EXHIBIT 4.6
REGISTRATION RIGHTS AGREEMENT
Dated as of February 2, 1998
Among
XXXXXX PACKAGING COMPANY
and
GPC CAPITAL CORP. I,
as Issuers
and
THE GUARANTOR NAMED HEREIN
and
BT ALEX. XXXXX INCORPORATED,
BANKERS TRUST INTERNATIONAL PLC
LAZARD FRERES & CO. LLC
and
SALOMON BROTHERS INC,
as Initial Purchasers
8 3/4% Senior Subordinated Notes Due 2008, Series A
and
Floating Interest Rate Subordinated
Term Securities Due 2008, Series A
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated as of
February 2, 1998, among XXXXXX PACKAGING COMPANY, a Delaware limited partnership
(the "Operating Company"), and GPC CAPITAL CORP. I, a Delaware corporation, as
issuers (the "Company Issuers"), and XXXXXX PACKAGING HOLDINGS COMPANY, a
Pennsylvania limited partnership ("Holdings"), as guarantor (the "Guarantor,"
and together with the Company Issuers, the "Issuers"), and BT ALEX. XXXXX
INCORPORATED, BANKERS TRUST INTERNATIONAL PLC, LAZARD FRERES & CO. LLC and
SALOMON BROTHERS INC, as initial purchasers (the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase Agreement,
dated as of January 23, 1998, among the Issuers and the Initial Purchasers (the
"Purchase Agreement"), which provides for, among other things, the sale by the
Issuers to the Initial Purchasers of $150,000,000 aggregate principal amount of
the Company Issuers' 8 3/4% Senior Subordinated Notes Due 2008, Series A (the
"Fixed Rate Notes"), unconditionally guaranteed on a senior subordinated basis
by the Guarantor (the "Holdings Fixed Rate Guarantee"), and the Company Issuers'
Floating Interest Rate Subordinated Term Securities Due 2008, Series A (the
"Floating Rate Notes" and, together with the Fixed Rate Notes, the "Notes"),
unconditionally guaranteed on a senior subordinated basis by the Guarantor (the
"Holdings Floating Rate Guarantee" and, together with the Holdings Fixed Rate
Guarantee, the "Holdings Guarantee"). The Fixed Rate Notes and the Holdings
Fixed Rate Guarantee are collectively referred to herein as the "Fixed Rate
Securities." The Floating Rate Notes and the Holdings Floating Rate Guarantee
are collectively referred to herein as the "Floating Rate Securities." The Fixed
Rate Securities and the Floating Rate Securities are collectively referred to
herein as the "Securities." In order to induce the Initial Purchasers to enter
into the Purchase Agreement, the Issuers have agreed to provide the registration
rights set forth in this Agreement for the benefit of the Initial Purchasers
and, except as otherwise set forth herein, any subsequent holder or holders of
the Notes. The execution and delivery of this Agreement is a condition to the
Initial Purchasers' obligation to purchase the Notes under the Purchase
Agreement.
The parties hereby agree as follows:
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1. Definitions
As used in this Agreement, the following terms shall have the following
meanings:
Additional Interest: See Section 4 hereof.
Advice: See the last paragraph of Section 5 hereof.
Agreement: See the introductory paragraphs hereto.
Applicable Period: See Section 2 hereof.
Company Issuers: See the introductory paragraphs hereto.
Effectiveness Date: The 180th day after the Issue Date; provided,
however, that with respect to any Shelf Registration, the Effectiveness
Date shall be the 120th day after the Filing Date with respect thereto.
Effectiveness Period: See Section 3 hereof.
Event Date: See Section 4 hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Exchange Notes: See Section 2 hereof.
Exchange Offer: See Section 2 hereof.
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Exchange Offer Registration Statement: See Section 2 hereof.
Fixed Rate Notes: See introductory paragraphs hereto.
Fixed Rate Securities: See introductory paragraphs hereto.
Floating Rate Notes: See introductory paragraphs hereto.
Floating Rate Securities: See introductory paragraphs hereto.
Filing Date: (A) With respect to the Exchange Offer Registration
Statement, the 120th day after the Issue Date; and (B) with respect to a
Shelf Registration Statement, the 60th day after the delivery of a Shelf
Notice as required pursuant to Section 2(c) hereof.
Guarantee: Any Holdings Guarantee (as defined in the introductory
paragraphs) or any guarantee by Holdings on substantially identical terms
of any Exchange Notes or Private Exchange Notes.
Guarantor: See the introductory paragraphs hereto.
Holder: Any holder of a Registrable Note or Registrable Notes.
Holdings: See the introductory paragraphs hereto.
Holdings Fixed Rate Guarantee: See the introductory paragraphs hereto.
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Holdings Floating Rate Guarantee: See the introductory paragraphs
hereto.
Holdings Guarantee: See the introductory paragraphs hereto.
Indemnified Person: See Section 7(c) hereof.
Indemnifying Person: See Section 7(c) hereof.
Indenture: The Indenture, dated as of February 2, 1998, by and among
the Issuers and United States Trust Company of New York, as Trustee,
pursuant to which the Securities are being issued, as the same may be
amended or supplemented from time to time in accordance with the terms
thereof.
Initial Purchasers: See the introductory paragraphs hereto.
Initial Shelf Registration: See Section 3(a) hereof.
Inspectors: See Section 5(m) hereof.
Issue Date: February 2, 1998, the date of original issuance of the
Notes.
Issuers: See the introductory paragraphs hereto.
NASD: See Section 5(r) hereof.
Notes: See the introductory paragraphs hereto.
Offering Memorandum: The final offering memorandum of the Issuers
dated January 23, 1998, as supplemented, in respect of the offering of the
Securities (and the 10 3/4%
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Senior Discount Notes Due 2009 of Holdings and GPC Capital Corp. II).
Operating Company: See the introductory paragraphs hereto.
Participant: See Section 7(a) hereof.
Participating Broker-Dealer: See Section 2 hereof.
Person: An individual, trustee, corporation, partnership, limited
liability company, joint stock company, trust, unincorporated association,
union, business association, firm or other legal entity.
Private Exchange: See Section 2 hereof.
Private Exchange Notes: See Section 2 hereof.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance
upon Rule 430A promulgated under the Securities Act and any term sheet
filed pursuant to Rule 434 under the Securities Act), as amended or
supplemented by any prospectus supplement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by
reference in such Prospectus.
Purchase Agreement: See the introductory paragraphs hereof.
Records: See Section 5(m) hereof.
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Registrable Notes: Each Note (and the related Guarantee) upon its
original issuance and at all times subsequent thereto, each Exchange Note
(and the related Guarantee) as to which Section 2(c)(iv) hereof is
applicable upon original issuance and at all times subsequent thereto and
each Private Exchange Note (and the related Guarantee) upon original
issuance thereof and at all times subsequent thereto, until (i) a
Registration Statement (other than, with respect to any Exchange Note as to
which Section 2(c)(iv) hereof is applicable, the Exchange Offer
Registration Statement) covering such Security, Exchange Note or Private
Exchange Note (and the related Guarantee) has been declared effective by
the SEC and such Security, Exchange Note or such Private Exchange Note (and
the related Guarantee), as the case may be, has been disposed of in
accordance with such effective Registration Statement, (ii) such Note has
been exchanged pursuant to the Exchange Offer for an Exchange Note or
Private Exchange Note (and, in each case, the related Guarantee) that may
be resold without restriction under state and federal securities laws,
(iii) such Security, Exchange Note or Private Exchange Note (and, in each
case, the related Guarantee), as the case may be, ceases to be outstanding
for purposes of the Indenture or (iv) such Security, Exchange Note or
Private Exchange Note (and, in each case, the related Guarantee), as the
case may be, may be resold without restriction pursuant to Rule 144 under
the Securities Act.
Registration Statement: Any registration statement of the Issuers that
covers any of the Notes, the Exchange Notes or the Private Exchange Notes
(and, in each case, the related Guarantee) filed with the SEC under the
Securities Act, including the Prospectus, amendments and supplements to
such registration statement, including post-effective amendments, all
exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
Rule 144: Rule 144 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and
sales of securities made in compliance therewith resulting in offers and
sales by subsequent holders that are not affiliates of the
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issuer of such securities being free of the registration and prospectus
delivery requirements of the Securities Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than Rule
144) or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities: See the introductory paragraphs hereto.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2 hereof.
Shelf Registration: See Section 3(b) hereof.
Subsequent Shelf Registration: See Section 3(b) hereof.
Suspension Period: See Section 5(j) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and the trustee (if any)
under any indenture governing the Exchange Notes and Private Exchange Notes
(and, in each case, the related Guarantee).
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Underwritten registration or underwritten offering: A registration in
which securities of one or more of the Issuers are sold to an underwriter
for reoffering to the public.
2. Exchange Offer
(a) The Issuers shall use their reasonable best efforts to file with the
SEC, no later than the Filing Date applicable thereto, a Registration Statement
(the "Exchange Offer Registration Statement") on an appropriate registration
form with respect to a registered offer (the "Exchange Offer") to exchange any
and all of the Securities for a like aggregate principal amount of notes of the
Company Issuers, guaranteed by the Guarantor, that are identical in all material
respects to the Fixed Rate Securities or the Floating Rate Securities, as the
case may be, and shall have terms (including a Guarantee) substantially
identical to the terms of the Fixed Rate Securities or the Floating Rate
Securities, as the case may be (except that the Exchange Notes (as defined
below) shall not contain terms with respect to transfer restrictions and shall
contain no restrictive legend thereon (such notes to be exchanged for the Fixed
Rate Notes, the "Fixed Rate Exchange Notes, and such notes to be exchanged for
the Floating Rate Notes, the "Floating Rate Exchange Notes," and the Fixed Rate
Exchange Notes and the Floating Rate Exchange Notes, collectively, the "Exchange
Notes"), and which shall be entitled to the benefits of the Indenture or a trust
indenture which is identical in all material respects to the Indenture (other
than such changes to the Indenture or any such identical trust indenture as are
necessary to comply with the TIA) and which, in either case, has been qualified
under the TIA. The Exchange Offer shall comply with all applicable tender offer
rules and regulations under the Exchange Act and other applicable law. The
Issuers shall use their reasonable best efforts to (x) cause the Exchange Offer
Registration Statement to be declared effective under the Securities Act on or
before the Effectiveness Date applicable thereto; (y) keep the Exchange Offer
open for not less than 20 business days (or longer if required by applicable
law) after the date that notice of the Exchange Offer is mailed to Holders; and
(z) consummate the Exchange Offer on or prior to the later of (i) the 45th day
after the date on which the Exchange Offer Registration Statement was declared
effective by the SEC or (ii) the 210th day following the Issue Date. If, after
the Exchange Offer Registration Statement is initially declared effective by the
SEC, the Exchange Offer or the issuance of the Exchange Notes thereunder is
interfered with by any stop order,
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injunction or other order or requirement of the SEC or any other governmental
agency or court, the Exchange Offer Registration Statement shall be deemed not
to have become effective for purposes of this Agreement.
Each Holder that participates in the Exchange Offer will be required, as a
condition to its participation in the Exchange Offer, to represent to the
Issuers in writing (which may be contained in the applicable letter of
transmittal) (i) that any Exchange Notes to be received by it will be acquired
in the ordinary course of its business, (ii) that at the time of the
consummation of the Exchange Offer such Holder will have no arrangement or
understanding with any Person to participate in the distribution of the Exchange
Notes in violation of the provisions of the Securities Act, (iii) that such
Holder is not an affiliate of any of the Issuers within the meaning of the
Securities Act, (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 Exchange
Notes, and (v) if such Holder is a broker-dealer that will receive Exchange
Notes for its own account in exchange for Notes that were acquired as a result
of market-making or other trading activities, that it will deliver a prospectus
in connection with any resale of such Exchange Notes.
Upon consummation of the Exchange Offer in accordance with this Section 2,
the provisions of this Agreement shall continue to apply, mutatis mutandis,
solely with respect to Registrable Notes that are Private Exchange Notes,
Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes
held by Participating Broker-Dealers (as defined), and the Issuers shall have no
further obligation to register Registrable Notes (other than Private Exchange
Notes and other than in respect of any Exchange Notes as to which Section
2(c)(iv) is applicable) pursuant to Section 3 hereof.
No securities other than the Exchange Notes (and the related Guarantees)
shall be included in the Exchange Offer Registration Statement.
(b) The Issuers shall include within the Prospectus contained in the
Exchange Offer Registration Statement a section entitled "Plan of Distribution,"
reasonably acceptable to the
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Initial Purchasers, which shall contain a summary statement of the positions
taken or policies made by the Staff of the SEC with respect to the potential
"underwriter" status of any broker-dealer that is the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such
broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"), whether
such positions or policies have been publicly disseminated by the Staff of the
SEC or such positions or policies represent the prevailing views of the Staff of
the SEC. Such "Plan of Distribution" section shall also expressly permit, to the
extent permitted by applicable policies and regulations of the SEC, the use of
the Prospectus by all Persons subject to the prospectus delivery requirements of
the Securities Act, including, to the extent permitted by applicable policies
and regulations of the SEC, all Participating Broker-Dealers, and include a
statement describing the means by which Participating Broker-Dealers may resell
the Exchange Notes in compliance with the Securities Act.
The Issuers shall use their reasonable best 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 is necessary to comply with applicable
law in connection with any resale of the Exchange Notes covered thereby (the
"Applicable Period").
If, prior to consummation of the Exchange Offer, any Holder holds any
Securities acquired by it that have the status of an unsold allotment in an
initial distribution, or any Holder is not entitled to participate in the
Exchange Offer, the Company Issuers upon the request of any such Holder shall
simultaneously with the delivery of the Exchange Notes (and the related
Guarantees) in the Exchange Offer, issue and deliver to any such Holder, in
exchange (the "Private Exchange") for such Securities held by any such Holder, a
like principal amount of notes (such notes to be exchanged for the Fixed Rate
Notes, the "Fixed Rate Private Exchange Notes," such notes to be exchanged for
the Floating Rate Notes, the "Floating Rate Private Exchange Notes," and the
Fixed Rate Exchange Notes and Private Exchange Notes, collectively, the "Private
Exchange Notes") of the Company Issuers, guaranteed by the Guarantor, that are
identical in all material respects to the applicable Exchange Notes except for
the placement of a restrictive legend on such Private Exchange Notes. The
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Private Exchange Notes shall be issued pursuant to the same indenture as the
Exchange Notes and bear the same CUSIP number as the applicable Exchange Notes.
In connection with the Exchange Offer, the Issuers shall:
(i) mail, or cause to be mailed, to each Holder of record entitled to
participate in the Exchange Offer a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(ii) use their reasonable best efforts to keep the Exchange Offer open
for not less than 20 business days after the date that notice of the
Exchange Offer is mailed to Holders (or longer if required by applicable
law);
(iii) utilize the services of a depositary for the Exchange Offer with
an address in the Borough of Manhattan, the City of New York;
(iv) 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 Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with all applicable
laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer and the
Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Securities validly tendered and not
validly withdrawn pursuant to the Exchange Offer and the Private Exchange,
if any;
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(2) deliver to the Trustee for cancellation all Securities so accepted
for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each
Holder of Securities, Exchange Notes or Private Exchange Notes, as the case
may be (and, in each case, the related Guarantees), equal in principal
amount to the Securities of such Holder so accepted for exchange.
The Exchange Offer and the Private Exchange shall not be subject to any
conditions, other than that (i) the Exchange Offer or Private Exchange, as the
case may be, does not violate applicable law or any applicable interpretation of
the Staff of the SEC, (ii) no action or proceeding shall have been instituted or
threatened in any court or by any governmental agency which might materially
impair the ability of the Issuers to proceed with the Exchange Offer or the
Private Exchange, and no material adverse development shall have occurred in any
existing action or proceeding with respect to the Issuers and (iii) all
governmental approvals shall have been obtained, which approvals the Issuers
deem necessary for the consummation of the Exchange Offer or Private Exchange.
The Exchange Notes (and the related Guarantees) and the Private Exchange
Notes (and the related Guarantees) shall be issued under (i) the Indenture or
(ii) an indenture identical in all material respects to the Indenture and which,
in either case, has been qualified under the TIA or is exempt from such
qualification and shall provide that the Exchange Notes shall not be subject to
the transfer restrictions set forth in the Indenture. The Indenture or such
indenture shall provide that the Exchange Notes, the Private Exchange Notes and
the Securities shall vote and consent together on all matters as one class and
that none of the Exchange Notes, the Private Exchange Notes or the Securities
will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing
interpretations of the Staff of the SEC, the Issuers are not permitted to effect
the Exchange Offer, (ii) the Exchange Offer is not consummated on or prior to
the later of (A) the 45th day after the date on which the Exchange Offer
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Registration Statement was declared effective by the SEC or (B) the 210th day
following the Issue Date, (iii) any holder of Private Exchange Notes so requests
in writing to the Company Issuers within 10 days after the consummation of the
Exchange Offer, or (iv) in the case of any Holder that participates in the
Exchange Offer, such Holder does not receive Exchange Notes on the date of the
exchange that may be sold without restriction under state and federal securities
laws (other than due solely to the status of such Holder as an affiliate of any
of the respective Issuers within the meaning of the Securities Act), then in the
case of each of clauses (i) to and including (iv) of this sentence, the Company
Issuers shall promptly deliver to the Holders specified in clauses (iii) and
(iv) above and the Trustee written notice thereof (the "Shelf Notice") and shall
file a Shelf Registration pursuant to Section 3 hereof.
3. Shelf Registration
If at any time a Shelf Notice is delivered as contemplated by Section 2(c)
hereof, then:
(a) Shelf Registration. The Issuers shall file with the SEC a
Registration Statement for an offering to be made on a continuous basis
pursuant to Rule 415 covering all of the Securities not exchanged in the
Exchange Offer, Private Exchange Notes (and the related Guarantees) and
Exchange Notes (and the related Guarantees) as to which Section 2(c)(iv) is
applicable (the "Initial Shelf Registration"). The Issuers shall use their
reasonable best efforts to file with the SEC the Initial Shelf Registration
on or before the Filing Date applicable thereto. The Initial Shelf
Registration shall be on Form S-1 or another appropriate form permitting
registration of such Registrable Notes for resale by Holders in the manner
or manners designated by them in accordance with the terms of this
Agreement (including, without limitation, one or more underwritten
offerings). The Issuers shall not permit any securities other than the
Registrable Notes to be included in the Initial Shelf Registration or any
Subsequent Shelf Registration (as defined below).
The Issuers shall use their reasonable best efforts to cause the Initial
Shelf Registration to be declared effective under
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the Securities Act on or prior to the Effectiveness Date applicable thereto and
to keep the Initial Shelf Registration continuously effective under the
Securities Act (except during a Suspension Period) until the date which is two
years after the Issue Date (the "Effectiveness Period"), or such shorter period
ending when (i) all Registrable Notes covered by the Initial Shelf Registration
have been sold in the manner set forth and as contemplated in the Initial Shelf
Registration or (ii) a Subsequent Shelf Registration covering all of the
Registrable Notes covered by and not sold under the Initial Shelf Registration
or an earlier Subsequent Shelf Registration has been declared effective under
the Securities Act; provided, however, that the Effectiveness Period in respect
of the Initial Shelf Registration shall be extended to the extent required to
permit dealers to comply with the applicable prospectus delivery requirements of
Rule 174 under the Securities Act and as otherwise provided herein.
(b) Subsequent Shelf Registrations. If the Initial Shelf Registration
or any Subsequent Shelf Registration ceases to be effective for any reason
at any time during the Effectiveness Period (other than because of a
Suspension Period or the sale of all of the securities registered
thereunder), the Issuers shall use their reasonable best efforts to obtain
the prompt withdrawal of any order suspending the effectiveness thereof,
and in any event shall within 30 days of such cessation of effectiveness
use their reasonable best efforts to amend the Initial Shelf Registration
in a manner to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional "shelf" Registration Statement
pursuant to Rule 415 covering all of the Registrable Notes covered by and
not sold under the Initial Shelf Registration or an earlier Subsequent
Shelf Registration (each, a "Subsequent Shelf Registration"). If a
Subsequent Shelf Registration is filed, the Issuers shall use their
reasonable best efforts to cause the Subsequent Shelf Registration to be
declared effective under the Securities Act as soon as practicable after
such filing and to keep such subsequent Shelf Registration continuously
effective (except during any Suspension Period) for the remainder of the
Effectiveness Period. As used herein the term "Shelf Registration" means
the Initial Shelf Registration and any Subsequent Shelf Registration.
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(c) Supplements and Amendments. The Issuers shall promptly supplement
and amend any Shelf Registration if required by the rules, regulations or
instructions applicable to the registration form used for such Shelf
Registration, if required by the Securities Act, or if reasonably requested
by the Holders of a majority in aggregate principal amount of the
Registrable Notes covered by such Shelf Registration or by any underwriter
of such Registrable Notes.
4. Additional Interest
(a) The Issuers and the Initial Purchasers agree that the Holders will
suffer damages if the Issuers fail to fulfill their obligations under Section 2
or Section 3 hereof and that it would not be feasible to ascertain the extent of
such damages with precision. Accordingly, the Company Issuers agree to pay, as
liquidated damages, additional interest on the Notes ("Additional Interest")
under the circumstances and to the extent set forth below (each of which shall
be given independent effect):
(i) if (A) neither the Exchange Offer Registration Statement nor the
Initial Shelf Registration has been filed on or prior to the applicable
Filing Date or (B) notwithstanding that the Issuers have consummated or
will consummate the Exchange Offer, the Issuers are required to file a
Shelf Registration and such Shelf Registration is not filed on or prior to
the Filing Date applicable thereto, then, commencing on the day after any
such Filing Date, Additional Interest shall accrue on the principal amount
of all of the Registrable Notes in the case of clause (A) above, and on the
principal amount of those Registrable Notes to which the Shelf Registration
relates, in the case of clause (B) above, and in each case, at a rate of
0.25% per annum for the first 90 days immediately following each such
Filing Date, and such Additional Interest rate shall increase by an
additional 0.25% per annum at the beginning of each subsequent 90-day
period; or
(ii) if (A) the Exchange Offer Registration Statement is not declared
effective by the SEC on or prior to the relevant Effectiveness Date, (B)
the Initial Shelf Registration is not declared effective by the SEC on or
prior to the relevant
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Effectiveness Date, or (C) notwithstanding that the Issuers have
consummated or will consummate the Exchange Offer, the Issuers are required
to file a Shelf Registration and such Shelf Registration is not declared
effective by the SEC on or prior to the Effectiveness Date applicable
thereto, then, commencing on the day after such Effectiveness Date,
Additional Interest shall accrue on the principal amount of all of the
Registrable Notes in the case of clause (A) above, and on the principal
amount of those Registrable Notes to which the Shelf Registration relates,
in the case of clauses (B) and (C) above, and in each case, at a rate of
0.25% per annum for the first 90 days immediately following the day after
such Effectiveness Date, and such Additional Interest rate shall increase
by an additional 0.25% per annum at the beginning of each subsequent 90-day
period; or
(iii) if (A) the Issuers have not exchanged Exchange Notes for all
Securities validly tendered in accordance with the terms of the Exchange
Offer on or prior to the later of the 45th day after the date on which the
Exchange Offer Registration Statement relating thereto was declared
effective or the 210th day after the Issue Date or (B) if applicable, a
Shelf Registration has been declared effective and such Shelf Registration
ceases to be effective at any time during the Effectiveness Period (other
than as the result of a Suspension Period), then Additional Interest shall
accrue on the principal amount of all of the Registrable Notes in the case
of clause (A) above, and on the principal amount of those Registrable Notes
to which the Shelf Registration relates, in the case of clause (B) above,
and in each case, at a rate of 0.25% per annum for the first 90 days
commencing on the (x) 46th or the 211th, as the case may be, day after such
effective date, in the case of (A) above, or (y) the day such Shelf
Registration ceases to be effective in the case of (B) above (or, in the
event of a Suspension Period, on the earlier of the last day of such
Suspension Period or the 60th day after notice of such Suspension Period),
and such Additional Interest rate shall increase by an additional 0.25% per
annum at the beginning of each such subsequent 90-day period;
provided, however, that the Additional Interest rate on the Notes may not exceed
at any one time in the aggregate 1.00% per annum; provided, further, however,
that (1) upon the filing of the applicable Exchange Offer Registration Statement
or the applicable
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Shelf Registration as required hereunder (in the case of clause (i) above of
this Section 4), (2) upon the effectiveness of the Exchange Offer Registration
Statement or the applicable Shelf Registration Statement as required hereunder
(in the case of clause (ii) of this Section 4), or (3) upon the exchange of the
applicable Exchange Notes (and the related Guarantees) for all Securities
tendered (in the case of clause (iii)(A) of this Section 4), or upon the
effectiveness of the applicable Shelf Registration Statement which had ceased to
remain effective (other than as a result of a Suspension Period) (in the case of
(iii)(B) of this Section 4), Additional Interest on the Notes in respect of
which such events relate as a result of such clause (or the relevant subclause
thereof), as the case may be, shall cease to accrue.
(b) The Company Issuers shall notify the Trustee within three business days
after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "Event Date"). Any amounts of
Additional Interest due pursuant to (a)(i), (a)(ii) or (a)(iii) of this Section
4 will be payable in cash semiannually on each January 15 and July 15 (to the
holders of record on the January 1 and July 1 immediately preceding such dates),
commencing with the first such date occurring after any such Additional Interest
commences to accrue. The amount of Additional Interest will be determined by
multiplying the applicable Additional Interest rate by the principal amount of
the Registrable Notes, 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, in the case of a partial month, the actual number of days elapsed), and the
denominator of which is 360.
5. Registration Procedures
In connection with the filing of any Registration Statement pursuant to
Sections 2 or 3 hereof, the Issuers shall effect such registrations to permit
the sale of the securities covered thereby in accordance with the intended
method or methods of disposition thereof, and pursuant thereto and in connection
with any Registration Statement filed by the Issuers hereunder each of the
Issuers shall:
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(a) Prepare and file with the SEC on or prior to the applicable Filing
Date, a Registration Statement or Registration Statements as prescribed by
Sections 2 or 3 hereof, and use its reasonable best efforts to cause each
such Registration Statement to become effective and remain effective as
provided herein; provided, however, that, if such filing is pursuant to
Section 3 hereof, before filing any Registration Statement or Prospectus or
any amendments or supplements thereto, the Issuers shall furnish to and
afford the Holders of the Registrable Notes included in such Registration
Statement, their counsel and the managing underwriters, if any, a
reasonable opportunity to review copies of all such documents (including
copies of any documents to be incorporated by reference therein and all
exhibits thereto) proposed to be filed (in each case at least five days
prior to such filing, or such later date as is reasonable under the
circumstances). The Issuers shall not file any Shelf Registration or
Prospectus related thereto or any amendments or supplements thereto if the
Holders of a majority in aggregate principal amount of the Registrable
Notes included in such Shelf Registration, their counsel, or the managing
underwriters, if any, shall reasonably object on a timely basis.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration Statement or Exchange Offer
Registration Statement, as the case may be, as may be necessary to keep
such Registration Statement continuously effective for the Effectiveness
Period or the Applicable Period, as the case may be; cause the related
Prospectus to be supplemented by any Prospectus supplement required by
applicable law, and as so supplemented to be filed pursuant to Rule 424 (or
any similar provisions then in force) promulgated under the Securities Act;
and comply with the provisions of the Securities Act and the Exchange Act
applicable to each of them with respect to the disposition of all
securities covered by such Registration Statement as so amended or in such
Prospectus as so supplemented and with respect to the subsequent resale of
any securities being sold by a Participating Broker-Dealer covered by any
such Prospectus. The Issuers shall be deemed not to have used their
reasonable best efforts to keep a Registration Statement effective during
the Effectiveness Period or the Applicable Period, as the case may be,
relating thereto if any Issuer
19
voluntarily takes any action that would result in selling Holders of the
Registrable Notes covered thereby or Participating Broker-Dealers seeking
to sell Exchange Notes not being able to sell such Registrable Notes or
such Exchange Notes, as the case may be, during that period unless (i) such
action is required by applicable law or permitted by this Agreement, or
(ii) such action is taken for valid business reasons (not including
avoidance of the Issuers' obligations hereunder), including the acquisition
or divestiture of any business or assets.
(c) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period relating thereto from whom the
Company Issuers have received written notice that it will be a
Participating Broker-Dealer in the Exchange Offer, notify the selling
Holders of Registrable Notes, or each such Participating Broker-Dealer, as
the case may be, their counsel and the managing underwriters, if any (in
the case of clause (1) above), promptly (but in any event within two
business days), and confirm such notice in writing, (i) (in the case of
clause (1) above) when a Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same has
become effective under the Securities Act (including in such notice a
written statement that any Holder may, upon request, obtain, at the sole
expense of the Issuers, one conformed copy of such Registration Statement
or post-effective amendment including financial statements and schedules,
documents incorporated or deemed to be incorporated by reference and
exhibits), (ii) of the issuance by the SEC of any stop order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus or the initiation of any
proceedings for that purpose, (iii) (in the case of clause (1) above) if at
any time when a prospectus is required by the Securities Act to be
delivered in connection with sales of the Registrable Notes or resales of
Exchange Notes by Participating Broker-Dealers the representations and
warranties of the Issuers contained in any agreement (including any
underwriting agreement) contemplated
20
by Section 5(l) hereof cease to be true and correct in all material
respects, (iv) of the receipt by any Issuer of any notification with
respect to the suspension of the qualification or exemption from
qualification of a Registration Statement or any of the Registrable Notes
or the Exchange Notes to be sold by any Participating Broker-Dealer for
offer or sale in any jurisdiction, or the initiation or threatening of any
proceeding for such purpose, (v) of the happening of any event, the
existence of any condition or any information becoming known that makes any
statement made in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires the making of any changes
in or amendments or supplements to such Registration Statement, Prospectus
or documents so that, in the case of the Registration Statement, it will
not contain any 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 not misleading, and that in the case of the Prospectus,
it will not contain any 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, and (vi) of the Issuers' determination that a
post-effective amendment to a Registration Statement would be appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, use its reasonable best
efforts to prevent the issuance of any order suspending the effectiveness
of a Registration Statement or of any order preventing or suspending the
use of a Prospectus or suspending the qualification (or exemption from
qualification) of any of the Registrable Notes or the Exchange Notes to be
sold by any Participating Broker-Dealer, for sale in any jurisdiction, and,
if any such order is issued, to use its reasonable best efforts to obtain
the withdrawal of any such order at the earliest possible moment.
21
(e) If a Shelf Registration is filed pursuant to Section 3 and if
requested by the managing underwriter or underwriters (if any) or the
Holders of a majority in aggregate principal amount of the Registrable
Notes being sold in connection with an underwritten offering (i) as
promptly as practicable incorporate in a prospectus supplement or
post-effective amendment such information as the managing underwriter or
underwriters (if any) or such Holders or counsel for any of them reasonably
request to be included therein, (ii) make all required filings of such
prospectus supplement or such post-effective amendment as soon as
practicable after an Issuer has received notification of the matters to be
incorporated in such prospectus supplement or post-effective amendment, and
(iii) supplement or make amendments to such Registration Statement.
(f) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, furnish to each selling Holder
of Registrable Notes and to each such Participating Broker-Dealer who so
requests and to their respective counsel, if any, and each managing
underwriter, if any, at the sole expense of the Issuers, one conformed copy
of the Registration Statement or Registration Statements and each
post-effective amendment thereto, including financial statements and
schedules, and, if requested, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, deliver to each selling Holder
of Registrable Notes, or each such Participating Broker-Dealer, as the case
may be, their respective counsel, if any, and the underwriters, if any, at
the sole expense of the Issuers, as many copies of the Prospectus or
Prospectuses (including each form of preliminary prospectus) and each
amendment or supplement thereto and any
22
documents incorporated by reference therein as such Persons may reasonably
request; and, subject to the last paragraph of this Section 5, the Issuers
hereby consent to the use of such Prospectus and each amendment or
supplement thereto by each of the selling Holders of Registrable Notes or
each such Participating Broker-Dealer, as the case may be, and the
underwriters or agents, if any, and dealers (if any), in connection with
the offering and sale of the Registrable Notes covered by, or the sale by
Participating Broker-Dealers of the Exchange Notes pursuant to, such
Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or any delivery
of a Prospectus contained in the Exchange Offer Registration Statement by
any Participating Broker- Dealer who seeks to sell Exchange Notes during
the Applicable Period, use its reasonable best efforts to register or
qualify, and to cooperate with the selling Holders of Registrable Notes or
each such Participating Broker-Dealer, as the case may be, the managing
underwriter or underwriters, if any, and their respective counsel, if any,
in connection with the registration or qualification (or exemption from
such registration or qualification) of such Registrable Notes for offer and
sale under the securities or Blue Sky laws of such jurisdictions within the
United States as any selling Holder, Participating Broker-Dealer, or the
managing underwriter or underwriters reasonably request in writing;
provided, however, that where Exchange Notes held by Participating
Broker-Dealers or Registrable Notes are offered other than through an
underwritten offering, the Issuers agree to cause their counsel to perform
Blue Sky investigations and file registrations and qualifications required
to be filed pursuant to this Section 5(h), keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and all
other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Exchange Notes held by
Participating Broker-Dealers or the Registrable Notes covered by the
applicable Registration Statement; provided, however, that no Issuer shall
be required to (A) qualify generally to do business in any jurisdiction
where it is not then so qualified, (B) take any action that would subject
it to general service of process in any such jurisdiction where it
23
is not then so subject or (C) subject itself to taxation in excess of a
nominal dollar amount in any such jurisdiction where itis not then so
subject.
(i) If a Shelf Registration is filed pursuant to Section 3 hereof,
cooperate with the selling Holders of Registrable Notes and the managing
underwriter or underwriters, if any, to facilitate the timely preparation
and delivery of global certificates representing Registrable Notes to be
sold, which global certificates shall not bear any restrictive legends and
shall be in a form eligible for deposit with The Depository Trust Company;
and enable such Registrable Notes to be in such denominations and
registered in such names as the managing underwriter or underwriters, if
any, or Holders may request.
(j) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, upon the occurrence of any
event contemplated by paragraph 5(c)(v) or 5(c)(vi) hereof, as promptly as
practicable prepare and (subject to Section 5(a) hereof) file with the SEC,
at the sole expense of the Issuers, a supplement or post-effective
amendment to the Registration Statement or a supplement to the related
Prospectus or any document incorporated or deemed to be incorporated
therein by reference, or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Notes being sold
thereunder or to the purchasers of the Exchange Notes to whom such
Prospectus will be delivered by a Participating Broker-Dealer, any such
Prospectus will not 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, in light of the circumstances under which they were
made, not misleading. Notwithstanding the foregoing, the Issuers shall not
be required to amend or supplement a Registration Statement, any related
Prospectus or any document incorporated therein by reference, in the event
that, and for a period not to exceed an aggregate of 60 days in any
calendar year (a "Suspension Period") if, (i) an event occurs and is
continuing as a result of which the Shelf Registration would, in the
24
Company Issuers' good faith judgment, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, and (ii) (a) the Company Issuers determine in
their good faith judgment that the disclosure of such event at such time
would have a material adverse effect on the business, operations or
prospects of the Company Issuers or (b) the disclosure otherwise relates to
a pending material business transaction that has not yet been publicly
disclosed.
(k) Prior to the effective date of the first Registration Statement
relating to the Registrable Notes, (i) provide the Trustee with
certificates for the Registrable Notes in a form eligible for deposit with
The Depository Trust Company and (ii) provide a CUSIP number for the
Registrable Notes.
(l) In connection with any underwritten offering of Registrable Notes
pursuant to a Shelf Registration, enter into an underwriting agreement as
is customary in underwritten offerings of debt securities similar to the
Registrable Notes in form and substance reasonably satisfactory to the
Issuers and take all such other actions as are reasonably requested by the
managing underwriter or underwriters in order to expedite or facilitate the
registration or the disposition of such Registrable Notes and, in such
connection, (i) make such representations and warranties to, and covenants
with, the underwriters with respect to the business of the Issuers and the
subsidiaries of the Issuers (including any acquired business, properties or
entity, if applicable) and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by reference
therein, in each case, as are customarily made by issuers to underwriters
in underwritten offerings of debt securities similar to the Securities, and
confirm the same in writing if and when requested in form and substance
reasonably satisfactory to the Issuers; (ii) obtain the written opinions of
counsel to the Issuers and written updates thereof in form, scope and
substance reasonably satisfactory to the managing underwriter or
underwriters, addressed to the underwriters covering the matters
customarily covered in opinions reasonably requested in underwritten
offerings and such other matters as may be reasonably requested by the
managing
25
underwriter or underwriters; (iii) use its reasonable best efforts
to obtain "cold comfort" letters and updates thereof in form, scope and
substance reasonably satisfactory to the managing underwriter or
underwriters from the independent public accountants of the Issuers (and,
if necessary, any other independent public accountants of the Issuers, any
subsidiary of the Issuers or of any business acquired by the Issuers for
which financial statements and financial data are, or are required to be,
included or incorporated by reference in the Registration Statement),
addressed to each of the underwriters, such letters to be in customary form
and covering matters of the type customarily covered in "cold comfort"
letters in connection with underwritten offerings of debt securities
similar to the Registrable Notes and such other matters as reasonably
requested by the managing
underwriter or underwriters as permitted by the Statement on Auditing
Standards No. 72; provided that the representations, warranties, covenants,
legal opinions and comfort letters described in clauses (i), (ii) and (iii)
above shall be substantially similar to those set forth or described in the
Purchase Agreement, with such differences as shall be agreed upon by the
Issuers and the managing underwriter; and (iv) if an underwriting agreement
is entered into, the same shall contain indemnification provisions and
procedures no less favorable to the sellers and underwriters, if any, than
those set forth in Section 7 hereof (or such other provisions and
procedures acceptable to Holders of a majority in aggregate principal
amount of Registrable Notes covered by such Registration Statement and the
managing underwriter or underwriters or agents, if any). The above shall be
done at each closing under such underwriting agreement, or as and to the
extent required thereunder.
(m) If a Shelf Registration is filed pursuant to Section 3 hereof,
make available for inspection by any selling Holder of such Registrable
Notes being sold, any underwriter participating in any such disposition of
Registrable Notes, if any, and any attorney, accountant or other agent
retained by any such selling Holder or underwriter (collectively, the
"Inspectors"), at the offices where normally kept, during reasonable
business hours, all financial and other records, pertinent corporate
documents and instruments of the Company Issuers and subsidiaries of the
Company Issuers (collectively, the "Records") as shall be reasonably
necessary to enable them
26
to exercise any applicable due diligence responsibilities, and cause the
officers, directors and employees of the Company Issuers and any of their
respective subsidiaries to supply all information reasonably requested by
any such Inspector in connection with such Registration Statement. Each
Inspector shall agree in writing that it will keep the Records confidential
and that it will not disclose any of the Records that any of the respective
Company Issuers determines, in good faith, to be confidential and notifies
the Inspectors in writing are confidential unless (i) the disclosure of
such Records is necessary to avoid or correct a material misstatement or
material omission in such Registration Statement, (ii) the release of such
Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction, or (iii) the information in such Records has been
made generally available to the public; provided, however, that prior
notice shall be provided as soon as practicable to the Company Issuers of
the potential disclosure of any information by such Inspector pursuant to
clauses (i) or (ii) of this sentence to permit the Company Issuers to
obtain a protective order (or waive the provisions of this paragraph (m))
and that such Inspector shall take such actions as are reasonably necessary
to protect the confidentiality of such information (if practicable) to the
extent such action is otherwise not inconsistent with, an impairment of or
in derogation of the rights and interests of the Holder or any Inspector.
Each selling Holder of such Registrable Notes will be required to agree
that information obtained by it as a result of such inspections shall be
deemed confidential, shall be used only for due diligence purposes pursuant
to this Section 5(m) and shall not be used by it as the basis for any
market transactions in those securities of the Issuers unless and until
such information is generally available to the public. Each selling Holder
of such Registrable Notes will be required to further agree that it will,
upon learning that disclosure of such Records is sought in a court of
competent jurisdiction, give notice to the Issuers and allow the Issuers to
undertake appropriate action to prevent disclosure of the Records deemed
confidential at the Issuers' sole expense.
(n) Provide an indenture trustee for the Registrable Notes or the
Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(a)
27
hereof, as the case may be, to be qualified under the TIA not later than
the effective date of the first Registration Statement relating to the
Registrable Notes; and in connection therewith, cooperate with the trustee
under any such indenture and the Holders of the Registrable Notes, to
effect such changes to such indenture as may be required for such indenture
to be so qualified in accordance with the terms of the TIA; and execute,
and use its reasonable best efforts to cause such trustee to execute, all
documents as may be required to effect such changes, and all other forms
and documents required to be filed with the SEC to enable such indenture to
be so qualified in a timely manner.
(o) Comply with all applicable rules and regulations of the SEC and
make generally available to its securityholders with regard to any
applicable Registration Statement, a consolidated earnings statement
satisfying the provisions of Section 11(a) of the Securities Act and Rule
158 thereunder (or any similar rule promulgated under the Securities Act)
no later than 60 days after the end of any fiscal quarter (or 120 days
after the end of any 12-month period if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which Registrable Notes are
sold to underwriters in a firm commitment or best efforts underwritten
offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the respective
Company Issuers after the effective date of a Registration Statement, which
statements shall cover said 12-month periods.
(p) Upon consummation of the Exchange Offer or a Private Exchange,
obtain an opinion of counsel to the respective Company Issuers, in a form
customary for underwritten transactions, addressed to the Trustee for the
benefit of all Holders of Registrable Notes participating in the Exchange
Offer or the Private Exchange, as the case may be, that the Exchange Notes
or Private Exchange Notes, as the case may be, the related Guarantees and
the related indenture constitute legal, valid and binding obligations of
the Issuers, enforceable against them in accordance with their respective
terms, subject to customary exceptions and qualifications.
28
(q) If the Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Registrable Notes by Holders to the Company Issuers
(or to such other Person as directed by the Company Issuers) in exchange
for the Exchange Notes or the Private Exchange Notes, as the case may be,
the Company Issuers shall xxxx, or cause to be marked, on such Registrable
Notes that such Registrable Notes are being canceled in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may be; in no
event shall such Registrable Notes be marked as paid or otherwise
satisfied.
(r) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Notes and their respective counsel in
connection with any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD").
(s) Use its reasonable best efforts to take all other steps reasonably
necessary to effect the registration of the Exchange Notes and/or
Registrable Notes covered by a Registration Statement contemplated hereby.
The Company Issuers may require each seller of Registrable Notes as to
which any registration is being effected to furnish to the Company Issuers such
information regarding such seller and the distribution of such Registrable Notes
as the Company Issuers may, from time to time, reasonably request. The Company
Issuers may exclude from such registration the Registrable Notes of any seller
so long as such seller fails to furnish such information within a reasonable
time after receiving such request. Each seller as to which any Shelf
Registration is being effected agrees to furnish promptly to the Company Issuers
all information required to be disclosed in order to make the information
previously furnished to the Company Issuers by such seller not materially
misleading.
Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by its acquisition of such Registrable Notes or Exchange Notes to be sold
by such Participating Broker-Dealer, as the case may be, that, upon actual
receipt of any notice from the Company Issuers of the happening of any event of
the kind
29
described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi) hereof or upon
receipt of notice of a Suspension Period, such Holder will forthwith discontinue
disposition of such Registrable Notes covered by such Registration Statement or
Prospectus or Exchange Notes to be sold by such Holder or Participating Broker-
Dealer, as the case may be, until such Holder's or Participating Broker-Dealer's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 5(j) hereof, or until it is advised in writing (the "Advice") by the
Company Issuers that the use of the applicable Prospectus may be resumed, and
has received copies of any amendments or supplements thereto. In the event that
the Company Issuers shall give any such notice, the Applicable Period shall be
extended by the number of days during such periods from and including the date
of the giving of such notice to and including the date when each seller of
Registrable Notes covered by such Registration Statement or Exchange Notes to be
sold by such Participating Broker-Dealer, as the case may be, shall have
received (x) the copies of the supplemented or amended Prospectus contemplated
by Section 5(j) hereof or (y) the Advice.
6. Registration Expenses
All fees and expenses incident to the performance of or compliance with
this Agreement by the Issuers (other than any underwriting discounts or
commissions) shall be borne by the Company Issuers whether or not the Exchange
Offer Registration Statement or any Shelf Registration is filed or becomes
effective or the Exchange Offer is consummated, including, without limitation,
(i) all registration and filing fees (including, without limitation, (A) fees
with respect to filings required to be made with the NASD in connection with an
underwritten offering and (B) reasonable fees and expenses of compliance with
state securities or Blue Sky laws (including, without limitation, reasonable
fees and disbursements of counsel in connection with Blue Sky qualifications of
the Registrable Notes or Exchange Notes and determination of the eligibility of
the Registrable Notes or Exchange Notes for investment under the laws of such
jurisdictions (x) where the holders of Registrable Notes are located, in the
case of the Exchange Notes, or (y) provided in Section 5(h) hereof, in the case
of Registrable Notes or Exchange Notes to be sold by a Participating
Broker-Dealer during the Applicable Period)), (ii) printing expenses, including,
without limitation, expenses of printing certificates for Registrable Notes or
Exchange Notes in a form eligible for deposit with The Depository Trust Company
and of
30
printing prospectuses if the printing of prospectuses is requested by the
managing underwriter or underwriters, if any, by the Holders of a majority in
aggregate principal amount of the Registrable Notes included in any Registration
Statement or in respect of Registrable Notes or Exchange Notes to be sold by any
Participating Broker-Dealer during the Applicable Period, as the case may be,
(iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of
counsel for the respective Company Issuers and reasonable fees and disbursements
of one special counsel for all of the sellers of Registrable Notes in connection
with a Shelf Registration Statement (exclusive of any counsel retained pursuant
to Section 7 hereof) (it being understood that the Issuers shall not be
responsible for any fees and disbursements of counsel for Holders of Registrable
Notes in the Exchange Offer), (v) fees and disbursements of all independent
certified public accountants referred to in Section 5(l)(iii) hereof (including,
without limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (vi) Securities Act liability
insurance, if the Company Issuers desire such insurance, (vii) fees and expenses
of all other Persons retained by the Issuer, (viii) internal expenses of the
Company Issuers (including, without limitation, all salaries and expenses of
officers and employees of the respective Company Issuers performing legal or
accounting duties), (ix) the expense of any annual audit, (x) any fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange, and the obtaining of a rating of the
securities, in each case, if applicable, and (xi) the expenses relating to
printing, word processing and distributing all Registration Statements,
underwriting agreements, indentures and any other documents necessary in order
to comply with this Agreement.
7. Indemnification
(a) Each of the Issuers, jointly and severally, agrees to indemnify and
hold harmless each Holder of Registrable Notes and each Participating
Broker-Dealer selling Exchange Notes during the Applicable Period, the
affiliates, officers, directors, representatives, employees and agents of each
such Person, and each Person, if any, who controls any such Person within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act (each, a "Participant"), from and against any and all losses, claims,
damages, judgments, liabilities and expenses (including, without limitation, the
reasonable legal fees and other
31
expenses actually incurred in connection with any suit, action or proceeding or
any claim asserted) caused by, arising out of or based upon any untrue statement
or alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto) or Prospectus (as amended or supplemented
if the Company Issuers shall have furnished any amendments or supplements
thereto) or any preliminary prospectus, or caused by, arising out of or based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the case of
the Prospectus in light of the circumstances under which they were made, not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information relating to
any Participant furnished to the Company Issuers in writing by such Participant
expressly for use therein; provided, that as to any preliminary Prospectus, this
indemnity agreement shall not inure to the benefit of any Participant or any
person controlling any Participant on account of any loss, claim, damage,
liability or action arising from any sale of Registrable Notes to any person by
the Participant if that Participant failed to send or give a copy of the
Prospectus (or the Prospectus as amended or supplemented) to such person at or
prior to the written confirmation of sale to such person and if the untrue
statement or omission giving rise to such loss, claim, damage, liability or
action was corrected in the Prospectus (as amended or supplemented), unless such
failure resulted from non-compliance by the Issuers with Section 5(g) of this
Agreement; and provided further, that no partner of Holdings in such partner's
capacity as such shall be liable for indemnification or contribution pursuant to
this Section 7 on account of any loss, claim, damage, judgment, liability or
expense (including, without limitation, any legal fees or other fee or expenses
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto) or Prospectus (as amended or supplemented),
and by purchasing the Notes, each holder of Notes waives any such liability of
any partner of Holdings.
(b) Each Participant agrees, severally and not jointly, to indemnify and
hold harmless the Issuers, their respective affiliates, officers, partners,
directors (or equivalent), representatives, employees and agents of each Issuer
and each
32
Person who controls each Issuer within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent (but on a
several, and not joint, basis) as the foregoing indemnity from the Issuers to
each Participant, but only with reference to information relating to such
Participant furnished to the Company Issuers in writing by such Participant
expressly for use in any Registration Statement or Prospectus, any amendment or
supplement thereto, or any preliminary prospectus. The liability of any
Participant under this paragraph shall in no event exceed the proceeds received
by such Participant from sales of Registrable Notes or Exchange Notes giving
rise to such obligations.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such Person (the "Indemnified Person") shall promptly
notify the Persons against whom such indemnity may be sought (the "Indemnifying
Persons") in writing, and the Indemnifying Persons, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Persons may reasonably designate in such proceeding and shall pay
the fees and expenses actually incurred by such counsel related to such
proceeding; provided, however, that the failure to so notify the Indemnifying
Persons (i) will not relieve it from any liability under paragraph (a) or (b)
above unless and to the extent that the Indemnifying Person is materially
prejudiced by such failure to notify and (ii) will not, in any event, relieve
the Indemnifying Person from any obligations to any Indemnified Person otherwise
than under this Section 7. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Persons and the Indemnified Person shall have mutually agreed to
the contrary, (ii) the Indemnifying Persons shall have failed within a
reasonable period of time to retain counsel reasonably satisfactory to the
Indemnified Person or (iii) the named parties in any such proceeding (including
any impleaded parties) include both any Indemnifying Person and the Indemnified
Person or any affiliate thereof and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the Indemnifying Persons shall not, in
connection with such proceeding or separate
33
but substantially similar related proceeding in the same jurisdiction arising
out of the same general allegations, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed promptly as
they are incurred. Any such separate firm for the Participants and such control
Persons of Participants shall be designated in writing by Participants who sold
a majority in interest of Registrable Notes and Exchange Notes sold by all such
Participants and shall be reasonably acceptable to the Company Issuers, and any
such separate firm for the Issuers, their affiliates, officers, directors,
representatives, employees and agents and such control Persons of such Issuer
shall be designated in writing by such Issuer and shall be reasonably acceptable
to the Holders.
The Indemnifying Persons shall not be liable for any settlement of any
proceeding effected without its prior written consent (which consent shall not
be unreasonably withheld or delayed), but if settled with such consent or if
there be a final non-appealable judgment for the plaintiff for which the
Indemnified Person is entitled to indemnification pursuant to this Agreement,
each of the Indemnifying Persons agrees to indemnify and hold harmless each
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. No Indemnifying Person shall, without the prior written
consent of the Indemnified Persons (which consent shall not be unreasonably
withheld or delayed), effect any settlement or compromise of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party, or indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement (A) includes an unconditional written
release of such Indemnified Person, in form and substance reasonably
satisfactory to such Indemnified Person, from all liability on claims that are
the subject matter of such proceeding and (B) does not include any statement as
to an admission of fault, culpability or failure to act by or on behalf of such
Indemnified Person.
(d) If the indemnification provided for in the first and second paragraphs
of this Section 7 is for any reason unavailable to, or insufficient to hold
harmless, an Indemnified Person in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such
paragraphs, in lieu of indemnifying such Indemnified Person thereunder and in
order to provide for just and equitable
34
contribution, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect (i) the relative benefits received by
the Indemnifying Person or Persons on the one hand and the Indemnified Person or
Persons on the other from the offering of the Notes or (ii) if the allocation
provided by the foregoing clause (i) is not permitted by applicable law, not
only such relative benefits but also the relative fault of the Indemnifying
Person or Persons on the one hand and the Indemnified Person or Persons on the
other in connection with the statements or omissions or alleged 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 Issuers on the one hand or such
Participant or such other Indemnified Person, as the case may be, on the other,
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission, and any other equitable
considerations appropriate in the circumstances.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
(even if the Participants were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages, judgments, liabilities and expenses referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any reasonable legal or other expenses actually incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Registrable Notes or
Exchange Notes, as the case may be, exceeds the amount of any damages that such
Participant has otherwise been required to pay or has paid by reason of such
untrue or alleged untrue statement or omission or alleged omission. No Person
guilty of fraudulent
35
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.
(f) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the Indemnifying Person to the Indemnified Person as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Issuers set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Holder or any person who controls a
Holder, the Issuer, its directors, officers, employees or agents or any person
controlling an Issuer, and (ii) any termination of this Agreement.
(g) The indemnity and contribution agreements contained in this Section 7
will be in addition to any liability which the Indemnifying Persons may
otherwise have to the Indemnified Persons referred to above.
8. Rules 144 and 144A
The Issuers covenant and agree that the Guarantor or the Operating Company
will file the reports required to be filed by the Issuers under the Securities
Act and the Exchange Act and the rules and regulations adopted by the SEC
thereunder in a timely manner in accordance with the requirements of the
Securities Act and the Exchange Act and, if at any time the Issuers are not
required to file such reports, the Guarantor or the Operating Company will, upon
the request of any Holder or beneficial owner of Registrable Notes, make
available such information necessary to permit sales pursuant to Rule 144A under
the Securities Act. Each of the Issuers further covenants and agrees, for so
long as any Registrable Notes remain outstanding that it will take such further
action as any Holder of Registrable Notes may reasonably request, all to the
extent required from time to time to make available to any Holder or beneficial
owner of Registrable Notes in connection with any sale thereof and any
prospective purchaser or such beneficial owner the information required in order
to permit resales of such Registrable Notes pursuant to Rule 144A under the
36
Securities Act, unless the Issuers are then subject to Section 13 or 15(d) of
the Exchange Act and reports filed thereunder satisfy the information
requirements of Rule 144A(d)(4) then in effect.
9. Underwritten Registrations
The Issuers shall not be required to assist in an underwritten offering
unless requested by the Holders of a majority in aggregate principal amount of
the then outstanding Registrable Notes.
If any of the Registrable Notes 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 manage the offering will be selected by the
Holders of a majority in aggregate principal amount of such Registrable Notes
included in such offering and shall be reasonably acceptable to the Issuers.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
10. Miscellaneous
(a) No Inconsistent Agreements. The Issuers have not, as of the date
hereof, and the Issuers shall not, after the date of this Agreement, enter into
any agreement with respect to any of its securities that is inconsistent with
the rights granted to the Holders of Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Issuers' other issued and outstanding
securities under any such agreements. The Issuers will not enter into any
agreement with respect to any
37
of their securities which will grant to any Person piggy-back registration
rights with respect to any Registration Statement, unless by the terms of such
piggy-back registration rights, the registration of securities of such Person
pursuant to such Registration Statement will not result in any reduction in the
amount of any Registrable Notes that may be registered pursuant to such
Registration Statement.
(b) Adjustments Affecting Registrable Notes. The Issuers shall not,
directly or indirectly, take any action with respect to the Registrable Notes as
a class that would adversely affect the ability of the Holders of Registrable
Notes to include such Registrable Notes in a registration undertaken pursuant to
this Agreement.
(c) 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, otherwise than with the prior written
consent of (I) the Company Issuers and (II)(A) the Holders of not less than a
majority in aggregate principal amount of the then outstanding Registrable Notes
and (B) in circumstances that would adversely affect the Participating
Broker-Dealers, the Participating Broker-Dealers holding not less than a
majority in aggregate principal amount of the Exchange Notes held by all
Participating Broker-Dealers; provided, however, that Section 7 and this Section
10(c) may not be amended, modified or supplemented without the prior written
consent of each Holder and each Participating Broker-Dealer (including any
person who was a Holder or Participating Broker-Dealer of Registrable Notes or
Exchange Notes, as the case may be, disposed of pursuant to any Registration
Statement) affected by any such amendment, modification or supplement.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders of Registrable Notes whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect, impair,
limit or compromise the rights of other Holders of Registrable Notes may be
given by Holders of at least a majority in aggregate principal amount of the
Registrable Notes being sold pursuant to such Registration Statement.
(d) Notices. All notices and other communications (including, without
limitation, any notices or other communications
38
to the Trustee) provided for or permitted hereunder shall be made in writing by
hand-delivery, including courier service, or facsimile:
(i) if to a Holder of the Registrable Notes or any Participating
Broker-Dealer, at the most current address of such Holder or Participating
Broker-Dealer, as the case may be, set forth on the records of the
registrar under the Indenture.
(ii) if to the Issuers, at the address as follows:
c/o Graham Packaging Company
0000 Xxxx Xxxxxxxx Xxxxxx
Xxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx, V.P., Finance &
Administration
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with copies to:
The Blackstone Group
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Senior Managing
Director
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
39
Attention: Xxxxxx X. Xxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, including delivery by courier service; and when
receipt is acknowledged by the addressee, if sent by facsimile.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties hereto,
the Holders and the Participating Broker-Dealers.
(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.
(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, AS APPLIED TO CONTRACTS MADE
AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
40
(i) Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their reasonable best efforts to find and employ an alternative means to achieve
the same or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(j) Securities Held by the Issuers or Their Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Company Issuers or their
affiliates (as such term is defined in Rule 405 under the Securities Act) shall
not be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
(k) Third-Party Beneficiaries. Holders of Registrable Notes and
Participating Broker-Dealers are intended third-party beneficiaries of this
Agreement, and this Agreement may be enforced by such Persons.
(l) Entire Agreement. This Agreement, together with the Purchase Agreement
and the Indenture, is intended by the parties as a final and exclusive statement
of the agreement and understanding of the parties hereto in respect of the
subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Holders on the one hand
and the Issuers on the other, or between or among any agents, representatives,
parents, subsidiaries, affiliates, predecessors in interest or successors in
interest with respect to the subject matter hereof and thereof are merged herein
and replaced hereby.
41
(m) Non-Recourse Obligations. The obligations under this Agreement, the
Notes, the Registration Statement, the Exchange Offer, the Exchange Notes, the
Private Exchange Notes, any Guarantee, any Initial Shelf Registration,
Subsequent Shelf Registration, the Purchase Agreement or the transactions
contemplated hereby and thereby shall be expressly non-recourse to the partners
of Holdings in their capacities as such, and the partners of Holdings shall not
incur any liabilities or bear any costs or expenses in connection with this
Agreement or the issuance and sale of the Notes, including but not limited to
any such costs and expenses as provided in Section 6 hereof or any liabilities
for indemnification or contribution as provided in Section 7 hereof, and by
purchasing the Notes, each holder of Notes waives any such obligation or
liability of any partner of Holdings and waives any requirement that any such
partner bear any such costs or expenses.
42
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
The Company Issuers:
--------------------
XXXXXX PACKAGING COMPANY
By: GPC Opco GP LLC,
its general partner
By: /s/ Xxxx X. Xxxxxxxx
--------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President, Finance
and Administration, Treasurer &
Secretary
GPC CAPITAL CORP. I
By: /s/ Xxxx X. Xxxxxxxx
--------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President,
Secretary & Assistant Treasurer
The Guarantor:
--------------
XXXXXX PACKAGING HOLDINGS COMPANY
By: BCP/Xxxxxx Holdings L.L.C.,
its general partner
43
By: /s/ Frank Nico
--------------
Name: Frank Nico
Title: Assistant Treasuruer &
Assistant Secretary
44
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
BT ALEX. XXXXX INCORPORATED
BANKERS TRUST INTERNATIONAL PLC
LAZARD FRRES & CO. LLC
SALOMON BROTHERS INC
as Initial Purchasers
By: BT ALEX. XXXXX INCORPORATED
By: /s/ Xxxxx Xxxxxxx
-----------------
Name: Xxxxx Xxxxxxx
Title: Principal
