Reynolds Group Issuer LLC Reynolds Group Issuer Inc. Reynolds Group Issuer (Luxembourg) S.A. $1,250,000,000 aggregate principal amount of 9.875% Senior Notes due 2019 REGISTRATION RIGHTS AGREEMENT
EXHIBIT 4.12.13
Xxxxxxxx Group Issuer LLC
Xxxxxxxx Group Issuer Inc.
Xxxxxxxx Group Issuer (Luxembourg) S.A.
Xxxxxxxx Group Issuer Inc.
Xxxxxxxx Group Issuer (Luxembourg) S.A.
$1,250,000,000 aggregate principal amount of 9.875% Senior Notes due 2019
February 15, 2012
Credit Suisse Securities (USA) LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Xxxxxxxx Group Issuer LLC, a limited liability company organized under the laws of the State
of Delaware (the “US Issuer I”), Xxxxxxxx Group Issuer Inc., a corporation organized under the laws
of the State of Delaware (the “US Issuer II” and, together with the US Issuer I, the “US Issuers”)
and Xxxxxxxx Group Issuer (Luxembourg) S.A., a société anonyme (public limited liability company)
incorporated under the laws of Luxembourg (the “Lux Issuer” and, together with the US Issuers, the
“Issuers”) issued and sold to Credit Suisse Securities (USA) LLC, on behalf of itself and as
representative of the other purchaser named therein (collectively, the “Initial Purchasers”),
pursuant to and upon the terms set forth in the Purchase Agreement dated February 9, 2012 (the
“Purchase Agreement”), $1,250,000,000 aggregate principal amount of 9.875% Senior Notes due 2019
(the “Initial Securities”), to be unconditionally guaranteed (the “Guarantees”) on the Closing Date
(as defined in the Purchase Agreement) by the Closing Date Guarantors (as defined in the Purchase
Agreement) and from time to time after the Closing Date, by the Post Closing Date Guarantors (as
defined in the Purchase Agreement and, together with the Closing Date Guarantors, the
“Guarantors”). The Initial Securities will be issued pursuant to an indenture, dated as of
February 15, 2012 (the “Indenture”), among the Issuers, the Closing Date Guarantors, The Bank of
New York Mellon, as trustee (the “Trustee”), principal paying agent, transfer agent and registrar,
and The Bank of New York Mellon, London Branch, as paying agent. From time to time after the
Closing Date, on the date any Post Closing Date Guarantor guarantees the Initial Securities, such
Post Closing Date Guarantor shall, and the Company (as defined below) shall cause it to, join this
Agreement by execution and delivery of the joinder attached hereto as Annex A (the “Registration
Rights Agreement Joinder”), pursuant to which each such Post Closing Date Guarantor shall obtain
the same rights and be subject to the same obligations as the Guarantors party hereto, as though
such Post Closing Date Guarantor had entered into this Agreement on the date hereof. As used
herein, references to the “Company” refer to (i) the Issuers, (ii) the Closing Date Guarantors and
(iii) following the execution of a Registration Rights Agreement Joinder by any Post Closing Date
Guarantor, such Post Closing Date Guarantor. Capitalized terms used but not defined herein shall
have the meanings given to such terms in the Purchase Agreement.
As an inducement to the Initial Purchasers, for whom Credit Suisse Securities (USA) LLC is
acting as representative, to enter into the Purchase Agreement, the Company agrees with the Initial
Purchasers for the benefit of the holders of the Initial Securities (including, without limitation,
the Initial Purchasers), the Exchange Securities (as defined below) and the Private Exchange
Securities (as defined below) (collectively the “Holders”), as follows:
1. Registered Exchange Offer. To the extent not prohibited by any applicable law or
interpretation of the staff of the Securities and Exchange Commission (the “Commission”), the
Company shall prepare, and use its commercially reasonable efforts to file a registration statement
with the Commission (or amend any such registration statement so filed and not theretofore declared
effective) (the
“Exchange Offer Registration Statement”) on an appropriate form under the United
States Securities Act of 1933, as amended (the “Securities Act”), with respect to a proposed offer
(the “Registered Exchange Offer”) to the Holders of Transfer Restricted Securities (as defined in
Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating
in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial
Securities, a like aggregate principal amount of debt securities (the “Exchange Securities”) of the
Company identical in all material respects to the Initial Securities (except for transfer
restrictions relating to the Initial Securities and the provisions relating to the matters
described in Section 6 hereof) that would be registered under the Securities Act. The Company
shall (i) use commercially reasonable efforts to cause such Exchange Offer Registration Statement
to be declared effective under the Securities Act on or prior to 365 days (or if the 365th day is
not a business day, the first business day thereafter) after August 9, 2011, (ii) as soon as
practicable after the effectiveness of the Exchange Offer Registration Statement, offer the
Exchange Securities of each series in exchange for the Initial Securities of the relevant series
and (iii) keep the Registered Exchange Offer open for not less than 20 business days (or longer, if
required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the
Holders (such period being called the “Exchange Offer Registration Period”).
The Company plans to issue the Exchange Securities as “Additional Securities” under the
indenture dated as of August 9, 2011, (as amended or supplemented from time to time, the “Existing
Indenture”), among the Issuers (as successors to certain Escrow Issuers, as defined in the Existing
Indenture), certain guarantors, the Trustee and The Bank of New York Mellon, London Branch, as
paying agent. In connection with the Registered Exchange Offer, the Company intends to seek, but
will not be required to seek an exit consent (the “exit consent”) from the holders of the Initial
Securities to eliminate substantially all of the restrictive covenants, certain events of default
and certain other provisions contained in the Indenture. If the exit consent is sought, holders of
the Initial Securities will be required to give such a consent in order to exchange Initial
Securities for Exchange Securities in the Registered Exchange Offer. If for any reason (regulatory
or otherwise) the Company decides that it is not practical or that it is inadvisable to issue the
Exchange Securities under the Existing Indenture, then the Exchange Securities will be issued under
the Indenture and no exit consent will be sought or permitted.
If the Company effects the Registered Exchange Offer, the Company will be entitled to close
the Registered Exchange Offer 20 business days after the commencement thereof provided that the
Company has accepted all the Initial Securities theretofore validly tendered in accordance with the
terms of the Registered Exchange Offer.
Following the declaration of the effectiveness of the Exchange Offer Registration Statement,
the Company shall as soon as practicable commence the Registered Exchange Offer, it being the
objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities
(as defined in Section 6 hereof) electing to exchange the Initial Securities for Exchange
Securities (assuming that at the time of the commencement of the Registered Exchange Offer such
Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the
Exchange Securities in the ordinary course of such Holder’s business and has no arrangements with
any person to participate in the distribution of the Exchange Securities and is not prohibited by
any law or policy of the Commission from participating in the Registered Exchange Offer) to trade
such Exchange Securities from and after their receipt without any limitations or restrictions under
the Securities Act and without material restrictions under the securities laws of the several
states of the United States.
The Company acknowledges that, pursuant to current interpretations by the Commission’s staff
of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each
Holder which is a broker-dealer electing to exchange Securities (as defined below), acquired for
its own account as a result of market making activities or other trading activities, for Exchange
Securities (an “Exchanging Dealer”), is required to deliver a prospectus containing the information
set forth in (a) Annex B hereto on the cover, (b) Annex C hereto in the “Exchange Offer Procedures” section and the “Purpose of
the Exchange Offer” section and (c) Annex D hereto in the “Plan of Distribution” section of such
prospectus in connection with a sale of any such Exchange Securities received by such Exchanging
Dealer pursuant to the Registered Exchange Offer and (ii) if an Initial Purchaser is permitted and
elects to sell Exchange
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Securities acquired in exchange for Securities constituting any portion of
an unsold allotment, it is required to deliver a prospectus containing the information required by
Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such
sale.
The Company shall use its commercially reasonable efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement the prospectus contained therein, in
order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus
delivery requirements of the Securities Act for such period of time as such persons must comply
with such requirements in order to resell the Exchange Securities; provided, however, that (i) in
the case where such prospectus and any amendment or supplement thereto must be delivered by an
Exchanging Dealer or an Initial Purchaser, such period shall be 180 days (or such shorter period
during which all Participating Broker-Dealers (as defined below) are required by law to deliver
such prospectus) (unless such period is extended pursuant to Section 3(j) below) and (ii) the
Company shall make such prospectus and any amendment or supplement thereto, available to any
broker-dealer for use in connection with any resale of any Exchange Securities for a period of not
less than 90 days after the consummation of the Registered Exchange Offer.
If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial
Securities acquired by it as part of its initial distribution, the Company, simultaneously with the
delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and
deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange
(the “Private Exchange”) for the Initial Securities held by such Initial Purchaser, a like
principal amount of debt securities of the Company issued under the Existing Indenture (or, if the
Company offered the Exchange Securities under the Indenture pursuant to the Registered Exchange
Offer, the Indenture) and identical in all material respects (including the existence of
restrictions on transfer under the Securities Act and the securities laws of the several states of
the United States, but excluding provisions relating to the matters described in Section 6 hereof)
to the Initial Securities (the “Private Exchange Securities”). The Initial Securities, the
Exchange Securities and the Private Exchange Securities are herein collectively called the
“Securities”.
In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate letter of transmittal and related
documents;
(b) keep the Registered Exchange Offer open for not less than 20 business days (or
longer, if required by applicable law) after the date notice thereof is mailed to the
Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an
address in the Borough of Manhattan, The City of New York, which may be the Trustee or an
affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of
business, New York time, on the last business day on which the Registered Exchange Offer
shall remain open; and
(e) otherwise comply with all applicable laws.
As soon as practicable after the close of the Registered Exchange Offer or the Private
Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not withdrawn
pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver or cause to be delivered to the Trustee for cancellation all the Initial
Securities so accepted for exchange; and
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(z) cause the Trustee to authenticate and deliver promptly to each Holder of the
Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be,
equal in principal amount to the Initial Securities of such Holder so accepted for
exchange.
The Existing Indenture provides, and the Indenture will provide, that the Exchange Securities
will not be subject to the transfer restrictions set forth in the Existing Indenture or the
Indenture, respectively, and that all the Securities will vote and consent together on all matters
as one class and that none of the Securities will have the right to vote or consent as a class
separate from one another on any matter, subject in each case to the Securities being in the same
class as any other securities issued and outstanding under the Existing Indenture (including the
currently outstanding 9.875% Senior Notes due 2019) or the Indenture, as the case may be.
Interest on each Exchange Security and Private Exchange Security issued pursuant to the
Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment
date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if
no interest has been paid on the Initial Securities, from February 15, 2012.
Each Holder participating in the Registered Exchange Offer shall be required to represent to
the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange
Securities received by such Holder will be acquired in the ordinary course of business, (ii) such
Holder will have no arrangements or understanding with any person to participate in the
distribution of the Securities or the Exchange Securities 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 or if it is an affiliate, such Holder will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a
broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the
Exchange Securities, (v) if such Holder is a broker-dealer, that it will receive Exchange
Securities for its own account in exchange for Initial Securities that were acquired 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 in connection with any resale of such Exchange Securities and
(vi) such Holder is not acting on behalf of any person who could not truthfully make the foregoing
representations.
Notwithstanding any other provisions hereof, the Company shall use its commercially reasonable
efforts to ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and
any prospectus forming part thereof and any supplement thereto complies in all material respects
with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer
Registration Statement and any amendment thereto does not, when it becomes effective, contain an
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading and (iii) any prospectus forming part of
any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include
an untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
2. Shelf Registration. If (i) because of any change in law or in applicable interpretations
thereof by the staff of the Commission, the Company is not permitted to effect a Registered
Exchange Offer, as contemplated by Section 1 hereof, (ii) the Registered Exchange Offer is not
consummated within 365 days of August 9, 2011, (iii) any Initial Purchaser so requests with respect
to Securities not eligible to be exchanged for Exchange Securities in the Registered Exchange Offer
and held by it following consummation of the Registered Exchange Offer or (iv) any Holder (other
than the Initial Purchasers) is prohibited by law or Commission policy from participating in the
Registered Exchange Offer or may not resell the Exchange Securities acquired by it in the
Registered Exchange Offer without delivering a prospectus and the prospectus contained in the Exchange Offer Registration Statement is not
available for such resales by such holder (other than in either case (x) due solely to the status
of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due
to such holder’s inability to make the representations set forth in the second to last paragraph of
Section 1 hereof), and such Holder notifies the Company in writing on or before the 60th day
following the consummation of the Registered Exchange Offer, the Company shall take the following
actions:
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(a) The Company shall use commercially reasonable efforts to file with the Commission
and cause to make available an effective (unless it becomes effective automatically upon
filing) shelf registration statement (the “Shelf Registration Statement” and, together with
the Exchange Offer Registration Statement, a “Registration Statement”) on an appropriate
form under the Securities Act relating to the offer and sale of the Transfer Restricted
Securities (as defined in Section 6 hereof) by the Holders thereof from time to time in
accordance with the methods of distribution set forth in the Shelf Registration Statement
and Rule 415 under the Securities Act (hereinafter, the “Shelf Registration”) (A) in the
case of clause (i) of the immediately preceding paragraph, on or prior to the 365th day
after August 9, 2011, and (B) in the case of clause (ii), (iii) or (iv) of the immediately
preceding paragraph, as promptly as possible after the 365th day after August 9, 2011;
provided, however, that no Holder (other than the Initial Purchasers) shall be entitled to
have the Securities held by it covered by such Shelf Registration Statement unless such
Holder agrees in writing to be bound by all the provisions of this Agreement applicable to
such Holder.
(b) The Company shall keep the Shelf Registration Statement effective until the
earlier of (A) all such Securities covered by such Shelf Registration Statement (i) become
eligible for resale without regard to volume, manner of sale or other restrictions
contained in Rule 144 or (ii) have been sold pursuant to the Shelf Registration Statement
and (B) September 8, 2013.
(c) Notwithstanding any other provisions of this Agreement to the contrary, the
Company shall use its commercially reasonable efforts to cause the Shelf Registration
Statement and the related prospectus and any amendment or supplement thereto, as of the
effective date of the Shelf Registration Statement, amendment or supplement, (i) to comply
in all material respects with the applicable requirements of the Securities Act and the
rules and regulations of the Commission and (ii) not to contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under which they
were made, not misleading.
Notwithstanding anything to the contrary in this Agreement, at any time, the Company may delay
the filing of any Shelf Registration Statement or delay or suspend the effectiveness thereof, for a
reasonable period of time, but not in excess of 45 consecutive days or more than three (3) times
during any calendar year if the Board of Directors/Member of the Issuers, determines reasonably and
in good faith that (x) the filing of any such Shelf Registration Statement or the continuing
effectiveness thereof would require the disclosure of non-public material information that, in the
reasonable judgment of the Board of Directors/Member of the Issuers, would be detrimental to the
Issuers, if so disclosed or would otherwise materially adversely affect a financing, acquisition,
disposition, merger or other material transaction or (y) such action is required by applicable law.
3. Registration Procedures. In connection with any Shelf Registration contemplated by
Section 2 hereof and, to the extent applicable, any Registered Exchange Offer contemplated by
Section 1 hereof, the following provisions shall apply:
(a) The Company shall use its commercially reasonable efforts to (i) furnish to each
Initial Purchaser, prior to the filing thereof with the Commission, a copy of the
Registration Statement and each amendment thereof and each supplement, if any, to the
prospectus included therein and, in the event that any Initial Purchaser (with respect to
any portion of an unsold allotment from the original offering) is participating in the
Registered Exchange Offer or the Shelf Registration Statement, the Company shall use its
commercially reasonable efforts to reflect in each such document, when so filed with the Commission, such reasonable comments as
such Initial Purchaser reasonably may propose; (ii) include the information set forth in
Annex B hereto on the cover, in Annex C hereto in the “Exchange Offer Procedures” section
and the “Purpose of the Exchange Offer” section and in Annex D hereto in the “Plan of
Distribution” section of the prospectus forming a part of the Exchange Offer Registration
Statement and include the information set forth in Annex E hereto in the Letter of
Transmittal delivered pursuant to the Registered Exchange Offer; (iii) if requested by any
Initial Purchaser in writing, include the
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information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in the prospectus forming a part of
the Exchange Offer Registration Statement; (iv) include within the prospectus contained in
the Exchange Offer Registration Statement a section entitled “Plan of Distribution,”
reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of
the positions taken or policies made by the staff of the Commission with respect to the
potential “underwriter” status of any broker-dealer that is the beneficial owner (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”)) of Exchange Securities received by such broker-dealer in the Registered Exchange
Offer (a “Participating Broker-Dealer”), whether such positions or policies have been
publicly disseminated by the staff of the Commission or such positions or policies, in the
reasonable judgment of the Initial Purchasers based upon advice of counsel (which may be
in-house counsel), represent the prevailing views of the staff of the Commission; and (v)
in the case of a Shelf Registration Statement, include in the prospectus included in the
Shelf Registration Statement (or, if permitted by Commission Rule 430B(b), in a prospectus
supplement that becomes a part thereof pursuant to Commission Rule 430B(f)) that is
delivered to any Holder pursuant to Section 3(d) and (f), to the extent required by law or
interpretation of the staff of the Commission, the names of the Holders, who propose to
sell Securities pursuant to the Shelf Registration Statement, as selling securityholders.
(b) The Company shall give written notice to the Initial Purchasers, the Holders of
the Securities and any Participating Broker-Dealer from whom the Company has received prior
written notice that it will be a Participating Broker-Dealer in the Registered Exchange
Offer (which notice pursuant to clauses (ii)-(v) hereof shall be accompanied by an
instruction to suspend the use of the prospectus until the requisite changes have been
made):
(i) when the Registration Statement or any amendment thereto has been filed
with the Commission and when the Registration Statement or any post-effective
amendment thereto has become effective;
(ii) of any request by the Commission for amendments or supplements to the
Registration Statement or the prospectus included therein or for additional
information;
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose, of the issuance by the Commission of a notification of objection
to the use of the form on which the Registration Statement has been filed, and of
the happening of any event that causes the Company to become an “ineligible
issuer,” as defined in Commission Rule 405;
(iv) of the receipt by the Company or its legal counsel of any notification
with respect to the suspension of the qualification of the Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose; and
(v) of the happening of any event that requires the Company to make changes
in the Registration Statement or the prospectus in order that the Registration
Statement or the prospectus do not contain an untrue statement of a material fact
nor omit to state a material fact required to be stated therein or necessary to
make the statements therein (in the case of the prospectus, in light of the
circumstances under which they were made) not misleading.
(c) The Company shall use its commercially reasonable efforts to obtain the
withdrawal at the earliest possible time, of any order suspending the effectiveness of the
Registration Statement.
(d) The Company shall furnish to each Holder of Securities included within the
coverage of the Shelf Registration, without charge, at least one copy of the Shelf
Registration Statement and
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any post-effective amendment or supplement thereto, including
financial statements and schedules, and, if the Holder so requests in writing, all exhibits
thereto (including those, if any, incorporated by reference). The Company shall not,
without the prior consent of the Initial Purchasers, such consent not to be unreasonably
withheld, make any offer relating to the Securities that would constitute a “free writing
prospectus,” as defined in Commission Rule 405.
(e) The Company shall deliver to each Exchanging Dealer and each Initial Purchaser,
and to any other Holder who so requests, without charge, at least one copy of the Exchange
Offer Registration Statement and any post-effective amendment thereto, including financial
statements and schedules, and, if any Initial Purchaser or any such Holder requests, all
exhibits thereto (including those incorporated by reference).
(f) The Company shall, during the period during which the Company is required to
maintain an effective Shelf Registration Statement pursuant to this Agreement, deliver to
each Holder of Securities included within the coverage of the Shelf Registration, without
charge, as many copies of the prospectus (including each preliminary prospectus) included
in the Shelf Registration Statement and any amendment or supplement thereto as such person
may reasonably request. The Company consents, subject to the provisions of this Agreement,
to the use of the prospectus or any amendment or supplement thereto by each of the selling
Holders of the Securities in connection with the offering and sale of the Securities
covered by the prospectus, or any amendment or supplement thereto, included in the Shelf
Registration Statement.
(g) The Company shall deliver to each Initial Purchaser, any Exchanging Dealer, any
Participating Broker-Dealer and such other persons required to deliver a prospectus
following the Registered Exchange Offer, without charge, as many copies of the final
prospectus included in the Exchange Offer Registration Statement and any amendment or
supplement thereto as such persons may reasonably request. The Company consents, subject
to the provisions of this Agreement, to the use of the prospectus or any amendment or
supplement thereto by any Initial Purchaser, if necessary, any Participating Broker-Dealer
and such other persons required to deliver a prospectus following the Registered Exchange
Offer in connection with the offering and sale of the Exchange Securities covered by the
prospectus, or any amendment or supplement thereto, included in such Exchange Offer
Registration Statement; provided, however, that such persons shall not be authorized by the
Company to deliver and shall not deliver any such prospectus after the expiration of the
period referred to in Section 2(b), in connection with the resales contemplated by this
paragraph.
(h) Prior to any public offering of the Securities, pursuant to any Registration
Statement, the Company shall use its commercially reasonable efforts to register or qualify
or cooperate with the Holders of the Securities included therein and their respective
counsel in connection with the registration or qualification of the Securities for offer
and sale under the securities or “blue sky” laws of such states of the United States as any
Holder of the Securities reasonably requests in writing and do any and all other acts or
things necessary or advisable to enable the offer and sale in such jurisdictions of the
Securities covered by such Registration Statement; provided, however, that the Company
shall not be required to (i) qualify generally to do business in any jurisdiction where it
is not then so qualified, (ii) take any action which would subject it to general service of
process or to taxation in any jurisdiction where it is not then so subject or (iii) make
any changes to their certificate of incorporation, by-laws or other organizational
documents, or any agreement between them and any of their shareholders.
(i) The Company shall cooperate with the Holders of the Securities to facilitate the
timely preparation and delivery of certificates representing the Securities to be sold
pursuant to any Registration Statement free of any restrictive legends and in such
denominations and registered in such names as the Holders may request a reasonable period
of time prior to sales of the Securities pursuant to such Registration Statement.
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(j) Upon the occurrence of any event contemplated by paragraphs (ii) through (v) of
Section 3(b) above during the period for which the Company is required to maintain an
effective Registration Statement, the Company shall promptly prepare and file a
post-effective amendment to the Registration Statement or a supplement to the related
prospectus and any other required document so that, as thereafter delivered to Holders of
the Securities or purchasers of Securities, the prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. If the Company notifies the Initial Purchasers, the
Holders of the Securities and any known Participating Broker-Dealer in accordance with
paragraphs (ii) through (v) of Section 3(b) above to suspend the use of the prospectus
until the requisite changes to the prospectus have been made, then the Initial Purchasers,
the Holders of the Securities and any such Participating Broker-Dealers shall suspend use
of such prospectus until the Company has amended or supplemented the prospectus to correct
such misstatement or omission, and the period of effectiveness of the Shelf Registration
Statement provided for in Section 2(b) above and the Exchange Offer Registration Statement
provided for in Section 1 above shall each be extended by the number of days from and
including the date of the giving of such notice to and including the date when the Initial
Purchasers, the Holders of the Securities and any known Participating Broker-Dealer shall
have received such amended or supplemented prospectus pursuant to this Section 3(j). The
Initial Purchasers, each Holder and any Participating Broker-Dealers agree that upon the
receipt of any such written notice from the Company, they will not distribute copies of the
prospectus that are the subject of such notice and will retain such copies in their files.
(k) Not later than the effective date of the applicable Registration Statement, the
Company will provide a CUSIP number for the Initial Securities, the Exchange Securities or
the Private Exchange Securities, as the case may be, and provide the applicable trustee
with printed certificates for the Initial Securities, the Exchange Securities or the
Private Exchange Securities, as the case may be, in a form eligible for deposit with The
Depository Trust Company.
(l) The Company will comply in all material respects with all rules and regulations
of the Commission to the extent and so long as they are applicable to the Registered
Exchange Offer or the Shelf Registration and will make generally available to its security
holders (or otherwise provide in accordance with Section 11(a) of the Securities Act) an
earnings statement satisfying the provisions of Section 11(a) of the Securities Act, no
later than 45 days after the end of a 12-month period (or 90 days, if such period is a
fiscal year) beginning with the first month of the Company’s first fiscal quarter
commencing after the effective date of the Registration Statement, which statement shall
cover such 12-month period.
(m) The Company shall cause the indenture under which the Exchange Securities are
issued to be qualified under the Trust Indenture Act of 1939, as amended, in a timely
manner and containing such changes, if any, as shall be necessary for such qualification.
In the event that such qualification would require the appointment of a new trustee under
the Existing Indenture or the Indenture, as applicable, the Company shall appoint a new
trustee thereunder pursuant to the applicable provisions of the Existing Indenture or the
Indenture, as applicable.
(n) The Company may require each Holder of Securities to be sold pursuant to the
Shelf Registration Statement to furnish to the Company such information regarding the
Holder and the distribution of the Securities as the Company may from time to time
reasonably require for inclusion in the Shelf Registration Statement, and the Company may
exclude from such registration the Securities of any Holder that fails to furnish such information
within a reasonable time after receiving such request.
(o) The Company shall enter into such customary agreements (including, if requested,
an underwriting agreement in customary form) and take all such other action, if any, as
Holders of a majority of the aggregate principal amount of the Securities shall reasonably
request in order to facilitate the disposition of the Securities pursuant to any Shelf
Registration.
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(p) In the case of any Shelf Registration, the Company shall make reasonably
available for inspection by the Holders of the Securities, any underwriter participating in
any disposition pursuant to the Shelf Registration Statement and any attorney, accountant
or other agent retained by the Holders of the Securities or any such underwriter all
relevant financial and other records, pertinent corporate documents and properties of the
Company customarily inspected by underwriters in primary underwritten offerings and use its
commercially reasonable efforts to cause the Company’s officers, directors, employees,
accountants and auditors to supply all relevant information reasonably requested by the
Holders of the Securities or any such underwriter, attorney, accountant or agent in
connection with the Shelf Registration Statement, in each case, as shall be reasonably
necessary to enable such persons, to conduct a reasonable investigation within the meaning
of Section 11 of the Securities Act; provided, however, that the foregoing inspection and
information gathering shall be coordinated on behalf of the Initial Purchasers by counsel
to the Initial Purchasers and on behalf of the other parties, by one counsel designated by
and on behalf of such other parties as described in Section 4 hereof; and provided further,
that each such party shall be required to maintain in confidence and not to disclose to any
other person any information or records reasonably designated by the Company as being
confidential (any such information, “Confidential Information”), until such time as (A)
such Confidential Information becomes a matter of public record (whether by virtue of its
inclusion in such registration statement or otherwise except as a result of a breach of
this or any other obligation of confidentiality to the Company known to such party), or (B)
such person shall be required (pursuant to an agreement in form and substance reasonably
satisfactory to such person and the Company) so to disclose such Confidential Information
pursuant to a subpoena or order of any court or other governmental agency or body having
jurisdiction over the matter (subject to the requirements of such order, and only after
such person shall have given the Company prompt prior written notice of such requirement so
that the Company, at its expense, may undertake appropriate action to prevent disclosure of
such Confidential Information or records), or (C) such Confidential Information is required
to be set forth in such Shelf Registration Statement or the prospectus included therein or
in an amendment to such Shelf Registration Statement or an amendment or supplement to such
prospectus or is necessary to include therein in order that such Shelf Registration
Statement, prospectus, amendment or supplement, as the case may be, complies with
applicable requirements of the federal securities laws and the rules and regulations of the
Commission and does not contain an untrue statement of a material fact or omit to state
therein a material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing. Notwithstanding
anything contained herein to the contrary, if retained as an underwriter, initial purchaser
or placement agent by the Company, each of the Initial Purchasers will at all times be
entitled to retain all Confidential Information and to use it without any liability to the
Company, (i) in carrying out its legal and contractual obligations as an underwriter,
initial purchaser or placement agent, as appropriate in any transaction and (ii) to assert
any defenses available under the various U.S. state and federal securities laws and other
applicable foreign laws, including, without limitation, “due diligence” defenses.
(q) In the case of any Shelf Registration, the Company, if requested by Holders of a
majority of the aggregate principal amount of Securities covered thereby, shall cause (i)
its counsel to deliver an opinion relating to the Securities in customary form addressed to
such Holders and the managing underwriters, if any, thereof and dated, the effective date
of such Shelf Registration Statement (it being agreed that the matters to be covered by
such opinion shall include, without limitation, the due incorporation and good standing of
the Company and its subsidiaries; the due authorization, execution and delivery of the relevant agreement
of the type referred to in Section 3(o) hereof; the due authorization, execution,
authentication and issuance, and the validity and enforceability, of the applicable
Securities; the absence of material legal or governmental proceedings involving the Company
and its subsidiaries; the absence of governmental approvals required to be obtained in
connection with the Shelf Registration Statement, the offering and sale of the applicable
Securities, or any agreement of the type referred to in Section 3(o) hereof; the compliance
as to form of such Shelf Registration Statement and any documents incorporated by reference
therein and of the Indenture with the requirements of the
9
Securities Act and the Trust Indenture Act, respectively; and (A) as of the date of the opinion and as of the effective
date of the Shelf Registration Statement or most recent post-effective amendment thereto,
as the case may be, the absence from such Shelf Registration Statement and the prospectus
included therein, as then amended or supplemented, and from any documents incorporated by
reference therein and (B) as of one applicable time identified by such majority of Holders
and managing underwriters, the absence from such prospectus taken together with any other
documents identified by such Holders or managing underwriters, in the case of (A) and (B),
of an untrue statement of a material fact or the omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading
(in the case of any such incorporated documents, in the light of the circumstances existing
at the time that such documents were filed with the Commission under the Exchange Act);
(ii) its officers to execute and deliver such documents and certificates and updates
thereof as may be reasonably requested by any underwriters of the applicable Securities and
which are customarily delivered in underwritten offerings, to evidence the continued
validity of the representations and warranties of the Company made pursuant to, and to
evidence compliance with any customary conditions contained in, an underwriting agreement
and (iii) cause their independent public accountants and the independent public accountants
with respect to any other entity for which financial information is provided in the Shelf
Registration Statement to provide to such Holders of the applicable Securities and any
underwriter therefor a comfort letter in customary form and covering matters of the type
customarily covered in comfort letters in connection with primary underwritten offerings,
subject to receipt of appropriate documentation as contemplated, and only if permitted, by
Statement of Auditing Standards No. 72 (or any successor bulletins).
(r) In the case of the Registered Exchange Offer, if requested by any Initial
Purchaser or any known Participating Broker-Dealer, which Initial Purchaser or
Participating Broker-Dealer has represented to the Company that it may have a “due
diligence” defense under the various U.S. state and federal securities laws, the Company
shall cause (i) its counsel to deliver to such Initial Purchaser or such Participating
Broker-Dealer a signed opinion in the form set forth in Schedule C of the Purchase
Agreement with such changes as are customary in connection with the preparation of a
Registration Statement and (ii) its independent public accountants and the independent
public accountants with respect to any other entity for which financial information is
provided in the Registration Statement to deliver to such Initial Purchaser or such
Participating Broker-Dealer a comfort letter, in customary form, meeting the requirements
as to the substance thereof as set forth in Section 7(a) of the Purchase Agreement, with
appropriate date changes.
(s) If a Registered Exchange Offer or a Private Exchange is to be consummated, upon
delivery of the Initial Securities by Holders to the Company (or to such other Person as
directed by the Company) in exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be, the Company shall use its commercially reasonable efforts
to xxxx, or caused to be marked, on the Initial Securities so exchanged that such Initial
Securities are being canceled in exchange for the Exchange Securities or the Private
Exchange Securities, as the case may be; in no event shall the Initial Securities be marked
as paid or otherwise satisfied.
(t) The Company will use its commercially reasonable efforts to (a) if the Initial
Securities have been rated prior to the initial sale of such Initial Securities, confirm
such ratings will apply to the Securities covered by a Registration Statement, or (b) if
the Initial Securities were not previously rated, cause the Securities covered by a
Registration Statement to be rated with the appropriate rating agencies, if so requested by Holders of a majority in aggregate
principal amount of Securities covered by such Registration Statement, or by the managing
underwriters, if any.
(u) In the event that any broker-dealer registered under the Exchange Act shall
underwrite any Securities or participate as a member of an underwriting syndicate or
selling group or “assist in the distribution” (within the meaning of the Conduct Rules (the
“Rules”) of the Financial Industry Regulatory Authority, Inc.) thereof, whether as a Holder
of such Securities or as an underwriter, a placement or sales agent or a broker or dealer
in respect thereof, or otherwise, the Company will use commercially reasonable efforts to
assist such broker-dealer in complying
10
with the requirements of such Rules, including, without limitation, by (i) if such Rules, including Rule 5121, shall so require, engaging a
“qualified independent underwriter” (as defined in Rule 5121) to participate in the
preparation of the Registration Statement relating to such Securities, to exercise usual
standards of due diligence in respect thereto and, if any portion of the offering
contemplated by such Registration Statement is an underwritten offering or is made through
a placement or sales agent, to recommend the yield of such Securities, (ii) indemnifying
any such qualified independent underwriter to the extent of the indemnification of
underwriters provided in Section 5 hereof and (iii) providing such information to such
broker-dealer as may be required in order for such broker-dealer to comply with the
requirements of the Rules.
(v) The Company shall use its commercially reasonable efforts to take all other steps
necessary to effect the registration of the Securities covered by a Registration Statement
contemplated hereby.
4. Registration Expenses. The Company shall bear all fees and expenses incurred in
connection with the performance of its obligations under Sections 1 through 3 hereof (including the
reasonable fees and expenses, if any, of Cravath, Swaine & Xxxxx LLP, counsel for the Initial
Purchasers, incurred in connection with the Registered Exchange Offer), whether or not the
Registered Exchange Offer or a Shelf Registration is filed or becomes effective, and, in the event
of a Shelf Registration, shall bear or reimburse the Holders of the Securities covered thereby for
the reasonable fees and disbursements of one firm of counsel designated by the Holders of a
majority in principal amount of the Initial Securities covered thereby to act as counsel for the
Holders of the Initial Securities in connection therewith.
5. Indemnification. (a) The Company agrees to indemnify and hold harmless each Holder of
the Securities, any Participating Broker-Dealer and each person, if any, who controls such Holder
or such Participating Broker-Dealer within the meaning of the Securities Act or the Exchange Act
(each Holder, any Participating Broker-Dealer and such controlling persons are referred to
collectively as the “Indemnified Parties”) from and against any losses, claims, damages or
liabilities, joint or several, to which each Indemnified Party may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities
or actions arise out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in a Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus or “issuer free writing prospectus,” as defined in
Commission Rule 433 (“Issuer FWP”), relating to a Shelf Registration, or arise out of, or are based
upon, the omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and shall reimburse, as
incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage, liability or action in
respect thereof; provided, however, that (i) the Company shall not be liable in any such case to
the extent that such loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in a Registration
Statement or prospectus or in any amendment or supplement thereto or in any preliminary prospectus
or Issuer FWP relating to a Shelf Registration in reliance upon and in conformity with written
information pertaining to such Holder and furnished to the Company by or on behalf of such Holder
specifically for inclusion therein and (ii) with respect to any untrue statement or omission or
alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf
Registration Statement, the indemnity agreement contained in this subsection (a) 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 the Securities concerned, to the extent that a
prospectus relating to such Securities was required to be delivered (including through
satisfaction of the conditions of Commission Rule 172) by such Holder or Participating
Broker-Dealer under the Securities Act in connection with such purchase and any such loss, claim,
damage or liability of such Holder or Participating Broker-Dealer results from the fact that there
was not conveyed to such person, at or prior to the time of the sale of such Securities to such
person, an amended or supplemented prospectus or, if permitted by Section 3(d), an Issuer FWP
correcting such untrue statement or omission or alleged untrue statement or omission if the Company
had previously furnished copies thereof to such Holder or Participating Broker-Dealer; provided
further, however, that this indemnity agreement will be in addition to any liability which the
Company may otherwise have to such Indemnified Party. The Company shall also
11
indemnify underwriters, their officers and directors and each person who controls such underwriters 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 of the Securities if requested by such Holders. For
the avoidance of doubt, any indemnification provided by any Guarantor organized under the laws of
Switzerland may be limited by applicable Swiss capital maintenance rules.
(b) Each Holder of the Securities, severally and not jointly, will indemnify and hold
harmless the Company and each person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act from and against any losses, claims, damages or liabilities or
any actions in respect thereof, to which the Company or any such controlling person may become
subject under the Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in a Registration Statement or prospectus or in any
amendment or supplement thereto or in any preliminary prospectus or Issuer FWP relating to a Shelf
Registration, or arise out of or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein not misleading, but in each case only to the
extent that the untrue statement or omission or alleged untrue statement or omission was made in
reliance upon and in conformity with written information pertaining to such Holder and furnished to
the Company by or on behalf of such Holder specifically for inclusion therein; and, subject to the
limitation set forth immediately preceding this clause, shall reimburse, as incurred, the Company
for any legal or other expenses reasonably incurred by the Company or any such controlling person
in connection with investigating or defending any loss, claim, damage, liability or action in
respect thereof. This indemnity agreement will be in addition to any liability which such Holder
may otherwise have to the Company or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this Section 5 of notice of the
commencement of any action or proceeding (including a governmental investigation), such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying party under this
Section 5, notify the indemnifying party of the commencement thereof; but the failure to notify the
indemnifying party shall not relieve the indemnifying party from any liability that it may have
under subsection (a) or (b) above except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and provided further
that the failure to notify the indemnifying party shall not relieve it from any liability that it
may have to an indemnified party otherwise than under subsection (a) or (b) above. In case any
such action is brought against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so to assume the
defense thereof the indemnifying party will not be liable to such indemnified party under this
Section 5 for any legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the defense thereof. If the
indemnifying party does not assume the defense of such action, it is understood that the
indemnifying party shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for fees and expenses of more than one separate law firm of attorneys (in
addition to one separate law firm of local attorneys in each such jurisdiction) at any time for all
such indemnified parties, which firms shall be designated in writing by the applicable indemnified
party. No indemnifying party shall, without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such indemnified party
unless such settlement (i) includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action, 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 any
indemnified party.
(d) If the indemnification provided for in this Section 5 is unavailable or insufficient to
hold harmless an indemnified party under subsections (a) or (b) above, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a result of the losses,
claims,
12
damages or liabilities (or actions in respect thereof) referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative benefits received by the
indemnifying party or parties on the one hand and the indemnified party on the other from the
exchange of the Securities, pursuant to the Registered Exchange Offer, or (ii) if the allocation
provided by the foregoing clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) above but also the
relative fault of the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions that resulted in such losses, claims,
damages or liabilities (or actions in respect thereof) as well as any other relevant equitable
considerations. The relative fault of the parties 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 on the one
hand or such Holder or such other indemnified party, as the case may be, on the other, and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding any other provision of this Section 5(d), the Holders of the
Securities shall not be required to contribute any amount in excess of the amount by which the net
proceeds received by such Holders from the sale of the Securities pursuant to a Registration
Statement exceeds the amount of damages which such Holders have 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. For purposes of this paragraph (d), each person, if any, who controls such
indemnified party within the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as such indemnified party and each person, if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act shall have the same rights to
contribution as the Company.
(e) The agreements contained in this Section 5 shall survive the sale of the Securities
pursuant to a Registration Statement and shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement or any investigation made by or on behalf of any
indemnified party.
6. Additional Interest Under Certain Circumstances. (a) Additional interest (the
“Additional Interest”) with respect to the Initial Securities shall be assessed as follows if any
of the following events occur (each such event in clauses (i) through (iv) below a “Registration
Default”):
(i) the Exchange Offer Registration Statement does not become effective by
August 9, 2012;
(ii) the Registered Exchange Offer is not completed within 30 days after the
Exchange Offer Registration Statement becomes effective;
(iii) if required pursuant to Section 2, an effective Shelf Registration
Statement is not made available by the later of (A) August 9, 2012 or (B) the 120th
day following the date on which the requirement to make such Shelf Registration
Statement available arises; or
(iv) after either (x) the Exchange Offer Registration Statement is declared
(or becomes automatically) effective, and prior to the completion of the Registered
Exchange Offer, or (y) the Shelf Registration Statement is declared (or becomes
automatically) effective (A) such Registration Statement thereafter ceases to be
effective; or (B) such Registration Statement or the related prospectus ceases to
be usable (except as permitted in paragraph (b) and the last paragraph of Section
2) in connection with resales of Transfer Restricted Securities during the periods
specified herein because either (1) any event occurs as a result of which the
related prospectus forming part of such Registration Statement would include any
untrue statement of a material fact or omit to state any
13
material fact necessary to make the statements therein in the light of the circumstances under which they were
made not misleading, or (2) it shall be necessary to amend such Registration
Statement or supplement the related prospectus, to comply with the Securities Act
or the Exchange Act or the respective rules thereunder.
Additional Interest shall accrue on the Transfer Restricted Securities over and above the interest
set forth in the title of the Transfer Restricted Securities from and including the date on which
any such Registration Default shall occur to but excluding the earlier of (i) the date on which all
such Registration Defaults have been cured and (ii) August 9, 2013. The rate of the Additional
Interest will be 0.25% per annum for the first 90-day period immediately following the occurrence
of a Registration Default, and such rate will increase by an additional 0.25% per annum with
respect to each subsequent 90-day period until all Registration Defaults have been cured, up to a
maximum Additional Interest rate of 1.00% per annum, regardless of the number of Registration
Defaults that shall have occurred and are continuing.
(b) A Registration Default referred to in Section 6(a)(iv)(B) hereof shall be deemed not to
have occurred and be continuing in relation to a Shelf Registration Statement or the related
prospectus if (i) such Registration Default has occurred solely as a result of (x) the filing of a
post-effective amendment to such Shelf Registration Statement to incorporate annual audited
financial information with respect to the Company where such post-effective amendment is not yet
effective and needs to be declared effective to permit Holders to use the related prospectus or (y)
other material events, with respect to the Company that would need to be described in such Shelf
Registration Statement or the related prospectus and (ii) in the case of clause (y), the Company is
proceeding promptly and in good faith to amend or supplement such Shelf Registration Statement and
related prospectus to describe such events; provided, however, that in any case if such
Registration Default occurs for a continuous period in excess of 30 days, Additional Interest shall
be payable in accordance with the above paragraph from the day such Registration Default occurs
until the earlier of (i) the date on which such Registration Default is cured and (ii) August 9,
2013. A Registration Default referred to in Section 6(a)(i) shall be deemed cured when the
Exchange Offer Registration Statement becomes effective. A Registration Default referred to in
Section 6(a)(ii) shall be deemed cured when the Registered Exchange Offer has been completed. A
Registration Default referred to in Section 6(a)(iii) or Section 6(a)(iv)(A) hereof shall be deemed
cured in relation to a Shelf Registration Statement if (i) such Shelf Registration Statement was
required to become effective because the Registered Exchange Offer was not consummated within 365
days of August 9, 2011 and (ii) the Registered Exchange Offer is thereafter consummated.
(c) Any amounts of Additional Interest due pursuant to clause (i), (ii), (iii) or (iv) of
Section 6(a) above will be payable in cash on the regular interest payment dates with respect to
the Transfer Restricted Securities. The amount of Additional Interest will be determined by
multiplying the applicable Additional Interest rate by the principal amount of the Transfer
Restricted Securities, multiplied by a fraction, the numerator of which is the number of days such
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.
(d) “Transfer Restricted Securities” means each Security until (i) the date on which such
Transfer Restricted Security has been exchanged by a person other than a broker-dealer for a freely
transferable Exchange Security in the Registered Exchange Offer, (ii) following the exchange by a
broker-dealer in the Registered Exchange Offer of an Initial Security for an Exchange Security, the
date on which such Exchange Security 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,
(iii) the date on which such Initial Security has been effectively registered under the Securities
Act and disposed of in accordance with the Shelf Registration Statement, (iv) the date on which
such Initial Security is distributed to the public pursuant to Rule 144 under the Securities Act,
(v) after such time as the Registered Exchange Offer has been consummated (or, if a Shelf
Registration Statement is required to be filed, the Shelf Registration Statement has been declared
effective), the date on which such Initial Security would be saleable (if it were held by a
non-Affiliate) pursuant to Rule 144 under the Securities Act without restrictions on volume or
manner of sale or (vi) the date on which such Initial Security shall cease to be outstanding.
14
7. Rules 144 and 144A. The Company shall use its commercially reasonable efforts to file the
reports required to be filed by it under the Securities Act and the Exchange Act in a timely manner
and, if at any time the Company is not required to file such reports, it will, upon the reasonable
request of any Holder of Initial Securities, make publicly available other information so long as
necessary to permit sales of their securities pursuant to Rules 144 and 144A. The Company
covenants that it will take such further action as any Holder of Initial Securities may reasonably
request, all to the extent required from time to time to enable such Holder to sell Initial
Securities without registration under the Securities Act within the limitation of the exemptions
provided by Rules 144 and 144A (including the requirements of Rule 144A(d)(4)). The Company will
provide a copy of this Agreement to prospective purchasers of Initial Securities identified to the
Company by the Initial Purchasers upon request. Upon the request of any Holder of Initial
Securities, the Company shall deliver to such Holder a written statement as to whether it has
complied with such requirements. Notwithstanding the foregoing, nothing in this Section 7 shall be
deemed to require the Company to register any of its securities pursuant to the Exchange Act.
8. Underwritten Registrations. If any of the Transfer Restricted Securities covered by any
Shelf Registration are to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will administer the offering (“Managing Underwriters”) will be
selected by the Holders of a majority in aggregate principal amount of such Transfer Restricted
Securities to be included in such offering, provided, however, that the Managing Underwriters shall
be reasonably satisfactory to the Company.
No person may participate in any underwritten registration hereunder unless such person (i)
agrees to sell such person’s Transfer Restricted Securities on the basis reasonably provided in any
underwriting arrangements approved by the persons entitled hereunder to approve such arrangements
and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such underwriting
arrangements.
9. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof may not be given,
except by the Company and the written consent of the Holders of a majority in principal amount of
the Securities affected by such amendment, modification, supplement, waiver or consents.
(b) Joinders. From time to time after the date hereof, on the date that any Post Closing
Date Guarantor guarantees the Initial Securities, the Company shall cause such Post Closing Date
Guarantor to join this agreement by executing and delivering a joinder to this agreement, pursuant
to which it shall obtain the same rights and be subject to the same obligations as the Guarantors
party hereto, as though it had entered into this Agreement on the date hereof; provided, however,
that a Post Closing Date Guarantor shall not be required to join this Agreement after the
Registered Exchange Offer has been completed or a Shelf Registration Statement has been declared
effective.
(c) Notices. All notices and other communications provided for or permitted hereunder shall
be made in writing by hand delivery, first-class mail, facsimile transmission, or air courier which
guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most current address given by such Holder to the
Company in accordance with the provisions of this Section 9(c), which address initially is, with
respect to each Holder, the address of such Holder to which confirmation of the sale of the Notes
to such Holder was first sent by an Initial Purchaser, with a copy in like manner to you as
follows:
(2) if to the Initial Purchasers;
Credit Suisse Securities (USA) LLC
Eleven Maxxxxx Xxxxxx
Eleven Maxxxxx Xxxxxx
00
Xxx Xxxx, XX 00000-0000
Xax No.: (000) 000-0000
Attention: Transactions Advisory Group
Xax No.: (000) 000-0000
Attention: Transactions Advisory Group
with a copy to:
Cravath, Swaine & Xxxxx LLP
Worldwide Plaza
820 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xax No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxxx, Esq.
Worldwide Plaza
820 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xax No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxxx, Esq.
(3) if to the Company;
Xxxxxxxx Group Issuer LLC
160 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxx, Xxxxxxxx 00000
160 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxx, Xxxxxxxx 00000
Xxxxxxxx Group Issuer Inc.
160 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxx, Xxxxxxxx 00000
160 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxx, Xxxxxxxx 00000
and
Xxxxxxxx Group Issuer (Luxembourg) S.A.
6C xxx Xxxxxxx Xxxxxxxx
X 0000 Xxxxxxxx, Xxxxx Xxxxx xf Luxembourg
6C xxx Xxxxxxx Xxxxxxxx
X 0000 Xxxxxxxx, Xxxxx Xxxxx xf Luxembourg
with a copy to:
Xxxxxxxx Group Holdings Limited
Level Nine
140 Xxxx Xxxxxx
Xxxxxxxx 0000 Xxx Xxxxxxx
Level Nine
140 Xxxx Xxxxxx
Xxxxxxxx 0000 Xxx Xxxxxxx
Debevoise & Xxxxxxxx LLP
910 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xacsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
910 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xacsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; three business days after being deposited in the mail,
postage prepaid, if mailed; when receipt is acknowledged by recipient’s facsimile machine operator,
if sent by facsimile transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
(d) No Inconsistent Agreements. The Company has not, as of the date hereof, entered into,
nor shall it, on or after the date hereof, enter into, any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders herein or otherwise conflicts with the
provisions hereof.
(e) Successors and Assigns. This Agreement shall be binding upon the Company and its
successors and assigns.
16
(f) 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. Execution
and delivery of this agreement by delivery of a facsimile or an electronically recorded copy
(including a .pdf file) bearing a copy of the signature of a party shall constitute a valid and
binding execution and delivery of this agreement by such party. Such copies shall constitute
enforceable original documents.
(g) Headings. The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
(i) Severability. If 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.
(j) Securities Held by the Company. Whenever the consent or approval of Holders of a
specified percentage of principal amount of Securities is required hereunder, Securities held by
the Company or its affiliates (other than subsequent Holders of Securities if such subsequent
Holders are deemed to be affiliates solely by reason of their holdings of such Securities) shall
not be counted in determining whether such consent or approval was given by the Holders of such
required percentage.
(k) Agent for Service; Submission to Jurisdiction; Waiver of Immunities. By the execution
and delivery of this Agreement, the Company (i) irrevocably designates and appoints Xxxxxxxx Group
Holdings Inc. (and any successor entity) as its authorized agent upon which process may be served
in any suit or proceeding arising out of or relating to this Agreement that may be instituted in
any federal or state court in the State of New York or brought under federal or state securities
laws, and Xxxxxxxx Group Holdings Inc. accepts and acknowledges such designation, (ii) submits to
the nonexclusive jurisdiction of any such court in any such suit or proceeding, and (iii) agrees
that service of process upon Xxxxxxxx Group Holdings Inc. and written notice of said service to the
Company shall be deemed in every respect effective service of process upon it in any such suit or
proceeding. The Company further agrees to take any and all action, including the execution and
filing of any and all such documents and instruments, as may be necessary to continue such
designation and appointment of Xxxxxxxx Group Holdings Inc. in full force and effect so long as any
of the Securities shall be outstanding. To the extent that the Company may acquire any immunity
from jurisdiction of any court or from any legal process (whether through service of notice,
attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect
to itself or its property, it hereby irrevocably waives such immunity in respect of this Agreement,
to the fullest extent permitted by law.
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement among the Initial Purchasers, the Issuers and the Guarantors in accordance with
its terms.
[Remainder of page intentionally left blank]
17
| Very truly yours, | ||||||
| XXXXXXXX GROUP ISSUER LLC | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Secretary | ||||||
| XXXXXXXX GROUP ISSUER INC. | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Secretary | ||||||
| XXXXXXXX GROUP ISSUER (LUXEMBOURG) S.A. |
||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Authorized Signatory | ||||||
18
| BEVERAGE PACKAGING HOLDINGS (LUXEMBOURG) I S.A. |
||||||
| By | ||||||
| /s/ Xxxxx Xxxxx
|
||||||
| Name: Xxxxx Xxxxx | ||||||
| Title: Authorized Signatory | ||||||
19
| XXXXXXXX GROUP HOLDINGS LIMITED | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Authorized Signatory | ||||||
| Witnessed by: | ||||||
| /s/ Xxxxx Xxxxx
|
||||||
| Name: Xxxxx Xxxxx | ||||||
| Title: Attorney | ||||||
| Address: Sydney, Australia | ||||||
20
| BAKERS CHOICE PRODUCTS, INC. | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Assistant Secretary | ||||||
| XXXXXXXX PRESTO PRODUCTS INC. | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Assistant Secretary | ||||||
| XXXXXXXX CONSUMER PRODUCTS INC. | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Assistant Secretary | ||||||
| XXXXXXXX SERVICES INC. | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Secretary | ||||||
| SIG HOLDING USA, LLC | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Assistant Secretary | ||||||
| SIG COMBIBLOC INC. | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Assistant Secretary | ||||||
21
| XXXXXXXX GROUP HOLDINGS INC. | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Secretary | ||||||
| XXXXXXXX CONSUMER PRODUCTS HOLDINGS LLC | ||||||
| by | /s/ Xxxxx Xxxxxxx Xxxxxxx
|
|||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Vice President & Secretary | ||||||
| EVERGREEN PACKAGING INC. | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Secretary | ||||||
| EVERGREEN PACKAGING USA INC. | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Secretary | ||||||
22
| CLOSURES SYSTEMS INTERNATIONAL PACKAGING MACHINERY INC. | ||||||
| by | ||||||
| /s/ Xxxxxxxxx Xxxxxxxx
|
||||||
| Name: Xxxxxxxxx Xxxxxxxx | ||||||
| Title: Secretary | ||||||
| SOUTHERN PLASTICS INC. | ||||||
| by | ||||||
| /s/ Xxxxxxxxx Xxxxxxxx
|
||||||
| Name: Xxxxxxxxx Xxxxxxxx | ||||||
| Title: Secretary | ||||||
| CLOSURE SYSTEMS INTERNATIONAL HOLDINGS INC. | ||||||
| by | ||||||
| /s/ Xxxxxxxxx Xxxxxxxx
|
||||||
| Name: Xxxxxxxxx Xxxxxxxx | ||||||
| Title: Secretary | ||||||
| CLOSURE SYSTEMS INTERNATIONAL AMERICAS, INC. | ||||||
| by | ||||||
| /s/ Xxxxxxxxx Xxxxxxxx
|
||||||
| Name: Xxxxxxxxx Xxxxxxxx | ||||||
| Title: Secretary | ||||||
| CLOSURE SYSTEMS INTERNATIONAL INC. | ||||||
| by | ||||||
| /s/ Xxxxxxxxx Xxxxxxxx
|
||||||
| Name: Xxxxxxxxx Xxxxxxxx | ||||||
| Title: Secretary | ||||||
| CLOSURE SYSTEMS MEXICO HOLDINGS LLC | ||||||
| by | ||||||
| /s/ Xxxxxxxxx Xxxxxxxx
|
||||||
| Name: Xxxxxxxxx Xxxxxxxx | ||||||
| Title: Sexxxxxxx | ||||||
00
| XXX XXXXXX XLC | ||||||
| by | ||||||
| /s/ Xxxxxxxxx Xxxxxxxx
|
||||||
| Name: Xxxxxxxxx Xxxxxxxx | ||||||
| Title: Secretary | ||||||
| CSI SALES & TECHNICAL SERVICES INC. | ||||||
| by | ||||||
| /s/ Xxxxxxxxx Xxxxxxxx
|
||||||
| Name: Xxxxxxxxx Xxxxxxxx | ||||||
| Title: Secretary | ||||||
24
| EVERGREEN PACKAGING INTERNATIONAL (US) INC. | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Secretary | ||||||
| BLUE RIDGE HOLDING CORP. | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Secretary | ||||||
| BRPP, LLC | ||||||
| By: BLUE RIDGE PAPER PRODUCTS INC., its Sole Member and Manager |
||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Secretary | ||||||
| BLUE RIDGE PAPER PRODUCTS INC. | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Secretary | ||||||
| XXXXXXXX PACKAGING HOLDINGS LLC | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Vice President & Secretary | ||||||
| XXXXXXXX FLEXIBLE PACKAGING INC. | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Vice President & Secretary | ||||||
25
| XXXXXXXX FOOD PACKAGING LLC | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Assistant Secretary | ||||||
| XXXXXXXX PACKAGING KAMA INC. | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Assistant Secretary | ||||||
| XXXXXXXX PACKAGING LLC | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Assistant Secretary | ||||||
| ULTRA PAC, INC. | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Assistant Secretary | ||||||
| NEWSPRING INDUSTRIAL CORP. | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Vice President | ||||||
| PACTIV LLC | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Vice President | ||||||
26
| PACTIV FACTORING LLC | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Vice President | ||||||
| PACTIV GERMANY HOLDINGS, INC. | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Vice President | ||||||
| PACTIV INTERNATIONAL HOLDINGS INC. | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Vice President | ||||||
| PACTIV MANAGEMENT COMPANY LLC | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Vice President | ||||||
| PACTIV RETIREMENT ADMINISTRATION LLC | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Vice President | ||||||
| PACTIV RSA LLC | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Vice President | ||||||
27
| PCA WEST INC. | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Vice President | ||||||
| PWP INDUSTRIES, INC. | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Vice President | ||||||
| PWP HOLDINGS, INC. | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Vice President | ||||||
| PRAIRIE PACKAGING, INC. | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Vice President | ||||||
| DOPACO, INC. | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Vice President | ||||||
28
| RENPAC HOLDINGS INC. | ||||||
| by | ||||||
| /s/ Xxxxxx X. Xxxxx
|
||||||
| Name: Xxxxxx X. Xxxxx | ||||||
| Title: Assistant Secretary | ||||||
| XXXXXXXX MANUFACTURING, INC. | ||||||
| by | ||||||
| /s/ Xxxxxx X. Xxxxx
|
||||||
| Name: Xxxxxx X. Xxxxx | ||||||
| Title: Assistant Secretary | ||||||
| XXXXXX PACKAGING COMPANY INC. | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Assistant Secretary | ||||||
| BCP/XXXXXX HOLDINGS L.L.C. | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Assistant Secretary | ||||||
| GPC HOLDINGS LLC | ||||||
| by | ||||||
| /s/ Xxxxx Xxxxxxx Xxxxxxx
|
||||||
| Name: Xxxxx Xxxxxxx Xxxxxxx | ||||||
| Title: Assistant Secretary | ||||||
29
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
by: Credit Suisse Securities (USA) LLC
On behalf of itself and the several Initial Purchasers
| By: | /s/ Xxxxxxx Xxxxx
|
|||||
| Name: Xxxxxxx Xxxxx | ||||||
| Title: Director |
30
ANNEX A
REGISTRATION RIGHTS AGREEMENT JOINDER
With respect to the Registration Rights Agreement dated as of February 15, 2012, among
Xxxxxxxx Group Issuer LLC, a limited liability company organized under the laws of the State of
Delaware (the “US Issuer I”), Xxxxxxxx Group Issuer Inc., a corporation organized under the laws of
the State of Delaware (the “US Issuer II” and, together with the US Issuer I, the “US Issuers”) and
Xxxxxxxx Group Issuer (Luxembourg) S.A., a société anonyme (public limited liability company)
incorporated under the laws of Luxembourg (the “Lux Issuer” and, together with the US Issuers, the
“Issuers”), the Guarantors listed on the signature page thereto, and Credit Suisse Securities (USA)
LLC, as representative of the Initial Purchasers (as defined therein) (such agreement, the
“Registration Rights Agreement”), for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, each of the signatories hereto (other than the Issuers) assumes
all of the rights and obligations as Guarantors under the Registration Rights Agreement, in each
case, as of the date hereof and as though it had entered into the Registration Rights Agreement on
February 15, 2012. The obligations assumed by the Issuers and the Guarantors under this Joinder
shall be joint and several obligations. Capitalized terms used but not defined in this Joinder
shall have the meanings given to such terms in the Registration Rights Agreement.
ANNEX B
Each broker-dealer that receives Exchange Securities for its own account pursuant to the
Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Securities. The Letter of Transmittal states that by so acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter”
within the meaning of the Securities Act. This Prospectus, as it may be amended or supplemented
from time to time, may be used by a broker-dealer in connection with resales of Exchange Securities
received in exchange for Initial Securities where such Initial Securities were acquired by such
broker-dealer as a result of market-making activities or other trading activities. The Company has
agreed that, for a period of (i) in the case of an Exchange Dealer or Initial Purchaser, 180 days
after the Expiration Date (as defined herein) and (ii) in the case of any broker dealer, 90 days
after the Expiration Date (as defined herein), it will make this Prospectus available to any such
Exchange Dealer, Initial Purchaser or broker dealer for use in connection with any such resale.
See “Plan of Distribution.”
ANNEX C
Each broker-dealer that receives Exchange Securities for its own account in exchange for
Securities, where such Initial Securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities, must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. See “Plan of Distribution.”
ANNEX D
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own account pursuant to the
Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Securities. This Prospectus, as it may be amended or supplemented from time to time,
may be used by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Initial Securities where such Initial Securities were acquired as a result of
market-making activities or other trading activities. The Company has agreed that, for a period of
(i) in the case of an Exchange Dealer or Initial Purchaser, 180 days after the Expiration Date and
(ii) in the case of any broker dealer, 90 days after the Expiration Date, it will make this
prospectus, as amended or supplemented, available to any such Exchange Dealer, Initial Purchaser or
broker dealer for use in connection with any such resale. In addition, until ,
20 , all dealers effecting transactions in the Exchange Securities may be required to deliver a
prospectus.(1)
The Company will not receive any proceeds from any sale of Exchange Securities by
broker-dealers. Exchange Securities received by broker-dealers for their own account pursuant to
the Exchange Offer may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of options on the Exchange
Securities or a combination of such methods of resale, at market prices prevailing at the time of
resale, at prices related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may receive compensation
in the form of commissions or concessions from any such broker-dealer or the purchasers of any such
Exchange Securities. Any broker-dealer that resells Exchange Securities that were received by it
for its own account pursuant to the Exchange Offer and any broker or dealer that participates in a
distribution of such Exchange Securities may be deemed to be an “underwriter” within the meaning of
the Securities Act and any profit on any such resale of Exchange Securities and any commission or
concessions received by any such persons may be deemed to be underwriting compensation under the
Securities Act. The Letter of Transmittal states that, by acknowledging that it will deliver and
by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter”
within the meaning of the Securities Act.
For a period of (i) in the case of an Exchange Dealer or Initial Purchaser, 180 days after the
Expiration Date and (ii) in the case of any broker dealer, 90 days after the Expiration Date the
Company will promptly send additional copies of this Prospectus and any amendment or supplement to
this Prospectus to any such Exchange Dealer, Initial Purchaser or broker-dealer that requests such
documents in the Letter of Transmittal. The Company has agreed to pay all expenses incident to the
Exchange Offer (including the expenses of one counsel for the Holders of the Securities) other than
commissions or concessions of any brokers or dealers and will indemnify the Holders of the
Securities (including any broker-dealers) against certain liabilities, including liabilities under
the Securities Act.
| (1) | In addition, the legend required by Item 502(e) of Regulation S-K will appear on the back cover page of the Exchange Offer prospectus. |
ANNEX E
o CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS
AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
| Name: | ||||||
| Address: | ||||||
If the undersigned is not a broker-dealer, the undersigned represents that it is not engaged in,
and does not intend to engage in, a distribution of Exchange Securities. If the undersigned is a
broker-dealer that will receive Exchange Securities for its own account in exchange for Initial
Securities that were acquired as a result of market-making activities or other trading activities,
it acknowledges that it will deliver a prospectus in connection with any resale of such Exchange
Securities; however, by so acknowledging and by delivering a prospectus, the undersigned will not
be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.
