EXHIBIT 4.1
EXECUTION VERSION
REGISTRATION RIGHTS AGREEMENT
by and among
SOLO CUP COMPANY, A DELAWARE CORPORATION
and
THE GUARANTORS LISTED ON SCHEDULE A HERETO
and
BANC OF AMERICA SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
XXXXXX XXXXXXX CORP.
ABN AMRO INCORPORATED
RABO-SECURITIES USA, INC.
TOKYO-MITSUBISHI INTERNATIONAL PLC
Dated as of February 27, 2004
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and entered
into as of February 27, 2004, by and among Solo Cup Company, a Delaware
corporation (the "Company"), the Guarantors listed on Schedule A hereto, if any,
and any Guarantors which may from time to time become party hereto, if any, by
executing a Registration Rights Joinder Agreement, a form of which is attached a
Exhibit A hereto (collectively, the "Guarantors"), and Banc of America
Securities LLC, Citigroup Global Markets Inc., Xxxxxx Xxxxxxx Corp., ABN AMRO
Incorporated, Rabo-Securities USA, Inc. and Tokyo-Mitsubishi International plc
(each an "Initial Purchaser" and, collectively, the "Initial Purchasers"), each
of whom has agreed to purchase the Company's 8 1/2% Senior Subordinated Notes
due 2014 (the "Initial Notes") pursuant to the Purchase Agreement (as defined
below).
This Agreement is made pursuant to the Purchase Agreement, dated as of
February 12, 2004 (the "Purchase Agreement"), by and among the Company, the Solo
Guarantors (as defined therein) and the Initial Purchasers (i) for the benefit
of each Initial Purchaser and (ii) for the benefit of the holders from time to
time of the Notes (including each Initial Purchaser). In order to induce the
Initial Purchasers to purchase the Initial Notes, the Company has agreed to
provide the registration rights set forth in this Agreement. The execution and
delivery of this Agreement is a condition (as set forth in Section 5(h) of the
Purchase Agreement) to the obligations of the Initial Purchasers to pay for and
purchase Securities (as defined in the Purchase Agreement) set forth in Section
2 of 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:
BUSINESS DAY: Any day except a Saturday, Sunday or other day that in the
City of New York, or in the city of the corporate trust office of the Trustee,
banks are authorized to close.
BROKER-DEALER: Any broker or dealer registered under the Exchange Act.
CLOSING DATE: The date of this Agreement.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: A registered Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the Securities Act of the Exchange Offer Registration
Statement relating to the Exchange Notes to be issued in the Exchange Offer,
(ii) 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 (iii) the delivery by the
Company to the Registrar under the Indenture of Exchange Notes in the same
aggregate principal amount as the aggregate principal amount of Initial Notes
that were tendered by Holders thereof pursuant to the Exchange Offer.
EFFECTIVENESS TARGET DATE: As defined in Section 5 hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE NOTES: The 8 1/2% Senior Subordinated Notes due 2014, of the same
series under the Indenture as the Initial Notes, to be issued to Holders in
exchange for Transfer Restricted Securities pursuant to this Agreement.
EXCHANGE OFFER: The registration by the Company under the Securities Act of
the Exchange Notes pursuant to a Registration Statement pursuant to which the
Company offers the Holders of all outstanding Transfer Restricted Securities the
opportunity to exchange all such outstanding Transfer Restricted Securities held
by such Holders for Exchange Notes in an aggregate principal amount equal to the
aggregate principal amount of the Transfer Restricted Securities tendered in
such exchange offer by such Holders.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement relating
to the Exchange Offer, including the related Prospectus.
EXEMPT RESALES: The transactions in which the Initial Purchasers propose to
sell the Initial Notes to certain "qualified institutional buyers," as such term
is defined in Rule 144A under the Securities Act, and to certain non-U.S.
persons pursuant to Regulation S under the Securities Act.
HOLDERS: As defined in Section 2(b) hereof.
INDEMNIFIED HOLDER: As defined in Section 8(a) hereof.
INDENTURE: The Indenture, dated as of February 27, 2004, among the Company,
the Guarantors named therein and U.S. Bank National Association, as trustee (the
"Trustee"), pursuant to which the Notes are to be issued, as such Indenture is
amended or supplemented from time to time in accordance with the terms thereof.
INITIAL NOTES: As defined in the preamble hereto.
INITIAL PLACEMENT: The issuance and sale by the Company of the Initial
Notes to the Initial Purchasers pursuant to the Purchase Agreement.
INITIAL PURCHASER: As defined in the preamble hereto.
INTEREST PAYMENT DATE: As defined in the Indenture and the Notes.
LIQUIDATED DAMAGES: As defined in Section 5 hereof.
LIQUIDATED DAMAGES PAYMENT DATE: With respect to the Initial Notes, each
Interest Payment Date.
NASD: National Association of Securities Dealers, Inc.
NOTES: The Initial Notes and the Exchange Notes.
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PERSON: An individual, partnership, corporation, trust or unincorporated
organization, or a government or agency or political subdivision thereof.
PROSPECTUS: The prospectus included in a Registration Statement, as amended
or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the Company relating
to (a) an offering of Exchange Notes pursuant to an Exchange Offer or (b) the
registration for resale of Transfer Restricted Securities pursuant to the Shelf
Registration Statement, in each case, which is filed pursuant to the provisions
of this Agreement and including the Prospectus included therein, all amendments
and supplements thereto (including post-effective amendments) and all exhibits
and material incorporated by reference therein.
SECURITIES ACT: The Securities Act of 1933, as amended.
SHELF FILING DEADLINE: As defined in Section 4 hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 4 hereof.
TRANSFER RESTRICTED SECURITIES: Each Initial Note, until the earliest to
occur of (a) the date on which such Initial Note is exchanged by a person other
than a Broker-Dealer in the Exchange Offer, (b) following the exchange by a
Broker-Dealer in the Exchange Offer of a Note for an Exchange Note, the date on
which such Exchange Note is sold to a purchaser who receives from such
Broker-Dealer on or prior to the date of such sale a copy of the prospectus
contained in the Exchange Offer Registration Statement; (c) the date on which
such Initial Note has been effectively registered under the Securities Act and
disposed of in accordance with a Shelf Registration Statement, (d) the date on
which such Initial Note is distributed to the public pursuant to Rule 144 under
the Securities Act or is saleable pursuant to Rule 144(k) under the Securities
Act (or similar provisions then in effect) and (e) the date such Initial Note
ceases to be outstanding.
TRUST INDENTURE ACT: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa 77bbbb) as in effect on the date of the Indenture.
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A registration in which
securities of the Company are sold to an underwriter for reoffering to the
public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT.
(a) TRANSFER RESTRICTED SECURITIES. The securities subject to the benefits
of this Agreement are the Transfer Restricted Securities.
(b) HOLDERS OF TRANSFER RESTRICTED SECURITIES. A Person is deemed to be a
holder of Transfer Restricted Securities (each, a "Holder") whenever such Person
owns Transfer Restricted Securities.
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SECTION 3. REGISTERED EXCHANGE OFFER.
(a) Unless the Exchange Offer shall not be permissible under applicable law
or Commission policy (after the procedures set forth in Section 6(a) below have
been complied with), the Company and the Guarantors shall (i) cause the Exchange
Offer Registration Statement to be filed with the Commission on or prior to 120
days after the Closing Date, (ii) use their commercially reasonable efforts to
cause the Exchange Offer Registration Statement to become effective on or prior
to 210 days after the Closing Date, (iii) in connection with the foregoing, use
their commercially reasonable efforts (A) to file all pre-effective amendments
to such Registration Statement as may be necessary in order to cause such
Exchange Offer Registration Statement to become effective, (B) to file, if
applicable, a post-effective amendment to such Exchange Offer Registration
Statement pursuant to Rule 430A under the Securities Act and (C) to cause all
necessary filings in connection with the registration and qualification of the
Exchange 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 connection therewith
to register or qualify as a foreign corporation, foreign limited liability
company or other foreign entity where it is not then so qualified or take any
action that would subject it to taxation or require it to file a general consent
to service for process in any jurisdiction where it is not then so subject; and
(iv) upon the effectiveness of such Exchange Offer Registration Statement,
commence the Exchange Offer. The Exchange Offer shall be on the appropriate form
permitting registration of the Exchange Notes to be offered in exchange for the
Transfer Restricted Securities and to permit resales of Transfer Restricted
Securities held by Broker-Dealers as contemplated by Section 3(c) below.
(b) The Company and the Guarantors shall use their commercially reasonable
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 to Consummate the Exchange Offer; PROVIDED, HOWEVER, that in no event shall
such period be less than 20 Business Days after the date notice of the Exchange
Offer is mailed to the Holders. 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 Exchange Notes shall be included in the Exchange
Offer Registration Statement. The Company and the Guarantors shall use their
commercially reasonable efforts to cause the Exchange Offer to be Consummated as
soon as reasonably practicable after the Exchange Offer Registration Statement
has become effective, but in no event later than 30 Business Days after the
Exchange Offer Registration Statement has become effective.
(c) The Company shall indicate in a "Plan of Distribution" section
contained in the Prospectus forming a part of the Exchange Offer Registration
Statement that any Broker-Dealer who holds Initial Notes that are Transfer
Restricted Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company), may exchange such
Initial Notes pursuant to the Exchange Offer; however, such Broker-Dealer may be
deemed to be an "underwriter" within the meaning of the Securities Act and must,
therefore, deliver a prospectus meeting the requirements of the Securities Act
in connection with any resales of the Exchange Notes received by such
Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may
be satisfied by the delivery by such Broker-Dealer of the Prospectus contained
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in the Exchange Offer Registration Statement. Such "Plan of Distribution"
section shall also contain all other information with respect to such resales by
Broker-Dealers that the Commission may require in order to permit such resales
pursuant thereto, but such "Plan of Distribution" shall not name any such
Broker-Dealer or disclose the amount of Notes held by any such Broker-Dealer
except to the extent required by the Commission as a result of a change in
policy, rules or regulations after the date of this Agreement.
Subject to Section 6(d) hereof, the Company and the Guarantors shall use
their commercially reasonable 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 resales of Notes acquired by Broker-Dealers for their own accounts
as a result of market-making activities or other trading activities, and to
ensure that it conforms with the requirements of this Agreement, the Securities
Act and the policies, rules and regulations of the Commission as announced from
time to time, for a period ending on the earlier of (i) 180 days from the date
on which the Exchange Offer Registration Statement is declared effective and
(ii) the date on which a Broker-Dealer is no longer required to deliver a
prospectus in connection with market-making or other trading activities;
PROVIDED, HOWEVER, that any such Broker-Dealer desiring the Company and the
Guarantors to keep the Exchange Offer Registration Statement continuously
effective shall notify the Company in writing that such Broker-Dealer acquired
Transfer Restricted Securities (other than from the Company or any Affiliate of
the Company) as a result of market-making or other similar activities such that
the Broker-Dealer would be required to deliver a prospectus under the Securities
Act upon a subsequent sale or other disposition of the Exchange Notes.
The Company and the Guarantors shall provide sufficient copies of the
latest version of such Prospectus to Broker-Dealers promptly upon request at any
time during such 180-day (or shorter as provided in the foregoing sentence)
period in order to facilitate such resales.
SECTION 4. SHELF REGISTRATION.
(a) SHELF REGISTRATION. If (i) the Company and the Guarantors are not
required to file an Exchange Offer Registration Statement or to consummate the
Exchange Offer because the Exchange Offer is not permitted by applicable law or
Commission policy (after the procedures set forth in Section 6(a) below have
been complied with), (ii) for any reason the Exchange Offer is not Consummated
within 30 Business Days after the Effectiveness Target Date with respect to the
Exchange Offer Registration Statement or (iii) any Holder of Transfer Restricted
Securities shall notify the Company in writing prior to the 20th day following
the consummation of the Exchange Offer that (A) such Holder is prohibited by
applicable law or Commission policy from participating in the Exchange Offer,
(B) such Holder may not resell the Exchange Notes acquired by it in the Exchange
Offer to the public without delivering a prospectus and that the Prospectus
contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales by such Holder or (C) such Holder is a Broker-Dealer
and holds Initial Notes acquired directly from the Company or one of its
affiliates, then the Company and the Guarantors shall:
(x) cause to be filed a shelf registration statement pursuant to Rule
415 under the Securities Act, which may be an amendment to the Exchange
Offer Registration Statement (in either event, the "Shelf Registration
Statement"), as soon as practicable but
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in any event on or prior to 90 days after the filing obligation arises
(such date being the "Shelf Filing Deadline"), which Shelf Registration
Statement shall provide for the resale of all Transfer Restricted
Securities the Holders of which shall have provided the information
required pursuant to Section 4(b) hereof; and
(y) use their commercially reasonable efforts to cause such Shelf
Registration Statement to be declared effective by the Commission on or
before the 180th day after such filing obligation arises (but in no event
earlier than the Company's and the Guarantors' obligation with respect to
the Exchange Offer Registration Statement).
Subject to Section 6(d) hereof, the Company and the Guarantors shall use
their commercially reasonable efforts to keep such 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 resales 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 Securities Act and the
policies, rules and regulations of the Commission as announced from time to
time, for a period until the earlier of (i) the expiration of the period
referred to in Rule 144(k) under the Securities Act (or any successor rule) with
respect to the Transfer Restricted Securities or (ii) such shorter period that
will terminate when all the Notes covered by such Shelf Registration Statement
have been sold pursuant to such Shelf Registration Statement.
(b) PROVISION BY HOLDERS OF CERTAIN INFORMATION IN CONNECTION WITH THE
SHELF REGISTRATION STATEMENT. No Holder of 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 furnishes to
the Company in writing, within 20 Business Days after receipt of a request
therefor, such information as the Company may reasonably request, including the
information specified in Item 507 or 508 of Regulation S-K as applicable of the
Securities Act, for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein. No Holder of Transfer
Restricted Securities shall be entitled to Liquidated Damages pursuant to
Section 5 hereof unless and until such Holder shall have provided all such
information (it being understood that Liquidated Damages shall not accrue for
the benefit of any Holder until such Holder provides such information. Each
Holder as to which any Shelf Registration Statement is being effected agrees 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.
By acquiring the Initial Notes or the Exchange Notes, each Holder agrees to
provide the indemnity set forth in Section 8(b) hereof with respect to the
information such Holder furnishes to the Company in writing expressly for use in
any Shelf Registration Statement.
SECTION 5. LIQUIDATED DAMAGES. If (i) any of the Registration Statements
required by this Agreement is not filed with the Commission on or prior to the
date specified for such filing in this Agreement, (ii) any of such Registration
Statements has not been declared effective by the Commission on or prior to the
date specified for such effectiveness in this Agreement (the "Effectiveness
Target Date"), (iii) the Exchange Offer has not been Consummated within 30
Business Days after the Effectiveness Target Date with respect to the Exchange
Offer
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Registration Statement or (iv) any Registration Statement required by this
Agreement is filed and declared effective but shall thereafter cease to be
effective or fail to be usable for its intended purpose during the periods
specified in this Agreement for effectiveness without being succeeded within two
business days by a post-effective amendment to such Registration Statement that
cures such failure and that is itself immediately declared effective; PROVIDED,
THAT, with respect to a Registration Statement that the Company and the
Guarantors are required to keep effective pursuant to Section 3(c) or Section 4
hereof, the Company may suspend such Registration Statement pursuant to Section
6(d) hereof without such suspension giving rise to a Registration Default (as
defined below), so long as (A) the Company does not suspend the Shelf
Registration Statement more than twice in any consecutive twelve-month period,
(B) no such suspension exceeds 60 days and (C) such suspensions do not exceed 90
days in the aggregate in any consecutive twelve-month period (each such event
referred to in clauses (i) through (iv), a "Registration Default"), then the
Company hereby agrees to pay to each Holder of Transfer Restricted Securities
liquidated damages ("Liquidated Damages") in an amount equal to one-quarter of
one percent (0.25%) per annum on the principal amount of Transfer Restricted
Securities held by such Holder during the 90-day period immediately following
the occurrence of any Registration Default, which amount shall increase by an
additional one-quarter of one percent (0.25%) per annum at the end of each
subsequent 90-day period, until all Registration Defaults have been cured, up to
a maximum amount of Liquidated Damages for all Registration Defaults of 1.00%
per annum; PROVIDED that the Company shall in no event be required to pay
Liquidated Damages with respect to more than one Registration Default at any
given time. Following the cure of all Registration Defaults relating to any
particular Notes, the Liquidated Damages payable with respect to such Notes will
cease; PROVIDED, HOWEVER, that, if after any cessation, a different Registration
Default exists or occurs, Liquidated Damages shall again accrued and be paid as
provided in the immediately preceding sentence with respect to the relevant
Transfer Restricted Securities unless and until the different Registration
Default has been cured.
All Liquidated Damages accrued pursuant to this Section 5 shall be paid to
the Holders entitled thereto, in the manner provided for the payment of interest
in the Indenture, on each Interest Payment Date, as more fully set forth in the
Indenture and the Notes. All obligations of the Company and the Guarantors set
forth in the preceding paragraph that are outstanding with respect to any
Transfer Restricted Security at the time such security ceases to be a Transfer
Restricted Security shall survive until such time as all such obligations with
respect to such Note shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES.
(a) EXCHANGE OFFER REGISTRATION STATEMENT. In connection with the Exchange
Offer, the Company and the Guarantors shall comply with all of the provisions of
Section 6(c) and (d) below, shall use their commercially reasonable efforts to
effect such exchange to permit the sale of Transfer Restricted Securities being
sold in accordance with the intended method or methods of distribution thereof,
and shall comply with all of the following provisions:
(i) If in the reasonable opinion of counsel to the Company there is a
serious question as to whether the Exchange Offer is permitted by
applicable law or Commission policy, the Company and the Guarantors hereby
agree to seek a no-action letter or other
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favorable decision from the Commission allowing the Company and the
Guarantors to Consummate an Exchange Offer for such Initial Notes. The
Company and the Guarantors each hereby agrees to pursue the issuance of
such a decision to the Commission staff level, but shall not be required to
take commercially unreasonable action to effect a change of Commission
policy or otherwise obtain such no-action letter or other favorable
decision. The Company and the Guarantors each hereby agrees, however, to
(A) participate in telephonic conferences with the Commission, (B) deliver
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 pursue 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 (including, without limitation, any Holder who is a
Broker-Dealer) shall furnish, upon the request of the Company, prior to the
Consummation of the Exchange Offer, a 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 (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 Exchange Notes to be issued in the
Exchange Offer, (C) it is acquiring the Exchange Notes in its ordinary
course of business, (D) it is not acting on behalf of any person who could
not truthfully make the foregoing representations and (E) such other
representations as may be necessary under applicable Commission rules,
regulations or interpretations. In addition, all such Holders of Transfer
Restricted Securities shall otherwise cooperate in the Company's
preparations for the Exchange Offer. Each Holder hereby acknowledges and
agrees that any Broker-Dealer and any such Holder using the Exchange Offer
to participate in a distribution of the securities to be acquired in the
Exchange Offer (1) could not, under Commission policy as in effect on the
date of this Agreement, rely on the position of the Commission enunciated
in Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and Exxon Capital
Holdings Corporation (available May 13, 1988), as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993, and similar
no-action letters (which may include any no-action letter obtained pursuant
to clause (i) above), and (2) must comply with the registration and
prospectus delivery requirements of the Securities 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 or 508, as
applicable, of Regulation S-K if the resales are of Exchange Notes obtained
by such Holder in exchange for Initial Notes acquired by such Holder
directly from the Company or any affiliate of the Company.
(b) SHELF REGISTRATION STATEMENT. In connection with the Shelf Registration
Statement, the Company and the Guarantors shall comply with all the provisions
of Section 6(c) and (d) below and shall use their commercially reasonable
efforts to effect such registration to permit the sale of the Transfer
Restricted Securities being sold in accordance with the intended method or
methods of distribution thereof (as indicated in the information furnished to
the Company pursuant to Section 4(b) hereof), and pursuant thereto the Company
and the Guarantors will as
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expeditiously as possible prepare and file with the Commission a Registration
Statement relating to the registration on any appropriate form under the
Securities Act, which form shall be available for the sale of the Transfer
Restricted Securities in accordance with the intended method or methods of
distribution thereof.
(c) GENERAL PROVISIONS. In connection with any Registration Statement and
any Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities (including, without limitation, any Registration
Statement and the related Prospectus required to permit resales of Transfer
Restricted Securities by Broker-Dealers), the Company and the Guarantors shall:
(i) Subject to Section 6(d), use their commercially reasonable efforts
to keep such Registration Statement continuously effective and provide all
requisite financial statements (including, if required by the Securities
Act or any regulation thereunder, financial statements of the Guarantors)
for the period specified in Section 3 or 4 of this Agreement, as
applicable; upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to contain a
material misstatement or omission or (B) not to be effective and usable for
resale of Transfer Restricted Securities during the period required by this
Agreement, the Company and the Guarantors shall file promptly an
appropriate amendment to such Registration Statement, in the case of clause
(A), correcting any such misstatement or omission, and, in the case of
either clause (A) or (B), use their commercially reasonable efforts to
cause such amendment to be declared effective and such Registration
Statement and the related Prospectus to become usable for their intended
purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be
reasonably necessary to keep the Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, as applicable, or
such shorter period as will terminate when all Transfer Restricted
Securities covered by such Registration Statement have been sold; cause the
Prospectus to be supplemented by any required Prospectus supplement, and as
so supplemented to be filed pursuant to Rule 424 under the Securities Act,
and to comply fully with the applicable provisions of Rules 424 and 430A
under the Securities Act in a timely manner; and comply with the provisions
of the Securities 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) with respect to a Shelf Registration Statement, advise the
underwriter(s), if any, and selling Holders promptly and, if requested by
such Persons, to 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 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 Registration Statement or amendments or
supplements to the Prospectus or for additional information relating
thereto, (C) of the issuance by the Commission of any stop order suspending
the effectiveness of the
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Registration Statement under the Securities 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 or (D) of the existence of
any fact or the happening of any event that makes 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 untrue, 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 (it being understood that in the case of
clause (D), only the existence of the fact or event must be disclosed, and
the nature of the fact or event may be kept confidential for such period as
required for BONA FIDE business reasons). 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
commercially reasonable efforts to obtain the withdrawal or lifting of such
order at the earliest possible time;
(iv) furnish without charge to Banc of America Securities LLC (in its
capacity as representative of the Initial Purchasers), each selling Holder
named in any Registration Statement, and each of the underwriter(s), if
any, before filing with the Commission, copies of any Registration
Statement or any Prospectus included therein or any amendments or
supplements to any such Registration Statement or Prospectus (including all
documents incorporated by reference after the initial filing of such
Registration Statement), which documents will be subject to the review of
such Holders and underwriter(s) in connection with such sale, if any, for a
period of three Business Days, and the Company and any Guarantors will not
file any such Registration Statement or Prospectus or any amendment or
supplement to any such Registration Statement or Prospectus (including all
such documents incorporated by reference) to which an Initial Purchaser of
Transfer Restricted Securities covered by such Registration Statement or
the underwriter(s), if any, shall reasonably object in writing within three
Business Days after the receipt thereof (such objection to be deemed timely
made upon confirmation of facsimile transmission within such period). The
objection of an Initial Purchaser or underwriter, if any, shall be deemed
to be reasonable if such Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed, contains an untrue
statement of a material fact or omits to state a material fact necessary to
make the statements therein not misleading;
(v) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document to Banc of America Securities LLC (in its
capacity as representative of the Initial Purchasers), each selling Holder
named in any Registration Statement, and to the underwriter(s), if any,
make the Company's representatives available and representatives of the
Guarantors available for discussion of such document and other customary
due diligence matters, and include such information in such document prior
to the filing thereof as such selling Holders or underwriter(s), if any,
reasonably may request;
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(vi) with respect to a Shelf Registration Statement, make available
during reasonable business hours in the offices where such records are
normally maintained, for inspection by the Initial Purchasers, any managing
underwriter participating in any disposition pursuant to such Registration
Statement and any attorney or accountant retained by such Initial
Purchasers or any of the underwriter(s), all relevant financial and other
records, pertinent corporate documents and documents relating to relevant
properties of the Company and the Guarantors as may be reasonably necessary
for them to conduct a customary due diligence review subject to appropriate
confidentiality agreements and cause the Company's and the Guarantors'
officers, directors and employees to supply all information that is (a)
reasonably requested by any such 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 and (b) customarily furnished in transactions of
the type contemplated by such Registration Statement;
(vii) with respect to a Shelf Registration Statement, if requested by
any selling Holders or the underwriter(s), if any, promptly include,
through incorporation by reference or otherwise, in any Registration
Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such selling Holders and
underwriter(s), 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 underwriter(s), 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 reasonably practicable
after the Company is notified of the matters to be included in such
Prospectus supplement or post-effective amendment;
(viii) cause the Transfer Restricted Securities covered by the
Registration Statement to be rated by the appropriate rating agencies, if
so requested by the Holders of a majority in aggregate principal amount of
the Transfer Restricted Securities covered thereby or the underwriter(s),
if any;
(ix) furnish to each selling Holder and each of the underwriter(s), if
any, without charge, at least one copy of the Registration Statement, as
first filed with the Commission, and of each amendment thereto, including
financial statements and schedules, all documents incorporated by reference
therein and all exhibits (including exhibits incorporated therein by
reference);
(x) with respect to a Shelf Registration Statement, deliver to each
selling Holder and each of the underwriter(s), if any, 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 selling Holders and each of the underwriter(s), if any, in
connection with the offering and the sale of the Transfer Restricted
Securities covered by the Prospectus or any amendment or supplement
thereto;
11
(xi) in the case of a Shelf Registration Statement, upon request of
Holders who collectively hold an aggregate principal amount of Transfer
Restricted Securities in excess of 25% of the outstanding principal amount
of Transfer Restricted Securities (the "Requesting Holders"), enter into,
and cause the Guarantors to enter into, such agreements (including an
underwriting agreement containing customary terms), and make, and cause the
Guarantors to 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 contemplated by this Agreement, which Agreements
shall contain customary terms and be in customary form, all to such extent
as may be reasonably requested by any Initial Purchaser or by any Holder of
Transfer Restricted Securities or underwriter in connection with any sale
or resale pursuant to any Shelf Registration Statement contemplated by this
Agreement, and whether or not an underlying agreement is entered into and
whether or not the registration is an Underwritten Registration, the
Company and the Guarantors shall:
(A) upon the reasonable request of any Requesting Holder, furnish
to each Initial Purchaser, each selling Holder and each underwriter,
if any, in such substance and scope as are customarily made by issuers
to underwriters in primary underwritten offerings, upon the
effectiveness of the Shelf Registration Statement:
(1) a certificate, dated the date of effectiveness of the
Shelf Registration Statement, signed by (y) the President or any
Vice President and (z) a principal financial or accounting
officer of each of the Company and the Guarantors, confirming, as
of the date thereof, the matters, to the extent applicable, set
forth in paragraphs (i), (ii), (iii) and (iv) of Section 5 (e) of
the Purchase Agreement;
(2) an opinion, dated the date of effectiveness of the Shelf
Registration Statement, of counsel for the Company and the
Guarantors, covering the matters customarily covered in such
opinions, which shall be reasonably satisfactory to the
underwriters, if any, and Requesting Holders; and
(3) customary comfort letters, dated as of the date of
effectiveness of the Shelf Registration Statement, from (i) the
Company's independent accountants and (ii) the independent
accountants of any other Person for which financial statements
are included in or incorporated by reference into such Shelf
Registration Statement or the related Prospectus, in the
customary form and covering matters of the type customarily
covered in comfort letters to underwriters in connection with
primary underwritten offerings;
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, the indemnification provisions and
procedures of Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section; and
12
(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with
clause (A) above and with any reasonable and customary conditions
contained in the underwriting agreement or other agreement entered
into by the Company or the Guarantors pursuant to this clause (xi).
If at any time the representations and warranties of the Company and
the Guarantors contemplated in clause (A)(1) above cease to be true and
correct, the Company shall so advise the Initial Purchasers and the
underwriter(s), if any, and each selling Holder promptly and, if requested
by such Persons, shall confirm such advice in writing;
(xii) prior to any public offering of Transfer Restricted Securities,
cooperate with, and cause the Guarantors to cooperate with, the selling
Holders, the underwriter(s), 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 selling Holders or underwriter(s) may reasonably
request and do any and all other acts or things reasonably necessary or
advisable to enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the Shelf Registration Statement;
PROVIDED, HOWEVER, that neither the Company nor any Guarantor shall be
required to register or qualify as a foreign corporation where it is not
then 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 then so subject;
(xiii) issue, upon the request of any Holder of Initial Notes covered
by the Shelf Registration Statement, Exchange Notes, having an aggregate
principal amount equal to the aggregate principal amount of Initial Notes
surrendered to the Company by such Holder in exchange therefor or being
sold by such Holder; such Exchange Notes to be registered in the name of
such Holder or in the name of the purchaser(s) of such Notes, as the case
may be; in return, the Initial Notes held by such Holder shall be
surrendered to the Company for cancellation;
(xiv) cooperate with, and cause the Guarantors to cooperate with, the
selling Holders and the underwriter(s), if any, to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and, in connection with any sale of Transfer
Restricted Securities that will result in such securities no longer being
Transfer Restricted Securities, not bearing any restrictive legends; and
enable such Transfer Restricted Securities to be in such denominations and
registered in such names as the Holders or the underwriter(s), if any, may
request at least two Business Days prior to any sale of Transfer Restricted
Securities made by such underwriter(s);
(xv) use their commercially reasonable efforts to cause 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 underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in clause (xi)
above;
13
(xvi) subject to Section 6(d) hereof, if any fact or event
contemplated by clause (c)(iii)(D) above shall exist or have occurred,
prepare a supplement or post-effective amendment 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 not
misleading;
(xvii) provide a CUSIP number for all Transfer Restricted Securities
not later than the effective date of the Registration Statement and provide
the Trustee under the Indenture with printed certificates for the Transfer
Restricted Securities which are in a form eligible for deposit with the
Depositary (as defined in the Indenture);
(xviii) 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, and use their commercially reasonable efforts to cause such
Registration Statement to become effective and approved by such
governmental agencies or authorities as may be necessary to enable the
Holders selling Transfer Restricted Securities to consummate the
disposition of such Transfer Restricted Securities;
(xix) otherwise use their commercially reasonable efforts to comply
with all applicable rules and regulations of the Commission, and make
generally available to its security holders, as soon as reasonably
practicable, a consolidated earnings statement meeting the requirements of
Rule 158 (which need not be audited) for the twelve-month period (A)
commencing at the end of any fiscal quarter in which Transfer Restricted
Securities are sold to underwriters in a firm or best efforts Underwritten
Offering or (B) if not sold to underwriters in such an offering, beginning
with the first month of the Company's first fiscal quarter commencing after
the effective date of the Registration Statement;
(xx) cause the Indenture to be qualified under the Trust Indenture Act
not later than the effective date of the first Registration Statement
required by this Agreement, and, in connection therewith, cooperate, and
cause the Guarantors to cooperate with, 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 Trust
Indenture Act; and to execute, and cause the Guarantors to execute, and use
their commercially 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; and
(xxi) cause all Transfer Restricted Securities covered by the
Registration Statement to be listed on each securities exchange on which
securities of the same class issued by the Company and the Guarantors are
then listed if requested by the Holders of a majority in aggregate
principal amount of Initial Notes or the managing underwriter(s), if any.
14
(d) RESTRICTIONS ON HOLDER. Each Holder agrees by acquisition of a
Transfer Restricted Security that, upon receipt of any notice referred to
in Section 6(c)(iii)(C), any notice from the Company of the existence of
any fact of the kind described in Section 6(c)(iii)(D) or any notice from
the Company of its determination, in its reasonable judgment, that the
continued effectiveness and use of the Registration Statement and the
Prospectus included therein would require the disclosure of confidential
information or interfere with any financing, acquisition, corporate
reorganization or other material transaction or development involving the
Company or any of the Guarantors hereof (in each case, a "Suspension
Notice," it being understood that a Suspension Notice may disclose only the
existence of the fact or event and need not disclose the nature of the fact
or event, which may be kept confidential for such period as may reasonably
be required for BONA FIDE business reasons), such Holder will forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the
applicable Registration Statement until (i) such Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section
6(c)(xvi) hereof, or (ii) such Holder is advised in writing (the "Advice")
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. Each Holder receiving a
Suspension Notice hereby agrees that it will either (i) destroy any
Prospectuses, other than permanent file copies, then in such Holder's
possession which have been replaced by the Company with more recently dated
Prospectuses or (ii) if so directed by the Company, 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 Transfer
Restricted Securities that was current at the time of receipt of such
Suspension Notice. In the event the Company shall give any such notice, the
time period regarding the effectiveness of such Registration Statement set
forth in Section 3 or 4 hereof, as applicable, shall be extended by the
number of days in the period from and including the date of the delivery of
the Suspension Notice 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)(xvi)
hereof or shall have received the Advice; however, except as otherwise
provided in Section 5 hereof, no such extension shall be taken into account
in determining whether Liquidated Damages are due pursuant to Section 5
hereof or the amount of such Liquidated Damages.
SECTION 7. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's or the Guarantors' performance
of or compliance with this Agreement will be borne by the Company or the
Guarantors, 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 or Holder 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 Exchange 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 Exchange Notes on
a national securities
15
exchange or automated quotation system pursuant to the requirements thereof; and
(vi) all fees and disbursements of independent certified public accountants of
the Company, the Guarantors or other Person (including the expenses of any
special audit and comfort letters required by or incident to such performance).
The Company and the Guarantors will, in any event, bear their 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 and the Guarantors.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company and the Guarantors
will reimburse the Initial Purchasers and the Holders of Transfer Restricted
Securities being tendered in the Exchange Offer and/or resold pursuant to the
"Plan of Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be
Shearman & Sterling LLP or such other counsel as may be chosen by the Holders of
a majority in principal amount of the Transfer Restricted Securities for whose
benefit such Registration Statement is being prepared. Each Holder shall pay all
expenses of its counsel, except as provided in this paragraph (b), all
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of such Holder's Transfer Restricted Securities pursuant
to a Shelf Registration Statement.
SECTION 8. INDEMNIFICATION.
(a) The Company agrees 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 Securities 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, 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 or expenses (including without limitation, reimbursement of all
costs reasonably incurred in investigating, preparing, pursuing, settling,
compromising, paying 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), joint or several, 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 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, based upon,
arising out of or in connection with 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
neither the Company nor any Guarantor will be liable to any Initial Purchaser,
16
Indemnified Holder (in its capacity as Holder) or underwriter (or any person who
controls such party within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) with respect to any untrue statement or alleged
untrue statement or omission or alleged omission of a material fact made in any
preliminary Prospectus to the extent that any such loss, liability, claim,
damage or expense resulted from the fact that such Initial Purchaser,
Indemnified Holder (in its capacity as Holder), or underwriter, as the case may
be, sold Transfer Restricted Securities to a Person to whom such Initial
Purchaser, Indemnified Holder (in its capacity as Holder) or underwriter, as the
case may be, failed to send or give, at or prior to the written confirmation of
sale of such Transfer Restricted Securities, a copy of the final Prospectus (as
amended or supplemented), if the Company or any Guarantor has previously
furnished copies thereof (sufficiently in advance of the closing of such sale to
allow for distribution of the final Prospectus in a timely manner) to such
Initial Purchaser, Indemnified Holder (in its capacity as Holder) or
underwriter, as the case may be, and the loss, liability, claim, damage or
expense of such Initial Purchaser, Indemnified Holder (in its capacity as
Holder) or underwriter, as the case may be, resulted form an untrue statement of
alleged untrue statement or omission or alleged omission of a material fact
contained in or omitted from such preliminary Prospectus which was corrected in
the final Prospectus. This indemnity agreement shall be in addition to any
liability which the Company may otherwise have.
In case any action or proceeding (including any governmental or regulatory
investigation or proceeding) shall be brought 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 respective obligations pursuant to this
Agreement except to the extent that the Company or any Guarantor is prejudiced
as a result of such failure).
The Company and the Guarantors shall be liable for any settlement of any
such action or proceeding effected 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 any 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. The
Company and the Guarantors shall not, 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 proceeding 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 (i) includes an
unconditional release of each Indemnified Holder from all liability arising out
of such action, claim, litigation or proceeding and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of the Indemnified Holder.
(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 and officers who sign a Registration Statement, and each
person controlling (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) the Company, or any Guarantor and the respective
officers, directors, partners, employees, representatives and agents of each
such person, to the same extent as the indemnity from the Company and the
Guarantors
17
to each of the Indemnified Holders set forth in Section 8(a), 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, the Guarantors or their 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/or the Guarantors and the Company, the Guarantors or their directors
or officers or such Controlling Person shall have the rights and duties given to
each Holder by Section 8(a).
(c) In case any such action is brought against any indemnified party under
this Section 8 and such indemnified party seeks or intends to seek indemnity
from an indemnifying party under this Section 8, the indemnifying party will be
entitled to participate in and, to the extent that it shall elect, jointly with
all other indemnifying parties similarly notified, by written notice delivered
to the indemnified party promptly after receiving from such indemnified party
the notice required pursuant Section 8(a), to assume the defense thereof with
counsel reasonably satisfactory to such indemnified party; PROVIDED, however, if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that a conflict may arise between the positions of the indemnified party and the
indemnifying party in conducting the defense of any such action or that there
may be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of such indemnifying
party's election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
accordance with the provision to the next proceeding sentence (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel (together with local counsel),
approved by the indemnifying party, representing the indemnified parties who are
parties to such action) or (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action, in each of which cases the fees and expenses of counsel shall, to the
extent required by subsection (a) or subsection (b), as applicable, of this
Section 8, be at the expense of the indemnifying party.
(d) 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 (i) 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 the Initial Placement (which in the case of the Company and the Guarantors
shall be deemed to be equal to the total gross proceeds from the Initial
Placement as set forth on the cover page of the Offering Memorandum, less any
discount received by the
18
Initial Purchasers in the Initial Placement), the amount of Liquidated Damages
which does not become payable as a result of the filing of the Registration
Statement resulting in such losses, claims, damages, liabilities or expenses,
and such Registration Statement, or (ii) if such allocation is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 8(d)(i) above but also 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
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 by
the Indemnified Holder and the parties' relative intent, 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(d) 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 other
provisions of this Section 8, no Holder (and its related Indemnified Holders)
shall be liable, in the aggregate, for any amount in excess of the discount
granted or the commission paid by the Company as set forth in the Purchase
Agreement with respect to the Initial Notes held by such Holder, or in the case
of a Holder of Exchange Notes, the Initial Notes exchanged for such Exchange
Notes. 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 Holders'
obligations to contribute pursuant to this Section 8(d) are several in
proportion to the respective principal amount of Initial Notes held by each of
the Holders hereunder and not joint.
SECTION 9. RULE 144A. The Company and the Guarantors each hereby agrees
with each Holder, for so long as any Transfer Restricted Securities remain
outstanding, to make available 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 from such Holder or beneficial
owner, the information required by Rule 144A(d)(4) under the Securities Act in
order to permit resales of such Transfer Restricted Securities pursuant to Rule
144A.
SECTION 10. PARTICIPATION IN 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 any underwriting arrangements approved
19
by the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS. The Holders of Transfer Restricted
Securities covered by the Shelf Registration Statement who desire to do so may
sell such Transfer Restricted Securities in an Underwritten Offering. In any
such Underwritten Offering, the investment banker or investment bankers and
manager or managers that will administer the offering will be selected by the
Holders of a majority in aggregate principal amount of the Transfer Restricted
Securities included in such offering; PROVIDED, that such investment bankers and
managers must be reasonably satisfactory to the Company.
SECTION 12. MISCELLANEOUS.
(a) REMEDIES. The Company and the Guarantors each hereby agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agree to
waive the defense in any action for specific performance that a remedy at law
would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Company will not, and will cause the
Guarantors not to, 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 do not in any way
conflict with and 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) ADJUSTMENTS AFFECTING THE NOTES. The Company and the Guarantors will
not take any action, or permit any change to occur, with respect to the Notes
that would materially and adversely affect the ability of the Holders 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 the Company has obtained the
written consent of Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities. 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 or registered; provided that, with
respect to any matter that directly or indirectly affects the rights of any
Initial Purchaser hereunder, the Company shall obtain the written consent of
each such Initial Purchaser with respect to which such amendment, qualification,
supplement, waiver, consent or departure is to be effective.
(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), facsimile, telex,
telecopier, or air courier guaranteeing overnight delivery:
20
(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 Company or the Guarantors:
Solo Cup Company
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Chief Financial Officer
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxx, Esq.
(iii) if to the Initial Purchasers:
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Legal Department
With a copy to:
Shearman & Sterling LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxxxx, Esq.
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
answered back, if telexed; when receipt acknowledged, if telecopied or sent via
facsimile; and on the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.
21
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 from such Holder PROVIDED, FURTHER, that nothing
herein shall be deemed to permit any assignment, transfer or other disposition
of Transfer Restricted Securities in violation of the terms hereof or of the
Purchase Agreement or the Indenture. If any transferee of any Holder shall
acquire Transfer Restricted Securities in any manner, whether by operation of
law or otherwise, such Transfer Restricted Securities shall be held subject to
all of the terms of this Agreement, and by taking and holding such Transfer
Restricted Securities such Person shall be conclusively deemed to have agreed to
bound by and to perform all of the terms and provisions of this Agreement,
including the restrictions on resale set forth in this Agreement and, if
applicable, the Purchase Agreement, and such Person shall be entitled to receive
the benefits hereof.
(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.
(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 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.
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
SOLO CUP COMPANY, a Delaware corporation
By:/s/ Xxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and Chief
Financial Officer
SOLO CUP COMPANY, an Illinois corporation
By:/s/ Xxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and Chief
Financial Officer
SOLO MANAGEMENT COMPANY, an Illinois
corporation
By:/s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
P.R. SOLO CUP, INC., an Illinois corporation
By:/s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer, Executive
Vice President, Treasurer and
Assistant Secretary
SOLO TEXAS, LLC, a Texas limited liability
company
By:/s/ Xxxxxxxx X. Xxxx
----------------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Executive Vice President and
Assistant Secretary
SF HOLDINGS GROUP, INC. a Delaware corporation
By:/s/ Xxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Secretary
SWEETHEART HOLDINGS INC., a Delaware
corporation
By:/s/ Xxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer, Executive
Vice President and Treasurer
SWEETHEART CUP COMPANY INC., a
Delaware corporation
By:/s/ Xxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer, Executive
Vice President and Treasurer
LILY CANADA HOLDING CORPORATION, a
Delaware corporation
By:/s/ Xxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer, Executive
Vice President and Treasurer
CUPCORP, INC., a Delaware corporation
By:/s/ Xxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President, Secretary and
Treasurer
EMERALD LADY INC., a Delaware corporation
By:/s/ Xxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President, Secretary and
Treasurer
NEWCUP, LLC, a Delaware limited liability
company
By:/s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Manager
The foregoing Registration Rights Agreement is hereby confirmed and
accepted as of the date first above written:
BANC OF AMERICA SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
XXXXXX XXXXXXX CORP.
ABN AMRO INCORPORATED
RABO-SECURITIES USA, INC.
TOKYO-MITSUBISHI INTERNATIONAL PLC
By: Banc of America Securities LLC
By:/s/ Xxxxx X. Xxxx, Xx.
---------------------------------------
Managing Director
SCHEDULE A
GUARANTOR JURISDICTION OF ORGANIZATION
--------- ----------------------------
Solo Cup Company Illinois
Solo Management Company Illinois
P.R. SOLO CUP, INC. Illinois
SOLO TEXAS, LLC Texas
SF Holdings Group, Inc. Delaware
Sweetheart Holdings Inc. Delaware
Sweetheart Cup Company Inc. Delaware
Lily Canada Holding Corporation Delaware
Cupcorp, Inc. Delaware
EMERALD LADY INC. Delaware
Newcup, LLC Delaware
EXHIBIT A
[FORM OF JOINDER AGREEMENT]
Solo Cup Company
JOINDER AGREEMENT
(
Registration Rights Agreement)
The undersigned hereby joins that certain
Registration Rights
Agreement, dated as of February 27, 2004, by and among Solo Cup Company and
Banc of America Securities LLC, Citigroup Global Markets Inc., Xxxxxx
Xxxxxxx Corp., ABN AMRO Incorporated, Rabo Securities USA, Inc. and
Tokyo-Mitsubishi International plc.
From and after the date hereof, the undersigned shall be deemed to be
a Guarantor under the
Registration Rights Agreement and shall be bound by
the terms thereof in such capacity and to the same extent as if it was an
original party thereto.
Unless otherwise provided in this Joinder, capitalized terms shall
have the meaning set forth in the
Registration Rights Agreement.
In witness whereof, the parties hereto have each caused this Joinder
Agreement to be duly executed and delivered as of [THE TRANSACTIONS
COMPLETION DATE], 2004.
Guarantor
By:
-----------------------
Name:
Title:
