EXHIBIT 4.2
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REGISTRATION RIGHTS AGREEMENT
Dated as of December 17, 1996
by and among
PLASTIC CONTAINERS, INC.
CONTINENTAL PLASTIC CONTAINERS, INC.
AND
CONTINENTAL CARIBBEAN CONTAINERS, INC.
and
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
XXXXXX BROTHERS INC.
and
SOCIETE GENERALE SECURITIES CORPORATION
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This Registration Rights Agreement (this "Agreement") is made and entered
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into as of December 17, 1996, by and among Plastic Containers, Inc., a Delaware
corporation (the "Company"), Continental Plastic Containers, Inc., a Delaware
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corporation ("CPC"), Continental Caribbean Containers, Inc., a Delaware
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corporation ("Caribbean", and, together with CPC, the "Guarantors"), and
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Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, Xxxxxx Brothers Inc. and
Societe Generale Securities Corporation (each, an "Initial Purchaser" and,
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collectively, the "Initial Purchasers").
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This Agreement is made pursuant to the Purchase Agreement, dated December
11, 1996 (the "Purchase Agreement"), by and among the Company, the Guarantors
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and the Initial Purchasers. In order to induce the Initial Purchasers to
purchase thereunder the Company's 10% Senior Secured Notes due 2006, Series A
(the "Series A Notes"), the Company has agreed to provide the registration
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rights set forth in this Agreement. The execution and delivery of this
Agreement is a condition to the obligations of the Initial Purchasers set forth
in the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings:
Act: The Securities Act of 1933, as amended.
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Business Day: Any day except a Saturday, Sunday or other day in the City
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of New York, or in the city of the corporate trust office of the Trustee, on
which banks are authorized to close.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
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Broker-Dealer Transfer Restricted Securities: Series B Notes that are
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acquired by a Broker-Dealer in the Exchange Offer in exchange for Series A Notes
that such Broker-Dealer acquired for its own account as a result of market
making activities or other trading activities (other than Series A Notes
acquired directly from the Company or any of its affiliates).
Closing Date: The date hereof.
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Commission: The Securities and Exchange Commission.
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Consummate: The Exchange Offer shall be deemed "Consummated" for purposes
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of this Agreement upon the occurrence of (a) the filing and effectiveness under
the Act of the Exchange Offer Registration Statement relating to the Series B
Notes to be issued in the Exchange Offer, (b) the maintenance of such
Registration Statement continuously effective and the keeping of the Exchange
Offer open for a period not less than the minimum period required pursuant to
Section 3(b) hereof and (c) the delivery by the Company to the Trustee under the
Indenture of Series B Notes in the same aggregate principal amount as the
aggregate principal amount of Series A Notes tendered by Holders thereof
pursuant to the Exchange Offer.
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Damages Payment Date: With respect to the Series A Notes, each Interest
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Payment Date.
Exchange Act: The Securities Exchange Act of 1934, as amended.
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Exchange Offer: The offer by the Company to Holders of all outstanding
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Transfer Restricted Securities pursuant to the Exchange Offer Registration
Statement to exchange any or all such outstanding Transfer Restricted Securities
for an equal principal amount of Series B Notes.
Exchange Offer Registration Statement: The Registration Statement relating
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to the Exchange Offer.
Exempt Resales: The transactions in which the Initial Purchasers propose
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to sell the Series A Notes to certain "qualified institutional buyers," as such
term is defined in Rule 144A under the Act, to certain institutional "accredited
investors," as such term is defined in Rule 501(a)(1), (2), (3), (5) and (7) of
Regulation D under the Act, and outside the United States in compliance with
Regulation S under the Act.
Global Note: As defined in the Indenture.
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Holders: As defined in Section 2 hereof.
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Indemnified Holder: As defined in Section 8(a) hereof.
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Indenture: The Indenture, dated the Closing Date, among the Company, the
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Guarantors and United States Trust Company of New York, as trustee (the
"Trustee"), pursuant to which the Notes are to be issued, as such Indenture is
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amended or supplemented from time to time in accordance with the terms thereof.
Interest Payment Date: As defined in the Indenture and the Notes.
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NASD: National Association of Securities Dealers, Inc.
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Named Holder: As defined in Section 6(c)(iv) hereof.
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Notes: The Series A Notes and the Series B Notes.
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Person: An individual, partnership, corporation, trust, unincorporated
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organization, other business entity or a government or agency or political
subdivision thereof.
Physical Securities: As defined in the Indenture.
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Prospectus: The prospectus included in a Registration Statement at the
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time such Registration Statement is declared effective, or as amended or
supplemented by any prospectus
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supplement and by all other amendments thereto, including those included in
post-effective amendments to the Registration Statement, and all material
incorporated by reference into such Prospectus.
Record Holder: With respect to any Damages Payment Date, each Person who
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is a Holder of Notes on the record date with respect to the Interest Payment
Date on which such Damages Payment Date shall occur.
Registration Default: As defined in Section 5 hereof.
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Registration Statement: Any registration statement of the Company and the
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Guarantors under the Act relating to (a) an offering of Series B Notes pursuant
to the Exchange Offer or (b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement, in each case, (i) which
is filed pursuant to the provisions of this Agreement and (ii) including the
Prospectus included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by
reference therein.
Restricted Broker-Dealer: Any Broker-Dealer which holds Broker-Dealer
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Transfer Restricted Securities.
Series A Notes: As defined in the preamble hereto.
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Series B Notes: The Company's 10% Senior Secured Notes due 2006, Series B,
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to be issued pursuant to the Indenture (i) in the Exchange Offer or (ii) upon
the request of any Holder of Series A Notes covered by a Shelf Registration
Statement, in exchange for such Series A Notes.
Shelf Registration Statement: As defined in Section 4 hereof.
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TIA: The Trust Indenture Act of 1939 as in effect on the date of the
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Indenture.
Transfer Restricted Securities: Each Note, until the earliest to occur of
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(a) the date on which such Note is exchanged in the Exchange Offer for a Series
B Note which may be resold to the public by the Holder thereof without complying
with the prospectus delivery requirements of the Act, (b) the date on which such
Note has been sold or otherwise disposed of in accordance with a Shelf
Registration Statement, (c) the date on which such Note is disposed of by a
Broker-Dealer pursuant to the "Plan of Distribution" contemplated by the
Exchange Offer Registration Statement (including delivery of the Prospectus
contained therein) and (d) the date on which such Note is distributed to the
public pursuant to Rule 144 under the Act.
underwriters: As defined in Section 11 hereof.
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Underwritten Registration or Underwritten Offering: A registration or
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offering in which Notes are sold to an underwriter for reoffering to the public.
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SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities (each,
a "Holder") whenever such Person owns Transfer Restricted Securities of record.
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SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable federal
law (after the procedures set forth in Section 6(a)(i) below have been complied
with), the Company and the Guarantors shall (i) cause to be filed with the
Commission, as soon as practicable after the Closing Date but in no event later
than 35 days after the Closing Date, the Exchange Offer Registration Statement,
(ii) use their respective best efforts to cause such Exchange Offer Registration
Statement to become effective at the earliest possible time, but in no event
later than 130 days after the Closing Date, (iii) unless the Exchange Offer
would not be permitted by applicable law or Commission policy, commence the
Exchange Offer on or prior to five Business Days after the date on which the
Exchange Offer Registration Statement is declared effective by the Commission,
and use their respective best efforts to issue Series B Notes in exchange for
all Transfer Restricted Securities tendered prior thereto in the Exchange Offer,
(iv) in connection with the foregoing, (A) file all pre-effective amendments to
such Exchange Offer Registration Statement as may be necessary in order to cause
such Exchange Offer Registration Statement to become effective, (B) file, if
applicable, a post-effective amendment to such Exchange Offer Registration
Statement pursuant to Rule 430A under the Act and (C) cause all necessary
filings, if any, in connection with the registration and qualification of the
Series B Notes to be made under the Blue Sky laws of such jurisdictions as are
necessary to permit Consummation of the Exchange Offer; provided, however, that
neither the Company nor any Guarantor shall be required in this connection to
register or qualify as a foreign corporation or a dealer where it is not now so
qualified or to take any action that would subject it to the service of process
in suits or to taxation, other than as to matters and transactions relating to
the Registration Statement, in any jurisdiction where it is not now so subject;
and (v) upon the effectiveness of such Exchange Offer Registration Statement,
commence and Consummate the Exchange Offer. The Exchange Offer Registration
Statement shall be on the appropriate form under the Act for the registration of
the Series B Notes to be offered in exchange for the Series A Notes that are
Transfer Restricted Securities and to permit sales of Broker-Dealer Transfer
Restricted Securities by Restricted Broker-Dealers as contemplated by Section
3(c) below.
(b) The Company and the Guarantors shall use their respective best efforts
to cause the Exchange Offer Registration Statement to be effective continuously,
and shall keep the Exchange Offer open for a period of not less than the minimum
period required under applicable federal and state securities laws; provided,
however, that in no event shall such period be less than 20 Business Days. The
Company and the Guarantors shall cause the Exchange Offer to comply with all
applicable federal and state securities laws. No securities other than the
Notes shall be included in the Exchange Offer Registration Statement. The
Company and the Guarantors shall use their respective best efforts to cause the
Exchange Offer to be Consummated on the earliest practicable date after the
Exchange Offer Registration Statement has become effective, but in no event
later than 30 Business Days thereafter.
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(c) The "Plan of Distribution" section in the Prospectus contained in the
Exchange Offer Registration Statement shall indicate that any Restricted Broker-
Dealer who holds Series A Notes that are Transfer Restricted Securities and that
were acquired for the account of such Broker-Dealer as a result of market-making
activities or other trading activities may exchange such Series A Notes (other
than Transfer Restricted Securities acquired directly from the Company or any
Affiliate of the Company) pursuant to the Exchange Offer; however, such Broker-
Dealer may be deemed to be an "underwriter" within the meaning of the Act and
must, therefore, deliver a prospectus meeting the requirements of the Act in
connection with its initial sale of the Broker-Dealer Transfer Restricted
Securities received by such Restricted Broker-Dealer in the Exchange Offer,
which prospectus delivery requirement may be satisfied by the delivery by such
Broker-Dealer of the Prospectus. Such "Plan of Distribution" section shall also
contain all other information with respect to such sales of Broker-Dealer
Transfer Restricted Securities by Restricted Broker-Dealers that the Commission
may require in order to permit such sales pursuant thereto, but such "Plan of
Distribution" shall not name any such Restricted Broker-Dealer or disclose the
amount of Notes held by any such Restricted Broker-Dealer, except to the extent
required by the Commission as a result of a change in policy after the date of
this Agreement.
The Company and the Guarantors shall use their respective best efforts to
keep the Exchange Offer Registration Statement continuously effective,
supplemented and amended as required by the provisions of Section 6(c) below to
the extent necessary to ensure that it is available for sales of Broker-Dealer
Transfer Restricted Securities by Restricted Broker-Dealers, and to ensure that
such Registration Statement conforms with the requirements of this Agreement,
the Act and the policies, rules and regulations of the Commission as announced
from time to time, for a period of one year from the date on which the Exchange
Offer is Consummated.
The Company and the Guarantors shall promptly provide sufficient copies of
the latest version of the Prospectus to such Restricted Broker-Dealers promptly
upon request, and in no event later than one day after such request, at any time
during such one-year period in order to facilitate such sales.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company is not required to file an
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Exchange Offer Registration Statement with respect to the Series B Notes because
the Exchange Offer is not permitted by applicable federal law (after the
procedures set forth in Section 6(a)(i) below have been complied with) or
Commission policy or (ii) any Holder of Transfer Restricted Securities shall
notify the Company within 20 Business Days following the Consummation of the
Exchange Offer that (A) such Holder was prohibited by law or Commission policy
from participating in the Exchange Offer or (B) such Holder may not resell the
Series B Notes acquired by it in the Exchange Offer to the public without
delivering a prospectus and the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales by such
Holder, then the Company and the Guarantors shall (x) cause to be filed, on or
prior to 35 days after the date on which the Company determines that it is not
required to file the Exchange Offer Registration Statement pursuant to clause
(i) above, or 35 days after the date on which the Company receives the notice
specified in clause (ii) above, a shelf registration statement pursuant to Rule
415 under the Act (which may be an amendment to the Exchange Offer Registration
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Statement (in either event, the "Shelf Registration Statement")), relating to
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all Transfer Restricted Securities as to which the Holders have complied with
Section 4(b) hereof, and (y) use their respective best efforts to cause such
Shelf Registration Statement to become effective on or prior to 130 days after
the date on which the Company becomes obligated to file such Shelf Registration
Statement; provided if the Exchange Offer has not been Consummated within 180
days of the Closing Date, then the Company and the Guarantors will file the
Shelf Registration Statement with the Commission on or prior to the 181st day
after the Closing Date. If, after the Company has filed an Exchange Offer
Registration Statement which satisfies the requirements of Section 3(a) above,
the Company is required to file and make effective a Shelf Registration
Statement solely because the Exchange Offer is not permitted under applicable
federal law, then the filing of the Exchange Offer Registration Statement shall
be deemed to satisfy the requirements of clause (x) of the preceding sentence
but shall have no effect on the requirements of clause (y) of the preceding
sentence. The Company and the Guarantors shall use their respective best
efforts to keep the Shelf Registration Statement continuously effective,
supplemented and amended as required by and subject to the provisions of
Sections 6(b) and (c) hereof to the extent necessary to ensure that it is
available for sales of Transfer Restricted Securities by the Holders thereof
entitled to the benefit of this Section 4(a), and to ensure that it conforms
with the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of at
least three years (as extended pursuant to Section 6(d)) following the date on
which such Shelf Registration Statement first becomes effective under the Act or
such shorter period that will terminate when all the Series A Notes covered by
the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement or are eligible for sale pursuant to Rule 144(k) under
the Act.
(b) Conditions to Company's and Guarantors' Obligations. No Holder of
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Transfer Restricted Securities may include any of its Transfer Restricted
Securities in any Shelf Registration Statement pursuant to this Agreement unless
and until such Holder (i) furnishes to the Company in writing, within 30 days
after the mailing by the Company of a request therefor, the information with
respect to such Holder specified in Items 507 and 508 of Regulation S-K under
the Act for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein and (ii) agrees to be
bound by the terms of this Agreement, including, without limitation, Sections
6(d), 8, 10, 11 and 12(d). No Holder of Transfer Restricted Securities shall be
entitled to liquidated damages pursuant to Section 5 hereof unless and until
such Holder shall have complied in all material respects with the foregoing
sentence. In addition, each Holder desiring to include Transfer Restricted
Securities in a Shelf Registration Statement shall also agree to furnish
promptly to the Company all information required to be disclosed in order to
make the information previously furnished to the Company by such Holder not
materially misleading.
SECTION 5. LIQUIDATED DAMAGES
A "Registration Default" shall mean any of the following: (i) any
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Registration Statement is not filed with the Commission on or prior to the date
specified for such filings in Sections 3 and 4 of this Agreement; (ii) any
Registration Statement has not been declared effective by the Commission on or
prior to the date specified for such effectiveness in this Agreement; (iii) the
Exchange Offer has not been Consummated within 30 Business Days after the
Exchange Offer Registration Statement is first declared
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effective by the Commission; (iv) any Registration Statement is filed and
declared effective but shall thereafter cease to be effective for a period of
one Business Day; or (v) at any time when the Prospectus is required by the Act
to be delivered in connection with sales of Transfer Restricted Securities, the
Company shall conclude, or the Holders of a majority in principal amount of the
affected Transfer Restricted Securities shall reasonably conclude, based on
advise of their counsel, and shall give notice to the Company, that either (A)
any event shall occur or fact exist as a result of which it is necessary to
amend or supplement the Prospectus in order that it will not include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements made, in light of the circumstances under which they were
made, not misleading, or (B) it shall be necessary to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the Act or the rules of the Commission thereunder, and in the
case of clause (A) or (B), the Registration Statement is not appropriately
amended by an effective post-effective amendment, or the Prospectus is not
amended or supplemented, in a manner reasonably satisfactory to the Holders of
Transfer Restricted Securities within one Business Day after the Company shall
so conclude or shall receive the above-mentioned notice from Holders of Transfer
Restricted Securities. Upon the occurrence of a Registration Default, the
Company and the Guarantors hereby jointly and severally agree to pay liquidated
damages to each Holder of Transfer Restricted Securities affected by the
Registration Default with respect to the first 90-day period immediately
following the occurrence of such Registration Default, in an amount equal to
$.05 per week per $1,000 principal amount of Transfer Restricted Securities held
by such Holder for each week or portion thereof during which the Registration
Default continues. The amount of the liquidated damages shall increase by an
additional $.05 per week per $1,000 in principal amount of Transfer Restricted
Securities with respect to each subsequent 90-day period until all Registration
Defaults have been cured, up to a maximum amount of liquidated damages of $.50
per week per $1,000 principal amount of Transfer Restricted Securities.
Notwithstanding anything to the contrary set forth herein, (1) upon filing of
the Registration Statement, in the case of (i) above, (2) upon the effectiveness
of the Registration Statement, in the case of (ii) above, (3) upon Consummation
of the Exchange Offer, in the case of (iii) above, or (4) upon the renewal of
effectiveness of the Registration Statement, or the effectiveness of a post-
effective amendment thereto reasonably satisfactory to the Holders of a majority
in principal amount of the Transfer Restricted Securities affected by the
Registration Default, or the date of issuance of an amended or supplemented
Prospectus reasonably satisfactory to the Holders of a majority in principal
amount of the Transfer Restricted Securities affected by the Registration
Default, in the case of (iv) above, the accrual of liquidated damages payable
with respect to the Transfer Restricted Securities shall cease.
All accrued liquidated damages shall be paid to the Holder or Holders of
the Global Note by wire transfer of immediately available funds or by federal
funds check, and to Holders of Physical Securities by mailing checks to their
registered addresses on each Damages Payment Date. All obligations of the
Company and the Guarantors set forth in the preceding paragraph that are
outstanding with respect to any Transfer Restricted Security shall cease to
accrue at the time when it ceases to be a Transfer Restricted Security but any
obligations then outstanding shall remain payable.
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SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the Exchange
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Offer, the Company and the Guarantors shall comply with all applicable
provisions of Section 6(c) below, shall use their respective best efforts to
Consummate the Exchange Offer and to permit the resale of Broker-Dealer Transfer
Restricted Securities, and shall comply with all of the following provisions:
(i) If, following the date hereof there has been published a
change in Commission policy with respect to exchange offers such as the
Exchange Offer, such that in the reasonable opinion of counsel to the
Company, there is a substantial question as to whether the Exchange Offer
is permitted by applicable federal law, the Company and the Guarantors
hereby agree to request a no-action or interpretive letter from the
Commission staff allowing the Company and the Guarantors to Consummate the
Exchange Offer. The Company and the Guarantors will not be obligated to
pursue the issuance of such a letter beyond the Commission staff level. In
connection with the foregoing, the Company and the Guarantors hereby agree
to take all such other actions as are requested by the Commission staff in
connection with the issuance of such letter, including without limitation
(A) participating in telephonic conferences with the Commission staff, (B)
delivering to the Commission staff an analysis prepared by counsel to the
Company setting forth the legal bases, if any, upon which such counsel has
concluded that such an Exchange Offer should be permitted and (C)
diligently pursuing a resolution (which need not be favorable) by the
Commission staff of such submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer Restricted
Securities shall furnish, upon the request of the Company, prior to the
Consummation of the Exchange Offer, a written representation to the Company
and the Guarantors (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to the effect
that (A) it is not an affiliate of the Company, (B) it is not engaged in,
and does not intend to engage in, and has no arrangement or understanding
with any person to participate in, a distribution of the Series B Notes to
be issued in the Exchange Offer and (C) it is acquiring the Series B Notes
in its ordinary course of business. Each Holder shall also acknowledge and
agree that any Holder using the Exchange Offer to participate in a
distribution of the Series B Notes to be acquired in the Exchange Offer (1)
could not rely on the position of the Commission staff enunciated in Xxxxxx
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Xxxxxxx and Co., Inc. (available June 5, 1991), Exxon Capital Holdings
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Corporation (available May 13, 1988), Shearman & Sterling (available July
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2, 1993), and similar interpretive letters (including, if applicable, any
no-action letter obtained pursuant to clause (i) above), and (2) must
comply with the registration and prospectus delivery requirements of the
Act in connection with a secondary resale transaction and that such a
secondary resale transaction must be covered by an effective registration
statement containing the selling security holder information required by
Item 507 of Regulation S-K.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Company and the Guarantors shall provide a supplemental
letter to the Commission (A) stating that the Company and the Guarantors
are registering the Exchange Offer in reliance on the
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position of the Commission staff enunciated in the above-mentioned
interpretive letters and, if applicable, any other interpretive letter
obtained pursuant to clause (i) above, (B) including a representation that
neither the Company nor any Guarantor has entered into any arrangement or
understanding with any Person to distribute the Series B Notes to be
received in the Exchange Offer and that, to the best of the Company's and
each Guarantor's information and belief, each Holder participating in the
Exchange Offer is acquiring the Series B Notes in its ordinary course of
business and has no arrangement or understanding with any Person to
participate in the distribution of the Series B Notes to be received in the
Exchange Offer and (C) including any other undertaking or representation
required by the Commission as set forth in any interpretive letter obtained
pursuant to clause (i) above.
(b) Shelf Registration Statement. In connection with the unrestricted
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resale of Transfer Restricted Securities, the Company and the Guarantors shall
comply with all applicable provisions of Section 6(c) below and shall use their
respective best efforts to provide for such unrestricted resale and pursuant
thereto, the Company and the Guarantors will prepare and file with the
Commission a Registration Statement on any appropriate form relating to the
registration under the Act of the Transfer Restricted Securities not excluded by
Section 4(b) hereof.
(c) General Provisions. In connection with any Registration Statement and
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any related Prospectus required by this Agreement (including, without
limitation, any Exchange Offer Registration Statement and the related Prospectus
to the extent that the same are required to be available to permit sales of
Broker-Dealer Transfer Restricted Securities by Restricted Broker-Dealers), the
Company and the Guarantors shall:
(i) prepare and file with the Commission such amendments and post-
effective amendments to the Registration Statement as may be necessary to
keep the Registration Statement effective and usable for resales of
Transfer Restricted Securities for the applicable periods set forth in
Section 3 or 4 hereof, or such shorter period as will terminate when all
Transfer Restricted Securities covered by such Registration Statement have
ceased to be such; cause the Prospectus to be amended or supplemented as
necessary for it to be usable for resales of Transfer Restricted
Securities; and comply fully with Rules 424, 430A and 462, as applicable,
under the Act in a timely manner;
(ii) comply with the provisions of the Act with respect to the
disposition of all securities covered by such Registration Statement during
the applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iii) advise the selling Holders and their underwriters promptly
and, if requested by them, confirm such advice in writing, (A) when the
Prospectus or any Prospectus supplement or post-effective amendment has
been filed, and, with respect to any Shelf Registration Statement or any
post-effective amendment thereto, when the same has become effective, (B)
of any request by the Commission for amendments to the Shelf Registration
Statement or amendments or supple ments to the Prospectus or for additional
information relating thereto, (C) of the issuance by the
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Commission of any stop order suspending the effectiveness of the Shelf
Registration Statement under the Act or of the suspension by any state
securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation of
any proceeding for any of the preceding purposes, (D) of the existence of
any fact or the occurrence of any event described in clause (v) of the
definition of Registration Default in Section 5. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or
exemption from qualification of the Transfer Restricted Securities under
state securities or Blue Sky laws, the Company and the Guarantors shall use
their respective best efforts to obtain the withdrawal or lifting of such
order at the earliest possible time;
(iv) furnish to (i) the Initial Purchasers, (ii) each selling
Holder named in any Registration Statement or related Prospectus, (each, a
"Named Holder"), (iii) any underwriter of a Named Holder, and (iv) any
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person known to the Company to be a Restricted Broker-Dealer before filing
with the Commission, copies of such Registration Statement or Prospectus
and any amendments or supplements thereto (not including any documents
incorporated by reference in the Registration Statement) which Registration
Statement, Prospectus, amendment or supplement will be subject to the
review and reasonable comment of the Initial Purchasers, the Named Holders
and such underwriters, and the Company will not file any such Registration
Statement, Prospectus, amendment or supplement (not including any documents
incorporated by reference in the Registration Statement) to which the
Initial Purchasers, such the Named Holders or such underwriters shall
reasonably object within five Business Days after their receipt thereof. A
Named Holder or underwriter, if any, shall be deemed to have reasonably
objected to such filing if such Registration Statement, amendment,
Prospectus or supplement, as applicable, as proposed to be filed, contains
a material misstatement or omission or fails to comply with the applicable
requirements of the Act;
(v) promptly upon the filing after the Closing Date of any
document that is to be incorporated by reference into a Registration
Statement or Prospectus, provide copies of such document to the Named
Holders and to their underwriters and any known Restricted Broker-Dealer,
and make the Company's and the Guarantors' representatives available for
discussion of such document and other customary due diligence matters;
(vi) make available at reasonable times for inspection by the
Named Holders, any managing underwriter participating in any disposition
pursuant to a Registration Statement, any attorney or accountant retained
by such Named Holders or any of such underwriters, and any known Restricted
Broker-Dealer, all financial and other records, pertinent corporate
documents and properties of the Company and the Guarantors, and cause the
Company's and the Guarantors' officers, directors and employees to supply
all information reasonably requested by any such Named Holder, underwriter,
attorney or accountant in connection with such Registration Statement or
any post-effective amendment thereto subsequent to the filing thereof and
prior to its effectiveness;
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(vii) if requested by any Named Holders or known Restricted
Broker-Dealer, promptly include in any Registration Statement or related
Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such Named Holders and their underwriters,
if any, may reasonably request to have included therein, including, without
limitation, information relating to the "Plan of Distribution" of the
Transfer Restricted Securities, information with respect to the principal
amount of Transfer Restricted Securities being sold to such underwriters,
the purchase price being paid therefor and any other terms of the offering
of the Transfer Restricted Securities to be sold in such offering; and make
all required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after the Company is notified of the
matters to be included in such Prospectus supplement or post-effective
amendment;
(viii) furnish to each Named Holder, and their underwriters, if
any, and any known Restricted Broker-Dealer without charge, at least one
copy of the Registration Statement as first filed with the Commission, and
of each amendment thereto, including all documents incorporated by
reference therein and all exhibits (including, if requested, exhibits
incorporated therein by reference);
(ix) deliver to each Named Holder, and their underwriters, if any,
and any known Restricted Broker-Dealer without charge, as many copies of
the Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; the Company and
the Guarantors hereby consent to the use (in accordance with law) of the
Prospectus and any amendment or supplement thereto by each of the Named
Holders and Restricted Broker-Dealers, and their underwriters, if any, in
connection with the offering and the resale of the Transfer Restricted
Securities covered by the Prospectus or any amendment or supplement
thereto;
(x) enter into such agreements (including an underwriting
agreement) and make such representations and warranties and take all such
other actions in connection therewith in order to expedite or facilitate
the disposition of the Transfer Restricted Securities pursuant to any Shelf
Registration Statement as may be reasonably requested by the Named Holders
of a majority in principal amount of the Transfer Restricted Securities to
be registered for resale pursuant to such Shelf Registration Statement
contemplated by this Agreement, and in such connection, whether or not an
underwriting agreement is entered into and whether or not the registration
is an Underwritten Registration, the Company and the Guarantors shall:
(A) furnish (or in the case of paragraphs (2) and (3), use its
best efforts to furnish) to each Named Holder and each underwriter, if
any, upon the effectiveness of the Shelf Registration Statement:
(1) certificates, dated the date of effectiveness of the
Shelf Registration Statement, as the case may be, signed on behalf
of the Company and each of the Guarantors by (x) the President or
any Vice President and (y) a principal financial or accounting
officer of the Company and each Guarantor, confirming,
-13-
as of the date thereof, the matters set forth in paragraphs (a),
(c) and (d) of Section 7 of the Purchase Agreement (with
references therein to the Offering Memorandum changed to reference
the Shelf Registration Statement), and such other matters as the
Named Holders and their underwriters, if any, may reasonably
request;
(2) an opinion, dated the date of effectiveness of the Shelf
Registration Statement, of counsel for the Company and the
Guarantors covering matters similar to those set forth in
paragraphs (f) and (g) of Section 7 of the Purchase Agreement and
such other matters as the Named Holders, and their underwriters,
if any, may reasonably request, and in any event, including a
statement to the effect that such counsel has participated in
conferences with officers and other representatives of the Company
and the Guarantors, and representatives of the independent public
accountants for the Company and the Guarantors, in connection with
the preparation of the Shelf Registration Statement (as
appropriate) and although such counsel has not independently
verified the accuracy, completeness or fairness of any statements
in the Shelf Registration Statement, on the basis of the
foregoing, no facts came to such counsel's attention that caused
such counsel to believe that the Shelf Registration Statement, at
the time it or any post-effective amendment thereto became
effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that
the Prospectus contained in such Registration Statement as of its
date, contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. Such counsel may state further that such
counsel assumes no responsibility for, and has not indepen dently
verified, the accuracy, completeness or fairness of the financial
statements, notes and schedules and other financial and
statistical data included in any such Shelf Registration
Statement; and
(3) a comfort letter, dated as of the date of effectiveness
of the Shelf Registration Statement, from the Company's
independent accountants, substantially in the form and covering
matters covered in the comfort letters delivered pursuant to
Section 7(i) of the Purchase Agreement;
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, in connection with any resale pursuant
to any Shelf Registration Statement, the indemnification provisions and
procedures of Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section; an d
(C) deliver such other documents and certificates as may be
reasonably requested by the Named Holders, and their underwriters, if
any, to evidence compliance with clause (A) above and with any
customary conditions contained in the underwriting
-14-
agreement or other agreement entered into by the Company and the
Guarantors pursuant to this clause (x).
The above shall be done at each closing under such underwriting or similar
agreement, as and to the extent required thereunder, and if at any time the
representations and warranties of the Company and the Guarantors contemplated in
(A)(1) above cease to be true and correct, the Company and the Guarantors shall
so advise the underwriters, if any and the Named Holders promptly and if
requested by such Persons, shall confirm such advice in writing;
(xi) prior to any public offering of Transfer Restricted
Securities, cooperate with the Named Holders, their underwriters, if
any, and their respective counsel in connection with the registration
and qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions as the Named Holders
or underwriters, if any, may reasonably request, and do any and all
other acts or things necessary or advisable to enable the disposition
in such jurisdictions of the Transfer Restricted Securities covered by
the applicable Registration Statement; provided, however, that neither
the Company nor any Guarantor shall be required in this connection to
register or qualify as a foreign corporation or a dealer where it is
not now so qualified or to take any action that would subject it to the
service of process in suits or to taxation, other than as to matters
and transactions relating to the Registration Statement, in any
jurisdiction where it is not now so subject ;
(xii) issue, upon the request of any Named Holder of Series A
Notes covered by any effective Shelf Registration Statement, Series B
Notes having an aggregate principal amount equal to the aggregate
principal amount of Series A Notes surrendered to the Company by such
Holder in exchange therefor; such Series B Notes to be registered in
the name of such person designated by such Holder; provided that the
Series A Notes held by such Holder shall be surrendered to the Company
for cancellation;
(xiii) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the selling Holders and the
underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing Transfer Restricted Securities to be
resold and not bearing any restrictive legends; and to register such
Transfer Restricted Securities in such denominations and such names as
the Holders or the underwriters, if any, may request at least two
Business Days prior to such resale of Transfer Restricted Securities;
(xiv) use their respective best efforts to cause the
disposition of the Transfer Restricted Securities covered by the
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof or the underwriters, if any, to consummate
the disposition of such Transfer Restricted Securities, subject to the
proviso contained in clause (xi) above;
(xv) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or have
occurred, prepare a supplement or post-effective amendment
-15-
to the Registration Statement or related Prospectus or any document
incorporated therein by reference, or file any other required document
so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(xvi) provide a CUSIP number for all Series B Notes not later
than the effective date of the first Registration Statement required by
this Agreement and provide the Trustee under the Indenture with printed
certificates for the Series B Notes which are in a form eligible for
deposit with The Depository Trust Company;
(xvii) cooperate and assist in any filings required to be
made with the NASD and in the performance of any due diligence
investigation by any underwriter (including any "qualified independent
underwriter") that is required to be retained in accordance with the
rules and regulations of the NASD;
(xviii) otherwise use their respective best efforts to
comply with all applicable rules and regulations of the Commission, and
make generally available to its security holders with regard to any
applicable Registration Statement, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) covering a twelve-month period beginning
after the effective date of the Registration Statement (as such term is
defined in paragraph (c) of Rule 158 under the Act);
(xix) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
required by this Agreement and, in connection therewith, cooperate with
the Trustee and the Holders of Notes to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute and use its best
efforts to cause the Trustee to execute, all documents that may be
required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to be
so qualified in a timely manner; and
(xx) provide promptly to each Holder upon request each
document filed by the Company with the Commission pursuant to the
requirements of Section 13 or Section 15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Named, Holder, upon receipt of any
-----------------------
notice from the Company of the existence of any fact of the kind described in
clause (v) of the definition of Registration Default in Section 5 hereof, will
forthwith discontinue disposition of Transfer Restricted Securities pursuant to
the Shelf Registration Statement until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 6(c)(xv) hereof,
or until it is advised in writing by the Company that the use of the Prospectus
may be resumed, and has received copies of any additional or supplemental
filings that are incorporated by reference in the Prospectus ("Advice"). If so
------
directed by the Company, each Named Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such
-16-
Transfer Restricted Securities that was current at the time of receipt of either
such notice. In the event the Company shall give any such notice, the time
periods regarding the effectiveness of such Shelf Registration Statement set
forth in Section 4 hereof shall be extended by the number of days during the
period from and including the date of the giving of such notice pursuant to
Section 6(c)(iii)(D) hereof to and including the date when each selling Holder
covered by such Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xv) hereof or
shall have received the Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and the Guarantors' performance
of or compliance with this Agreement will be borne by the Company, regardless of
whether a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses (including filings
made by any Initial Purchaser, Named Holder or underwriter with the NASD (and,
if applicable, the fees and expenses of any "qualified independent underwriter"
and its counsel) that may be required by the rules and regulations of the NASD);
(ii) all fees and expenses of compliance with federal securities and state Blue
Sky or securities laws; (iii) all expenses of printing (including printing
certificates for the Series B Notes to be issued in the Exchange Offer and
printing of Prospectuses), messenger and delivery services and telephone; (iv)
all fees and disbursements of counsel for the Company and the Guarantors; (v)
all application and filing fees in connection with listing the Notes on a
national securities exchange or automated quotation system pursuant to the
requirements hereof; and (vi) all fees and disbursements of independent
certified public accountants of the Company and the Guarantors (including the
expenses of any special audit and comfort letters required by or incident to
such performance).
The Company will, in any event, bear its and the Guarantors' internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expenses of
any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company or the Guarantors.
(b) In connection with any Registration Statement required by this
Agreement, the Company and the Guarantors will reimburse the Initial Purchasers
and the Holders of Transfer Restricted Securities for the reasonable fees and
disbursements of not more than one counsel, who shall be Xxxxxx Xxxxxx & Xxxxxxx
or such other counsel chosen by the Holders of a majority in principal amount of
the Transfer Restricted Securities for whose benefit such Registration Statement
is being prepared.
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors, jointly and severally, agree to
indemnify and hold harmless (i) each Holder and (ii) each person, if any, who
controls (within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act) any Holder (any of the persons referred to in this clause (ii)
being hereinafter referred to as a "controlling person") and (iii) the
respective officers,
-17-
directors, partners, employees, representatives and agents of any Holder or any
controlling person (any person referred to in clause (i), (ii) or (iii) may
hereinafter be referred to as an "Indemnified Holder"), to the fullest extent
------------------
lawful, from and against any and all losses, claims, damages, liabilities,
judgments, actions and expenses (including, without limitation and as incurred,
reimbursement of all reasonable costs of investigating, preparing, pursuing or
defending any claim or action, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, including the reasonable
fees and expenses of counsel to any Indemnified Holder) directly or indirectly
caused by, related to, based upon, arising out of or in connection with any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement, preliminary Prospectus or Prospectus (or any amendment
or supplement thereto), or 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, except insofar as such losses, claims, damages,
liabilities or expenses are caused by an untrue statement or omission or alleged
untrue statement or omission that is made in reliance upon and in conformity
with information relating to any of the Holders furnished in writing to the
Company by any of the Holders expressly for use therein; provided, however, that
a Holder and its related Indemnified Holders will not be entitled to indemnity
hereunder if (i) such untrue statement or omission or alleged untrue statement
or omission was contained or made in any preliminary Prospectus and was
identified in writing at such time to the Holders and corrected in the
Prospectus or any amendment or supplement thereto, (ii) the Prospectus does not
contain any other untrue statement or omission or alleged untrue statement or
omission of a material fact that was the subject matter of the related
proceeding, (iii) any such loss, liability, claim, damage or expense suffered or
incurred by such Holder resulted from any action, claim or suit by any Person
who purchased Notes which are the subject thereof from such Holder and (iv) it
is established in the related proceeding that such Holder failed to deliver or
provide a copy of the Prospectus (as amended or supplemented) to such Person
with or prior to the confirmation of the sale of such Notes sold to such Person
if required by applicable law, unless such failure to deliver or provide a copy
of the Prospectus (as amended or supplemented) was a result of noncompliance by
the Company with Section 6(c)(ix) of this Agreement.
In case any action or proceeding (including any governmental or regulatory
investigation or proceeding) shall be brought or asserted against any of the
Indemnified Holders with respect to which indemnity may be sought against the
Company or the Guarantors, such Indemnified Holder (or the Indemnified Holder
controlled by such controlling person) shall promptly notify the Company and the
Guarantors in writing (provided, that the failure to give such notice shall not
relieve the Company or the Guarantors of their obligations pursuant to this
Section 8 unless the Company was otherwise unaware of such obligations and only
to the extent the Company was actually and materially prejudiced by such
failure). Such Indemnified Holder shall have the right to employ its own
counsel in any such action and the fees and expenses of such counsel shall be
paid, as incurred, by the Company and the Guarantors (regardless of whether it
is ultimately determined that an Indemnified Holder is not entitled to
indemnification hereunder). However, the Company and the Guarantors shall not,
in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) at any time for such Indemnified Holders, which
firm shall be designated by the Holders of a majority in principal amount of the
Notes which are the subject of such action or proceeding. The Company and the
Guarantors shall be liable for any settlement of any such action or proceeding
effected
-18-
with the Company's prior written consent, which consent shall not be withheld
unreasonably, and the Company and the Guarantors agree to indemnify and hold
harmless each Indemnified Holder from and against any loss, claim, damage,
liability or expense by reason of any settlement of any action effected with the
written consent of the Company. Neither the Company nor any Guarantor shall,
without the prior written consent of each Indemnified Holder, settle or
compromise or consent to the entry of judgment in or otherwise seek to terminate
any pending or threatened action, claim, litigation or pro ceeding in respect of
which indemnification or contribution may be sought hereunder (whether or not
any Indemnified Holder is a party thereto), unless such settlement, compromise,
consent or termination includes an unconditional release of each Indemnified
Holder from all liability arising out of such action, claim, litigation or
proceeding.
(b) Each Holder of Transfer Restricted Securities agrees, severally and not
jointly, to indemnify and hold harmless the Company and the Guarantors, and
their respective directors, officers, and any person controlling (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act) the Company,
and the respective officers, directors, partners, employees, representatives and
agents of each such person, to the same extent as the foregoing indemnity from
the Company and the Guarantors to each of the Indemnified Holders, but only with
respect to claims and actions based on information relating to such Holder
furnished in writing by such Holder expressly for use in any Registration
Statement. In case any action or proceeding shall be brought against the
Company, any Guarantor or its directors or officers or any such controlling
person in respect of which indemnity may be sought against a Holder of Transfer
Restricted Securities, such Holder shall have the rights and duties given the
Company and the Guarantors, and the Company, such Guarantor, such directors or
officers or such controlling person shall have the rights and duties given to
each Holder by the immediately preceding paragraph. In no event shall any
Holder be liable or responsible for any amount in excess of the amount by which
the total received by such Holder with respect to its sale of Transfer
Restricted Securities pursuant to a Registration Statement exceeds (i) the
amount paid by such Holder for such Transfer Restricted Securities and (ii) the
amount of any damages which such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission.
(c) If the indemnification provided for in this Section 8 is unavailable to
an indemnified party under Section 8(a) or Section 8(b) hereof (other than by
reason of exceptions provided in those Sections) in respect of any losses,
claims, damages, liabilities or expenses referred to therein, then each
applicable indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantors, on the one hand, and the Holders, on the other hand,
from their sale of Transfer Restricted Securities or if such allocation is not
permitted by applicable law, the relative fault of the Company and the
Guarantors, on the one hand, and of the Indemnified Holder, on the other hand,
in connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of the Company and the Guarantors,
on the one hand, and of the Indemnified Holder, on the other hand, 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 or such Guarantor
or by the Indemnified Holder and the parties' relative intent,
-19-
knowledge, access to information and opportunity to correct or prevent such
statement or omission. 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 the second paragraph
of Section 8(a), any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action or claim.
The Company, the Guarantors and each Holder of Transfer Restricted
Securities agree that it would not be just and equitable if contribution
pursuant to this Section 8(c) were determined by pro rata allocation (even if
the Holders were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages, liabilities
or expenses referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8, no Holder or its related Indemnified Holders shall
be required to contribute, in the aggregate, any amount in excess of the amount
by which the total received by such Holder with respect to the sale of its
Transfer Restricted Securities pursuant to a Registration Statement exceeds the
sum of (A) the amount paid by such Holder for such Transfer Restricted
Securities plus (B) the amount of any damages which such Holder has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute pursuant to this
Section 8(c) are several in proportion to the respective principal amount of
Transfer Restricted Securities held by each of them, and not joint.
SECTION 9. RULE 144A
The Company and each Guarantor hereby undertake for so long as any Transfer
Restricted Securities remain outstanding and during any period in which the
Company or such Guarantor is not subject to Section 13 or 15(d) of the
Securities Exchange Act, to make available, upon request of any Holder of
Transfer Restricted Securities, to any Holder or beneficial owner of Transfer
Restricted Securities in connection with any sale thereof, and any prospective
purchaser of such Transfer Restricted Securities designated by such Holder or
beneficial owner, the information required by Rule 144A(d)(4) under the Act in
order to permit resales of such Transfer Restricted Securities pursuant to Rule
144A.
SECTION 10. UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder unless
such Holder (a) agrees to sell such Holder's Transfer Restricted Securities on
the basis provided in customary underwriting arrangements entered into in
connection therewith and (b) completes and executes all reasonable
questionnaires, powers of attorney, and other documents required under the terms
of such underwriting arrangements.
-20-
SECTION 11. SELECTION OF UNDERWRITERS
For any Underwritten Offering, the investment banker or investment bankers
and manager or managers for any Underwritten Offering that will administer such
offering will be selected by the Holders of a majority in aggregate principal
amount of the Transfer Restricted Securities included in such offering. Such
investment bankers and managers are referred to herein as the "underwriters."
SECTION 12. MISCELLANEOUS
(a) Remedies. Each Holder, in addition to being entitled to exercise all
--------
rights provided herein, in the Indenture, the Purchase Agreement or granted by
law, including recovery of liquidated or other damages, will be entitled to
specific performance of its rights under this Agreement. The Company and the
Guarantors agree that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach by them of the provisions of this
Agreement and hereby agree to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Neither the Company nor any Guarantor
--------------------------
will, on or after the date of this Agreement, enter into any agreement with
respect to its securities that is inconsistent with the rights granted to the
Holders in this Agreement or otherwise conflicts with the provisions hereof.
Neither the Company nor any Guarantor has previously entered into any agreement
granting any registration rights with respect to its securities to any Person.
The rights granted to the Holders hereunder do not in any way conflict with and
are not inconsistent with the rights granted to the holders of the Company's and
the Guarantors' securities under any agreement in effect on the date hereof.
(c) Adjustments Affecting the Notes. Neither the Company nor any Guarantor
-------------------------------
will take any action, or voluntarily permit any change to occur, with respect to
the Notes that would materially and adversely affect the ability of the Company
and the Guarantors to Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not be
----------------------
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless (i) in the case of Section 5
hereof and this Section 12(d)(i), the Company has obtained the written consent
of Holders of all outstanding Transfer Restricted Securities and (ii) in the
case of all other provisions hereof, the Company has obtained the written
consent of Holders of a majority in aggregate principal amount of Transfer
Restricted Securities then outstanding. Notwithstanding the foregoing, a waiver
or consent to departure from the provisions hereof that relates exclusively to
the rights of Holders whose securities are being tendered pursuant to the
Exchange Offer, and that does not affect directly or indirectly the rights of
other Holders whose securities are not being tendered pursuant to such Exchange
Offer, may be given by the Holders of a majority of the outstanding principal
amount of Transfer Restricted Securities being tendered pursuant to such
Exchange Offer.
-21-
(e) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the Trustee
under the Indenture, with a copy to the Trustee under the Indenture; and
(ii) if to the Company or the Guarantors:
000 Xxxxxxx 0 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention:
With a copy to:
Xxxxxx, Xxxxxxx & Xxxxxxx
0 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx Xxxxx-Xxxx
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied or sent by telex; and on the next business day, if
timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
----------------------
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders of Transfer Restricted Securities; provided, however, that this
Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities directly from such Holder.
(g) 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.
(h) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
-22-
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that 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.
(k) 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
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
-23-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
PLASTIC CONTAINERS, INC.
By:/s/
-------------------------------
Name:
Title:
CONTINENTAL PLASTIC CONTAINERS, INC.
By:/s/
-------------------------------
Name:
Title:
CONTINENTAL CARIBBEAN CONTAINERS,
INC.
By:/s/
-------------------------------
Name:
Title:
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXX BROTHERS INC.
SOCIETE GENERALE SECURITIES CORPORATION
By: Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
By:/s/
-----------------------------------
Name:
Title:
