EXHIBIT 4.4
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REGISTRATION RIGHTS AGREEMENT
Dated as of July 21, 2003
between
PACKAGING CORPORATION OF AMERICA
and
XXXXXX XXXXXXX & CO. INCORPORATED
and
CITIGROUP GLOBAL MARKETS INC.
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REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement (the "AGREEMENT") dated as of July 21,
2003, between Packaging Corporation of America, a Delaware corporation (the
"COMPANY"), and Xxxxxx Xxxxxxx & Co. Incorporated and Citigroup Global Markets
Inc. (the "Representatives"), as representatives of several initial purchasers
named in the Purchase Agreement (the "INITIAL PURCHASERS").
This Agreement is made pursuant to the Purchase Agreement dated July
15, 2003 between the Company and the Representatives (the "PURCHASE AGREEMENT"),
which provides for the sale by the Company to the Initial Purchasers of an
aggregate of $150,000,000 principal amount of the Company's 4 3/8% Senior Notes
due 2008 (the "4 3/8% NOTES") and $400,000,000 principal amount of the Company's
5 3/4% Senior Notes due 2013 (the "5 3/4% NOTES" and, together with the 4 3/8%
Notes, the "NOTES"). In order to induce the Initial Purchasers to enter into the
Purchase Agreement and in satisfaction of a condition to the Initial Purchasers'
obligations thereunder, the Company has agreed to provide to the Initial
Purchasers and their direct and indirect transferees the registration rights set
forth in this Agreement. The execution of this Agreement is a condition to the
closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"4 3/8% EXCHANGE NOTES" shall mean 4 3/8% Notes issued by the
Company under the Indenture, evidencing the same continuing indebtedness of the
Company as the 4 3/8% Notes and containing terms identical to the 4 3/8% Notes
(except that the 4 3/8% Exchange Notes will not contain restrictions on transfer
or bear a restrictive legend, will not be entitled to receive Additional
Interest, will not be entitled to registration rights under this Agreement
(except as provided in Section 4 hereof) and will not include a reference to
this Agreement), to be offered to Holders of 4 3/8% Notes in exchange for 4 3/8%
Notes which are Registrable Notes pursuant to the Exchange Offer.
"5 3/4% EXCHANGE NOTES" shall mean 5 3/4% Notes issued by the Company
under the Indenture, evidencing the same continuing indebtedness of the Company
as the 5 3/4% Notes and containing terms identical to the 5 3/4% Notes (except
that the 5 3/4% Exchange Notes will not contain restrictions on transfer or bear
a restrictive legend, will not be entitled to receive Additional Interest, will
not be entitled to registration rights under this Agreement (except as provided
in Section 4 hereof) and will not include a reference to this Agreement), to be
offered to Holders of 5 3/4% Notes in exchange for 5 3/4% Notes which are
Registrable Notes pursuant to the Exchange Offer.
"ADDITIONAL INTEREST" shall have the meaning assigned to it in Section
2(e).
"BUSINESS DAY" shall mean any day other than a Saturday or Sunday or a
day on which banking institutions in The City of New York are authorized or
required by law, regulation or executive order to remain closed.
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"CITIGROUP" shall mean Citigroup Global Markets Inc.
"CLOSING DATE" shall mean the Closing Date as defined in the Purchase
Agreement.
"COMPANY" shall have the meaning set forth in the preamble to this
Agreement and shall also include the Company's successors.
"DEPOSITORY" shall mean The Depository Trust Company or any successor
depositary having an address in The City of New York appointed by the Company.
"EFFECTIVENESS DEADLINE" shall have the meaning set forth in Section
2(a) hereof.
"EXCHANGE ACT" shall mean the U.S. Securities Exchange Act of 1934, as
amended from time to time.
"EXCHANGE NOTES" shall mean, with respect to the 4 3/8% Notes, the
4 3/8% Exchange Notes and, with respect to the 5 3/4% Notes, the 5 3/4% Exchange
Notes.
"EXCHANGE OFFER" shall mean the exchange offer by the Company of
Exchange Notes for Registrable Notes pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form) and all amendments and supplements to such registration statement, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated or deemed to be incorporated by reference therein.
"EXPIRATION DATE" means the date and time on which the Exchange Offer
(as the same may be extended from time to time) terminates.
"HOLDER" shall mean the Initial Purchasers for so long as they own any
Registrable Notes, and each of their respective successors, assigns and direct
and indirect transferees who become registered owners of Registrable Notes under
the Indenture; PROVIDED that for purposes of Sections 4 and 5 of this Agreement,
the term "HOLDER" shall include Participating Broker-Dealers.
"INDENTURE" shall mean the Indenture relating to the Notes, dated as of
the Closing Date, as amended and supplemented by the First Supplemental
Indenture of even date therewith, between the Company and U.S. Bank National
Association, as trustee, as the same may be further amended or supplemented from
time to time in accordance with the terms thereof.
"INITIAL PURCHASERS" shall have the meaning set forth in the preamble
to this Agreement.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Notes; PROVIDED that
whenever the consent or approval of
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Holders of a specified percentage of Registrable Notes is required hereunder,
Registrable Notes held by the Company or any of its "affiliates" (as such term
is defined in Rule 405 under the Securities Act) (other than (i) the Initial
Purchasers, it being understood and agreed that none of the Initial Purchasers
nor any of their respective subsidiaries, parents or affiliates shall be deemed
affiliates of the Company for purposes of this definition, and (ii) any
subsequent Holder of Registrable Notes if such subsequent Holder is deemed to be
such an affiliate solely by reason of its holding of Registrable Notes) shall
not be counted in determining whether such consent or approval was given by the
Holders of such required percentage or amount.
"XXXXXX XXXXXXX" shall mean Xxxxxx Xxxxxxx & Co. Incorporated.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"NOTES" shall have the meaning set forth in the preamble to this
Agreement.
"PARTICIPATING BROKER-DEALER" shall have the meaning specified in
Section 4(a) of this Agreement.
"PERSON" shall mean an individual, partnership, joint venture, limited
liability company, corporation, trust or unincorporated organization or other
entity, or a government or agency or political subdivision thereof.
"PROSPECTUS" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Notes covered by a Shelf Registration Statement, and by all other
amendments and supplements to such prospectus, including post-effective
amendments, and in each case including all material incorporated or deemed to be
incorporated by reference therein.
"PURCHASE AGREEMENT" shall have the meaning set forth in the preamble
to this Agreement.
"REGISTRABLE NOTES" shall mean the Notes; PROVIDED, HOWEVER, that a
Note shall cease to be a Registrable Note when (i) a Registration Statement with
respect to such Note shall have been declared effective under the Securities Act
and such Note shall have been disposed of pursuant to such Registration
Statement, (ii) such Note shall have been sold to the public pursuant to Rule
144(k) (or any similar provision then in force, but not Rule 144A) under the
Securities Act, (iii) such Note shall have ceased to be outstanding or (iv) an
Exchange Offer Registration Statement with respect to such Note shall have been
declared effective under the Securities Act and such Note shall have been
exchanged pursuant to the Exchange Offer for Exchange Notes; PROVIDED FURTHER,
HOWEVER, that in the case of any Exchange Notes referred to in clause (iv), if
such Exchange Notes are held by Participating Broker-Dealers or otherwise are
not freely tradable without any limitations or restrictions under the Securities
Act, such Exchange Notes will be deemed to be Registrable Notes until such time
as such Exchange Notes are sold to a purchaser in whose hands such Exchange
Notes are freely tradable without any limitations or restrictions under the
Securities Act.
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"REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or NASD registration and filing
fees, (ii) all fees and expenses incurred in connection with compliance with
state securities or blue sky laws and compliance with the rules of the NASD
(including fees and disbursements of counsel for any underwriters or Holders in
connection with any state securities or blue sky qualification and any filing
with and review by the NASD of any of the Exchange Notes or Registrable Notes),
(iii) all expenses in preparing or assisting in preparing, word processing,
printing and distributing any Registration Statement, any Prospectus, any
amendments or supplements thereto, any underwriting agreements, securities sales
agreements and other documents relating to the performance of and compliance
with this Agreement, (iv) all rating agency fees, (v) all fees and disbursements
relating to the qualification of the Indenture under applicable securities laws,
(vi) the fees and disbursements of the Trustee and its counsel, (vii) the fees
and disbursements of counsel for the Company and, in the case of a Shelf
Registration Statement or if there are Participating Broker-Dealers, the fees
and disbursements of one counsel for the Holders (which counsel shall be
selected by the Representatives or, if the Representatives elect not to select
such counsel, by the Majority Holders and which counsel may in any event also be
counsel for the Initial Purchasers) and (viii) the fees and disbursements of the
independent public accountants of the Company and of any other Person or
business whose financial statements are included or incorporated or deemed to be
incorporated by reference in a Registration Statement, including the expenses of
any special audits or "cold comfort" or similar letters required by or incident
to such performance and compliance. Notwithstanding the foregoing, the Company
shall not be responsible for fees and expenses of counsel to the underwriters or
the Holders (other than fees and expenses set forth in clauses (ii) and (vii)
above) or underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of Registrable Notes by a Holder pursuant to
the Shelf Registration Statement.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Company that covers any of the Exchange Notes or Registrable Notes pursuant to
the provisions of this Agreement and all amendments and supplements to any such
Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated or deemed to be incorporated by reference therein.
"REPRESENTATIVES" shall mean Xxxxxx Xxxxxxx and Citigroup.
"SEC" shall mean the U.S. Securities and Exchange Commission.
"SECURITIES ACT" shall mean the U.S. Securities Act of 1933, as amended
from time to time.
"SHELF REGISTRATION" shall mean a registration effected pursuant to
Section 2(b) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) of this
Agreement which covers the Registrable Notes (but no other securities unless
approved by all of the Holders whose Registrable Notes are covered by such Shelf
Registration Statement) on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the SEC, and
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all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated or deemed to be
incorporated by reference therein.
"TRUST INDENTURE ACT" shall mean the Trust Indenture Act of 1939, as
amended.
"TRUSTEE" shall mean U.S. Bank National Association, the trustee with
respect to the Notes under the Indenture, and any successor thereto with respect
to the Notes.
"UNDERWRITERS" shall have the meaning set forth in the last paragraph
of Section 3 of this Agreement.
"UNDERWRITTEN REGISTRATION" or "UNDERWRITTEN OFFERING" shall mean a
registration in which Registrable Notes are sold to an Underwriter or
Underwriters for reoffering to the public.
"VOLUNTARY SUSPENSION NOTICE" shall have the meaning set forth in
Section 2(b) hereof.
For purposes of this Agreement, (i) all references in this Agreement to
any Registration Statement, preliminary prospectus or Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the SEC pursuant to its Electronic Data Gathering, Analysis and
Retrieval ("XXXXX") system; (ii) all references in this Agreement to financial
statements and schedules and other information which is "contained," "included"
or "stated" in any Registration Statement, preliminary prospectus or Prospectus
(or other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which is
incorporated or deemed to be incorporated by reference in such Registration
Statement, preliminary prospectus or Prospectus, as the case may be; (iii) all
references in this Agreement to amendments or supplements to any Registration
Statement, preliminary prospectus or Prospectus shall be deemed to mean and
include the filing of any document under the Exchange Act which is incorporated
or deemed to be incorporated by reference in such Registration Statement,
preliminary prospectus or Prospectus, as the case may be; (iv) all references in
this Agreement to Rule 144, Rule 144A or Rule 405 under the Securities Act, and
all references to any sections or subsections thereof or terms defined therein,
shall in each case include any successor provisions thereto; and (v) all
references in this Agreement to days (but not to business days) shall mean
calendar days.
2. REGISTRATION UNDER THE SECURITIES ACT.
(a) EXCHANGE OFFER REGISTRATION. The Company shall (A) use its
best efforts to prepare and, as soon as practicable but not later than 120 days
after the Closing Date, file with the SEC an Exchange Offer Registration
Statement under the Securities Act with respect to a proposed Exchange Offer and
the issuance and delivery to the Holders, in exchange for all of the Registrable
Notes, of a like principal amount of Exchange Notes, (B) use its best efforts to
cause the Exchange Offer Registration Statement to be declared effective under
the Securities Act not later than 180 days after the Closing Date (the
"EFFECTIVENESS DEADLINE"), (C) use its best efforts to keep the Exchange Offer
Registration Statement effective until the closing of the Exchange Offer and (D)
use its best efforts to cause the Exchange Offer to be consummated as promptly
as practicable, but in any event not later than the date that is 30 Business
Days after the Effectiveness Deadline. The Company shall commence the Exchange
Offer promptly after the
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Exchange Offer Registration Statement has been declared effective by the SEC,
and shall commence the Exchange Offer by mailing the related exchange offer
Prospectus and accompanying documents to each Holder stating, in addition to
such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to
this Registration Rights Agreement and that all Registrable Notes
validly tendered and not validly withdrawn will be accepted for
exchange;
(ii) the Expiration Date of the Exchange Offer (which
shall be at least 20 Business Days from the date such notice is
mailed);
(iii) that any Registrable Notes not tendered will remain
outstanding and continue to accrue interest, but will not thereafter be
entitled to receive any Additional Interest or be entitled to any
registration rights under this Agreement;
(iv) that Holders electing to have Registrable Notes
exchanged pursuant to the Exchange Offer will be required to surrender
such Registrable Notes, together with the enclosed letter of
transmittal, to the institution and at the address (located in the
Borough of Manhattan, The City of New York) specified in the exchange
offer Prospectus or the accompanying documents prior to the Expiration
Date; and
(v) that Holders will be entitled to withdraw their
election, not later than the Expiration Date, by sending to the
institution and at the address (located in the Borough of Manhattan,
The City of New York) specified in the exchange offer Prospectus or the
accompanying documents, a facsimile transmission or letter setting
forth the name of such Holder, the principal amount of Registrable
Notes delivered for exchange and a statement that such Holder is
withdrawing his election to have such Notes exchanged;
PROVIDED that, if the only Holder of the Registrable Notes is the Depository or
its nominee, then the Exchange Offer may be commenced by giving notice (which
may be electronic) and providing such other information to the Depository or its
nominee as may be customary in accordance with the Depository's procedures.
As soon as practicable after the Expiration Date, the Company shall:
(i) accept for exchange all Registrable Notes or portions
thereof validly tendered and not validly withdrawn pursuant to the
Exchange Offer; and
(ii) deliver, or cause to be delivered, to the
Trustee for cancellation all Registrable Notes or portions thereof so
accepted for exchange by the Company and issue, and cause the Trustee
to promptly authenticate and mail or otherwise deliver to each Holder,
Exchange Notes equal in principal amount to the principal amount of the
Registrable Notes surrendered by such Holder.
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The Company shall use its best efforts to complete the Exchange Offer
as provided above and shall comply with the applicable requirements of the
Securities Act, the Exchange Act, and other applicable laws and regulations in
connection with the Exchange Offer. The Exchange Offer shall not be subject to
any conditions, other than that (i) the Exchange Offer does not violate
applicable law or any applicable interpretation of the staff of the SEC or any
order of any court of competent jurisdiction and (ii) all applicable
governmental approvals of any governmental authorities that the Company
reasonably determines are necessary in order to make or consummate the Exchange
Offer shall have been obtained. The Company shall, at the request of the
Representatives from time to time, inform the Representatives of the names and
addresses of the Holders to whom the Exchange Offer is made, and the
Representatives shall have the right, subject to applicable law, to contact such
Holders and otherwise facilitate the tender of Registrable Notes in the Exchange
Offer.
Each Holder participating in the Exchange Offer shall be required to
represent to the Company that at the time of the consummation of the Exchange
Offer (i) any Exchange Notes received by such Holder will be acquired in the
ordinary course of business, (ii) such Holder has no arrangement or
understanding with any person to participate in the distribution of the Notes or
the Exchange Notes within the meaning of the Securities Act, (iii) such Holder
is not an "affiliate," as defined in Rule 405 of the Securities Act, of the
Company, (iv) if such Holder is not a broker-dealer, such Holder is not engaged
in, and does not intend to engage in, the distribution of the Exchange Notes
within the meaning of the Securities Act, (v) if such Holder is a broker-dealer,
it will receive Exchange Notes in exchange for Notes that were acquired for its
own account as a result of market-making activities or other trading activities
and that it will be required to acknowledge that it will deliver a prospectus
meeting the requirements of the Securities Act in connection with any resale of
such Exchange Notes, and (vi) if such Holder is a broker-dealer, it did not
purchase the Notes being tendered in the Exchange Offer directly from the
Company for resale pursuant to Rule 144A under the Securities Act or any other
available exemption from registration under the Securities Act.
(b) SHELF REGISTRATION. In the event that (i) the Company determines
that the Exchange Offer Registration provided for in Section 2(a) above is not
available or the Exchange Offer may not be consummated because it would violate
applicable law or applicable interpretations of the staff of the SEC or any
order of any court of competent jurisdiction or because all approvals of any
governmental authorities that the Company reasonably determines are necessary in
order to make or consummate the Exchange Offer have not been obtained, (ii) the
Exchange Offer is for any other reason not consummated within 30 Business Days
following the Effectiveness Deadline, or (iii) the Exchange Offer has been
completed and the Representatives have determined, based upon the opinion of
legal counsel, that a Registration Statement must be filed or a Prospectus must
be delivered by any of the Initial Purchasers in connection with any offering or
sale of Registrable Notes, the Company shall use its best efforts to cause to be
filed as soon as practicable after such determination date (in the case of
clause (i) above), the 30th Business Day following the Effectiveness Deadline
(in the case of clause (ii) above) or date that notice of such determination by
the Representatives is given to the Company (in the case of clause (iii) above),
as the case may be, a Shelf Registration Statement providing for the sale by the
Holders of all of the Registrable Notes and to use its best efforts to have such
Shelf Registration Statement declared effective by the SEC as soon as
practicable. In the event that the Company is required to file a Shelf
Registration Statement solely as a result of the
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matters referred to in clause (iii) of the preceding sentence, the Company shall
use its best efforts to file and have declared effective by the SEC both an
Exchange Offer Registration Statement pursuant to Section 2(a) with respect to
all Registrable Notes and a Shelf Registration Statement (which may be a
combined Registration Statement with the Exchange Offer Registration Statement)
with respect to offers and sales of Registrable Notes held by the Initial
Purchasers. The Company agrees to use its best efforts to keep the Shelf
Registration Statement continuously effective and to keep the related Prospectus
current until the expiration of the period referred to in Rule 144(k) with
respect to the Registrable Notes covered by the Shelf Registration Statement or
such shorter period that will terminate when all of the Registrable Notes
covered by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement or shall have been sold to the public pursuant to Rule
144(k) (or similar provision then in force, but not Rule 144A) under the
Securities Act or shall have ceased to be outstanding; PROVIDED, HOWEVER, that
if there is a possible acquisition or business combination or other transaction,
business development or event involving the Company that would require
disclosure in such Shelf Registration Statement or the documents incorporated or
deemed to be incorporated by reference therein or the related Prospectus and
either (x) the Company determines, in the exercise of its reasonable judgment,
that premature disclosure thereof is not in the best interests of the Company
and its stockholders or (y) despite the exercise of reasonable diligence the
Company cannot obtain any financial statements relating to an acquisition or
business combination required to be included in such Shelf Registration
Statement or the documents incorporated or deemed to be incorporated by
reference therein or the related Prospectus, the Company shall give the Holders
of the Registrable Notes covered by such Shelf Registration Statement notice (a
"VOLUNTARY SUSPENSION NOTICE") to suspend use of the Prospectus relating to such
Shelf Registration Statement, and such Holders hereby agree to suspend use of
such Prospectus until the Company has amended or supplemented such Prospectus or
has notified such Holders that use of the then current Prospectus may be resumed
as provided in the penultimate paragraph of Section 3. In the case of any
Voluntary Suspension Notice, the Company shall not be required to disclose in
such notice the possible acquisition or business combination or other
transaction, business development or event as a result of which such notice
shall have been given if the Company reasonably determines that such acquisition
or business combination or other transaction, business development or event
should remain confidential and, while such Voluntary Suspension Notice is in
effect, the Company shall not be required to amend or supplement such Shelf
Registration Statement, the documents incorporated or deemed to be incorporated
by reference therein or the related Prospectus to reflect such possible
acquisition or business combination or other transaction, business development
or event, but shall continue to use its best efforts to maintain the
effectiveness of such Shelf Registration Statement. Upon the abandonment,
consummation, termination or public announcement or other public disclosure of
the possible acquisition or business combination or other transaction, or if the
applicable business development or event shall cease to exist or shall be
publicly disclosed, then the Company shall promptly comply with this Section
2(b) and Sections 3(b), 3(e)(v) (if applicable), 3(i) (if applicable) and the
penultimate paragraph in Section 3 hereof and notify the Holders of the
Registrable Notes covered by such Shelf Registration Statement that disposition
of such Registrable Notes may resume; provided that, if Section 3(i) shall
require an amendment or supplement to such Shelf Registration Statement or the
related Prospectus, then such resumption shall not occur until the Company shall
have delivered copies of the supplemented or amended Prospectus contemplated by
Section 3(i) to the applicable Holders. Anything herein to the
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contrary notwithstanding, the right of the Company to suspend use of a
Prospectus pursuant to this paragraph shall be subject to the limitation set
forth in the last sentence of the penultimate paragraph of Section 3. The
Company further agrees to supplement or amend the Shelf Registration Statement
and/or the related Prospectus if required by the rules, regulations or
instructions applicable to the registration form used by the Company for such
Shelf Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registration or if reasonably requested by a
Holder whose Registrable Notes are registered pursuant to such Shelf
Registration Statement with respect to information relating to such Holder, and
to use its best efforts to cause any such amendment to become effective and such
Shelf Registration Statement and/or the related Prospectus to become usable as
soon as thereafter practicable, subject to the right of the Company, on the
terms and subject to the conditions described elsewhere in this Section 2(b), to
suspend its obligation to amend or supplement such Shelf Registration Statement
and/or the related Prospectus by giving a Voluntary Suspension Notice. The
Company agrees to furnish to the Holders of Registrable Notes covered by any
Shelf Registration Statement copies of any such supplement or amendment promptly
after its being used or filed with the SEC.
(c) EXPENSES. The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2(a) and Section 2(b).
(d) EFFECTIVE REGISTRATION STATEMENT.
(i) The Company shall be deemed not to have used
its best efforts to cause the Exchange Offer Registration
Statement or any Shelf Registration Statement, as the case may
be, to become, or to remain, effective during the requisite
periods set forth herein if the Company voluntarily takes any
action that could reasonably be expected to result in any such
Registration Statement not being declared effective or
remaining effective or in the Holders covered thereby not
being able to exchange or offer and sell Registrable Notes
during that period unless (A) such action is required by
applicable law or (B) such action is taken by the Company in
good faith and for valid business reasons (but not including
avoidance of the Company's obligations hereunder), including
the acquisition or divestiture of assets or a material
corporate transaction or event so long as the Company promptly
complies with the notification requirements of Section 3(i)
hereof, if applicable. Nothing in this paragraph shall prevent
the accrual of Additional Interest on any Notes.
(ii) An Exchange Offer Registration Statement
pursuant to Section 2(a) hereof or a Shelf Registration
Statement pursuant to Section 2(b) hereof will not be deemed
to have become effective unless it has been declared effective
by the SEC; PROVIDED, HOWEVER, that, if, after it has been
declared effective, the offering of Registrable Notes pursuant
to a Shelf Registration Statement is interfered with by any
stop order, injunction or other order or requirement of the
SEC or any U.S. federal or state or any other governmental
agency or court, such Registration Statement will be deemed
not to have become or to be effective during the period of
such interference until the offering of Registrable Notes
covered by such Registration Statement may legally resume.
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(e) INCREASE IN INTEREST RATE. Additional cash interest (the
"ADDITIONAL INTEREST") shall be payable by the Company in respect of the Notes
as follows:
(i) if an Exchange Offer Registration Statement
or Shelf Registration Statement is not filed within 120 days
after the Closing Date, then commencing on and including the
121st day after the Closing Date, in addition to the interest
otherwise payable on the Notes, Additional Interest will
accrue and be payable on the Notes at the rate of 0.25% per
annum; and
(ii) if an Exchange Offer Registration Statement
or Shelf Registration Statement is not declared effective by
the SEC within 180 days after the Closing Date, then
commencing on and including the 181st day after the Closing
Date, in addition to the interest otherwise payable on the
Notes, Additional Interest will accrue and be payable on the
Notes at the rate of 0.25% per annum; and
(iii) if either (A) the Company has not exchanged
Exchange Notes for all Notes validly tendered and not validly
withdrawn in accordance with the terms of the Exchange Offer
on or prior to the date that is 30 Business Days after the
Effectiveness Deadline, or (B) if applicable, the Shelf
Registration Statement has been declared effective but the
Shelf Registration Statement ceases to be effective at any
time prior to the expiration of the holding period referred to
in Rule 144(k) under the Securities Act or, if earlier, such
time as all of the Registrable Notes covered by the Shelf
Registration Statement have been disposed of pursuant to the
Shelf Registration Statement or sold to the public pursuant to
Rule 144(k) (or any similar provision then in force, but not
Rule 144A) under the Securities Act or shall have ceased to be
outstanding, then, in addition to the interest otherwise
payable on the Notes, Additional Interest will accrue and be
payable on the Notes at the rate of 0.25% per annum from and
including (x) the day (whether or not a Business Day)
immediately succeeding the 30th Business Day after the
Effectiveness Deadline, in the case of (A) above, or (y) the
day such Shelf Registration Statement ceases to be effective,
in the case of (B) above;
PROVIDED, HOWEVER, that the Additional Interest rate on the Notes shall in no
event exceed 0.25% per annum; and PROVIDED, FURTHER, that Additional Interest
payable on the Notes as a result of any of the events or circumstances specified
in clause (i), (ii) or (iii) above, as the case may be, shall cease to accrue
(1) upon the filing of the Exchange Offer Registration Statement or Shelf
Registration Statement (in the case of (i) above), (2) upon the effectiveness of
the Exchange Offer Registration Statement or the Shelf Registration Statement
(in the case of (ii) above), or (3) upon the exchange of Exchange Notes for all
Registrable Notes validly tendered and not withdrawn in the Exchange Offer or
upon the effectiveness of the Shelf Registration Statement that had ceased to
remain effective prior to the expiration of the holding period referred to in
Rule 144(k) under the Securities Act or, if earlier, such time as all of the
Registrable Notes covered by the Shelf Registration Statement have been disposed
of pursuant to the Shelf Registration Statement or sold to the public pursuant
to Rule 144(k) (or any similar provision then in force, but not Rule 144A) under
the Securities Act or shall have ceased to be outstanding (in the case of (iii)
above).
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Any amount of Additional Interest due pursuant to clause (i), (ii) or
(iii) of the preceding paragraph will be payable in cash and will be payable on
the same dates on which interest is otherwise payable on the Notes and to the
same Persons who are entitled to receive those payments of interest on the
Notes. The amount of Additional Interest payable for any period will be
determined by multiplying the Additional Interest rate, which will be 0.25% per
annum, by the principal amount of the Notes and then multiplying the product by
a fraction, the numerator of which is the number of days that the Additional
Interest rate was applicable during such period (determined on the basis of a
360-day year comprised of twelve 30-day months) and the denominator of which is
360.
(f) SPECIFIC ENFORCEMENT. Without limiting the remedies available to
the Initial Purchasers and the Holders, the Company acknowledges that any
failure by the Company to comply with its obligations under Section 2(a) and
Section 2(b) hereof may result in material irreparable injury to the Initial
Purchasers or the Holders for which there is no adequate remedy at law, that it
will not be possible to measure damages for such injuries precisely and that, in
the event of any such failure, any Initial Purchaser or any Holder may obtain
such relief as may be required to specifically enforce the Company's obligations
under Section 2(a) and Section 2(b) hereof; provided that, without limiting the
ability of any Initial Purchaser or any Holder to specifically enforce such
obligations, in the case of any terms of this Agreement for which Additional
Interest pursuant to Section 2(e) is expressly provided as a remedy for a
violation of such terms, such Additional Interest shall be the sole monetary
damages for such a violation.
3. REGISTRATION PROCEDURES.
In connection with the obligations of the Company with respect to the
Registration Statements pursuant to Section 2(a) and Section 2(b) hereof, the
Company shall as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement, within
the time periods specified in Section 2, on the appropriate form under the
Securities Act, which form (x) shall be selected by the Company and (y) shall,
in the case of a Shelf Registration, be available for the sale of the
Registrable Notes by the selling Holders thereof and (z) shall comply as to form
in all material respects with the requirements of the applicable form and
include or incorporate by reference therein all financial statements required by
the SEC to be included or incorporated by reference therein, and use its best
efforts to cause such Registration Statement to become effective and remain
effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement effective for the applicable period and,
subject to the Company's rights to suspend the use of the Prospectus relating to
any Shelf Registration Statement pursuant to Section 2(b) of this Agreement on
the terms and subject to the conditions set forth in such Section 2(b), cause
each Prospectus to be supplemented by any prospectus supplement required by
applicable law or regulation and, as so supplemented, to be filed pursuant to
Rule 424 under the Securities Act and to keep each Prospectus current during the
period described under Section 4(3) and Rule 174 under the Securities Act that
is applicable to transactions by brokers or dealers with respect to the
Registrable Notes or Exchange Notes;
11
(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Notes, to counsel for the Initial Purchasers, to counsel for the
Holders and to each Underwriter of an Underwritten Offering of Registrable
Notes, if any, without charge, as many copies of each related Prospectus,
including each related preliminary prospectus, and any amendment or supplement
thereto and such other documents as such Holder, counsel or Underwriter may
reasonably request, in order to facilitate the public sale or other disposition
of the Registrable Notes; and the Company consents to the use of such Prospectus
and any amendment or supplement thereto in accordance with applicable law by
each of the selling Holders of Registrable Notes and any such Underwriter in
connection with the offering and sale of the Registrable Notes covered by and in
the manner described in such Prospectus or any amendment or supplement thereto
in accordance with applicable law;
(d) use its best efforts to register or qualify the Registrable
Notes covered by any Registration Statement under all applicable state
securities or "blue sky" laws of such jurisdictions as any Holder of Registrable
Notes shall reasonably request in writing by the time such Registration
Statement is declared effective by the SEC, to cooperate with such Holders in
connection with any filings required to be made with the NASD and do any and all
other acts and things which may be reasonably necessary or advisable to enable
such Holder to consummate the disposition in each such jurisdiction of such
Registrable Notes owned by such Holder; PROVIDED, HOWEVER, that the Company
shall not be required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to
qualify but for this Section 3(d), (ii) file any general consent to service of
process or (iii) subject itself to taxation in any such jurisdiction if it is
not so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Notes covered by such Shelf Registration Statement, counsel for the
Holders and counsel for the Initial Purchasers promptly and, if reasonably
requested by any such Holder or counsel, confirm such advice in writing (i) when
such Registration Statement has become effective and when any post-effective
amendment thereto has been filed and becomes effective, (ii) of any request by
the SEC or any state securities authority or by any other securities regulatory
authority for amendments and supplements to such Registration Statement or the
related Prospectus or for additional information, (iii) of the issuance by the
SEC or any state securities authority or by any other securities regulatory
authority of any stop order or similar order suspending the effectiveness of
such Registration Statement or the initiation of any proceedings for that
purpose and of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Registrable Notes for sale in any
jurisdiction or by any securities regulatory authority or the initiation of any
proceeding for such purposes, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable Notes covered
thereby, the representations and warranties of the Company contained in any
underwriting agreement, securities sales agreement or other similar agreement,
if any, relating to the offering cease to be true and correct in all material
respects, (v) of the happening of any event during the period such Shelf
Registration Statement is effective which makes any statement made in such
Registration Statement or the related Prospectus untrue in any material respect
or as a result of which such Shelf Registration Statement or the related
Prospectus contains an untrue statement of a material fact or omits to state 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 or which requires the making of any changes in such Registration
Statement or Prospectus in
12
order to make the statements therein not misleading (but subject to the right of
the Company, on the terms and subject to the conditions set forth in Section
2(b) of this Agreement, not to disclose the nature of certain such events) and
(vi) of any determination by the Company that a post-effective amendment to such
Registration Statement would be appropriate;
(f) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness or qualification of any Registration Statement at
the earliest possible moment and provide immediate notice to each Holder of the
withdrawal of any such order;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Notes covered by such Registration Statement, without charge, one
conformed copy of such Registration Statement and any post-effective amendment
thereto (without documents incorporated therein by reference or exhibits
thereto, unless requested), if such documents are not available via the SEC's
XXXXX database;
(h) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Notes which are covered by such Shelf
Registration Statement to facilitate the timely preparation and delivery of
certificates representing such Registrable Notes to be sold and not bearing any
restrictive legends and enable such Registrable Notes to be in such
denominations (consistent with the provisions of the Indenture) and registered
in such names as such selling Holders may reasonably request at least one
Business Day prior to the closing of any sale of Registrable Notes;
(i) in the case of a Shelf Registration, upon the occurrence of
any event contemplated by Section 3(e)(v) hereof but subject to the Company's
right to suspend the use of the related Prospectus pursuant to Section 2(b) on
the terms and subject to the conditions set forth in such Section 2(b), to
prepare and file with the SEC as promptly as practicable a supplement or
post-effective amendment to a Registration Statement or the related Prospectus
or any document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the Registrable
Notes, such Prospectus will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading. The
Company agrees to notify the Holders to suspend use of the Prospectus as
promptly as practicable after the occurrence of such an event, and the Holders
hereby agree to suspend use of the Prospectus until the Company has amended or
supplemented the Prospectus to correct such misstatement or omission;
(j) a reasonable amount of time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a Registration
Statement or amendment or supplement to a Prospectus or any document which is
incorporated or deemed to be incorporated by reference in any Registration
Statements or Prospectus, provide copies of such document to the Representatives
and counsel to the Initial Purchasers (and, in the case of a Shelf Registration
Statement, the Holders of the Notes covered by such Registration Statement and
their counsel), and make such officers, employees and other representatives of
the Company as shall be reasonably requested by any Initial Purchaser or their
counsel (or, in the case of a Shelf Registration Statement, the applicable
Holders or their counsel) available for discussion of such document, and the
Company shall not at any time file or make any amendment to any
13
Registration Statement, any Prospectus, any amendment of or supplement to any
Registration Statement or any Prospectus or any document which is incorporated
or deemed to be incorporated by reference in any Registration Statement or
Prospectus of which the Representatives and counsel to the Initial Purchasers
(or, in the case of a Shelf Registration Statement, the Holders of the Notes
covered by such Registration Statement and their counsel) shall not have
previously been advised and furnished a copy or to which the Representatives or
counsel to the Initial Purchasers (and, in the case of a Shelf Registration
Statement, the Holders of the Notes covered by such Registration Statement or
their counsel) shall reasonably object.
(k) obtain a CUSIP number for all Exchange Notes or Registrable
Notes, as the case may be, not later than the effective date of the Registration
Statement covering such Notes;
(l) cause the Indenture to be qualified under the Trust Indenture
Act in connection with the registration of the Exchange Notes or Registrable
Notes, as the case may be, cooperate with the Trustee and the Holders to effect
such changes to the Indenture as may be required for the Indenture to be so
qualified in accordance with the terms of the Trust Indenture Act and execute,
and use its best efforts to cause the Trustee to execute, all documents as may
be required to effect such changes and all other forms and documents required to
be filed with the SEC to enable the Indenture to be so qualified in a timely
manner;
(m) in the case of a Shelf Registration, make available, upon
request, for inspection by a representative of the Holders of the Registrable
Notes covered by such Registration Statement, any Initial Purchaser, any
Underwriter participating in any disposition pursuant to such Shelf Registration
Statement, and attorneys and accountants designated by such Holders or by any
such Initial Purchaser or Underwriter, at reasonable times and in a reasonable
manner, all relevant financial and other relevant records and documents of the
Company, cause the appropriate officers, directors and employees of the Company
to make themselves available for "due diligence" conferences, and cause the
officers, directors and employees of the Company to supply all information
reasonably requested by any such representative of such Holders, Initial
Purchaser, Underwriter, attorney or accountant in connection with such Shelf
Registration Statement;
(n) use its best efforts to cause the Exchange Notes or
Registrable Notes, as the case may be, to be rated by two nationally recognized
statistical rating organizations (as such term is defined in Rule 436(g)(2)
under the Securities Act);
(o) if requested by any Holder of Registrable Notes covered by any
Registration Statement, (i) promptly incorporate in the related Prospectus
supplement or post-effective amendment such information with respect to such
Holder as such Holder reasonably requests to be included therein and (ii) make
all required filings of such Prospectus supplement or such post-effective
amendment as soon as practicable after the Company has received notification of
the matters to be incorporated in such filing; and
(p) in the case of any Shelf Registration, enter into such
customary agreements and take all such other actions in connection therewith
(including those requested by the Holders of a majority in aggregate principal
amount of the Registrable Notes covered by such Shelf Registration Statement) in
order to expedite or facilitate the disposition of such Registrable
14
Notes including, but not limited to, an Underwritten Offering and in such
connection, (i) to the extent possible, make such representations and warranties
to such Holders and any Underwriters of such Registrable Notes with respect to
the business of the Company and its subsidiaries, such Registration Statement,
the related Prospectus and documents incorporated by reference or deemed
incorporated by reference and related matters, in each case, in form, substance
and scope as are customarily made by issuers to underwriters in underwritten
offerings and confirm the same if and when requested, (ii) obtain opinions of
counsel to the Company (which counsel and opinions, in form, scope and
substance, shall be reasonably satisfactory to the Holders and such Underwriters
and their respective counsel) addressed to each selling Holder and Underwriter
of such Registrable Notes, covering the matters customarily covered in opinions
requested in underwritten offerings, (iii) obtain "cold comfort" letters from
the independent certified public accountants of the Company (and, if necessary,
any other certified public accountant of any subsidiary of the Company, or of
any Person or business acquired by the Company for which financial statements
and financial data are or are required to be included or incorporated by
reference in such Registration Statement or the related Prospectus or in the
documents incorporated or deemed to be incorporated therein) addressed to each
selling Holder and Underwriter of such Registrable Notes, such letters to be in
customary form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings, and (iv) deliver
such documents and certificates as may be reasonably requested by the Holders of
a majority in principal amount of the Registrable Notes covered by such Shelf
Registration Statement or the Underwriters, and which are customarily delivered
in underwritten offerings to evidence the continued validity of the
representations and warranties of the Company made pursuant to clause (i) above
and to evidence compliance with any customary conditions contained in the
related underwriting agreement.
In the case of a Shelf Registration Statement, the Company may require
each Holder of Registrable Notes that wishes to include Registrable Notes in
such Shelf Registration Statement, by written request from the Company to such
Holder, to furnish to the Company, on a form to be provided by the Company, such
information regarding such Holder and the proposed distribution by such Holder
of such Registrable Notes as the Company may be required to include in the Shelf
Registration Statement or the related Prospectus pursuant to the Securities Act
or the applicable rules and regulations of the SEC thereunder, and the Company
may exclude from such Shelf Registration Statement the Notes of any Holders that
refuse to comply with such request.
In the case of a Shelf Registration Statement, each Holder of
Registrable Notes covered by such Registration Statement agrees that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 3(e)(v) hereof or upon receipt from the Company of any
Voluntary Suspension Notice pursuant to Section 2(b) hereof, such Holder will
forthwith discontinue disposition of such Registrable Notes pursuant to such
Shelf Registration Statement until either (x) such Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 3(i)
hereof or (y) solely in the case of a Voluntary Suspension Notice, the Company
shall have notified such Holder that disposition of such Registrable Notes may
be resumed using the then current Prospectus, and, if so directed by the Company
in the case of clause (x), such Holder will deliver to the Company (at the
Company's expense) all copies in such Holder's possession, other than permanent
file copies then in such Holder's possession, of the Prospectus covering such
Registrable Notes current at the time of
15
receipt of such notice. If the Company shall give any such notice to suspend the
disposition of Registrable Notes pursuant to any Registration Statement or
otherwise to suspend the use of the related Prospectus as provided in this
Agreement, the Company shall extend the period during which such Registration
Statement shall be maintained effective pursuant to this Agreement by the number
of days during the period from and including the date of the giving of such
notice to and including the date when the Holders of the Registrable Notes
covered by such Registration Statement shall have received copies of the
supplemented or amended Prospectus necessary to resume such dispositions or such
Holders shall have received notice that disposition of such Registrable Notes
may be resumed using the then current Prospectus, as the case may be. Anything
herein to the contrary notwithstanding, the Company will not be entitled to
require Holders to discontinue the sale or other disposition of Registrable
Notes pursuant to the Shelf Registration Statement or to suspend the use of the
related Prospectus (whether because of the happening of any event of the kind
described in Section 3(e)(v) hereof or by the giving of a Voluntary Suspension
Notice) for more than two periods (which periods may not exceed 60 consecutive
days each nor exceed an aggregate of 120 days) during any period of 365
consecutive days.
The Holders of Registrable Notes covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Notes in an Underwritten
Offering. In any such Underwritten Offering, the investment banker or investment
bankers and manager or managers (the "UNDERWRITERS") that will administer the
offering will be selected by the Holders of a majority in aggregate principal
amount of the Registrable Notes covered by such Shelf Registration Statement
included in such offering.
4. PARTICIPATION OF BROKER-DEALERS IN EXCHANGE OFFER.
(a) The staff of the SEC has taken the position that any
broker-dealer that receives Exchange Notes in the Exchange Offer in exchange for
Notes that were acquired by such broker-dealer for its own account as a result
of market-making or other trading activities (a "PARTICIPATING BROKER-DEALER")
may be deemed to be an "underwriter" within the meaning of the Securities Act
and must deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Notes.
The Company understands that it is the position of the staff of the SEC
that if the Prospectus contained in the Exchange Offer Registration Statement
includes a plan of distribution containing a statement to the above effect and
the means by which Participating Broker-Dealers may resell the Exchange Notes,
without naming the Participating Broker-Dealers or specifying the amount of
Exchange Notes owned by them, such Prospectus may be delivered by Participating
Broker-Dealers to satisfy their prospectus delivery obligation under the
Securities Act in connection with resales of Exchange Notes for their own
accounts, so long as the Prospectus otherwise meets the requirements of the
Securities Act.
(b) In light of the above, notwithstanding the other provisions of
this Agreement, the Company agrees that the provisions of this Agreement as they
relate to a Shelf Registration shall also apply to an Exchange Offer
Registration to the extent, and with such modifications thereto as may be
reasonably requested by the Representatives or by one or more Participating
Broker-Dealers, in each case as provided in clause (ii) below, in order to
expedite or facilitate the
16
disposition of any Exchange Notes by Participating Broker-Dealers consistent
with the positions of the staff of the SEC recited in Section 4(a) above;
PROVIDED that:
(i) the Company shall not be required to amend or
supplement the Prospectus contained in the Exchange Offer Registration
Statement, as would otherwise be contemplated by Section 3(i), for a
period exceeding 180 days after the Expiration Date (as such period may
be extended pursuant to the penultimate paragraph of Section 3 of this
Agreement), and for a period of 180 days following the Expiration Date
(as such period may be extended pursuant to the penultimate paragraph
of Section 3 of this Agreement) Participating Broker-Dealers shall be
entitled to use and deliver such Prospectus in connection with resales
of Exchange Notes as contemplated by this Section 4; PROVIDED FURTHER
that Participating Broker-Dealers shall not be authorized by the
Company to deliver and shall not deliver such Prospectus after such
period in connection with the resales of Exchange Notes contemplated by
this Section 4; and
(ii) the application of the Shelf Registration
procedures set forth in Section 3 of this Agreement to an Exchange Offer
Registration, to the extent not required by the positions of the staff of the
SEC or the Securities Act and the rules and regulations thereunder, will be in
conformity with the reasonable request to the Company by the Representatives or
with the reasonable request in writing to the Company by one or more
broker-dealers who certify to the Representatives and the Company in writing
that they anticipate that they will be Participating Broker-Dealers; and
PROVIDED FURTHER that, in connection with such application of the Shelf
Registration procedures set forth in Section 3 to an Exchange Offer
Registration, the Company shall be obligated (x) to deal only with two entities
representing the Participating Broker-Dealers, which shall be Xxxxxx Xxxxxxx and
Citigroup unless either entity elects not to act as such representative, (y) to
pay, in addition to the Registration Expenses otherwise payable by the Company,
the fees and disbursements of one counsel representing the Participating
Broker-Dealers, which shall be counsel to the Initial Purchasers unless such
counsel elects not to so act and (z) to cause to be delivered only one, if any,
"cold comfort" or similar letter relating to the Company (plus only one, if any,
"cold comfort" or similar letter with respect to any other Person or businesses
whose financial statements are included or incorporated or deemed to be
incorporated by reference in the Exchange Offer Registration Statement) with
respect to the Prospectus in the form existing on the Expiration Date and with
respect to each subsequent amendment or supplement, if any, effected during the
period specified in clause (i) above.
(c) The Representatives shall have no liability to the Company or
any Holder with respect to any request that they may make pursuant to Section
4(b) above.
5. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless the Initial
Purchasers, each Holder and each Person, if any, who controls any Initial
Purchaser or any Holder within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, or is under
17
common control with, or is controlled by, any Initial Purchaser or any Holder,
from and against all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred by any Initial
Purchaser, any Holder or any such controlling or affiliated Person in connection
with defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto) pursuant to which any Exchange
Notes or any Registrable Notes were registered under the Securities Act,
including all documents incorporated or deemed to be incorporated therein by
reference, or caused by 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, or caused by any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to the Initial Purchasers or any Holder furnished to the Company in
writing through Xxxxxx Xxxxxxx or Citigroup or by any selling Holder,
respectively, expressly for use therein; PROVIDED, HOWEVER, that the foregoing
indemnity agreement with respect to any preliminary Prospectus relating to a
Shelf Registration Statement shall not inure to the benefit of any Holder or
Participating Broker-Dealer from whom the Person asserting any such losses,
claims, damages or liabilities purchased Notes covered by such Shelf
Registration Statement, or any person controlling such Holder or Participating
Broker-Dealer, if a copy of the final Prospectus relating to such Shelf
Registration Statement (as then amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Holder or Participating Broker-Dealer, as the case may be,
to such Person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of such Notes to such Person, and if such final
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such losses, claims, damages or liabilities, unless such failure is the
result of noncompliance by the Company with Section 2(b), 3(b), 3(e) or 3(i) or
the penultimate paragraph of Section 3 hereof, or unless such defect shall have
been cured by a document incorporated or deemed to be incorporated by reference
in such Prospectus. In connection with any Underwritten Offering permitted by
Section 3, the Company will also indemnify the Underwriters, if any, selling
brokers, dealers and similar securities industry professionals participating in
the distribution, their officers and directors and each Person who controls any
such Persons (within the meaning of the Securities Act or the Exchange Act) to
the same extent as provided above with respect to the indemnification of the
Holders, if requested in connection with any Registration Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company, the Initial Purchasers and the other selling Holders,
and each of their respective directors, each of the officers of the Company who
sign the Registration Statement and each Person, if any, who controls the
Company, any Initial Purchaser and any other selling Holder within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to the Initial
Purchasers and the Holders, but only with reference to information relating to
such Holder furnished to the
18
Company in writing by such Holder expressly for use in any Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto).
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to either paragraph (a) or paragraph (b) above,
such Person (the "INDEMNIFIED PARTY") shall promptly notify the Person against
whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
Indemnifying Party, upon request of the Indemnified Party, shall retain counsel
reasonably satisfactory to the Indemnified Party to represent the Indemnified
Party and any others the Indemnifying Party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any Indemnified Party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the Indemnifying Party and the Indemnified Party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the Indemnifying Party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for (x) the fees and expenses of more than one separate
firm (in addition to any local counsel) for the Initial Purchasers and all
Persons, if any, who control any Initial Purchasers within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, (y) the fees
and expenses of more than one separate firm (in addition to any local counsel)
for the Company, its directors, its officers who sign the Registration Statement
and each Person, if any, who controls the Company within the meaning of either
such Section and (z) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Holders and all Persons, if any, who
control any Holders within the meaning of either such Section, and that all such
fees and expenses shall be reimbursed as they are incurred. In such case
involving the Initial Purchasers and Persons who control the Initial Purchasers,
such firm shall be designated in writing by Xxxxxx Xxxxxxx. In such case
involving the Holders and such Persons who control Holders, such firm shall be
designated in writing by the Majority Holders. In all other cases, such firm
shall be designated by the Company. The Indemnifying Party shall not be liable
for any settlement of any proceeding effected without its written consent but,
if settled with such consent or if there be a final judgment for the plaintiff,
the Indemnifying Party agrees to indemnify the Indemnified Party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Party
shall have requested an Indemnifying Party to reimburse the Indemnified Party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the Indemnifying Party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
Indemnifying Party of the aforesaid request and (ii) such Indemnifying Party
shall not have reimbursed the Indemnified Party for such fees and expenses of
counsel in accordance with such request prior to the date of such settlement. 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 such Indemnified Party is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Party, unless such
settlement includes an unconditional release of such Indemnified Party from all
liability on claims that are the subject matter of such proceeding.
19
(d) If the indemnification provided for in paragraph (a) or
paragraph (b) of this Section 5 is unavailable to an Indemnified Party or
insufficient in respect of any losses, claims, damages or liabilities, then each
Indemnifying Party under such paragraph, in lieu of indemnifying such
Indemnified Party thereunder, shall contribute to the amount paid or payable by
such Indemnified Party as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the relative fault
of the Indemnifying Party or Parties on the one hand and of the Indemnified
Party or Parties on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative fault of the
Company and the Holders 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 Holders and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Holders' respective obligations to contribute
pursuant to this Section 5(d) are several in proportion to the respective
principal amount of Registrable Notes of such Holders that were registered
pursuant to a Registration Statement.
(e) The Company and each Holder agree that it would not be just or
equitable if contribution pursuant to this Section 5 were determined by PRO RATA
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount paid
or payable by an Indemnified Party as a result of the losses, claims, damages
and liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 5, no Holder shall be required to indemnify or contribute any amount in
excess of the amount by which the total price at which Registrable Notes were
sold by such Holder exceeds the amount of any damages that such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 5 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any Indemnified Party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 5 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of the Initial Purchasers, any Holder or any Person controlling any of the
Initial Purchasers or any Holder, or by or on behalf of the Company, its
officers or directors or any Person controlling the Company, (iii) acceptance of
any of the Exchange Notes and (iv) any sale of Registrable Notes pursuant to a
Shelf Registration Statement.
6. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company has not entered into,
and on or after the date of this Agreement will not enter into, any agreement
which is inconsistent with the rights granted to the Holders of Registrable
Notes in this Agreement or otherwise conflicts with
20
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 other issued and outstanding securities under any such
agreements.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, 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 at least a majority in aggregate principal amount of the outstanding
Registrable Notes affected by such amendment, modification, supplement, waiver
or consent; PROVIDED, HOWEVER, that no amendment, modification, supplement,
waiver or consent to any departure from the provisions of Section 5 hereof shall
be effective as against any Holder of Registrable Notes unless consented to in
writing by such Holder.
(c) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telecopier, or any courier guaranteeing overnight delivery (i)
if to a Holder, at the most current address given by such Holder to the Company
by means of a notice given in accordance with the provisions of this Section
6(c), which address initially is, with respect to the Initial Purchasers, c/o
Morgan Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Fixed Income Syndicate Desk, and Citigroup Global Markets Inc., 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxxxxxx; and
(ii) if to the Company, initially at Packaging Corporation of America, 0000 Xxxx
Xxxxx Xxxxx, Xxxx Xxxxxx, XX 00000, Attention: Chief Financial Officer, and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 6(c). Notwithstanding the foregoing provisions of
this paragraph, any notices given to the Depository or its nominee, as Holder of
any Notes, may be given in accordance with the Depository's customary procedures
as in effect from time to time.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; seven Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged, if telecopied; on the next Business Day if timely delivered to
a courier providing for overnight delivery; and, in the case of any notices or
communications that are delivered to the Depository or its nominee
electronically, upon receipt.
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, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; PROVIDED that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Notes in violation of the terms of the Purchase Agreement or the Indenture; and
PROVIDED FURTHER that, without limitation to the foregoing, if any Person shall
assume or otherwise succeed to the Company's obligations under the Indenture,
the Company will, prior to or contemporaneous with such transaction, cause such
successor Person to deliver a written agreement to the Representatives and the
Trustee whereby such successor Person shall expressly
21
assume all of the Company's obligations and agree to perform all of the
Company's agreement under this Agreement. If any transferee of any Holder shall
acquire Registrable Notes, in any manner, whether by operation of law or
otherwise, such Registrable Notes shall be held subject to all of the terms of
this Agreement, and by taking and holding such Registrable Notes such Person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof. The Representatives and the Initial Purchasers (in
their respective capacities as Representatives and Initial Purchasers) shall
have no liability or obligation to the Company with respect to any failure by a
Holder to comply with, or any breach by any Holder of, any of the obligations of
such Holder under this Agreement.
(e) PURCHASES AND SALES OF NOTES. The Company shall not, and shall
use its best efforts to cause its affiliates (as defined in Rule 405 under the
Securities Act) not to, purchase and then resell or otherwise transfer any
Notes.
(f) THIRD PARTY BENEFICIARY. The Holders and the Initial
Purchasers shall be third party beneficiaries to the agreements made hereunder
between the Company, on the one hand, and the Representatives, on the other
hand, and each of them shall have the right to enforce such agreements directly
to the extent it deems such enforcement necessary or advisable to protect its
rights or the rights of Holders or Initial Purchasers, respectively hereunder.
(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.
(j) VENUE AND JURISDICTION. The Company irrevocably (i) agrees, to
the fullest extent it may effectively do so under applicable law, that any
action, suit or proceeding against the Company brought by any Initial Purchaser
or Holder or by any person who controls any Initial Purchaser arising out of,
based upon or relating to this Agreement or any of the transactions contemplated
hereby may be instituted in any federal or state court in the State of New York,
(ii) waives, to the fullest extent it may effectively do so under applicable
law, any objection which it may now or hereafter have to the laying of venue of
any such proceeding or to the convenience of the forum and (iii) submits, to the
fullest extent it may effectively do so under applicable law, to the
non-exclusive jurisdiction of any federal or state court in the State of New
York in any such action, suit or proceeding.
(k) 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, then, to the maximum extent permitted by
law, the validity, legality and enforceability of any such
22
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
PACKAGING CORPORATION OF AMERICA
By: /s/ Xxxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President,
Chief Executive Officer
and Corporate Secretary
Confirmed and accepted as of
the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
CITIGROUP GLOBAL MARKETS INC.
Acting severally on behalf of themselves
and the several Initial Purchasers named in the Purchase Agreement.
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxxxxx III
------------------------------
Name: Xxxxxx X. Xxxxxxxxxx III
Title:Executive Director
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Xxxx Chrysikopoulous
------------------------------
Name: Xxxx Chrysikopoulous
Title:Managing Director
