelf Registration Statement
and each amendment thereof and each amendment or supplement, if any, to the
prospectus included therein and (ii) include the names of the Holders who
propose to sell Securities pursuant to the Shelf Registration Statement, as
selling security holders, and the manner of distribution they have elected.
(b) The Company shall give written notice to the Purchasers and the
Holders (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 Shelf Registration Statement or any amendment
thereto has been filed with the Commission and when the Shelf Registration
Statement or any post-effective amendment thereto has become effective;
3
<PAGE>
(ii) of any request by the Commission for amendments or
supplements to the Shelf 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 Shelf Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose; and
(v) of the happening of any event that requires the Company to
make changes in the Shelf Registration Statement or the prospectus in
order that the Shelf 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, which written
notice need not provide any detail as to the nature of such event.
(c) The Company shall use best reasonable commercial efforts to
obtain the withdrawal at the earliest possible time of any order suspending the
effectiveness of the Shelf Registration Statement.
(d) The Company shall furnish to each Holder of Securities included
within the coverage of the Shelf Registration, without charge, at least 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 incorporated by reference).
(e) The Company shall, during the Shelf Registration Period, deliver
to each Holder of Securities included within the coverage of the Shelf
Registration Statement, without charge, as many copies of the prospectus
(including each preliminary prospectus) included in the Shelf Registration
Statement and any amendment or supplement thereto as such person may reasonably
request. The Company consents, subject to the provisions of this Agreement, to
the use of the prospectus or any amendment or supplement thereto by each of the
selling Holders in
4
<PAGE>
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.
(f) Prior to any public offering of the Securities pursuant to the
Shelf Registration Statement, the Company 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 such Securities for
offer and sale under the securities or "blue sky" laws of such states of the
United States 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 covered by the Shelf Registration
Statement; provided, however, that the Company shall not be required to (i)
qualify generally to do business in any jurisdiction where it is not then so
qualified or (ii) take any action which would subject it to general service of
process or to taxation in any jurisdiction where it is not then so subject.
(g) The Company, at its own expense, 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 the Shelf
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 the Shelf Registration
Statement.
(h) Upon the occurrence of any event contemplated by paragraphs (ii)
through (v) of Section 2(b) above during the period for which the Company is
required to maintain an effective Shelf Registration Statement, the Company
shall as promptly as practicable prepare and file a post-effective amendment to
the Shelf Registration Statement or an amendment or supplement to the related
prospectus and any other required document so that, as thereafter delivered to
Holders 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 herein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, provided in the case
of paragraph (v) of Section 2(b) the Company's obligations pursuant to this
paragraph (h) may be suspended if the Board of Directors of the Company has
determined in good faith and using reasonable judgment that disclosure of
information sufficient to ensure that the Shelf Registration Statement and
related prospectus contain no such misstatement or omission would be
significantly and materially disadvantageous to the Company's financial
condition, business or prospects. If the Company notifies the Holders in
accordance with paragraphs (ii)
5
<PAGE>
through (v) of Section 2(b) above to suspend the use of the prospectus until the
requisite changes to the prospectus have been made, then the Holders shall
suspend use of such prospectus.
(i) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the Shelf
Registration and will make generally available to its security holders (or
otherwise provide in accordance with Section 11(a) of the Securities Act) an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act, no later than 45 days after the end of a 12-month period (or 90 days, if
such period is a fiscal year) beginning with the first month of the Company's
first fiscal quarter commencing after the effective date of the Shelf
Registration Statement, which statement shall cover such 12-month period.
(j) The Company may require each Holder of Securities to be sold
pursuant to the Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of the Securities as the
Company may from time to time reasonably require for inclusion in the Shelf
Registration Statement, and the Company may exclude from such registration the
Securities of any Holder that fails to furnish such information within a
reasonable time after receiving such request.
(k) The Company will cause the Securities to be sold pursuant to the
Shelf Registration Statement to be listed on the New York Stock Exchange (the
"NYSE") or, if not then listed on the NYSE, on the principal securities exchange
or market on which the Common Stock shall then be traded.
(l) Upon the written request of a Holder conveyed to the Company
jointly by the Stockholder Representative (as defined in the Merger Agreement),
which requests shall be made no more than four (4) times in the aggregate for
all Holders, the Company will prepare and file with the Commission and deliver
to the NYSE a supplement to the prospectus which forms a part of the Shelf
Registration Statement with respect to such Holder's name and/or number of
Securities, so that, as thereafter delivered to the purchasers of the Securities
being sold thereunder, such prospectus will contain such Holder's correct name
and/or number of Securities as indicated in writing by such Holder.
3. Registration Expenses. The Company shall bear all fees and
expenses incurred in connection with the performance of its obligations under
Sections
6
<PAGE>
1 and 2 hereof, whether or not the Shelf Registration Statement is filed or
becomes effective, provided that the Holders of the Securities covered by each
Shelf Registration shall bear the fees and disbursements of their counsel.
4. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Holder, its employees and each person, if any, who is an Affiliate
of such Holder within the meaning of the Securities Act or the Exchange Act
(each Holder and such controlling persons are referred to collectively as the
"Indemnified Parties") from and against any losses, claims, damages or
liabilities, joint or several, or any actions in respect thereof (including, but
not limited to, any losses, claims, damages, liabilities or actions relating to
purchases and sales of the Securities) to which each Indemnified Party becomes
subject under the Securities Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages, liabilities or actions arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the Shelf Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to the Shelf Registration, or
arise out of, or are based upon, the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and subject to subsection (c) below, shall
reimburse, as incurred, the Indemnified Parties for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action in respect thereof; provided,
however, that the Company shall not be liable in any such case to the extent
that such loss, claim, damage or liability arises out of or is based upon (x)
the use of any prospectus in violation of the last sentence of Section 2(h)
provided that the Company is in compliance with its obligations pursuant to such
Section, or (y) any untrue statement or omission made in the Shelf Registration
Statement or prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to the Shelf Registration made in reliance upon
and in conformity with written information pertaining to such Holder and
furnished to the Company by or on behalf of such Holder specifically for
inclusion therein.
(b) Each Holder, severally and not jointly, will indemnify and hold
harmless the Company and each person, if any, who controls the Company within
the meaning of the Securities Act or the Exchange Act from and against any
losses, claims, damages or liabilities or any actions in respect thereof, to
which the Company or any such controlling person becomes subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement of a material fact
7
<PAGE>
contained in the Shelf Registration Statement or prospectus or in any amendment
or supplement thereto or in any preliminary prospectus relating to the Shelf
Registration, or arise out of or are based upon the omission to state therein a
material fact necessary to make the statements therein not misleading, but in
each case only to the extent that the untrue statement or omission was made in
reliance upon and in conformity with written information pertaining to such
Holder and furnished to the Company by or on behalf of such Holder specifically
for inclusion therein; and, subject to the limitation set forth immediately
preceding this clause, and to subsection (c) below, shall reimburse, as
incurred, the Company for any legal or other expenses reasonably incurred by the
Company or any such controlling person in connection with investigating or
defending any loss, claim, damage, liability or action in respect thereof. This
indemnity agreement will be in addition to any liability which such Holder may
otherwise have to the Company or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this
Section 4 of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 4,
notify the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party, except to the
extent the indemnifying party is actually prejudiced by such failure. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party if the representation of both such parties by the same
counsel would constitute a conflict of interest). Notwithstanding the foregoing,
if the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there exists a conflict of interest between the indemnifying party and any
indemnified party or that there may be legal defenses available to it and other
indemnified parties which are different from or additional to, and inconsistent
or in conflict with, those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. After notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party
8
<PAGE>
under this Section 4 for any legal or other expenses, other than reasonable
costs of investigation, subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified party shall have
employed separate counsel in accordance with the preceding sentence, (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action, or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party, and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel referred to
in such clause (i) or (iii). No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened action 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 any claims that are the subject matter
of such action.
(d) If the indemnification provided for in this Section 4 is
unavailable or insufficient to hold harmless an indemnified party (including for
purposes of this Section 4(d) any Indemnified Party referred to in Section 4(a))
under subsections (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to in subsections (a) or (b) above (i) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party or parties
on the one hand and the indemnified party on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one hand or
such Holder or such other indemnified party, as the case may be, on the other,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid by
an indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding any other provision of this
Section 4(d), the Holders shall not be required to contribute any amount in
excess of the amount by which the net proceeds received by such Holders from the
sale of
9
<PAGE>
the Securities pursuant to the Shelf Registration Statement exceeds the amount
of damages which such Holders have otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
paragraph (d), each person, if any, who controls such indemnified party within
the meaning of the Securities Act or the Exchange Act shall have the same rights
to contribution as such indemnified party and each person, if any, who controls
the Company within the meaning of the Securities Act or the Exchange Act shall
have the same rights to contribution as the Company.
(e) The agreements contained in this Section 4 shall survive the
sale of the Securities pursuant to the Shelf Registration Statement and shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement or any investigation made by or on behalf of any indemnified
party.
5. Rules 144 and 144A. The Company shall file the reports required
to be filed by it under the Securities Act and the Exchange Act in a timely
manner and it will take such further action as any Holder of Transfer Restricted
Securities shall reasonably request to enable such holder to sell such
securities without registration, including, without limitation, making publicly
available the information necessary to permit sales of their securities pursuant
to Rules 144 and 144A. Notwithstanding the foregoing, nothing in this Section 5
shall be deemed to require the Company to register any of its securities
pursuant to the Exchange Act. The Company shall upon written request of a Holder
of Registrable Securities deliver to such Holder a written statement as to its
compliance with such request.
6. Miscellaneous. (a) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, except by the Company
and the written consent of the Holders of a majority affected by such amendment,
modification, supplemented, waiver or consents.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to a Holder, at the most current address given by such Holder
to the Company in accordance with the provisions of this Section 6(b),
which
10
<PAGE>
address initially is, with respect to each Purchaser, the address set
forth in the Merger Agreement.
(2) if to the Company, at its address as follows:
Snyder Communications, Inc.
Two Democracy Center
6903 Rockledge Drive
Bethesda, Maryland 20817
Fax No.: (301) 571-6271
Attn: Chief Financial Officer
with a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
Fax No.: (212) 310-8007
Attention: Norman D. Chirite, Esq.
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; three
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt is acknowledged by recipient's facsimile machine operator, if sent
by facsimile transmission; and on the day delivered, if sent by overnight air
courier guaranteeing next day delivery.
(c) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
and each Holder's registration rights are transferable to and may be exercised
by any person to whom Transfer Restricted Securities have been transferred.
(d) The Holders are express third party beneficiaries of this
Agreement and are entitled to all of the rights and remedies against the Company
as if they were parties hereto.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so
11
<PAGE>
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
(h) Interpretation. Unless otherwise provided herein, any reference
to days shall be deemed to mean calendar days.
By the execution and delivery of this Agreement, the Company submits
to the nonexclusive jurisdiction of any federal or state court in the State of
New York.
(i) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
12
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Purchasers and the Company in accordance with its terms.
Very truly yours,
SNYDER COMMUNICATIONS, INC.
By: /s/ A. Clayton Perfall
-------------------------------------
Name: A. Clayton Perfall
Title: Chief Financial Officer
13
<PAGE>
The foregoing Shelf Registration Rights Agreement is hereby confirmed and
accepted as of the date first above written.
THE PURCHASERS:
Bankers Trust Corporation
By: /s/ Leonard Ellis
--------------------------------------
Name: Leonard Ellis
Title: Senior Vice President
Bear, Stearns International Limited
By: /s/ Steven D. Meyer
--------------------------------------
Name: Steven D. Meyer
Title: Director
Goldman, Sachs & Co.
By: /s/ Goldman, Sachs & Co.
--------------------------------------
Name:
Title:
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: /s/ Charles Plohn, Jr.
--------------------------------------
Name: Charles Plohn, Jr.
Title: Managing Director
14
<PAGE>
EACH OTHER STOCKHOLDER OF
CCG RECEIVING COMMON STOCK
By: /s/ Corey Kupersmith
--------------------------------------
Corey Kupersmith
Stockholder Representative
By: /s/ David Wong
--------------------------------------
David Wong
Stockholder Representative
15
Exhibit 10.2
SHELF REGISTRATION RIGHTS AGREEMENT
October 1, 1998
To the Purchasers listed on
the signature pages hereof
Ladies and Gentlemen:
Snyder Communications, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the members of Response Marketing Group, LLC
("RMG") and the shareholders of Response Analytics, Inc. ("Analytics"; and
collectively with RMG, the "RMG Entities") listed on the signature pages hereto
(collectively, the "Purchasers"), upon the terms set forth in the Agreement and
Plan of Merger dated October 1, 1998 by and among the Company, Snyder RM
Acquisition, LLC, Snyder RA Acquisition, LLC, RMG, Analytics, the members of RMG
and the shareholders of Analytics (the "Merger Agreement"), in the aggregate
1,498,848 shares of Common Stock, par value $0.001 per share, of the Company
(the "Common Stock") as consideration for all of the issued and outstanding
equity interests in RMG and Analytics. Pursuant to the terms of this Agreement,
the Company has agreed to cause a Shelf Registration Statement (as defined
below) to be filed covering 763,362 of the shares of Common Stock being issued
to the Purchasers pursuant to the Merger Agreement (such number of the shares of
Common Stock being referred to herein as the "Securities"). As an inducement to
the Purchasers to enter into the Merger Agreement and in accordance with the
terms thereof, the Company agrees with the Purchasers, (i) for the benefit of
the Purchasers and (ii) for the benefit of the holders of the Securities from
time to time (provided that the Company has received an opinion of counsel or
appropriate certification reasonably acceptable to it that the transfer from the
Purchaser to the holder of the Securities was effected in a transaction exempt
from the registration requirements of the Securities Act of 1933, as amended
(the "Securities Act")) (each of the foregoing a "Holder" and together the
"Holders") until such time as provided in Section 1(b) hereof, as follows:
NYFS01...:\07\74807\0046\1966\AGR9148S.41B
<PAGE>
1. Shelf Registration. The Company shall take the following
actions:
(a) The Company shall, at its cost, prepare and, within 90 days
following the Closing Date under the Merger Agreement (but in no event prior to
the publication of at least 30 days of post-merger combined operations of the
Company and the RMG Entities), file with the United States Securities and
Exchange Commission (the "Commission"), and thereafter shall use its best
efforts to cause to be declared effective as soon as practicable, a registration
statement on Form S-3 (or other appropriate form) (the "Shelf Registration
Statement") covering the offer and sale of the Transfer Restricted Securities
(as defined below) by the Holders thereof from time to time in accordance with
the methods of distribution elected by such Holders and set forth in the Shelf
Registration Statement and Rule 415 under the Securities Act (such registration
of the Securities being hereinafter referred to as a "Shelf Registration");
provided, however, that no Holder (other than a 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. "Transfer Restricted Securities" means each
Security until (i) 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 (ii) the date on which such Security is distributed to
the public pursuant to Rule 144 under the Securities Act or is saleable pursuant
to Rule 144(k) under the Securities Act. The number of Transfer Restricted
Securities to be registered pursuant to the Shelf Registration hereunder shall
be apportioned among the Holders in proportion to the number of Transfer
Restricted Securities held by each such Holder, unless the Holders shall
otherwise agree.
(b) The Company shall use its 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, until the earlier of (i) such time as all the Securities covered by
the Shelf Registration Statement have been sold pursuant thereto or (ii) 45 days
(in any case, such period being called the "Shelf Registration Period"). The
Company shall be deemed not to have used its best efforts to keep the Shelf
Registration Statement effective during the requisite period if it 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 (i) such
action is required by applicable law or (ii) upon the occurrence of any event
contemplated by paragraph 2(b)(v) below, such action is taken by the Company in
good faith and for valid business reasons (not including avoidance of the
2
<PAGE>
Company's obligations hereunder) and the Company thereafter complies with the
requirements of paragraph 2(h) below.
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause (other than information required to be
supplied by the selling Holders pursuant to this Agreement) (i) the Shelf
Registration Statement and the related prospectus and any amendment or
supplement thereto to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission thereunder, (ii) the Shelf Registration Statement and any amendment
thereto not to contain, when it becomes effective, 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 a part of the Shelf Registration Statement, and any amendment or
supplement to such prospectus, not to contain, as of the date of such prospectus
or amendment or supplement, 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.
2. Registration Procedures. In connection with the Shelf
Registration contemplated by Section 1 hereof the following provisions shall
apply:
(a) The Company shall (i) furnish to each Purchaser, prior to the
filing thereof with the Commission, a copy of the Shelf Registration Statement
and each amendment thereof and each amendment or supplement, if any, to the
prospectus included therein and (ii) include the names of the Holders who
propose to sell Securities pursuant to the Shelf Registration Statement, as
selling security holders, and the manner of distribution they have elected.
(b) The Company shall give written notice to the Purchasers and the
Holders (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 Shelf Registration Statement or any amendment
thereto has been filed with the Commission and when the Shelf Registration
Statement or any post-effective amendment thereto has become effective;
3
<PAGE>
(ii) of any request by the Commission for amendments or
supplements to the Shelf 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 Shelf Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose; and
(v) of the happening of any event that requires the Company to
make changes in the Shelf Registration Statement or the prospectus in
order that the Shelf 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, which written
notice need not provide any detail as to the nature of such event.
(c) The Company shall use best reasonable commercial efforts to
obtain the withdrawal at the earliest possible time of any order suspending the
effectiveness of the Shelf Registration Statement.
(d) The Company shall furnish to each Holder of Securities included
within the coverage of the Shelf Registration, without charge, at least 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 incorporated by reference).
(e) The Company shall, during the Shelf Registration Period, deliver
to each Holder of Securities included within the coverage of the Shelf
Registration Statement, without charge, as many copies of the prospectus
(including each preliminary prospectus) included in the Shelf Registration
Statement and any amendment or supplement thereto as such person may reasonably
request. The Company consents, subject to the provisions of this Agreement, to
the use of the prospectus or any amendment or supplement thereto by each of the
selling Holders in
4
<PAGE>
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.
(f) Prior to any public offering of the Securities pursuant to the
Shelf Registration Statement, the Company 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 such Securities for
offer and sale under the securities or "blue sky" laws of such states of the
United States 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 covered by the Shelf Registration
Statement; provided, however, that the Company shall not be required to (i)
qualify generally to do business in any jurisdiction where it is not then so
qualified or (ii) take any action which would subject it to general service of
process or to taxation in any jurisdiction where it is not then so subject.
(g) The Company, at its own expense, 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 the Shelf
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 the Shelf Registration
Statement.
(h) Upon the occurrence of any event contemplated by paragraphs (ii)
through (v) of Section 2(b) above during the period for which the Company is
required to maintain an effective Shelf Registration Statement, the Company
shall as promptly as practicable prepare and file a post-effective amendment to
the Shelf Registration Statement or an amendment or supplement to the related
prospectus and any other required document so that, as thereafter delivered to
Holders 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 herein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, provided in the case
of paragraph (v) of Section 2(b) the Company's obligations pursuant to this
paragraph (h) may be suspended if the Board of Directors of the Company has
determined in good faith and using reasonable judgment that disclosure of
information sufficient to ensure that the Shelf Registration Statement and
related prospectus contain no such misstatement or omission would be
significantly and materially disadvantageous to the Company's financial
condition, business or prospects. If the Company notifies the Holders in
accordance with paragraphs (ii)
5
<PAGE>
through (v) of Section 2(b) above to suspend the use of the prospectus until the
requisite changes to the prospectus have been made, then the Holders shall
suspend use of such prospectus.
(i) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the Shelf
Registration and will make generally available to its security holders (or
otherwise provide in accordance with Section 11(a) of the Securities Act) an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act, no later than 45 days after the end of a 12-month period (or 90 days, if
such period is a fiscal year) beginning with the first month of the Company's
first fiscal quarter commencing after the effective date of the Shelf
Registration Statement, which statement shall cover such 12-month period.
(j) The Company may require each Holder of Securities to be sold
pursuant to the Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of the Securities as the
Company may from time to time reasonably require for inclusion in the Shelf
Registration Statement, and the Company may exclude from such registration the
Securities of any Holder that fails to furnish such information within a
reasonable time after receiving such request.
(k) The Company will cause the Securities to be sold pursuant to the
Shelf Registration Statement to be listed on the New York Stock Exchange, Inc.
(the "NYSE") or, if not then listed on the NYSE, on the principal securities
exchange or market on which the Common Stock shall then be traded.
3. Registration Expenses. The Company shall bear all fees and
expenses incurred in connection with the performance of its obligations under
Sections 1 and 2 hereof, whether or not the Shelf Registration Statement is
filed or becomes effective, provided that the Holders of the Securities covered
by the Shelf Registration shall bear the fees and disbursements of their
counsel.
4. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Holder, and each person, if any, who controls such Holder within
the meaning of the Securities Act or the Exchange Act (each Holder and such
controlling persons are referred to collectively as the "Indemnified Parties")
from and against any losses, claims, damages or liabilities, joint or several,
or any actions in respect thereof (including, but not limited to, any losses,
claims, damages, liabilities
6
<PAGE>
or actions relating to purchases and sales of the Securities) to which each
Indemnified Party becomes subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages, liabilities or actions arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Shelf Registration Statement or prospectus or in
any amendment or supplement thereto or in any preliminary prospectus relating to
the Shelf Registration, or arise out of, or are based upon, the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and subject to
subsection (c) below, shall reimburse, as incurred, the Indemnified Parties for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action in
respect thereof; provided, however, that the Company shall not be liable in any
such case to the extent that such loss, claim, damage or liability arises out of
or is based upon (x) the use of any prospectus in violation of the last sentence
of Section 2(h) provided that the Company is in compliance with its obligations
pursuant to such Section, or (y) any untrue statement or alleged untrue
statement or omission or alleged omission made in the Shelf Registration
Statement or prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to the Shelf Registration made in reliance upon
and in conformity with written information pertaining to such Holder and
furnished to the Company by or on behalf of such Holder specifically for
inclusion therein.
(b) Each Holder, severally and not jointly, will indemnify and hold
harmless the Company and each person, if any, who controls the Company within
the meaning of the Securities Act or the Exchange Act from and against any
losses, claims, damages or liabilities or any actions in respect thereof, to
which the Company or any such controlling person becomes subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the Shelf
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to the Shelf Registration, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein not misleading, but in
each case only to the extent that the untrue statement or omission or alleged
untrue statement or omission was made in reliance upon and in conformity with
written information pertaining to such Holder and furnished to the Company by or
on behalf of such Holder specifically for inclusion therein; and, subject to the
limitation set forth immediately preceding this clause, and to subsection (c)
below, shall reimburse, as incurred, the Company for any legal or
7
<PAGE>
other expenses reasonably incurred by the Company or any such controlling person
in connection with investigating or defending any loss, claim, damage, liability
or action in respect thereof.
(c) Promptly after receipt by an indemnified party under this
Section 4 of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 4,
notify the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party, except to the
extent the indemnifying party is actually prejudiced by such failure. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party if the representation of both such parties by the same
counsel would constitute a conflict of interest). Notwithstanding the foregoing,
if the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there exists a conflict of interest between the indemnifying party and any
indemnified party or that there may be legal defenses available to it and other
indemnified parties which are different from or additional to, and inconsistent
or in conflict with, those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. After notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party
under this Section 4 for any legal or other expenses, other than reasonable
costs of investigation, subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified party shall have
employed separate counsel in accordance with the preceding sentence, (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action, or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party, and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel referred to
in such clause (i) or (iii). No indemnifying party shall, without the prior
8
<PAGE>
written consent of the indemnified party, effect any settlement of any pending
or threatened action 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 any claims that are the subject matter
of such action.
(d) If the indemnification provided for in this Section 4 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in
subsections (a) or (b) above (i) in such proportion as is appropriate to reflect
the relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other relevant equitable considerations. The
relative fault of the parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Holder or such other indemnified
party, as the case may be, on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding any other provision of this Section 4(d), no Holder shall be
required to contribute any amount in excess of the net proceeds received by such
Holder from the sale of the Securities pursuant to the Shelf Registration
Statement. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this paragraph (d), each person, if any, who controls such indemnified party
within the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as such indemnified party and each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act shall have the same rights to contribution as the Company.
(e) The agreements contained in this Section 4 shall survive the
sale of the Securities pursuant to the Shelf Registration Statement and shall
remain in full
9
<PAGE>
force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
5. Rules 144 and 144A. The Company shall file the reports required
to be filed by it under the Securities Act and the Exchange Act in a timely
manner and it will take such further action as any Holder of Transfer Restricted
Securities shall reasonably request to enable such holder to sell such
securities without registration, including, without limitation, making publicly
available the information necessary to permit sales of their securities pursuant
to Rules 144 and 144A. Notwithstanding the foregoing, nothing in this Section 5
shall be deemed to require the Company to register any of its securities
pursuant to the Exchange Act except as provided in this Agreement. The Company
shall upon written request of a Holder of Registrable Securities deliver to such
Holder a written statement as to its compliance with such request.
6. Miscellaneous. (a) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, except by the Company
and the written consent of the Holders of a majority affected by such amendment,
modification, supplemented, waiver or consents.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(i) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this Section
6(b), which address initially is, with respect to each Purchaser, the
address set forth in the Merger Agreement.
(ii) if to the Company, at its address as follows:
Snyder Communications, Inc.
Two Democracy Center
6903 Rockledge Drive
Bethesda, Maryland 20817
Fax No.: (301) 571-6271
Attn: Chief Financial Officer
10
<PAGE>
with a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
Fax No.: (212) 310-8007
Attention: Norman D. Chirite, Esq.
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; three
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt is acknowledged by recipient's facsimile machine operator, if sent
by facsimile transmission; and on the day delivered, if sent by overnight air
courier guaranteeing next day delivery.
(c) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
and each Holder's registration rights are transferable to and may be exercised
by any person to whom Transfer Restricted Securities have been transferred
subject to Section 1(a) hereof.
(d) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(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. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
(g) Interpretation. Unless otherwise provided herein, any reference
to days shall be deemed to mean calendar days.
By the execution and delivery of this Agreement, the Company submits
to the nonexclusive jurisdiction of any federal or state court in the State of
New York.
11
<PAGE>
(h) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
12
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Purchasers and the Company in accordance with its terms.
Very truly yours,
SNYDER COMMUNICATIONS, INC.
By: /s/ A. Clayton Perfall
------------------------------------
Name: A. Clayton Perfall
Title: Chief Financial Officer
13
<PAGE>
The foregoing Shelf Registration Rights Agreement is hereby confirmed and
accepted as of the date first above written.
THE PURCHASERS:
EACH MEMBER OF RESPONSE
MARKETING GROUP, LLC AND
EACH SHAREHOLDER OF RESPONSE
ANALYTICS, INC. RECEIVING
COMMON STOCK
By: /s/ Peter A. Trost
------------------------------------
Peter A. Trost, III, solely in his
capacity as Equityholder
Representative and on behalf of
each member of Response
Marketing Group, LLC and each
shareholder of Response Analytics,
Inc. receiving Common Stock
By: /s/ Laurence H. Powell
------------------------------------
Laurence H. Powell, solely in his
capacity as Equityholder
Representative and on behalf of
each member of Response
Marketing Group, LLC and each
shareholder of Response Analytics,
Inc. receiving Common Stock
14
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our reports dated November 25,
1998 included in Snyder Communications, Inc.'s Current Report on Form 8-K dated
October 1, 1998 and to all references to our Firm included in this registration
statement.
/s/ Arthur Andersen LLP
Washington, D.C.
November 25, 1998
NYFS01...:\07\74807\0003\1819\CONN188L.000
EXHIBIT 23.3
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated April 11, 1997 accompanying the
consolidated financial statements of American List Corporation, appearing in the
Form 8-K of Snyder Communications, Inc. dated October 1, 1998 (the consolidated
financial statements of American List Corporation are not presented separately
therein), which is incorporated by reference in this Registration Statement of
Snyder Communications, Inc. on Form S-3. We consent to the incorporation by
reference in this Registration Statement of the aforementioned report and to the
use of our name as it appears under the caption "Experts."
/s/ Grant Thornton LLP
Melville, New York
November 25, 1998
NYFS01...:\07\74807\0003\1819\CONN188L.040
EXHIBIT 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of Snyder
Communications, Inc. of our report dated May 30, 1997 on the financial
statements of Brann Holdings Limited as of and for the three years ended
December 31, 1996 which appears (i) on page F-30 of the Snyder Communications,
Inc. Current Report on Form 8-K dated November 25, 1997 filed on January 21,
1998; (ii) on page F- 39 of the Prospectus constituting part of the Registration
Statement on Form S-3 (Registration No. 333-50929) of Snyder Communications,
Inc. dated May 19, 1998; and (iii) in the Snyder Communications, Inc. Current
Report on Form 8-K dated October 1, 1998, which is expected to be filed on
November 27, 1998; which is incorporated by reference in this Prospectus. We
also consent to the reference to us under the heading "Experts" in such
Prospectus.
Price Waterhouse
Chartered Accountants
and Registered Auditors
Bristol, England
November 25, 1998
NYFS01...:\07\74807\0003\1819\CONN188L.100
