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Exhibit 4.3
Exchange and Registration Rights Agreement
Exchange and Registration Rights Agreement (this "Agreement") dated as of
March 6, 1998 among PLAINWELL INC., a Delaware corporation (the "Company"),
Bear, Xxxxxxx & Co. Inc. and Salomon Brothers Inc (with Bear, Xxxxxxx & Co. Inc.
and Salomon Brothers Inc being referred to collectively as, the "Initial
Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated as of
March 3, 1998 (the "Purchase Agreement"), among the Company and the Initial
Purchasers, pursuant to which the Initial Purchasers have agreed, severally and
not jointly, to purchase from the Company $125,000,000 aggregate principal
amount of the Company's 11% Senior Subordinated Notes due 2008 (the "Notes").
The Notes will be issued pursuant to an Indenture (the "Indenture") to be dated
as of the date hereof between the Company and U.S. Trust Company of New York, as
trustee (the "Trustee"). As an inducement to the Initial Purchasers to purchase
the Notes, the Company agrees with the Initial Purchasers, for the benefit of
the holders of the Notes and the Registered Notes (as defined), as follows:
Section 1. Certain Defined Terms.
(a) As used in this Agreement, the following capitalized terms shall
have the following meanings:
"Broker-Dealer" means any broker or dealer registered under the
Exchange Act.
"Business Day" means any day other than a Saturday, a Sunday or a
day on which the banking institutions in the State of New York are
authorized or obligated by law or executive order to close.
"Commission" means the United States Securities and Exchange
Commission.
"Consummate" means, with respect to a Registered Exchange Offer: (i)
the filing and declaration of effectiveness under the Securities Act of
the Exchange Offer Registration Statement relating to the Registered Notes
to be issued in the Registered Exchange Offer; (ii) maintaining the
continuous effectiveness of such Exchange Offer Registration Statement and
keeping the Registered Exchange Offer open for a period of not less than
20 Business Days after the date of the mailing of the Prospectus pursuant
to Section 2(d)(i) hereof; and (iii) the delivery by the Company to the
Registrar under the Indenture of the Registered Notes in the same
aggregate principal amount as the aggregate principal amount of the Notes
that were duly tendered by Holders thereof pursuant to the Registered
Exchange Offer, and "Consummated" or "Consummation" shall have a
correlative meaning.
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"Exchange Act" means the United States Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
"Exchange Offer Registration Statement" means a registration
statement (together with the Prospectus included therein, all amendments
and supplements thereto (including post-effective amendments) and all
exhibits and materials incorporated by reference therein) with respect to
the Registered Exchange Offer.
"Holder" means any Person who is the registered or beneficial owner
of the Notes or the Registered Notes, as the case may be.
"Person" means an individual, partnership, corporation, joint stock
company, joint venture, trust, unincorporated organization or a
government, agency or political subdivision thereof, firm or other entity.
"Prospectus" means the prospectus included in any Registration
Statement, as amended or supplemented, including, without limitation, by
any post-effective amendments thereto, and all material incorporated by
reference into such prospectus.
"Registration Statement" means the Exchange Offer Registration
Statement or the Shelf Registration Statement, as the context requires.
"Securities Act" means the United States Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Shelf Registration Statement" means a registration statement filed
for a delayed or continuous period pursuant to Rule 415 or any similar
rule that may be adopted by the Commission under the Securities Act
(together with the Prospectus included therein, all amendments and
supplements thereto (including post-effective amendments) and all exhibits
and materials incorporated by reference therein) with respect to a Shelf
Registration.
"TIA" means the United States Trust Indenture Act of 1939, as
amended, in effect on the date of the Indenture.
"Transfer Restricted Securities" means each Note and each Registered
Note, the Holder of which is subject to prospectus delivery requirements
of the Securities Act in order to sell such Note or Registered Note, until
the occurrence of any of the following events:
(i) the first date on which such Note may be exchanged for a
Registered Note in the Registered Exchange Offer, if following such
exchange such Holder would be entitled to resell such Registered
Note to the public without complying with the prospectus delivery
requirements of the Securities Act;
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(ii) the date on which such Note has been registered pursuant
to an effective Shelf Registration Statement under the Securities
Act and disposed of in accordance with the "Plan of Distribution"
section of the Prospectus contained in such Shelf Registration
Statement;
(iii) the date on which such Note is sold to the public
pursuant to Rule 144 under the Securities Act or by a Broker-Dealer
pursuant to the "Plan of Distribution" contemplated by the Exchange
Offer Registration Statement (including delivery of the Prospectus
contained therein); or
(iv) such Note or Registered Note, as the case may be, shall
have ceased to be outstanding.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
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Agreement Preamble
Company Preamble
Indemnified Holder 7(a)
Indenture Preamble
Initial Purchasers Preamble
Issue Date 2(a)(i)
Liquidated Damages 8
Losses 7(a)
Notes Preamble
Participating Broker-Dealer 4(a)
Purchase Agreement Preamble
Registered Exchange Offer 2(a)
Registered Notes 2(a)
Registration Default 8
Shelf Registration 3(a)
Trustee Preamble
Section 2. Registered Exchange Offer.
(a) The Company shall:
(i) prepare and, not later than 60 calendar days after the
Issue Date (as defined in the Indenture), file with the Commission
an Exchange Offer Registration Statement on an appropriate form
under the Securities Act with respect to a proposed offer to
exchange (the "Registered Exchange Offer") any and all of the
outstanding Notes (including, if permitted by the then prevailing
interpretations of the staff of the Commission, any Notes held by
the Initial
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Purchasers having the status of an unsold allotment in the initial
distribution) for a like aggregate principal amount of the Company's
11% Senior Subordinated Notes due 2008 (the "Registered Notes");
(ii) use its best efforts to cause the Exchange Offer
Registration Statement to become effective under the Securities Act
as soon as practicable thereafter, but in no event later than 150
calendar days after the Issue Date;
(iii) in connection with the foregoing, to file (A) 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 and (B) cause all
necessary filings, if any, in connection with the registration and
qualification of the Registered Notes to be made under the Blue Sky
laws of such jurisdictions as are necessary to permit Consummation
of the Registered Exchange Offer except that in no event shall the
Company be obligated in connection therewith to qualify as a foreign
corporation or to execute a general consent to service of process or
to take any other action that would subject it to service of process
in suits in any jurisdiction other than those arising out of the
offering or sale of the Notes in such jurisdiction pursuant to such
Exchange Offer Registration Statement; and
(iv) upon the effectiveness of the Exchange Offer Registration
Statement, unless it would not be permitted by applicable law or
Commission policy, promptly commence the Registered Exchange Offer
to enable each Holder of the Notes (other than Holders who are
affiliates (within the meaning of the Securities Act) of the Company
or underwriters (as defined in the Securities Act) with respect to
the Registered Notes) to exchange the Notes for Registered Notes.
The Company shall cause the Exchange Offer Registration Statement and the
related Prospectus, as of the effective date of such Exchange Offer
Registration Statement, (i) to comply with the applicable requirements of
the Securities Act and (ii) not to contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(b) The Company shall cause the Registered Exchange Offer to be
Consummated in compliance with the Securities Act, the Exchange Act and
all other applicable laws and regulations. No securities other than the
Registered Notes shall be included in the Exchange Offer Registration
Statement. The Company shall use its best efforts to cause the Registered
Exchange Offer to be Consummated 20, but in any event, not later than 30
Business Days after the effective date of the Exchange Offer Registration
Statement. The Registered Exchange Offer shall be on an appropriate form
under the Securities Act as to permit resales of Registered Notes by
delivering the Prospectus contained in the Exchange Offer Registration
Statement.
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(c) To the extent necessary to ensure that the Exchange Offer
Registration Statement is available for sales of Registered Notes by
Broker-Dealers, the Company shall use its best efforts to keep the
Exchange Offer Registration Statement continuously effective and to amend
and supplement the Prospectus contained therein in order to permit such
Prospectus to be lawfully delivered by all persons subject to the
prospectus delivery requirements of the Securities Act for a period of up
to one year after the Consummation of the Registered Exchange Offer (or
such longer period if extended pursuant to Section 4(c)(ix)).
(d) In connection with the Registered Exchange Offer, the Company
shall:
(i) mail, or cause to be mailed, to each Holder of the Notes a
copy of the Prospectus forming a part of the Exchange Offer
Registration Statement, together with an appropriate letter of
transmittal and related documents;
(ii) keep the Registered Exchange Offer open for a period of
not less than 20 Business Days after the date notice thereof is
mailed to the Holders of the Notes (or longer if required by
applicable law);
(iii) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City
of New York; and
(iv) permit Holders of the Notes to withdraw tendered Notes at
any time prior to the close of business, New York time, on the last
Business Day on which the Registered Exchange Offer shall remain
open (the "Exchange Date").
(e) As soon as practicable after the Exchange Date, the Company
shall:
(i) accept for exchange all Notes duly tendered and not
validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver or cause to be delivered to the Trustee for
cancellation all Notes or portions thereof so accepted for exchange
by the Company;
(iii) execute and deliver to, or cause to be delivered to, the
Trustee for authentication and delivery, Registered Notes in an
aggregate principal amount equal to the aggregate principal amount
of the Notes so accepted for exchange; and
(iv) cause the Trustee to authenticate and deliver promptly to
each Holder of the Notes accepted for exchange, Registered Notes
having an aggregate principal amount at maturity equal to the
aggregate principal amount at maturity of the Notes surrendered by
such Holder and accepted for exchange.
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Section 3. Shelf Registration.
(a) If:
(i) the Company is not required to file the Exchange Offer
Registration Statement or permitted to Consummate the Registered
Exchange Offer because the Registered Exchange Offer is not
permitted by applicable law or Commission policy; or
(ii) any Holder of Transfer Restricted Securities notifies the
Company prior to the 20th day following commencement of the Exchange
Offer that (a) it is prohibited by law or Commission policy from
participating in the Registered Exchange Offer or (b) that it may
not resell the Registered Notes acquired by it in the Registered
Exchange Offer to the public without delivering a prospectus and the
prospectus contained in the Exchange Offer Registration Statement is
not appropriate or available for such resales or (c) that it is a
Broker-Dealer and owns Notes acquired directly form the Company or
an affiliate of the Company,
then the Company shall take the following actions:
(A) After the occurrence of one of the events described in
3(a)(i) or (ii), the Company shall prepare and file with the
Commission as promptly as practicable but in no event later than 60
days after the occurrence of one of the events described in 3(a)(i)
or (ii) and in any event within 150 days of the Issue Date, a Shelf
Registration Statement on an appropriate form under the Securities
Act relating to the offer and sale by the Holders of the Notes in
accordance with the methods of distribution set forth in the Shelf
Registration Statement and Rule 415 under the Securities Act (a
"Shelf Registration") and cause such Shelf Registration Statement to
be declared effective as promptly as practicable after such filing
but in no event later than 90 calendar days after the occurrence of
one of the events described in 3(a)(i) or (ii); and
(B) The Company shall keep the Shelf Registration Statement
continuously effective, and agrees to amend or supplement the
prospectus contained therein (and use its best efforts to cause any
such amendment to become and remain effective) in order to permit
the prospectus included therein to be available for resales of, and
lawfully delivered by the Holders of, the Notes covered thereby,
until the earlier of (x) the second anniversary of the Issue Date
(or for such longer period if extended pursuant to Section
4(i)(ix)), (y) such time as all the Notes covered by such Shelf
Registration Statement have been sold pursuant thereto or (z) the
date on which all persons that are not affiliates may resell the
Notes pursuant to Rule 144(k) under the Securities Act or the date
on which the Notes otherwise cease to be Transfer Restricted
Securities.
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(b) The Company shall cause any Shelf Registration Statement and the
related prospectus and any amendment or supplement thereto, as of the
effective date of such Shelf Registration Statement, amendment or
supplement, (i) to comply with the applicable requirements of the
Securities Act and (ii) not to contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Section 4. Registration Procedures.
(a) Registered Exchange Offer. In connection with the Registered
Exchange Offer:
(i) the Company shall comply with all of the provisions of
Section 4(c) below (other than those that are not applicable);
(ii) prior to effectiveness of the Exchange Offer Registration
Statement, if the Commission so requests, the Company shall make the
following representations (in substantially the form set forth
below) to the staff of the Commission:
(A) that the Company is registering the Registered Notes
and the Registered Exchange Offer in reliance on the position
of the staff of the Commission enunciated in the Exxon Capital
Holdings Corporation Commission no-action letter (available
May 13, 1988) and the Xxxxxx Xxxxxxx and Co., Inc. Commission
no-action letter (available June 5, 1991), as interpreted in
the Shearman & Sterling Commission no-action letter (available
July 2, 1993); and
(B) that the Company has not entered into any
arrangement or understanding with any person to distribute the
Registered Notes to be received in the Registered Exchange
Offer and that, to the best of the Company's information and
belief, each Person participating in the Registered Exchange
Offer is acquiring the Registered Notes in its ordinary course
of business and has no arrangement or understanding with any
person to participate in the distribution of the Registered
Notes to be received in the Registered Exchange Offer. In this
regard, the Company will make each person participating in the
Registered Exchange Offer aware (through the Prospectus
included in the Exchange Offer Registration Statement or
otherwise) that, if the Registered Notes and the Registered
Exchange Offer are being registered for the purpose of
secondary resales of the Registered Notes, any Holder using
the Registered Exchange Offer to participate in a distribution
of the Registered Notes (1) could not rely on the staff
position enunciated in such Exxon Capital Holdings Corporation
letter or similar letters and (2)
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must comply with registration and prospectus delivery
requirements of the Securities Act in connection with any
secondary resale transaction of the Registered Notes. The
Company acknowledges that such a secondary resale transaction
should be covered by an effective registration statement
containing the selling security holder information required by
Item 507 of Regulation S-K;
(iii) the Company will require each Holder that is a
Broker-Dealer and that is the beneficial owner (as defined in Rule
13d-3 under the Exchange Act) of Notes acquired for its own account
as a result of market-making activities or other trading activities
(a "Participating Broker-Dealer"), to include a representation in
such Participating Broker-Dealer's letter of transmittal with
respect to the Registered Exchange Offer that such Participating
Broker-Dealer has not entered into any arrangement or understanding
with the Company or any affiliate of the Company to distribute the
Registered Notes;
(iv) the Company (1) will make each Person participating in
the Registered Exchange Offer aware (through the Prospectus included
in the Exchange Offer Registration Statement or otherwise) that any
Broker-Dealer who holds Notes acquired for its own account as a
result of market-making activities or other trading activities, and
who receives Registered Notes in exchange for such Notes pursuant to
the Registered Exchange Offer, may be a statutory underwriter and in
connection with any resale of such Registered Notes must deliver a
Prospectus meeting the requirements of the Securities Act and
describing the methods by which Participating Broker-Dealers may
resell such Registered Notes, and (2) will include in the
transmittal letter or similar documentation to be executed by an
exchange offeree in order to participate in the Registered Exchange
Offer the following additional provision:
"If the undersigned is a broker-dealer holding Notes acquired
for its own account as a result of market-making activities or
other trading activities, the undersigned hereby acknowledges
that it will deliver a prospectus meeting the requirements of
the Securities Act in connection with any resale of Registered
Notes received in respect of such Notes pursuant to the
Registered Exchange Offer"
and the transmittal letter or similar documentation may also include
a statement to the effect that by so acknowledging and by delivering
a Prospectus, a Broker-Dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act;
(v) as a condition to its participation in the Registered
Exchange Offer pursuant to the terms of this Agreement, each Holder
of the Notes who tenders such Notes pursuant to the Registered
Exchange Offer shall furnish a
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written representation to the Company (which may be contained in the
letter of transmittal contemplated by the Exchange Offer
Registration Statement) to the effect that by accepting the
Registered Exchange Offer, such Holder represents to the Company
that:
(A) it is not an affiliate of the Company (within the
meaning of the Securities Act);
(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 Registered Notes to be
issued in the Registered Exchange Offer;
(C) it is acquiring the Registered Notes in its ordinary
course of business; and
(D) if it is a Participating Broker-Dealer holding Notes
acquired for its own account as a result of market-making
activities or other trading activities, it acknowledges that
it will deliver a Prospectus meeting the requirements of the
Securities Act in connection with any resale of Registered
Notes received in respect of such Notes pursuant to the
Registered Exchange Offer;
and the transmittal letter or similar documentation may also include
a statement to the effect that by so acknowledging and by delivering
a Prospectus, a Broker-Dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act; and
(vi) the Company shall include within the Prospectus contained
in the Exchange Offer Registration Statement a section entitled
"Plan of Distribution," which shall contain:
(A) a statement substantially to the effect that any
Broker-Dealer and any Holder using the Registered Exchange
Offer to participate in a distribution of the Registered Notes
to be acquired in the Registered Exchange Offer:
(I) could not under Commission policy as in effect
on the date of this Agreement rely on the position of
the Commission enunciated in the Xxxxxx Xxxxxxx and Co.,
Inc. Commission no-action letter (available June 5,
1991) and the Exxon Capital Holdings Corporation
Commission no-action letter (available May 13, 1988), as
interpreted in the to Shearman & Sterling Commission
no-action letter (available July 2, 1993), and similar
no-action letters, and
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(II) must comply with the registration and
prospectus delivery requirements of the Securities Act
in connection with a secondary resale transaction of the
Registered Notes and that such a secondary resale
transaction should be covered by an effective
registration statement containing the selling security
holder information required by Item 507 or 508, as
applicable, of Regulation S-K under the Securities Act;
and
(B) a summary statement of the positions taken or
policies made by the staff of the Commission with respect to
the potential "underwriter" status of any Participating
Broker-Dealer.
Such "Plan of Distribution" section shall also allow the use of the
Prospectus by Participating Broker-Dealers for a period of one year from the
Consummation of the Exchange Offer, or such shorter period as will terminate
when all the Notes acquired by Participating Broker-Dealers have been exchanged
for the Registered Notes and resold by such Broker-Dealers, and include a
statement to the effect that any Broker-Dealer who holds Notes acquired for its
own account as a result of market-making activities or other trading activities,
and who receives Registered Notes in exchange for such Notes pursuant to the
Registered Exchange Offer, may be a statutory underwriter and must deliver a
Prospectus meeting the requirements of the Securities Act in connection with any
resale of such Registered Notes and that any profit or commissions received by
such Broker-Dealer may be deemed to be underwriting compensation under the
Securities Act, and describing the means by which Participating Broker-Dealers
may resell the Registered Notes. The "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement shall not name
any such Participating Broker-Dealer or disclose the amount of Notes held by any
such Participating Broker-Dealer except to the extent required by Commission
policy.
(b) Shelf Registration Statement. In connection with any Shelf
Registration Statement, the Company shall comply with all the provisions
of Section 4(c) below (other than those that are not applicable) and shall
effect such registration to permit the resale of Notes being sold in
accordance with the intended method or methods of distribution set forth
in the Shelf Registration Statement.
(c) Registration Procedures. In connection with any Registration
Statement and any Prospectus required by this Agreement, the Company
shall:
(i) prepare and file with the Commission a Registration
Statement on the appropriate form under the Securities Act, which
form: (x) shall be selected by the Company; (y) shall, in the case
of a Shelf Registration Statement, be available for the sale of
Notes by the selling Holders thereof; and (z) shall comply as to
form with the requirements of the Securities Act, and include all
financial statements required by the Commission to be filed
therewith, and to cause such Registration Statement to become
effective and to keep such Registration Statement continuously
effective for the period provided for in
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Section 2, in the case of an Exchange Offer Registration Statement,
and for the period provided for in Section 3, in the case of a Shelf
Registration Statement;
(ii) (A) prepare and file with the Commission such amendments
and post-effective amendments to such Registration Statement as may
be necessary to keep such Registration Statement effective for the
applicable period set forth in Section 2 or Section 3, as the case
may be; and (B) cause each Prospectus to be supplemented by any
required prospectus supplement, and, as so supplemented, cause the
Prospectus to be filed pursuant to Rule 424 under the Securities Act
and to comply in all material respects with the applicable
provisions of Rules 424 and 430A under the Securities Act in a
timely manner;
(iii) advise the Initial Purchasers, each Holder of the Notes
included in the Shelf Registration Statement and, with respect to
the Exchange Offer Registration Statement, any Participating
Broker-Dealer from whom the Company has received prior written
notice that it will be a Participating Broker-Dealer in the
Registered Exchange Offer:
(A) when each Registration Statement or any amendment
thereto has been filed with the Commission and when each such
Registration Statement or any post-effective amendment thereto
has been declared effective;
(B) of any request by the Commission for amendments or
supplements to a Registration Statement or the Prospectus
included therein or for additional information;
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of a Registration Statement or
the initiation or threatening of any proceedings for that
purpose;
(D) of the receipt by either of the Company or its legal
counsel of any notification with respect to the suspension of
the qualification of the Notes or the Registered Notes for
sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose;
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(E) when the prospectus contained in any Registration
Statement may not be used for offers or sales of the
Registered Notes because (x) of the existence of any fact or
the happening of any event (including any material non-public
information) that makes untrue any statement of a material
fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto or any document incorporated
by reference therein, or that requires the making of any
additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not
misleading or (y) such prospectus shall not contain the
current information required by the Securities Act; it being
understood that any notice delivered pursuant to this
subparagraph need not specifically recite the reasons for its
delivery, provided that the Company consults with the Initial
Purchasers prior to such notice's delivery as to the reasons
underlying such notice need;
(iv) use its efforts to prevent the issuance of any order of
the Commission suspending the effectiveness of a Registration
Statement; and 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 Notes or the Registered Notes under state
securities or Blue Sky laws, the Company shall use its best efforts
to obtain the withdrawal of such order at the earliest possible
time, and provide prompt notice of the withdrawal of any such order
to each Holder of any Notes included in the Shelf Registration
Statement, and, with respect to the Exchange Offer Registration
Statement, to any Participating Broker-Dealer participating in the
Registered Exchange Offer;
(v) furnish to each of the Initial Purchasers, upon request,
and, in the case of a Shelf Registration, to each Holder of any
Notes included in the Shelf Registration Statement, and counsel to
the Initial Purchasers referred to in Section 6, a reasonable time
prior to filing with the Commission, copies of any Registration
Statement or any Prospectus included therein and any amendments or
supplements thereto (including all documents incorporated by
reference prior to the effectiveness of such Registration
Statement), which documents, other than documents incorporated by
reference, will be subject to the review of the Initial Purchasers
for a period of at least five Business Days, and the Company may, in
its reasonable discretion, reflect in each such document when so
filed with the Commission, such comments as the Initial Purchasers
or such Holders reasonably may propose within five Business Days
after the receipt thereof;
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(vi) promptly prior to the filing of any document that is to
be incorporated by reference into a Registration Statement or
Prospectus subsequent to the effectiveness thereof (A) if requested,
provide copies of such document to any Holder of any Notes included
in such Registration Statement, to the Initial Purchasers and (B)
make representatives of the Company available for discussion of such
document and other customary due diligence matters, and (C) the
Company may, in its reasonable discretion, include such information
in such document prior to the filing thereof as Holders or the
Initial Purchasers may reasonably request;
(vii) (A) make available at reasonable times for inspection by
the Initial Purchasers and, in the case of a Shelf Registration,
Holders of any Notes included in such Registration Statement, and
any attorney or accountant retained by such Holder or the Initial
Purchasers, or any underwriter participating in any disposition
pursuant to a Shelf Registration Statement, all relevant financial
and other records, pertinent corporate documents and properties of
the Company and (B) cause the officers, directors and employees of
the Company to supply all information reasonably requested by any
such Holder, Initial Purchaser, attorney, accountant or underwriter
in connection with such Registration Statement subsequent to the
filing thereof and prior to its effectiveness, in each case, as is
customary for similar due diligence examinations;
(viii) if requested by any selling Holders in connection with
a Shelf Registration Statement or the Initial Purchasers in
connection with market making activities, (A) promptly incorporate
in any Registration Statement or Prospectus, pursuant to a
supplement or post-effective amendment if necessary, such
information as such Holders or the Initial Purchasers may reasonably
request, and to which the Company does not reasonably object, to
have included therein, including, without limitation, information
relating to the "Plan of Distribution" of the Notes, the purchase
price being paid therefor and any other terms of the offering of the
Notes to be sold in such offering, and (B) make all required filings
of any such Prospectus supplement or post-effective amendment as
promptly as practicable after the Company is notified of the matters
to be incorporated in such Prospectus supplement or post-effective
amendment;
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(ix) upon the occurrence of any event of the kind described in
Section 4(c)(iii)(E) or any other event that would cause such
Registration Statement or the Prospectus contained therein not to be
effective and usable for resales of Notes or Registered Notes during
the period required by this Agreement, promptly (except as
contemplated by Section 2(c) or 3(a)(ii)(B) hereof) prepare a
post-effective amendment to the applicable Registration Statement or
a supplement to the related Prospectus and use its best efforts to
cause such amendment to be declared effective, or file any other
required document so that the Registration Statement and the
Prospectus, as thereafter delivered to Holders of the Transfer
Restricted Securities or the purchasers of Transfer Restricted
Securities, (A) will not contain an untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading and (B) will contain all current
information required by the Securities Act. If any of the Initial
Purchasers, the Holders of any Notes or Registered Notes covered by
a Registration Statement or any known Participating Broker-Dealer is
required by the terms of this Agreement to suspend the use of a
Prospectus until the requisite changes to such Prospectus have been
made, then the period of effectiveness of the applicable Shelf
Registration Statement provided for in Section 3 and the Exchange
Offer Registration Statement provided for in Section 2 shall each be
extended by the number of days during the period from and including
the date such notice is required to be given under this Agreement to
and including the date when the Initial Purchasers, each selling
Holder covered by such Registration Statement, and any known
Participating Broker-Dealer shall have received an amended or
supplemented Prospectus contemplated by this clause (ix) or shall
have received Advice (as defined below) from the Company;
(x) in the case of a Registered Exchange Offer, deliver to
each of the Initial Purchasers one manually signed copy of the
Exchange Offer Registration Statement without charge and with any
post-effective amendment thereto, including financial statements and
schedules, and, if the Initial Purchasers request, all exhibits
(including those, if any, incorporated by reference);
(xi) in the case of a Registered Exchange Offer, deliver to
each of the Initial Purchasers, any Participating Broker-Dealer and
such other persons required to deliver a Prospectus in connection
with the offering and sale of the Registered Notes following the
Registered Exchange Offer, without charge, as many copies of the
final Prospectus included in the Exchange Offer Registration
Statement and any amendment or supplement thereto as such persons
may reasonably request, and, in connection therewith, the Company
hereby consents, subject to any notice by the Company in accordance
with this Section 4(c) of the existence of any fact or event of the
kind described in Section 4(c)(iii)(E), to the use of the Prospectus
or any amendment or supplement thereto by the Initial Purchasers, if
necessary, any Participating Broker-Dealer
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and such other persons as are required to deliver a Prospectus
following the Registered Exchange Offer in connection with the
offering and sale of the Registered Notes covered by the Prospectus,
or any amendment or supplement thereto, included in such Exchange
Offer Registration Statement;
(xii) in the case of a Shelf Registration, furnish to each of
the Initial Purchasers, without charge, one manually signed copy of
the Shelf Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if the
recipient Holder so requests, all exhibits (including those, if any,
incorporated by reference);
(xiii) in the case of a Shelf Registration, deliver, without
charge, to each of the Initial Purchasers and each Holder of the
Notes included within the coverage of a Shelf Registration Statement
which was declared effective by the Commission as many copies of the
Prospectus (including each preliminary prospectus) included in such
Shelf Registration Statement and any amendment or supplement thereto
as such person may reasonably request, and, in connection therewith,
the Company hereby consents, subject to any notice by the Company in
accordance with this Section 4(c) of the existence of any fact or
event of the kind described in Section 4(c)(iii)(E), to the use of
the Prospectus or any amendment or supplement thereto by each of the
selling Holders of the Notes in connection with the offering and
sale of the Notes covered by the Prospectus, or any amendment or
supplement thereto, included in such Shelf Registration Statement;
(xiv) in the case of a Shelf Registration, (A) enter into such
customary agreements and take all such other actions in connection
therewith in order to expedite or facilitate the offering or
disposition of the Notes included in the Shelf Registration
Statement, including, but not limited to, furnishing to the Initial
Purchasers and each Holder of any Notes included in the Shelf
Registration Statement, in such substance and scope as they may
request and as are customarily made by issuers to underwriters in
primary underwritten offerings, upon the date of the effectiveness
of the Shelf Registration Statement:
(1) a certificate, dated the date of effectiveness
of the Shelf Registration Statement, signed by (x) the
president or chief executive officer of the Company and
(y) the chief financial officer or the principal
financial or accounting officer of the Company,
confirming, as of the date thereof, that the Shelf
Registration Statement and the related Prospectus do not
contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein
or necessary to make the statements therein not
misleading and as to such other matters as such parties
may reasonably request;
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(2) opinions, dated the date of effectiveness of
the Shelf Registration Statement, of outside counsel for
the Company, covering such matters as are customarily
included in opinions to underwriters in primary
underwritten offerings and as are reasonably requested
by such parties; and
(3) a customary comfort letter, dated as of the
date of effectiveness of the Shelf Registration
Statement, from the independent certified public
accountants of the Company, in customary form and
covering matters of the type customarily covered in
comfort letters by underwriters in connection with
primary underwritten offerings, and addressing, to the
extent relevant, the matters set forth in the Initial
Letters (as defined in the Purchase Agreement) delivered
pursuant to the Purchase Agreement;
(B) in the case of an underwriting agreement entered
into in connection with a Shelf Registration, set forth in
full indemnification provisions and procedures substantially
in the form of those set forth in Section 7 hereof with
respect to all parties required to be indemnified pursuant to
such Section 7; and
(C) deliver such other documents and certificates as may
be reasonably requested by such parties to evidence compliance
with clause (A) above.
(xv) prior to any public offering of any Notes pursuant to a
Shelf Registration Statement, (A) cooperate with the selling Holders
participating in a Shelf Registration, and their respective counsel,
in connection with the registration and qualification of the Notes
under the securities or Blue Sky laws of such jurisdictions as the
selling Holders may request, and (B) do any and all other acts or
things necessary or advisable to enable the offering or disposition
in such jurisdictions of the Notes, as the case may be, covered by
the Shelf Registration Statement; except that in no event shall the
Company be obligated in connection therewith to qualify as a foreign
corporation or to execute a general consent to service of process or
to take any other action that would subject it to service of process
in suits in any jurisdiction other than those arising out of the
offering or sale of Notes in such jurisdiction pursuant to such
Registration Statement;
(xvi) to the extent that any Notes are held in certificated
form and are not represented by global certificates, cooperate with
the holders of such Notes, in connection with the Registered
Exchange Offer, to include an aggregate principal amount of such
Notes in a global certificate representing the Registered Notes,
and, to the extent that any Notes or Registered Notes are not
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eligible to be held in book-entry form, prepare and deliver Notes or
Registered Notes in certificated form as the Holders may request;
provided, in either case, that the Company will cooperate with
participating Broker Dealers (in the case of a Registered Exchange
Offer) and any Holders selling Notes pursuant to a Shelf
Registration Statement, to facilitate the timely delivery of such
certificates (whether in book-entry or certificated form as provided
above) representing such Registered Notes or Notes, as the case may
be, to be sold which do not bear any restrictive legends (other than
any customary legend required by the applicable depository or any
legend that would be required by a Note or Registered Note held by
an affiliate of the Company);
(xvii) use its best efforts to cause the Notes or Registered
Notes covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities (except
as may be required solely as consequence of a Holder's business) as
may be necessary to enable the Consummation of the Registered
Exchange Offer or, in the case of a Shelf Registration, as may be
applicable to the Company with respect to filing and having declared
effective the Shelf Registration Statement;
(xviii) obtain appropriate CUSIP numbers for each series of
Registered Notes not later than the effective date of the
Registration Statement and provide the Trustee with printed
certificates for the Notes or Registered Notes, as the case may be,
in a form eligible for deposit with The Depository Trust Company, or
with Xxxxxx Guaranty Trust Company of New York, Brussels Office, as
operator of the Euroclear System and Cedel Bank, societe anonyme;
(xix) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make
generally available to its security holders, as soon as practicable,
an earnings statement meeting the requirements of Rule 158 (which
need not be audited) covering a period of at least 12 months
beginning after the effective date of a Registration Statement; and
(xx) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
required to be filed by this Agreement, and, in connection
therewith: (A) 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 (B) execute, and use all reasonable 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.
The Initial Purchasers, each Holder of Notes included in a Shelf
Registration Statement and each Participating Broker-Dealer using the Prospectus
included in the Exchange Offer Registration Statement for the resale of
Registered Notes, by its acquisition of a Note or
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a Registered Note, agrees that, upon receipt of any notice from the Company of
the existence of any fact or event of the kind described in Section
4(c)(iii)(E), the Initial Purchasers, Holder or Participating Broker-Dealer will
forthwith discontinue disposition of the Notes or the Registered Notes, as
applicable, and suspend the use of the Prospectus until the Initial Purchasers,
Holder or Participating Broker-Dealer have received copies of a supplemented or
amended Prospectus as contemplated by Section 4(c)(ix), 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. If so directed by the Company, the Initial
Purchasers, each such selling Holder of Notes or each such Participating
Broker-Dealer, as the case may be, will deliver to the Company (at the expense
of the Company) all copies, other than permanent file copies then in such
Holder's, Initial Purchaser's or Participating Broker-Dealer's possession, of
the Prospectus covering such Notes or Registered Notes, as applicable, that was
current at the time of receipt of such notice.
Section 5. Hold-Back Agreements.
The Company agrees, without the prior written consent of Bear,
Xxxxxxx & Co. Inc., not to effect any public or private sale or distribution
(including a sale pursuant to Regulation D under the Securities Act) of any
securities the same as or similar to those covered by a Registration Statement
filed pursuant to Section 2 or 3 hereof, or any securities convertible into or
exchangeable or exercisable for such securities, from the date of this Agreement
at any time within 180 calendar days after the Issue Date.
Section 6. Registration Expenses.
All expenses incident to the Company's performance of or compliance
with its obligations under Sections 2, 3 and 4 of this Agreement will be borne
by the Company regardless of whether a Registration Statement becomes effective,
and, in the case of a Shelf Registration Statement, the Company will reimburse
the Holders covered thereby for the reasonable fees and disbursements of one
counsel, who shall be Xxxxx, Day, Xxxxxx & Xxxxx, unless another firm shall be
designated by the Holders of a majority of the principal amount of the Notes or
such Registered Notes included in any such Registration Statement.
Section 7. Indemnification and Contribution.
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(a) In connection with any Registration Statement, the Company
agrees to indemnify and hold harmless (i) each of the Initial Purchasers,
each Participating Broker-Dealer and each Holder of Notes to be included
in such Registration Statement, (ii) each person, if any, who controls
(within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act) such Initial Purchaser, Participating Broker-Dealer or
Holder (any of the persons referred to in this clause (ii) being
hereinafter referred to as a "controlling person") and (iii) the
respective officers, directors, partners, employees, representatives and
agents of any such Initial Purchaser, Participating Broker-Dealer or
Holder or controlling person (any person referred to in clause (i), (ii)
or (iii) may hereinafter be referred to as an "Indemnified Holder") from
and against any and all losses, liabilities, claims, damages and expenses
whatsoever as incurred (including, but not limited to, reasonable
attorneys' fees and any and all reasonable expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and, subject to Section 7(c), any and
all amounts paid in settlement of any claim or litigation), jointly or
severally, to which any such Indemnified Holder may become subject under
the Securities Act, the Exchange Act or otherwise (collectively,
"Losses"), insofar as such Losses (or actions or proceedings in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any Registration
Statement 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, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company will not be liable in any such case to
the extent, but only to the extent, that any such Loss (or action or
proceeding in respect thereof) arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission
from the Registration Statement or Prospectus contained therein made in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Indemnified Holder expressly for use
therein. This indemnity obligation will be in addition to any liability
which the Company may otherwise have to such Indemnified Holder, including
under this Agreement.
(b) The Company hereby also agrees that in connection with any
underwritten offering of Transfer Restricted Securities pursuant to
Section 3, the Company will also indemnify any underwriters, selling
brokers, dealers and similar securities industry professionals
participating in the distribution, their officers, directors, employees,
agents, advisors and representatives, and each controlling person thereof,
substantially to the same extent as provided in Section 7(a) with respect
to the indemnification of the Initial Purchasers and Holder of Transfer
Restricted Securities (and such Persons will indemnify the Company and
each controlling person thereof to the same extent as provided in Section
7(c)).
(c) Each Initial Purchaser will, severally and not jointly,
indemnify and hold harmless the Company, each of the directors of the
Company, each of the officers of the Company and each other person, if
any, who controls the Company (within the
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meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) against any Losses to which they or any of them may become subject
under the Securities Act, the Exchange Act or otherwise, from and against
any Losses insofar as such Losses (or actions or proceedings in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any Registration
Statement or Prospectus contained therein or any amendment or supplement
thereto or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, but in each case only to the extent that the untrue statement
or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Initial Purchaser specifically for use
therein, and shall reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or
preparing to defend or defending against or appearing as third party
witness in connection with any such Loss as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection
(a) or (c) of this Section 7 of notice of the commencement of any claim or
action, such indemnified party shall, if a claim in respect thereof is to
be made against the indemnifying party under such subsection, notify each
party against whom indemnification is to be sought in writing of the
commencement thereof (but the failure so to notify an indemnifying party
shall not relieve it from any liability which it may have under this
Section 7 or otherwise). In case any claim or such action is brought
against any indemnified party, and such indemnified party notifies an
indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate in the defense thereof, and to the extent
such indemnifying party may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party to assume the defense thereof with counsel satisfactory
to such indemnified party. Notwithstanding the foregoing, the indemnified
party or parties shall have the right to employ its or their own counsel
in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (a) the employment
of such counsel shall have been authorized in writing by one of the
indemnifying parties in connection with the defense thereof, (b) the
indemnifying parties shall not have employed counsel to have charge of the
defense thereof within a reasonable time after notice of commencement of
the action, or (c) such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them which are
different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not
have the right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events such fees and
expenses shall be borne by the indemnifying parties (it being understood,
however, that the indemnifying party shall not be liable for the expenses
of more than one separate counsel and one additional local counsel for
each relevant jurisdiction). Anything in this subsection to the contrary
notwithstanding, an indemnifying party shall not be liable for any
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settlement of any claim or action effected without its written consent
(which consent may not be unreasonably withheld). No indemnifying party
shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which
any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party
from all liability or claims that are the subject matter of such
proceeding.
(e) If the foregoing indemnification is unavailable or insufficient
to an indemnified party for any reason in respect to any Losses or
reimbursable expenses referred to therein, then in lieu of
indemnification, each indemnifying party shall contribute to the amount
paid or payable, including expenses, by such indemnified party in such
proportion as is appropriate to reflect the relative benefits received (or
anticipated to be received) by the indemnifying party or parties on the
one hand and the indemnified party on the other from the offering of the
Notes or Registered Notes, as the case may be, or, if such allocation is
not permitted by applicable law, then in such proportion as is appropriate
to reflect not only the relative benefits received (or anticipated to be
received) but also the relative fault of each of the parties in connection
with the statements or omissions or alleged statements or omissions that
resulted in such Losses, as well as any other relevant equitable
considerations. The relative fault of the parties shall be determined by
reference to, among other things: (i) whether any losses, claims, damages
or liabilities relate to information supplied by the Company or such
Holder of Notes or such other indemnified person, as the case may be; (ii)
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission; and (iii)
any other equitable considerations appropriate in the circumstances. The
Company and each indemnified party agrees that it would not be just and
equitable if the amount of such contribution were determined by pro rata
allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the first sentence of
this paragraph (e). Notwithstanding any other provision of this paragraph
(e), the Holders of the Notes or Registered Notes shall not be obligated
to make contributions hereunder in any amount in excess of the amount by
which the net proceeds received by such Holders from the sale of the Notes
exceeds the amount of damages which such Holders have otherwise been
required to pay in respect of the same or any substantially similar claim,
and no person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
The obligations of the Holders to contribute pursuant to this Section 7(e)
are several in proportion to the respective principal amount of Notes or
Registered Notes held by each of the Holders hereunder and not joint. For
purposes of this Section 7(e), each director, officer, employee and agent
of any indemnified party and each person, if any, who controls such
indemnified party (within the meaning of Section 15 of the Securities Act
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or Section 20 of the Exchange Act) shall have the same rights to
contribution as such indemnified party and each director and officer of
the Company, and each person, if any, who controls the Company (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) shall have the same rights to contribution as the Company.
(f) The foregoing provisions are in addition to any rights that an
indemnified party may have at common law or otherwise. The agreements
contained in this Section 7 shall survive the sale of the Notes or the
Registered Notes pursuant to a Registration Statement and shall remain in
full force and effect, regardless of any termination or cancellation of
this Agreement or any investigation made by or on behalf of any
indemnified party.
Section 8. Liquidated Damages.
The Company and the Initial Purchasers agree that the Holders of
Transfer Restricted Securities will suffer damages if the Company fails to
fulfill its obligations under this Agreement and that it would not be feasible
to ascertain the extent of such damages with precision. Accordingly, in the
event that, for any reason whatsoever: (a) the Company fails to file any of the
Registration Statements required by this Agreement on or before the date
specified for such filing; (b) any of such Registration Statements is not
declared effective by the Commission on or prior to the date specified for such
effectiveness (the "Effectiveness Target Date"); (c) the Company fails to
consummate the Exchange Offer within 30 Business Days of the Effectiveness
Target Date with respect to the Exchange Offer Registration Statement; or (d)
the Shelf Registration Statement or the Exchange Offer Registration Statement is
declared effective but thereafter ceases to be effective or usable in connection
with resales of Transfer Restricted Securities during the periods specified in
this Agreement (each such event referred to in clauses (a) through (d) above a
"Registration Default"), then the Company will pay liquidated damages
("Liquidated Damages") to each Holder of Notes, with respect to the first 90
calendar day period, or any portion thereof, immediately following the
occurrence of a Registration Default, in an amount equal to 50 basis points per
annum of the principal amount of Notes held by such Holder. The amount of the
Liquidated Damages will increase by an additional 50 basis points per annum of
the principal amount of Notes with respect to each subsequent 90 calendar day
period, or any portion thereof, until all Registration Defaults have been cured,
up to a maximum amount of Liquidated Damages of 200 basis points per annum of
the principal amount of Notes. At such time as no Registration Default is
continuing, the accrual of Liquidated Damages will cease. In the event of any
Registration Default, the Company will provide notice to the Trustee of such
Registration Default, and will cause the Trustee to provide appropriate notice
thereof and of the imposition of the related Liquidated Damages to the Holders
of the Notes.
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Section 9. Rule 144.
The Company agrees that to the extent it shall be required to do so
under the Exchange Act, the Company shall timely file the reports required to be
filed by it under the Exchange Act or the Securities Act (including, but not
limited to, the reports under Section 13 and 15(d) of the Exchange Act referred
to in subparagraph (c)(1) of Rule 144 under the Securities Act), and shall take
such further action as any Holder of Transfer Restricted Securities may
reasonably request, all to the extent required from time to time to enable such
Holder to sell Transfer Restricted Securities without registration under the
Securities Act within the limitations of the exemptions provided by Rule 144, as
such Rule may be amended from time to time, or any similar or successor rule or
regulation hereafter adopted by the Commission. Upon the request of any Holder
of Transfer Restricted Securities in connection with the Holder's sale pursuant
to Rule 144, the Company shall deliver to such Holder a written statement as to
whether it has complied with such requirements.
Section 10. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the Company
has obtained the written consent of Holders of a majority in aggregate
principal amount of Transfer Restricted Securities; provided that the
provisions of Section 7 of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
thereof may not be given, unless the Company has obtained the written
consent of each Indemnified Holder adversely affected thereby.
(b) No Inconsistent Agreements. The Company will not, 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. The
rights granted to the Holders hereunder are not inconsistent with the
rights granted to the holders of the Company's securities under any
agreement in effect on the date hereof.
(c) 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), or courier
guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the Registrar under the Indenture, with a copy to the Registrar
under the Indenture; and
(ii) if to the Initial Purchasers or the Company, at their
respective addresses set forth in the Purchase Agreement.
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All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three
Business Days after being deposited in the mail, postage prepaid, if
mailed; and on the day delivered, if sent by overnight air courier
guaranteeing next day 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.
(d) 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.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK FOR CONTRACTS MADE
AND TO BE FULLY PERFORMED IN SUCH STATE AND WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS THEREOF.
(h) Submission to Jurisdiction. (i) The Company:
(x) irrevocably submits to the jurisdiction of any New York
State or federal court sitting in New York City and any appellate
court from any thereof in any action or proceeding arising out of or
relating to this Agreement or any other document delivered
hereunder;
(y) irrevocably agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York
State court or in such federal court; and
(z) irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such
action or proceeding and irrevocably consents, to the fullest extent
permitted by law, to service of process of any of the aforementioned
courts in any such action or proceeding by the mailing of copies
thereof by registered or certified mail,
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postage prepaid, to the Company at its address as provided in
Section 10(c) of this Agreement, such service to become effective
five days after such mailing;
(ii) Nothing in this Section shall affect the right of any
person to serve legal process in any other manner permitted by law or
affect the right of any person to bring any action or proceeding against
the Company or their properties in the courts of other jurisdictions.
(i) 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 the remaining provisions contained herein shall not, to the fullest
extent permitted by law, be affected or impaired thereby.
(j) Third Party Beneficiaries. Holders of the Notes and Registered
Notes and each Indemnified Holder are intended third party beneficiaries
of this Agreement and this Agreement may be enforced by such persons.
(k) Joinder. If any entity shall become a Restricted Subsidiary (as
defined in the Indenture) after the date of this Agreement, then such
Restricted Subsidiary shall become a party to this Agreement by the
execution of a joinder to this Agreement pursuant to which such Restricted
Subsidiary shall be obligated to the same extent as the Company hereunder.
(l) Entire Agreement. This Agreement, together with the Purchase
Agreement, is intended by the parties as a final expression of their
agreement and is 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 by the Company
with respect to the Transfer Restricted Securities. This Agreement
supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
PLAINWELL INC.
By:__________________________________
Name:
Title:
BEAR, XXXXXXX & CO. INC.
By:__________________________________
Name:
Title:
SALOMON BROTHERS INC
By:__________________________________
Name:
Title:
