Exhibit 4.5
FIRST AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
PACKAGING INVESTORS, L.P.,
DCBS INVESTORS, L.L.C.,
CB INVESTORS, L.L.C.,
XXXXXX X. XXXX,
AND
PACKAGING DYNAMICS CORPORATION
TABLE OF CONTENTS
1. SECURITIES SUBJECT TO THIS AGREEMENT................................1
1.1 Definitions....................................................1
1.2 Registrable Securities.........................................2
1.3 Holders of Registrable Securities..............................2
2. SHELF REGISTRATION..................................................2
2.1 Request for Shelf Registration.................................2
2.2 Effective Shelf Registration and Expenses......................3
2.3 Underwriting Procedures........................................4
2.4 Selection of Underwriters......................................4
3. DEMAND REGISTRATION.................................................4
3.1 Request for Demand Registration................................4
3.2 Effective Demand Registration and Expenses.....................5
3.3 Underwriting Procedures........................................5
3.4 Selection of Underwriters......................................5
4. PIGGY-BACK REGISTRATION OF COMMON STOCK.............................6
5. HOLDBACK AGREEMENTS.................................................6
6. REGISTRATION PROCEDURES.............................................7
7. REGISTRATION EXPENSES..............................................11
8. INDEMNIFICATION; CONTRIBUTION......................................12
8.1 Indemnification by Packaging Dynamics.........................12
8.2 Indemnification by Each Holder................................12
8.3 Conduct of Indemnification Proceedings........................13
8.4 Contribution..................................................13
9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS........................14
10. COVENANT OF HOLDERS OF REGISTRABLE SECURITIES......................14
11. RULE 144...........................................................14
12. MISCELLANEOUS......................................................15
12.1 Recapitalization, Exchanges, etc., Affecting Packaging
Dynamics' Capital Stock.......................................15
12.2 No Inconsistent Agreements....................................15
12.3 Remedies......................................................15
12.4 Amendments and Waivers........................................15
12.5 Notices.......................................................15
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12.6 Successors and Assigns........................................17
12.7 Counterparts..................................................17
12.8 Headings......................................................17
12.9 Governing Law.................................................17
12.10 Severability.................................................17
12.11 Entire Agreement.............................................18
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FIRST AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
FIRST AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated
October 23, 2002 (this "Agreement"), among Packaging Dynamics Corporation, a
Delaware corporation ("Packaging Dynamics"), Packaging Investors, L.P., a
Delaware limited partnership ("Packaging Investors"), DCBS Investors, L.L.C., a
Delaware limited liability company ("DCBS Investors"), CB Investors, L.L.C., a
Delaware limited liability company ("CB Investors") and Xx. Xxxxxx X. Xxxx
("TJW"). Packaging Investors, DCBS Investors, CB Investors and TJW are sometimes
hereinafter referred to as the "Holders" and each of them, individually, as a
Holder.
Packaging Dynamics and the Holders are entering into this Agreement
with respect to the Registrable Securities (as hereinafter defined) in
accordance with (a) paragraph 2 of that certain letter agreement, dated March
18, 2002 (the "Letter Agreement"), among the Holders and Ivex Packaging
Corporation, a Delaware corporation ("Ivex") of which Packaging Dynamics was an
indirect wholly-owned subsidiary at the time of the execution thereof, and (b)
Section 8.6 of the Stock Purchase Agreement (the "Stock Purchase Agreement"),
dated the date hereof, among the stockholders of Wolf Packaging, Inc and
Packaging Dynamics, L.L.C.
The parties herby agree as follows:
1. SECURITIES SUBJECT TO THIS AGREEMENT
1.1 Definitions
1.1.1 "Common Stock" means Packaging Dynamics' common stock, par
value $.01 per share, as constituted on the date hereof, any stock into which
such common stock shall have been changed or any stock resulting from any
reclassification of such common stock, and all other stock of any class or
classes (however designated) of the Company, the holders of which have the
right, without limitation as to amount, either to all or to a share of the
balance of current dividends and liquidating dividends after the payment of
dividends and distributions of any shares entitled to preference, and any shares
of capital stock issued or issuable with respect to any of the foregoing as a
result of any stock split, stock dividend, reorganization, merger,
recapitalization, exchange or similar event or otherwise.
1.1.2 "Registrable Securities" means, subject to Section 1.2, any
shares of Common Stock issued to a Holder in the transaction described in (a)
paragraph 2 of that certain letter agreement, dated March 18, 2002, among Ivex
Packaging Corporation, a Delaware corporation, DCBS Investors, CB Investors and
Packaging Investors , or (b) Section 8.6 of the Stock Purchase Agreement, or
acquired by a Holder thereafter and any securities issued or issuable with
respect to any Common Stock referred to above by way of stock dividend or stock
split or in connection with a combination of shares,
recapitalization, merger,
consolidation or other reorganization or otherwise.
1.1.3 "Stockholders Agreement" means that certain Stockholders
Agreement, dated as of July 1, 2002, among Packaging Dynamics, Packaging
Investors, DCBS Investors and CB Investors.
1.2 Registrable Securities. Only Registrable Securities shall be
eligible for registration pursuant to the terms hereof. For purposes of this
Agreement, Registrable Securities will cease to be Registrable Securities when
(i) a registration statement covering such Registrable Securities has been
declared effective under the Securities Act of 1933, as amended (the "Act"), by
the Securities and Exchange Commission (the "SEC"), and such Registrable
Securities have been disposed of pursuant to such effective registration
statement or (ii) the entire amount of Registrable Securities proposed to be
sold in a single sale is, or, in the opinion of counsel to Packaging Dynamics,
may be distributed to the public pursuant to Rule 144 (or any successor
provision then in force) under the Act or otherwise without registration under
the Act.
1.3 Holders of Registrable Securities. A person is deemed to be a
holder of Registrable Securities whenever such person owns of record or
beneficially Registrable Securities. If Packaging Dynamics receives conflicting
instructions, notices or elections from two or more persons with respect to the
same Registrable Securities, Packaging Dynamics shall act upon the basis of the
instructions, notice or election received from the registered owner of such
Registrable Securities.
2. SHELF REGISTRATION
2.1 Request for Shelf Registration. Packaging Dynamics shall file as
soon as reasonably practicable upon the written request of the holder or holders
of Registrable Securities (other than TJW) constituting one percent (1.0%) or
more of the aggregate outstanding shares of Common Stock as of the date hereof,
one or more "shelf" registration statements on Form S-3 (or any successor
thereto) under the Act with respect to the Registrable Securities pursuant to
Rule 415 under the Act and/or any similar rule that may be adopted by the SEC
(the "Shelf Registration"). Notwithstanding the immediately preceding sentence
or any other provision of this Agreement, Packaging Dynamics shall have no
obligation to register Registrable Securities under this Section 2.1 on more
than three occasions with respect to any holder of Registrable Securities
(except for TJW who shall not be entitled to initiate a request) and shall have
no obligation to register, or to commence any registration of, Registrable
Securities under this Section 2.1 (a) until after the sixtieth (60th) day
following the date of the distribution of Common Stock pursuant to the
Distribution Agreement, dated March 18, 2002, between Ivex and Packaging
Dynamics (the "Distribution"), (b) if any such registration does not have an
aggregate offering price of more than $1 million or (c) at any time when
Packaging Dynamics is not eligible to use Form S-3 (or any successor thereto)
under the Act to register the Registrable Securities covered by such written
request.
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Each Holder may offer its Registrable Securities under any Shelf
Registration pursuant to this Section 2.1. At least fifteen (15) business days
prior to the first anticipated filing date of each Shelf Registration, Packaging
Dynamics shall notify each holder of Registrable Securities of the information
Packaging Dynamics reasonably requires from each such holder if they elect to
have any of their Registrable Securities included in the Shelf Registration (the
"Requested Information"). Packaging Dynamics shall include the Registrable
Securities of any Holder that provides such information in such Shelf
Registration. If within five (5) business days prior to the first anticipated
filing date, Packaging Dynamics has not received the Requested Information in
writing from any of such holders (the "Non-Responsive Holders"), Packaging
Dynamics may file the Shelf Registration without including the Registrable
Securities of the Non-Responsive Holders. At any time subsequent to the date of
the first filing of the Shelf Registration and up to the date that is ten (10)
days prior to the first anticipated effective date of such Shelf Registration, a
Non-Responsive Holder may notify Packaging Dynamics in writing that it elects to
have all or part of its Registrable Securities included in the Shelf
Registration and Packaging Dynamics shall so include such Registrable Securities
in such Shelf Registration; provided, however, that such Non-Responsive Holders
shall have furnished to Packaging Dynamics in writing all Requested Information
on or prior to the tenth (10th) day prior to the first anticipated effective
date of such Shelf Registration.
2.2 Effective Shelf Registration and Expenses. Packaging Dynamics
shall use its best efforts to have the Shelf Registration declared effective as
soon as reasonably practicable after such filing and shall use reasonable
efforts to keep the Shelf Registration continuously effective for a period of
twelve (12) months from the date such Shelf Registration is declared effective.
Packaging Dynamics shall have the right, upon written notice to each Holder, to
postpone for up to sixty (60) days any registration requested pursuant to this
Section 2 if, in the good faith opinion of the board of directors of Packaging
Dynamics, such registration would materially interfere with any material
acquisition or financing transaction then being pursued by Packaging Dynamics.
Packaging Dynamics may not exercise its right to so delay registration under
this Section 2 and Section 3 more than once in any twelve-month period.
Packaging Dynamics shall supplement or amend, if necessary, each
Shelf Registration, as required by the registration form utilized by Packaging
Dynamics, by the instructions applicable to such registration form, by the Act
or the rules and regulations promulgated thereunder or as reasonably required by
the holder or holders of (or any underwriter for) a majority of the aggregate
outstanding shares of Registrable Securities to be registered pursuant to such
Shelf Registration, and shall furnish to the holders of the Registrable
Securities to which the Shelf Registration relates copies of any such supplement
or amendment prior to its being used and/or filed with the SEC. Packaging
Dynamics shall pay all Registration Expenses (as defined in Section 7 hereof) in
connection with each Shelf Registration, whether or not it becomes effective. No
Shelf Registration shall include any securities other than Registrable
Securities unless the holder or holders of a majority of the aggregate
outstanding shares of Registrable Securities to be registered pursuant to such
Shelf Registration consent to such inclusion in writing; provided, however,
that, subject to compliance by Packaging Dynamics with
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Section 4 hereof, this Agreement shall not prohibit the filing of shelf
registrations other than a Shelf Registration.
2.3 Underwriting Procedures. If the holder or holders of a majority
of the aggregate outstanding shares of Registrable Securities to be registered
pursuant to a Shelf Registration so elect, the offering of such Registrable
Securities pursuant to a Shelf Registration shall be in the form of an
underwritten offering and the managing underwriter or underwriters selected for
such offering shall be the Approved Underwriter (as defined below). In such
event, if the Approved Underwriter advises Packaging Dynamics in writing that in
its opinion the aggregate amount of Registrable Securities requested to be
included in such offering is sufficiently large as to have a material adverse
effect on the success of such offering, Packaging Dynamics shall include in such
registration only the aggregate amount of Registrable Securities that, in the
opinion of the Approved Underwriter, may be sold without any such material
adverse effect, which amount of Common Stock shall be allocated first to the
Holders who have requested to be included in such offering pro rata on the basis
of the number of Registrable Securities requested to be registered thereby and
second to the Company and any other holders of Common Stock.
2.4 Selection of Underwriters. If any Shelf Registration is in the
form of an underwritten offering, the holder or holders of a majority of the
aggregate outstanding shares of Registrable Securities to be registered pursuant
to such Shelf Registration shall select and obtain the investment banker or
investment bankers and manager or managers that will administer the offering
(the "Approved Underwriter"); provided, that the Approved Underwriter shall be
reasonably acceptable to Packaging Dynamics. The holders of Registrable
Securities to be included in such offering shall pay, pro rata on the basis of
the number of Registrable Securities requested to be registered thereby, all
discounts and commissions of the Approved Underwriter.
3. DEMAND REGISTRATION
3.1 Request for Demand Registration. At any time after the 60th day
following the date of the Distribution and when a Shelf Registration with
respect to Registrable Securities is not in effect under the Act or a Shelf
Registration is not available for use by the holders of the Registrable
Securities hereunder, the holder or holders of Registrable Securities (other
than TJW) constituting one percent (1.0%) or more of the aggregate outstanding
shares of Common Stock as of the date hereof may make a written request for
registration of Registrable Securities having an aggregate offering price of
more than $1 million under the Act and under the securities or blue sky laws of
any jurisdiction designated by such holder or holders (each, a "Demand
Registration"). Each request for a Demand Registration shall specify the amount
of the Registrable Securities proposed to be sold and the intended method of
disposition thereof. Upon a request for a Demand Registration, Packaging
Dynamics shall promptly take such steps as are necessary or appropriate to
prepare for the registration of the Registrable Securities to be registered;
provided that Packaging Dynamics shall have the right, upon written notice to
each Holder, to postpone for up to 60 days any registration requested
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pursuant to this Section 3 if, in the good faith opinion of the board of
directors of Packaging Dynamics, such registration would materially interfere
with any material acquisition or financial transaction then being pursued by
Packaging Dynamics. Packaging Dynamics may not exercise its right to delay
registration under Section 2 or Section 3 more than once in any twelve month
period. Subject to Section 3.2 hereof, Packaging Dynamics shall have no
obligation to register Registrable Securities under this Section 3.1 on more
than three occasions with respect to any holder of Registrable Securities(except
for TJW who shall not be entitled to make a demand under this Section 3.1).
3.2 Effective Demand Registration and Expenses. Packaging Dynamics
shall, subject to Section 3.3 hereof, use its best efforts to effect Demand
Registrations pursuant to written requests made in accordance with Section 3.1
of this Agreement. If a Demand Registration is not declared effective on or
before the expiration of one hundred and twenty (120) days after a request is
delivered under Section 3.1, then Packaging Dynamics shall be required to effect
one (1) additional Demand Registration for the Registrable Securities included
in such Demand Registration pursuant to the terms of this Agreement. A
registration shall not count as a Demand Registration until it has become
effective and remains continuously effective for not less than one hundred and
twenty (120) days. Packaging Dynamics shall use its best efforts to cause any
such Demand Registration to become effective not later than ninety (90) days
after it receives a request under Section 3.1 hereof. In any registration
initiated as a Demand Registration, Packaging Dynamics shall pay all
Registration Expenses in connection therewith, whether or not such Demand
Registration becomes effective.
3.3 Underwriting Procedures. If the holder or holders of a majority
of the aggregate outstanding shares of Registrable Securities to be registered
pursuant to a Demand Registration so elect, the offering of such issue of
Registrable Securities pursuant to such Demand Registration shall be in the form
of an underwritten offering and the managing underwriter or underwriters
selected for such offering shall be the Approved Underwriter. In such event, if
the Approved Underwriter advises Packaging Dynamics in writing that in its
opinion the aggregate amount of Registrable Securities requested to be included
in such offering is sufficiently large as to have a material adverse effect on
the success of such offering, Packaging Dynamics shall include in such
registration only the aggregate amount of Registrable Securities that, in the
opinion of the Approved Underwriter, may be sold without any such material
adverse effect, which amount of Common Stock shall be allocated first to the
Holders who have requested to be included in such offering pro rata on the basis
of the number of Registrable Securities requested to be registered thereby and
second as to the Company and any other holders of Common Stock.
3.4 Selection of Underwriters. If any Demand Registration of
Registrable Securities is in the form of an underwritten offering, the Approved
Underwriter shall be selected and obtained and their discounts and commissions,
if any, paid in accordance with the procedure set forth in Section 2.4 hereof.
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4. PIGGY-BACK REGISTRATION OF COMMON STOCK.
If Packaging Dynamics proposes to file a registration statement
under the Act with respect to an offering by Packaging Dynamics for its own
account and/or for the accounts of any or all of DCBS Investors, CB Investors or
Packaging Investors of Common Stock or other securities of Packaging Dynamics
(other than a registration statement on Form S-4 or S-8 or any successor or
similar forms thereto), then Packaging Dynamics shall give each Holder at least
20 days' prior written notice of such proposed registration and distribution and
offer to each Holder the opportunity to register such amount of Registrable
Securities as each holder of Registrable Securities hereunder may request in
writing. Subject to Section 9 hereof, Packaging Dynamics shall include, or use
its best efforts (within thirty (30) days after the notice provided for in the
preceding sentence) to cause the managing underwriter or underwriters of a
proposed underwritten offering (the "Company Underwriter") to permit the holders
of Registrable Securities to participate in the registration for such offering
and to include, such Registrable Securities in such offering. If Packaging
Dynamics is offering securities of the same class as any Registrable Securities,
any such Registrable Securities of the holders registered pursuant to this
Agreement shall be included in the offering on the same terms and conditions as
such securities being offered by Packaging Dynamics. Notwithstanding the
foregoing, if the Company Underwriter advises Packaging Dynamics in writing that
in its opinion the total amount of Registrable Securities, other Common Stock
and other securities which the holders of Registrable Securities, Packaging
Dynamics and any other persons or entities intend to include in such offering
(the "Total Securities") is sufficiently large as to have a material adverse
effect on the distribution of the Total Securities, then the Total Securities
shall be reduced to the amount recommended by the Company Underwriter, which
amount shall be allocated (1) in the case of a Demand Registration by DCBS
Investors, CB Investors or any of their Transferees (as such term is defined
herein), first to the Holder(s) upon the request of which such Demand
Registration was initiated (which request will be deemed to include TJW to the
extent so requested by TJW) in an amount equal to the greater of (x) 50% of the
then outstanding Registrable Securities owned by such Holder(s) making such
demand and (y) such Holder's or Holders', as the case may be, pro rata share of
the aggregate number of Registrable Securities requested to be registered by all
of the Holders and any other holders of Registrable Securities, second to the
other Holders, pro rata on the basis of the number of Registrable Securities
requested to be registered by such other Holders, and third to any other holders
of Registrable Securities and (2) in any other case, first to the Company,
second to the Holders, pro rata on the basis of the number of Registrable
Securities requested to be registered thereby, and third to any other holders of
Registrable Securities. Packaging Dynamics shall bear all Registration Expenses
in connection with any registration pursuant to this Section 4 (except for the
discounts or commissions of the Company Underwriter applicable to the holders'
Registrable Securities, which shall be paid in accordance with the procedures
set forth in Section 2.4 hereof).
5. HOLDBACK AGREEMENTS.
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To the extent not inconsistent with applicable law, the holders of
Registrable Securities agree not to effect any public sale or distribution of
any Registrable Securities being registered or of securities convertible into or
exchangeable or exercisable for such Registrable Securities, including a sale
pursuant to Rule 144 under the Act, during the period commencing on the tenth
(10th) day prior to the anticipated effective date of, and continuing through
and including the one hundred eightieth (180th) day after the actual effective
date of, the applicable registration statement under Section 2 or Section 4 of
this Agreement (except as part of such registration), in each case, if and to
the extent requested by Packaging Dynamics in the case of a nonunderwritten
public offering or if and to the extent requested by Packaging Dynamics or the
Company Underwriter in the case of an underwritten public offering, provided
that, in the event such request is made to holders of Registrable Securities,
Packaging Dynamics shall use reasonable efforts to obtain the agreement of its
directors and executive officers not to effect any public sale or distribution
of any securities of (or securities convertible into or exchangeable or
exercisable for securities of) the same class as the Registrable Securities
during such period as holders of Registrable Securities are prohibited from
effecting any sale or public distribution pursuant to this Section 5.
6. REGISTRATION PROCEDURES.
In connection with any registration effected pursuant to the terms
of this Agreement, Packaging Dynamics shall as expeditiously as possible:
(a) prepare and file with the SEC, not later than forty-five (45)
days after receipt of a request to file a registration statement with respect to
Registrable Securities, a registration statement of any form for which Packaging
Dynamics then qualifies and which counsel for Packaging Dynamics deems
appropriate for the sale of such Registrable Securities in accordance with the
intended method of distribution thereof. Packaging Dynamics shall use its best
efforts to cause such registration statement to become effective; provided,
however, that before filing a registration statement or prospectus or any
amendments or supplements thereto, Packaging Dynamics shall (i) provide counsel
selected by the holder or holders of a majority of the aggregate outstanding
shares of Registrable Securities to be registered pursuant to such registration
("Holders' Counsel") and any other Inspector (as defined below) with an
opportunity to participate in the preparation of such registration statement and
each prospectus included therein (and each amendment or supplement thereto) to
be filed with the SEC, which documents shall be subject to the review of
Holders' Counsel, and (ii) notify Holders' Counsel and the holders of
Registrable Securities of any stop order issued or threatened by the SEC and
take all reasonable action required to prevent the entry of such stop order or
to remove it if entered;
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective until the
earliest to occur of (i) the expiration of twelve (12) months and (ii) the date
all Registrable Securities included therein have been sold and comply with the
provisions of the Act with respect to the
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disposition of all securities covered by such registration statement during such
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such registration statement;
(c) furnish to each Holder and to the Holders' Counsel, prior to
filing a registration statement, copies of such registration statement as
proposed to be filed, and thereafter such number of copies of such registration
statement, each amendment and supplement thereto (in each case including all
exhibits thereto), the prospectus included in such registration statement
(including each preliminary prospectus) and such other documents as the Holders'
Counsel may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by the holders of Registrable Securities;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
the Holders' Counsel reasonably request and do any and all other acts and things
which may be reasonably necessary or advisable to enable the holders of
Registrable Securities to consummate the disposition in such jurisdictions of
the Registrable Securities held by such holders of Registrable Securities;
provided, however, that Packaging Dynamics shall not be required to (i) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this paragraph (d), (ii) subject itself to taxation
in any such jurisdiction or (iii) consent to general service of process in any
such jurisdiction;
(e) use its best efforts to cause the Registrable Securities covered
by such registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
business and operations of Packaging Dynamics to enable the holders of
Registrable Securities to consummate the disposition of such Registrable
Securities;
(f) notify the holders of Registrable Securities, at any time when a
prospectus relating to the registration statement is required to be delivered
under the Act, upon discovery of, or upon the happening of any event as a result
of which, the prospectus included in such registration statement contains an
untrue statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances under which they were made. In such instance,
Packaging Dynamics promptly shall prepare and file a supplement or amendment to
such prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not contain an untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances under which they were made;
(g) enter into and perform customary agreements (including an
underwriting agreement in customary form) and take such other actions as are
reasonably required in order to expedite or facilitate the disposition of such
Registrable Securities, including using its reasonable efforts to cause officers
of Packaging Dynamics to
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participate in "road shows" and other information meetings organized by the
Approved Underwriter or the Company Underwriter;
(h) make available for inspection by any managing underwriter
participating in any disposition pursuant to such registration statement,
Holders' Counsel and any accountant or other agent retained by the holder or
holders of a majority of the aggregate outstanding shares of Registrable
Securities to be registered hereunder or any managing underwriter (collectively,
the "Inspectors"), all pertinent financial and other records, pertinent
corporate documents and properties of Packaging Dynamics and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause Packaging Dynamics' and
its subsidiaries' officers, directors and employees, and the independent public
accountants of Packaging Dynamics, to supply all information reasonably
requested by any such Inspector in connection with such registration statement.
Records and other information that Packaging Dynamics determines in good faith
to be confidential, and of which determination the Inspectors are so notified,
shall not be disclosed by the Inspectors unless (i) the disclosure of such
Records or other information is necessary to avoid or correct a misstatement or
omission in the registration statement, (ii) the release of such Records or
other information is ordered pursuant to a subpoena or other order from a court
of competent jurisdiction or (iii) the information in such Records or such other
information has been made generally available to the public by someone other
than such Inspector. Packaging Dynamics shall not be required to disclose any
such confidential information or Records until and unless the Inspectors shall
have entered into customary confidentiality agreements with Packaging Dynamics
with respect thereto. Each holder of Registrable Securities agrees that it
shall, upon learning that disclosure of such Records or other information is
sought in a court of competent jurisdiction, give notice to Packaging Dynamics
and allow Packaging Dynamics, at Packaging Dynamics' expense, to undertake
appropriate action to prevent disclosure of the Records or other information
deemed confidential;
(i) in the event such sale is pursuant to an underwritten offering,
use its best efforts to obtain a "cold comfort" letter, dated as of a date
reasonably proximate to the date of the underwriting agreement and the date of
the closing under the underwriting agreement, from Packaging Dynamics'
independent public accountants in customary form and covering such matters of
the type customarily covered by "cold comfort" letters as Holders' Counsel or
the managing underwriter reasonably request;
(j) use its best efforts to obtain, at the request of Holders'
Counsel on the date such securities are delivered to the underwriters for sale
pursuant to such registration or, if such securities are not being sold through
underwriters, on the date the registration statement with respect to such
securities becomes effective, an opinion of counsel representing Packaging
Dynamics for the purposes of such registration, addressed to the underwriters,
if any, and to the holders of Registrable Securities, covering such legal
matters with respect to the registration in respect of which such opinion is
being given as the Holders' Counsel and the underwriters, if any, may reasonably
request and are customarily included in such opinions;
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(k) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC and make available to its security holders, as
soon as reasonably practicable, but no later than fifteen (15) months after the
effective date of the registration statement, an unaudited earnings statement
covering a period of twelve (12) months beginning within three (3) months after
the effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder;
(l) keep each holder of Registrable Securities advised in writing as
to the initiation and progress of any registration under Section 2, 3 or 4
hereunder;
(m) provide officers' certificates and other customary closing
documents;
(n) notify each seller of such Registrable Securities and each
underwriter participating in the disposition of such Registrable Securities of
any stop order or other suspension of effectiveness of the registration
statement;
(o) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the registration statement at the earliest
possible moment;
(p) cooperate with the sellers of such Registrable Securities and
the managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of book-entry securities or, if applicable, of
certificates (not bearing any restrictive legends) representing securities, to
be sold under the registration statement and enable such securities to be in
such denominations or amounts, as the case may be, and registered in such names
as the managing underwriter or underwriters, if any, or such sellers may
request;
(q) cooperate with each seller of Registrable Securities and each
underwriter participating in the disposition of such Registrable Securities and
their respective counsel in connection with any filings required to be made with
the National Association of Securities Dealers, Inc. (the "NASD");
(r) use all reasonable efforts to take all other steps necessary to
effect the registration of the Registrable Securities contemplated hereby; and
(s) use all reasonable efforts to cause all such Registrable
Securities to be listed on each securities exchange on which similar securities
issued by Packaging Dynamics are then listed.
Packaging Dynamics may require each holder of Registrable Securities
to furnish to Packaging Dynamics such information regarding the distribution of
such securities as Packaging Dynamics may from time to time reasonably request
in writing.
Each holder of Registrable Securities agrees that, upon receipt of
any notice from Packaging Dynamics of the happening of any event of the kind
described in
10
Section 6(f) hereof, such holder of Registrable Securities shall forthwith
discontinue disposition of Registrable Securities pursuant to the registration
statement covering such Registrable Securities until such holder's receipt of
the copies of the supplemented or amended prospectus contemplated by Section
6(f) hereof and, if so directed by Packaging Dynamics, such holder shall deliver
to Packaging Dynamics (at Packaging Dynamics' expense) all copies, other than
permanent file copies then in such holder's possession, of the prospectus
covering such Registrable Securities current at the time of receipt of such
notice. In the event Packaging Dynamics shall give any such notice, Packaging
Dynamics shall extend the period during which such registration statement shall
be maintained effective pursuant to this Agreement (including, without
limitation, the period referred to in Section 6(b)) by the number of days of the
period from and including the date of the giving of such notice pursuant to
Section 6(f) hereof to and including the date when the holder of Registrable
Securities shall have received the copies of the supplemented or amended
prospectus contemplated by and meeting the requirements of Section 6(f).
7. REGISTRATION EXPENSES.
Packaging Dynamics shall pay all expenses (other than underwriting
discounts and commissions of the Approved Underwriters or of the Company
Underwriter applicable to the holders of Registrable Securities) arising from or
incident to its performance of, or compliance with, this Agreement, including,
without limitation, (i) required SEC, stock exchange and NASD registration and
filing fees (including, if applicable, the fees and expenses of any "qualified
independent underwriter" as such term is defined in Rule 2720 set forth in the
NASD Manual, and of its counsel), (ii) all fees and expenses incurred in
complying with securities or blue sky laws (including reasonable fees and
disbursements of counsel in connection with blue sky qualifications of the
Registrable Securities), (iii) all printing (including expenses of printing
prospectuses if such printing is reasonably requested by the holder or holders
of a majority of the Registrable Securities to be registered pursuant to such
registration statement), messenger and delivery expenses, (iv) the fees and
disbursements of counsel to Packaging Dynamics and of its independent public
accountants and any other accounting and legal fees and expenses incurred by
Packaging Dynamics (including, without limitation, any expenses arising from any
special audits or "cold comfort" letters required by or incident to any
registration or qualification), (v) internal expenses (including, without
limitation, all salaries and expenses of officers and employees performing legal
or accounting duties), (vi) the reasonable fees and expenses of any special
experts retained by Packaging Dynamics in connection with any registration
pursuant to the terms of this Agreement, regardless of whether such registration
statement is declared effective, and (vii) any liability insurance or other
premiums for insurance obtained by Packaging Dynamics in connection with any
registration, in each case, regardless of whether such registration is declared
effective. In connection with each registration hereunder, Packaging Dynamics
shall reimburse the holders of Registrable Securities being registered in such
registration for the reasonable fees and disbursements of not more than one
counsel for the holders of Registrable Securities selected by the holder or
holders of a majority of the aggregate outstanding Registrable Securities
11
included, or to be included, in such registration statement. All of the expenses
described in this Section 7 are herein called "Registration Expenses."
8. INDEMNIFICATION; CONTRIBUTION
8.1 Indemnification by Packaging Dynamics. Packaging Dynamics agrees
to indemnify, to the full extent permitted by law, each holder of Registrable
Securities, its officers, directors, partners, members, employees and agents and
each person who controls (within the meaning of the Act and the Securities
Exchange Act of 1934, as amended (the "Exchange Act") such holder, and any
investment adviser thereof or agent therefor from and against any and all
losses, claims, damages, liabilities and expenses (including reasonable costs of
investigation and legal expenses) arising out of or based upon any untrue, or
alleged untrue, statement of a material fact contained in any registration
statement, prospectus or preliminary prospectus or notification or offering
circular (as amended or supplemented if Packaging Dynamics shall have furnished
any amendments or supplements thereto) or arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances under which they were made. The indemnification
agreement contained in this Section 8.1 shall not apply to statements or
omissions made in reliance upon and in conformity with information furnished in
writing to Packaging Dynamics by such holder of Registrable Securities expressly
for use therein. The indemnification agreement contained in this Section 8.1
with respect to any preliminary prospectus shall not inure to the benefit of any
person from whom the person asserting any such losses, claims, damages,
liabilities or expenses purchased the Registrable Securities that are the
subject thereof (or to the benefit of any person controlling such person) if the
untrue statement or omission of material fact contained in the preliminary
prospectus was corrected in the prospectus, as then amended or supplemented, and
such person failed to deliver a copy of the amended or supplemented prospectus
to the person asserting such loss, claim, damage, liability or expense after
Packaging Dynamics had furnished such person with copies of the same; provided,
however, that Packaging Dynamics shall have provided such amended or
supplemental prospectus within a reasonable period prior to such sale. Packaging
Dynamics shall also indemnify any underwriters of the Registrable Securities,
their officers, directors and employees and each person who controls such
underwriters (within the meaning of the Act and the Exchange Act) to the same
extent as provided above with respect to the indemnification of the holders of
Registrable Securities.
8.2 Indemnification by Each Holder. In connection with any
registration statement in which a holder of Registrable Securities is
participating pursuant to Section 2, 3 or 4 hereof, such holder shall furnish to
Packaging Dynamics in writing such information and affidavits with respect to
such holder as Packaging Dynamics may reasonably request for use in connection
with any such registration statement, preliminary prospectus or prospectus (or
amendment or supplement thereof) and each holder of Registrable Securities
agrees to indemnify, to the same extent and subject to the same exceptions and
limitations as set forth in the foregoing indemnity from the Company to the
Holders, Packaging Dynamics, any underwriter retained by Packaging Dynamics and
12
their respective directors, officers, employees and each person who controls
Packaging Dynamics or such underwriter (within the meaning of the Act and the
Exchange Act), but only with respect to any such information furnished in
writing by such holder of Registrable Securities for use therein. In no event
shall any Holder have any liability hereunder for an amount in excess of such
Holder's net proceeds pursuant to the offering giving rise to such liability.
8.3 Conduct of Indemnification Proceedings. Any person entitled to
indemnification hereunder (the "Indemnified Party") agrees to give prompt
written notice to the indemnifying party (the "Indemnifying Party") after the
receipt by the Indemnified Party of any written notice of the commencement of
any action, suit, proceeding or investigation or threat thereof made in writing
for which the Indemnified Party intends to claim indemnification or contribution
pursuant to this Agreement; provided, however, that the failure so to notify the
Indemnifying Party shall relieve the Indemnifying Party of any liability that it
may have to the Indemnified Party hereunder only to the extent that it is
materially prejudiced by such delay or failure. In case notice of commencement
of any such action shall be given to the Indemnifying Party as above provided,
the Indemnifying Party shall be entitled to participate in and, to the extent it
may wish, jointly with any other Indemnifying Party similarly notified, to
assume the defense of such action at its own expense, with counsel chosen by it
and reasonably satisfactory to such Indemnified Party. The Indemnified Party
shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such counsel
shall be paid by the Indemnified Party unless (i) the Indemnifying Party agrees
to pay the same, (ii) the Indemnifying Party fails to assume the defense of such
action with counsel reasonably satisfactory to the Indemnified Party, (iii) the
named parties to any such action (including any impleaded parties) have been
advised by their counsel that either (x) representation of such Indemnified
Party and the Indemnifying Party by the same counsel would be inappropriate
under applicable standards of professional conduct or (y) there may be one or
more legal defenses available to it which are different from or additional to
those available to the Indemnifying Party. In the instances listed in the
previous sentence, the Indemnifying Party shall not have the right to assume the
defense of such action on behalf of the Indemnified Party, but will not be
obligated to pay the fees and expenses of more than one counsel (in addition to
any local counsel) for all Indemnified Parties with respect to such claim. The
Indemnified Party shall not be required to consent to entry of any judgment or
enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Party of a
release from all liability with respect to such claim or litigation. The
Indemnifying Party shall not be liable for any settlement entered into without
its consent, which consent shall not be unreasonably withheld, conditioned or
delayed.
8.4 Contribution. If the indemnification provided for in this
Section 8 from the Indemnifying Party is unavailable to an Indemnified Party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to herein, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
13
the Indemnifying Party and Indemnified Party in connection with the actions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative fault of such
Indemnifying Party and Indemnified Party shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information supplied by,
such Indemnifying Party or Indemnified Party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action. The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in Section 8.1, 8.2 and 8.3, any legal or
other fees or expenses reasonably incurred by such party in connection with any
investigation or proceeding. In no event shall any Holder have any liability
hereunder for an amount in excess of such Holder's net proceeds pursuant to the
offering giving rise to such liability.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8.4 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person.
9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
A holder of Registrable Securities may not participate in any
underwritten registration hereunder unless such holder (a) agrees to sell such
holder's Registrable Securities on the basis provided in any underwriting
arrangements entered into in accordance with this Agreement and (b) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements, custody agreements and other documents reasonably required under the
terms of such underwriting arrangements and (c) agrees to pay their pro rata
portion of all underwriting discounts and commissions of Approved Underwriters
or the Company Underwriter.
10. COVENANT OF HOLDERS OF REGISTRABLE SECURITIES.
Subject to the provisions of this Agreement relating to Registration
Expenses, each holder of Registrable Securities by its acceptance of the
Registrable Securities agrees to reasonably cooperate with Packaging Dynamics in
connection with the preparation and filing of any registration statement
hereunder.
11. RULE 144.
Packaging Dynamics covenants that it shall file any reports required
to be filed by it under the Act, the Exchange Act and the rules and regulations
adopted by the SEC thereunder and that it shall take such further action as a
holder of Registrable Securities may reasonably request (including providing any
information necessary to
14
comply with Rule 144 or Rule 144A under the Act), all to the extent required
from time to time to enable such holder to sell Registrable Securities without
registration under the Act within the limitation of the exemptions provided by
(a) Rule 144 or Rule 144A under the Act, as such rules may be amended from time
to time, or (b) any similar rules or regulations hereafter adopted by the SEC.
Packaging Dynamics shall, upon the request of a holder of Registrable
Securities, deliver to such holder of Registrable Securities a written statement
as to filings made by Packaging Dynamics with the SEC.
12. MISCELLANEOUS
12.1 Recapitalization, Exchanges, etc., Affecting Packaging
Dynamics' Capital Stock. The provisions of this Agreement shall apply, to the
full extent set forth herein with respect to any and all common stock of
Packaging Dynamics or any successor or assign of Packaging Dynamics (whether by
merger, consolidation, sale of assets or otherwise) which may be issued in
respect of, in exchange for or in substitution of, the Registrable Securities
and shall be appropriately adjusted for any stock dividends, splits, reverse
splits, combinations, recapitalizations and the like occurring after the date
hereof. The Company shall cause any successor or assign (whether by merger
consolidation, sale of assets or otherwise) to enter into a new registration
rights agreement with the Holders on terms substantially the same as this
Agreement as a condition of any such transaction.
12.2 No Inconsistent Agreements. Packaging Dynamics shall not enter
into any agreement with respect to its securities that is inconsistent with the
rights granted to the holders of Registrable Securities in this Agreement.
12.3 Remedies. The holders of Registrable Securities, in addition to
being entitled to exercise all rights granted by law (including recovery of
damages), shall be entitled to specific performance of their rights under this
Agreement. Packaging Dynamics agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agrees to waive the defense that a remedy at law
would be adequate in any action for specific performance.
12.4 Amendments and Waivers. Except as otherwise provided herein,
the provisions of this Agreement may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless Packaging Dynamics has consented in writing thereto and has
obtained (i) the written consent of the holder or holders of at least a majority
of the aggregate outstanding shares of Registrable Securities affected by such
amendment, modification, supplement, waiver or departure and (ii) if such
amendment, modification, supplement, waiver or departure from the provisions
hereof would adversely affect the rights of DCBS Investors or its members, the
written consent of the holder or holders of at least a majority of all such
Registrable Securities owned by DCBS Investors or any of its members.
12.5 Notices. All notices or other communications provided for
herein shall be in writing and shall be given personally, telegraphed, telexed,
sent by facsimile
15
transmission or sent by prepaid air courier or certified, registered or express
mail, postage prepaid. Any such notice shall be deemed to have been given (a)
when received, if delivered in person, telegraphed, telexed, sent by facsimile
transmission and confirmed in writing, (b) two (2) business days thereafter if
sent by reputable overnight, prepaid air courier or (c) three (3) business days
following the mailing thereof, if mailed by certified first class mail, postage
prepaid, return receipt requested, in any such case as follows (or to such other
address or addresses as a party may have advised the other in the manner
provided in this Section 12.5):
(i) if to Packaging Dynamics:
Packaging Dynamics Corporation
0000 Xxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Chief Executive Officer
(ii) if to the Holders:
Packaging Investors, L.P. c/o
Group III 31, L.L.C.
000 Xxxx Xxxxxx Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X.Xxxx
and
DCBS Investors, L.L.C.
c/o Packaging Dynamics Corporation
0000 Xxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention:Xxxxx X. Xxxxxxx
G. Xxxxxxx Xxxxxxxxx
and
16
CB Investors, L.L.C.
c/o Packaging Dynamics Corporation
0000 Xxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention:Xxxxx X. Xxxxxxx
G. Xxxxxxx Xxxxxxxxx
And
Xx. Xxxxxx X. Xxxx
000 0/0 Xxxxxx X
Xxxx Xxxxxxx, Xxxx 00000
Telephone: (000) 000-0000
Telecopy:______________
and if to any other holder of Registrable Securities, at the address that such
holder shall have furnished to Packaging Dynamics in writing, or, until any such
other holder so furnishes to Packaging Dynamics an address, then to and at the
address of the last holder of such Registrable Securities that has furnished an
address to Packaging Dynamics.
12.6 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions of this Agreement shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto, including without limitation any person or entity to whom or
which any Registrable Securities are transferred or distributed other than in
violation of Section 4 of the Stockholders Agreement (a "Transferee"), it being
understood and agreed that no such transfer shall be made, and Packaging
Investors shall not be required to acknowledge or recognize any such transfer,
unless such Transferee has executed and delivered an agreement whereby such
Transferee agrees to become a party hereto and to be bound by all the provisions
hereof which were applicable to such Transferee's transferor.
12.7 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.
12.8 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
12.9 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed wholly within such State.
12.10 Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or
17
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be in any way impaired thereby, it being
intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law. Furthermore, in lieu of each
such illegal, invalid or unenforceable provision there shall be added
automatically as a part of this Agreement a provision as similar in terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
12.11 Entire Agreement. This Agreement is intended by the parties as
a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein. This Agreement supersedes all prior agreements, discussions and
understandings between the parties with respect to such subject matter.
[Signature page follows.]
18
IN WITNESS WHEREOF, the undersigned have executed this Agreement on
the date first above written.
PACKAGING DYNAMICS CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Chief
Financial Officer
PACKAGING INVESTORS, L.P.
By: /s/ Xxxxx X. Xxxx
----------------------------
Name: Xxxxx X. Xxxx
Title: Vice President of Group III 31,
L.L.C., General Partner
DCBS INVESTORS, L.L.C.
By: /s/ G. Xxxxxxx Xxxxxxxxx
----------------------------
Name: G. Xxxxxxx Xxxxxxxxx
Title: Managing Member
CB INVESTORS, L.L.C.
By: /s/ G. Xxxxxxx Xxxxxxxxx
----------------------------
Name: G. Xxxxxxx Xxxxxxxxx
Title: Managing Member of DCBS
Investors, L.L.C.
/s/ Xxxxxx X. Xxxx
----------------------------
Xx. Xxxxxx X. Xxxx
[First Amended and Restated
Registration Rights Agreement]
