EXHIBIT 4.5
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of March 19, 2003, by and among International Paper Company (the
"Company"), a corporation duly organized and existing under the laws of the
State of New York, and the several initial purchasers listed on Schedule I
hereto (the "Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated March 14,
2003, by and among the Company and the Purchasers (the "Purchase Agreement"),
which provides for the sale by the Company to the Purchasers of $700,000,000
aggregate principal amount of its 5.30% Notes due April 1, 2015 and
$300,000,000 aggregate principal amount of its 3.80% Notes due April 1, 2008
(collectively, the "Notes"). The Notes are to be issued pursuant to the
provisions of an Indenture dated as of April 19, 1999 (the "Base Indenture")
between the Company and The Bank of New York, as Trustee (the "Trustee"), as
supplemented by the 5.30% Notes due 2015 and 3.80% Notes due 2008 Supplemental
Indenture dated as of the Closing Date between the Company and the Trustee (the
"Supplemental Indenture" and collectively, with the Base Indenture, the
"Indenture").
In order to induce the Purchasers to enter into the Purchase Agreement,
the Company has agreed to provide to each Purchaser and its direct and indirect
transferees the registration rights with respect to the Notes set forth in
this Agreement. The execution of this Agreement is a condition to the closing
under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
"Additional Interest" shall have the meaning set forth in Section 2(e)(i).
"Closing Date" shall mean the Closing Date as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble and shall also
include the Company's successors.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Exchange Date" shall have the meaning set forth in Section 2(a)(ii).
"Exchange Notes" means the debt securities of the Company to be offered to
Holders in exchange for Notes pursuant to the Exchange Offer or otherwise
pursuant to a registration of securities containing terms identical to the
Notes for which they are exchanged (except that (i) interest thereon shall
accrue from the last date on which interest was paid on the Notes or, if no
such interest has been paid, from the date of issuance of the Notes, (ii) the
Exchange Notes will not contain terms with respect to transfer restrictions,
and (iii) certain provisions relating to an increase in the stated rate of
interest on the Notes shall be eliminated).
"Exchange Offer" shall mean the exchange offer by the Company of Exchange
Notes for all Notes that are Registrable Notes pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on an appropriate form and all amendments and
supplements to such registration statement, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Holder" shall mean each Purchaser, for so long as it owns any Registrable
Notes, and each of its successors, assigns and direct and indirect transferees
who become registered owners of Registrable Notes under the Indenture; provided
that for purposes of Sections 4 and 5 of this Agreement, the term "Holder"
shall include Participating Broker-Dealers (as defined in Section 4(a)).
"Indenture" shall have the meaning set forth in the preamble.
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"Majority Holders" shall mean the Holders of a majority of the aggregate
principal amount of outstanding Registrable Notes; provided that, for purposes
of Section 6(b), whenever the consent or approval of Holders of a specified
percentage of Registrable Notes is required hereunder, Registrable Notes held
by the Company or any of its affiliates (as such term is defined in Rule 405
under the Securities Act) shall not be considered outstanding and shall not be
counted in determining whether such consent or approval was given by the
Holders of such required percentage or amount.
"Notes" shall have the meaning set forth in the preamble.
"Offer Termination Date" shall have the meaning set forth in Section
2(a)(iv).
"Participating Broker-Dealer" shall have the meaning set forth in Section
4(a) hereof.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political
subdivision thereof.
"Private Exchange" shall have the meaning set forth in Section 2(a).
"Private Exchange Notes" shall have the meaning set forth in Section 2(a).
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Notes covered by a Shelf Registration Statement, and by all other
amendments and supplements to such prospectus, and in each case including all
material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Purchasers" shall have the meaning set forth in the preamble.
"Registrable Notes" shall mean the Notes of each series, provided,
however, that such notes shall cease to be Registrable Notes when (i) a
Registration Statement
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with respect to such notes or the resale thereof shall have been declared
effective under the Securities Act and such notes shall have been disposed of
pursuant to such Registration Statement, (ii) such notes have been sold
pursuant to Rule 144(k) (or any similar provision then in force, but not Rule
144A) under the Securities Act, (iii) such notes shall have ceased to be
outstanding or (iv) such notes have been exchanged for Exchange Notes upon
consummation of the Exchange Offer.
"Registration Default" shall have the meaning set forth in Section 2(e).
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws, (iii) all expenses of any Person in preparing or assisting in
preparing, word processing, printing and distributing, at the request of the
Company, any Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities sales agreements,
Notes and other documents relating to the performance of and compliance with
this Agreement, (iv) all fees and disbursements relating to the qualification
of the Indenture under applicable securities laws, (v) the fees and
disbursements of the Trustee and its counsel, (vi) the fees and disbursements
of counsel for the Company and, in the case of a Shelf Registration Statement,
the fees and disbursements of one counsel for the Holders incurred on or before
the initial effectiveness of the Shelf Registration Statement, which counsel
shall be counsel for the Purchasers or other counsel selected by the Company
and not objected to by the Majority Holders ("counsel for the Holders") and
(vii) the fees and disbursements of the independent public accountants of the
Company, including the expenses of any special audits or comfort letters
required by or incident to such performance and compliance, but excluding fees
of counsel to the Underwriters or the Holders and underwriting discounts, if
any, and commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Notes by a Holder.
"Registration Statement" shall mean any registration statement of the
Company filed with the SEC that covers any of the Exchange Notes or the
Registrable Notes pursuant to the provisions of this Agreement and all
amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
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"Rule 144(k)" shall have the meaning set forth in Section 2(e)(iii).
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement
of the Company pursuant to the provisions of Section 2(b) of this Agreement
which covers all of the Registrable Notes ((or Private Exchange Notes) except
Registrable Notes that the Holders have elected not to include in such Shelf
Registration Statement) or Notes that represent an unsold allotment for the
original offering thereof on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"TIA" shall have the meaning set forth in Section 3(1) hereof.
"Trustee" shall have the meaning set forth in the preamble.
"Underwriters" shall have the meaning set forth in Section 3 hereof.
"Underwritten Offering" shall mean a registration in which Registrable
Notes are sold to an Underwriter for reoffering to the public.
2. Registration under the Securities Act.
(a) To the extent not prohibited by any applicable law or applicable
interpretation of the Staff of the SEC, the Company shall use its
reasonable best efforts to: (i) file the Exchange Offer Registration
Statement or a Shelf Registration Statement with the SEC within 120 days
of the Closing Date; (ii) have the Exchange Offer Registration Statement
or Shelf Registration
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Statement declared effective by the SEC within 210 days after the Closing
Date; (iii) consummate the Exchange Offer within 245 days of the Closing
Date; and (iv) commence the Exchange Offer and issue the Exchange Notes in
exchange for all Notes validly tendered in accordance with the terms of
the Exchange Offer prior to the close of the Exchange Offer, or, in the
alternative, cause a Shelf Registration Statement to remain effective for
a maximum of two years from the Closing Date.
For purposes hereof, "consummate" shall mean that the Exchange Offer
Registration Statement shall have been declared effective, subject to
Section 2(b), the period of the Exchange Offer provided in accordance with
clause (ii) below shall have expired and all Registrable Notes validly
tendered in connection with such Exchange Offer shall have been exchanged
for Exchange Notes (assuming the Holder tendering such Notes is not an
affiliate of the Company within the meaning of Rule 405 of the Securities
Act and is not a broker-dealer tendering Registrable Notes acquired
directly from the Company for its own account, acquires the Exchange Notes
in the ordinary course of such Holder's business and has no arrangements
or understandings with any Person for the purpose of distributing the
Exchange Notes and that each such Holder makes a representation to the
Company to such effect). The Company shall commence the Exchange Offer by
mailing the related exchange offer Prospectus and accompanying documents
to each Holder stating, in addition to such other disclosures as are
required by applicable law:
(i) that the Exchange Offer is being made pursuant to this
Registration Rights Agreement and that all Registrable Notes validly
tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a
period of at least 20 business days or such longer period as may be
required by the Securities Act from the date such notice is mailed)
(each such date being an "Exchange Date");
(iii) that any Registrable Note not tendered will remain
outstanding and continues to accrue interest, but will not retain any
rights under this Agreement, other than Notes that represent an
unsold allotment for the original offering thereof;
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(iv) that Holders electing to have a Registrable Note exchanged
pursuant to the Exchange Offer will be required to surrender such
Registrable Note, together with the enclosed letters of transmittal,
to the institution and at the address specified in the notice prior
to the close of business on the last Exchange Date (the "Offer
Termination Date"); and
(v) that Holders will be entitled to withdraw their election,
not later than the close of business on the Offer Termination Date,
by sending to the institution and at the address specified in the
notice a telegram, telex, facsimile transmission or letter setting
forth the name of such Holder, the principal amount of Registrable
Notes delivered for exchange and a statement that such Holder is
withdrawing his election to have such Registration Notes exchanged.
As soon as practicable after the Offer Termination Date, the Company
shall:
(A) accept for exchange in accordance with the Exchange Offer
Registration Statement and the letter of transmittal Registrable Notes or
portions thereof tendered and not validly withdrawn pursuant to the
Exchange Offer or the Private Exchange, as the case may be; and
(B) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Notes or portions thereof so accepted for
exchange by the Company and issue, and cause the Trustee to promptly
authenticate and deliver to each Holder, an Exchange Note or Private
Exchange Note, as the case may be, equal in aggregate principal amount to
the aggregate principal amount of the Registrable Notes surrendered by
such Holder.
To the extent not prohibited by any law or the Staff of the SEC, the
Company shall use its reasonable best efforts to complete the Exchange
Offer as provided above and shall comply with the applicable requirements
of the Securities Act, the Exchange Act and other applicable laws and
regulations in connection with the Exchange Offer. The Exchange Offer
shall not be subject to any conditions, other than that (i) the Exchange
Offer does not violate applicable law or any applicable interpretation of
the Staff of the SEC and (ii) the due tendering of Registrable Notes in
accordance with the Exchange Offer. Each Holder of Registrable Notes who
wishes to exchange such Registrable Notes for Exchange Notes in the
Exchange
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Offer will be required to make certain customary representations in
connection therewith, including representations that such Holder is not an
affiliate of the Company within the meaning of Rule 405 under the
Securities Act, that any Exchange Notes to be received by it will be
acquired in the ordinary course of business and that at the time of the
commencement of the Exchange Offer it has no arrangement with any Person
to participate in the distribution (within the meaning of the Securities
Act) of the Exchange Notes.
If upon consummation of the Exchange Offer, any Purchaser holds
Registrable Notes acquired by it as part of their initial distribution,
the Company, simultaneously with the delivery of the Exchange Notes
pursuant to the Exchange Offer, shall issue and deliver to such Purchaser
upon the request of such Purchaser, in exchange (the "Private Exchange")
for the Registrable Notes held by such Purchaser, a like principal amount
of debt securities of the Company issued under the Indenture and identical
in all material respects to the Registrable Notes (the "Private Exchange
Notes").
(b) In the event that (i) the Company determines that the Exchange
Offer Registration provided for in Section 2(a) above is not available or
may not be consummated as soon as practicable after the Offer Termination
Date because it would violate applicable law or the applicable
interpretations of the Staff of the SEC or (ii) in the opinion of counsel
for the Purchasers a Registration Statement must be filed and a Prospectus
must be delivered by the Purchasers in connection with any offering or
sale of Registrable Notes (or Private Exchange Notes) because such
Registrable Notes (or Private Exchange Notes) represent an unsold
allotment for the original offering thereof, the Company shall use its
reasonable best efforts to cause to be filed within 120 days of the
Closing Date, a Shelf Registration Statement providing for the sale of
such Registrable Notes (or Private Exchange Notes) and to have such Shelf
Registration Statement declared effective within 210 days of the Closing
Date by the SEC. In the event the Company is required to file a Shelf
Registration Statement solely as a result of the matters referred to in
clause (ii) of the preceding sentence, the Company shall file and have
declared effective by the SEC both an Exchange Offer Registration
Statement pursuant to Section 2(a) with respect to all Registrable Notes
(or Private Exchange Notes) and a Shelf Registration Statement with
respect to offers and sales of Registrable Notes (or Private Exchange
Notes) held by the Purchasers after completion of the Exchange Offer (or
Private Exchange)
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The Company agrees to use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective until two years from the
effective date thereof or such shorter period that will terminate when all
of the Registrable Notes covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement or cease to be
outstanding. The Company further agrees to supplement or amend the Shelf
Registration Statement if required by the rules, regulations or
instructions applicable to the registration form used by the Company for
such Shelf Registration Statement or by the Securities Act or by any other
rules and regulations thereunder for shelf registration or if reasonably
requested by a Holder with respect to information relating to such Holder,
and to use its reasonable best efforts to cause any such amendment to
become effective and such Shelf Registration Statement to become usable as
soon as practicable thereafter. The Company agrees to furnish to the
Holders of Registrable Notes copies of any such supplement or amendment
promptly after its being used or filed with the SEC.
(c) The Company shall pay all Registration Expenses in connection
with the registration pursuant to Section 2(a) or Section 2(b). Each
Holder shall pay all underwriting discounts, if any, and commissions and
transfer taxes, if any, relating to the sale or disposition of such
Holder's Registrable Notes pursuant to a Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof
will not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that, if, after it has been
declared effective, the offering of Registrable Notes (or Private Exchange
Notes) pursuant to a Shelf Registration Statement is interfered with by
any stop order, injunction or other order or requirement of the SEC or any
other governmental agency or court, such Registration Statement will be
deemed not to have become effective during the period of such interference
until the offering of Registrable Notes (or Private Exchange Notes)
pursuant to such Registration Statement may legally resume.
(e) The parties hereto agree that the Holders will suffer damages,
and that it would not be feasible to ascertain the extent of such damages
with precision if, the Company fails to comply with its obligations under
Section
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2(a) and Section 2(b) hereof (any such failure, a "Registration Default").
Therefore, the parties hereto agree that:
(i) if the Exchange Offer Registration Statement is not filed
with the SEC within 120 days following the Closing Date (or, if
applicable, the Shelf Registration Statement is not filed within 120
days of the Closing Date), then beginning on the 121st day after the
Closing Date, additional interest ("Additional Interest") shall
accrue on the Registrable Notes over and above the applicable accrued
interest rate thereon at a rate of 0.25% per annum,
(ii) if the Exchange Offer Registration Statement (or, if
applicable the Shelf Registration Statement) is filed and is not
declared effective by the SEC within 210 days following the Closing
Date, then beginning on the 211th day after the Closing Date,
Additional Interest shall accrue on the Registrable Notes over and
above the applicable accrued interest rate thereon at a rate of 0.25%
per annum, and
(iii) if either
(x) the Company has not exchanged Exchange Notes for all
Registrable Notes validly tendered in accordance with the terms
of the Exchange Offer on or prior to 245 days after the Closing
Date;
or
(y) if applicable, a Shelf Registration Statement is
declared effective but that Shelf Registration Statement ceases
to be effective at anytime prior to the expiration of the
holding period referred to in Rule 144(k) promulgated under the
Securities Act ("Rule 144(k)"),
then Additional Interest shall accrue on the Registrable Notes over
and above the applicable accrued interest rate thereon at a rate of
0.25% per annum immediately following the (a) 246th day after the
Closing Date, in the case of (x) above, or (b) the day the Shelf
Registration Statement ceases to be effective, in the case of (y)
above.
However, Additional Interest may in no event exceed 0.25% per annum.
Any Additional Interest will be payable in cash on the same original
payment date of the
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Notes. In addition, Additional Interest shall (a) cease to accrue upon the
filing of the Exchange Offer Registration Statement (or, if applicable,
the Shelf Registration Statement) (in the case of (i) above), (b) cease to
accrue upon the declaration of effectiveness of the Exchange Offer
Registration Statement (or, if applicable, the declaration and continued
effectiveness of the Shelf Registration Statement) (in the case of (ii)
above), and (c) cease to accrue upon the exchange of Exchange Notes for
the Registrable Notes or, if applicable, upon the effectiveness of the
Shelf Registration Statement which had ceased to remain effective prior
to the expiration of the holding period referred to in Rule 144(k) (in the
case of (iii) above).
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3. Registration Procedures.
In connection with the obligations of the Company with respect to the
Registration Statements pursuant to Section 2(a) and Section 2(b) hereof, the
Company shall promptly:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the Securities Act, which form shall (x) be
selected by the Company, (y) in the case of a Shelf Registration, be
available for the sale of the Registrable Notes by the selling Holders
thereof and (z) comply as to form in all material respects with the
requirements of the applicable form and include all financial statements
required by the SEC to be filed therewith, and use its reasonable best
efforts to cause such Registration Statement to become effective and
remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period and cause each
Prospectus to be supplemented by any required prospectus supplement and,
as so supplemented, to be filed pursuant to the instructions applicable
to the form of such Registration Statement under the Securities Act; and
keep each Prospectus current during the period described under Section
4(3) and Rule 174 under the Securities Act that is applicable to
transactions by brokers or dealers with respect to the Registrable Notes
or Exchange Notes;
(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Notes and to counsel for the Holders and to each Underwriter
of an Underwritten Offering of Registrable Notes, if any, without charge,
as many copies of each Prospectus, including each preliminary Prospectus
and any 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) and such
other documents as such Holder or Underwriter may reasonably request, in
order to facilitate the public sale or other disposition of the
Registrable Notes; and the Company consents to the use of such Prospectus
and any amendment or supplement thereto in accordance with applicable law
by each of the selling Holders of Registrable Notes and any such
Underwriters in connection with the
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offering and sale of the Registrable Notes covered by and in the manner
described in such Prospectus or any amendment or supplement thereto in
accordance with applicable law;
(d) use its best efforts (i) to register or qualify the Registrable
Notes under all applicable state securities or blue sky laws of such
jurisdictions as any Holder of Registrable Notes covered by a
Registration Statement shall reasonably request in writing a reasonable
time prior to the time the applicable Registration Statement is declared
effective by the SEC and (ii) to cooperate with such Holders in connection
with any filings required to be made with the National Association of
Securities Dealers, Inc. and do any and all other acts and things which
may be reasonably necessary or advisable to enable such Holder to
consummate the disposition in each such jurisdiction of such Registrable
Notes owned by such Holder; provided, however, that the Company shall not
be required to (A) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where they would not otherwise be required
to qualify but for this Section 3(d), (B) file any general consent to
service of process or (C) subject themselves to taxation in any such
jurisdiction if they are not so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Notes, counsel for the Holders and, if requested by such
Persons, confirm such advice in writing, (i) when a Registration Statement
has become effective and when any post-effective amendment thereto has
been filed and becomes effective, (ii) of any request by the SEC or any
state securities authority for amendments and supplements to a
Registration Statement and Prospectus or for additional information after
the Registration Statement has become effective, (iii) of the issuance by
the SEC or any state securities authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable Notes
covered thereby, the representations and warranties of the Company
contained in any underwriting agreement, securities sales agreement or
other similar agreement, if any, relating to the offering cease to be true
and correct in all material respects or if the Company receives any
notification with respect to the suspension of the qualification of the
Registrable Notes for sale in any jurisdiction or the initiation of any
proceeding for such purpose, (v) of the happening of any event during the
period a
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Shelf Registration Statement is effective which makes any statement made
in such Registration Statement or the related Prospectus untrue in any
material respect or which requires the making of any changes in such
Registration Statement or Prospectus in order to make the statements
therein not misleading and (vi) of any determination by the Company that
a post-effective amendment to a Registration Statement would be
appropriate;
(f) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment and provide immediate notice to each Holder of the
withdrawal of any such order;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Notes, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Notes to facilitate the timely preparation and
delivery of certificates representing Registrable Notes to be sold and not
bearing any restrictive legends (unless required by applicable securities
laws) and enable such Registrable Notes to be in such denominations
(consistent with the provisions of the Indenture) and registered in such
names as the selling Holders may reasonably request at least two business
days prior to the closing of any sale of Registrable Notes;
(i) in the case of a Shelf Registration, upon the occurrence of any
event contemplated by Section 3(e)(v) hereof, use its best efforts to
prepare a supplement or post-effective amendment to a Registration
Statement or the related Prospectus or any document incorporated therein
by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Notes, such Prospectus will
not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The Company
agrees to notify the Holders to suspend use of the Prospectus as promptly
as practicable after the occurrence of such an event, and the Holders
hereby agree to suspend use of the Prospectus until
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the Company has amended or supplemented the Prospectus to correct such
misstatement or omission;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus, or any document which is to be
incorporated by reference into a Registration Statement or Prospectus
after the initial filing of a Registration Statement, provide copies of
such document to counsel for the Holders and make such of the
representatives of the Company as shall be reasonably requested by
counsel for the Holders available for discussion of such document, and
shall not at any time file or make any amendment to the Registration
Statement, any Prospectus or any amendment of or supplement to a
Registration Statement or a Prospectus or any document which is to be
incorporated by reference into a Registration Statement or a Prospectus,
of which counsel for the Holders shall not have, (i) with respect to an
Exchange Offer Registration Statement, simultaneously upon filing with the
SEC, been advised and furnished a copy or (ii) with respect to a Shelf
Registration Statement, previously been advised and furnished a copy or to
which counsel for the Holders shall reasonably object (provided, however
that this section 3(j) shall not prevent the Company from complying with
its ongoing reporting obligations under applicable securities laws);
(k) obtain a CUSIP number for all Exchange Notes, Registrable Notes
or Private Exchange Notes, as the case may be, not later than the
effective date of a Registration Statement, and provide the Trustee with
certificates for the Exchange Notes, Registrable Notes or Private Exchange
Notes, as the case may be, in form eligible for deposit with The
Depository Trust Company;
(l) cause the Indenture to be qualified under the Trust Indenture Act
of 1939, as amended (the "TIA")(unless an exemption under Rule 4d-9 under
the TIA is available), to the extent not already so qualified, in
connection with the registration of the Exchange Notes or Registrable
Notes, as the case may be, and cooperate with the Trustee and the Holders
to effect such changes to the Indenture as may be required for the
Indenture to be so qualified in accordance with the terms of the TIA and
execute, and use its best efforts to cause the Trustee to execute, all
documents as may be required to
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effect such changes and all other forms and documents required to be filed
with the SEC to enable the Indenture to be so qualified in a timely
manner;
(m) in the case of a Shelf Registration, make available for
inspection by a representative of the Holders of the Registrable Notes,
any Under writer participating in any disposition pursuant to such Shelf
Registration Statement, and attorneys and accountants designated by the
Holders, at reasonable times and in a reasonable manner, all relevant
financial and other records, pertinent documents and properties of the
Company and cause the respective officers, directors and employees of the
Company to supply all information reasonably requested by any such
representative, Underwriter, attorney or accountant in connection with a
Shelf Registration Statement, in each case that would customarily be
reviewed or examined in connection with "due diligence" review of the
Company; provided, however, that each such party shall be required to
maintain confidences and not to disclose to any other person any
information or records reasonably designated by the Company as being
confidential;
(n) if reasonably requested by any Holder of Registrable Notes
covered by the Shelf Registration Statement, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment such information with
respect to such Holder as such Holder reasonably requests to be included
therein and (ii) make all required filings of such Prospectus supplement
or such post-effective amendment as soon as reasonably practicable after
the Company has received notification of the matters to be incorporated in
such filing;
(o) cause all Registrable Notes covered by a Registration Statement
to be rated with the appropriate rating agencies, (i) if the Notes have
been rated prior to the initial resale by the Purchasers or (ii) if the
Notes have not been previously rated, if so requested by the Majority
Holders; and
(p) in the case of an Underwritten Offering pursuant to a Shelf
Registration, enter into such customary agreements and take all such other
customary actions in connection therewith (including, those reasonably
requested by counsel for the Holders) in order to expedite or facilitate
the disposition of such Registrable Notes and in such connection, (i) to
the extent possible, make such representations and warranties to the
Holders and any
16
Underwriters of such Registrable Notes with respect to the business of the
Company and its subsidiaries, the Registration Statement, Prospectus and
documents incorporated by reference or deemed incorporated by reference,
if any, in each case, in form, substance and scope as are customarily made
by Companies to underwriters in underwritten offerings and confirm the
same if and when requested, (ii) obtain opinions of counsel to the Company
(which counsel and opinions, in form, scope and substance, shall be
reasonably satisfactory to the Holders and such Underwriters and their
respective counsel) addressed to each selling Holder and Underwriter of
Registrable Notes, covering the matters customarily covered in opinions
requested in underwritten offerings, (iii) obtain comfort letters from
the independent certified public accountants of the Company(and, if
necessary, any other certified public accountant of any subsidiary of the
Company or any business acquired by the Company for which financial
statements and financial data are or are required to be included in the
Registration Statement) addressed to each selling Holder and Underwriter
of Registrable Notes, such letters to be 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 the Statement of
Auditing Standards No. 72 comfort, and (iv) deliver such documents and
certificates as may be reasonably requested by counsel for the Holders to
evidence the continued validity of the representations and warranties of
the Company made pursuant to clause (i) above and to evidence compliance
with any customary conditions in an underwriting agreement. In the case of
any Underwritten Offering, the Company shall provide written notice to the
Holders of all Registrable Notes of such Underwritten Offering at least 30
days prior to the filing of a prospectus supplement for such Underwritten
Offering. Such notice shall (x) offer each such Holder the right to
participate in such Underwritten Offering, (y) specify a date, which shall
be no earlier than 10 days following the date of such notice, by which
such Holder must inform the Company of its intent to participate in such
Underwritten Offering and (z) include the instructions such Holder must
follow in order to participate in such Underwritten Offering.
In the case of a Shelf Registration Statement, the Company may require
each Holder of Registrable Notes to promptly furnish, but not later than 15
days after written request, to the Company such information regarding the
Holder and the proposed distribution by such Holder of such Registration Notes
as the Company
17
may from time to time reasonably request in writing. Notwithstanding anything
in this Agreement to the contrary, if a Holder does not provide the information
required above, then such Holder will not be included in such Shelf
Registration Statement.
In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any notice from the Company of the happening of any event of
the kind described in Section 3(e)(v) hereof, such Holder will forthwith
discontinue disposition of Registrable Notes pursuant to a Registration
Statement until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 3(i) hereof, and, if so directed by
the Company, such Holder will deliver to the Company (at its expense) all
copies in its possession, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Registration Notes current
at the time of receipt of such notice.
If the Company shall give any such notice to suspend the disposition of
Registrable Notes pursuant to a Registration Statement, the Company shall
extend the period during which the Registration Statement shall be maintained
effective pursuant to this Agreement by the number of days during the period
from and including the date of the giving of such notice to and including the
date when the Holders shall have received copies of the supplemented or amended
Prospectus necessary to resume such dispositions.
The Holders of Registrable Notes covered by a Shelf Registration Statement
who desire to do so may sell such Registrable Notes in an Underwritten
Offering. In any such Underwritten Offering, the investment banker or
investment bankers and manager or managers (the "Underwriters") that will
administer the offering will be selected by the Holders of a majority in
principal amount of the Registrable Notes included in such offering; such
selection must be approved by the Company which approval shall not be
unreasonably withheld or delayed.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The Company understands that the Staff of the SEC has taken the
position that any broker-dealer that receives Exchange Notes for its own
account in the Exchange Offer in exchange for Notes that were acquired by
such broker-dealer as a result of market-making or other trading
activities (a "Participating Broker-Dealer"), may be deemed to be an
"underwriter"
18
within the meaning of the Securities Act in connection with any resale of
such Exchange Notes.
(b) The Company understands that it is the Staff's position that if
the Prospectus contained in the Exchange Offer Registration Statement
includes a plan of distribution containing a statement to the above effect
and the means by which Participating Broker-Dealers may resell the
Exchange Notes, without naming the Participating Broker-Dealers or
specifying the amount of Exchange Notes owned by them, such Prospectus may
be delivered by Participating Broker-Dealers to satisfy their prospectus
delivery obligation under the Securities Act in connection with resales of
Exchange Notes for their own accounts, so long as the Prospectus otherwise
meets the requirements of the Securities Act.
(c) In light of the above, notwithstanding the other provisions of
this Agreement, the Company agrees that the provisions of this Agreement
as they relate to a Shelf Registration shall also apply to an Exchange
Offer Registration to the extent, and with such reasonable modifications
thereto as may be, reasonably requested by the Purchasers or by one or
more Participating Broker-Dealers, in each case as provided in clause
(ii) below, in order to expedite or facilitate the disposition of any
Exchange Notes by Participating Broker-Dealers consistent with the
positions of the Staff recited in Section 4(a) above; provided that:
(i) the Company shall not be required to amend or supplement
the Prospectus contained in the Exchange Offer Registration
Statement, as would otherwise be contemplated by Section 3(i), for a
period exceeding two years after the Offer Termination Date (as such
period may be extended pursuant to the penultimate paragraph of
Section 3) and Participating Broker-Dealers shall not be authorized
by the Company to deliver and shall not deliver such Prospectus after
such period in connection with the resales contemplated by this
Section 4; and
(ii) the application of the Shelf Registration procedures set
forth in Section 3 of this Agreement to an Exchange Offer
Registration, to the extent not required by the positions of the
Staff of the SEC or the Securities Act and the rules and regulations
thereunder, will be
19
in conformity with the reasonable request in writing to the Company
by one or more broker-dealers who certify to the Company in writing
that they anticipate that they will be Participating Broker-Dealers;
and provided further that, in connection with such application of the
Shelf Registration procedures set forth in Section 3 to an Exchange
Offer Registration, the Company shall be obligated (x) to deal only
with two entities representing the Participating Broker-Dealers which
shall be Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx") and
Xxxxxxx Xxxxx Barney Inc. ("Salomon") if Xxxxxx Xxxxxxx and Salomon
so requests or otherwise the Participating Broker-Dealer holding the
largest aggregate principal amount of Notes, (y) to pay the fees and
expenses of only one counsel representing the Participating
Broker-Dealers and (z) to cause to be delivered only one, if any,
comfort letter with respect to the Prospectus in the form existing on
the Offer Termination Date.
5. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Holder of
the Notes, 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, or any actions in
respect thereof (including, but not limited to, any losses, claims,
damages, liabilities or actions relating to purchases and sales of the
Notes) 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 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 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
20
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 relating to a Shelf Registration in reliance upon
and in conformity with written information pertaining to such Indemnified
Party and furnished to the Company by or on behalf of 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
Notes concerned, to the extent that a prospectus relating to such Notes
was required to be delivered by such Holder or Participating Broker-Dealer
under the Securities Act in connection with such purchase or distribution
and any such loss, claim, damage or liability of such Holder or
Participating Broker-Dealer results from the fact that there was not sent
or given to such person, at or prior to the written confirmation of the
sale of such Notes to such person, a copy of the final prospectus 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
indemnify underwriters, their partners, 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 Notes if requested by such
Holders.
(b) Each Holder of the Notes 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 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
21
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 or Purchaser 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 or Purchaser may otherwise
have to the Company or any of its controlling persons.
Promptly after receipt by an Indemnified Party under this Section of
notice of the commencement of any action, such Indemnified Party will, if
a claim in respect thereof is to be made against the Indemnifying Party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any
Indemnified Party otherwise than under subsection (a) or (b) above, except
to the extent that the failure to so notify has materially prejudiced the
rights of the indemnifying party under this Agreement. If any such
proceeding shall be brought or asserted against an Indemnified Party and
it shall have notified the indemnifying party thereof, the indemnifying
party shall retain counsel reasonably satisfactory to the Indemnified
Party to represent the Indemnified Party and any others entitled to
indemnification pursuant to this Section 5 that the indemnifying party may
designate in such proceeding and shall pay the fees and expenses of such
counsel related to such proceeding, as incurred. In any such proceeding,
any Indemnified Party shall have the right to retain its own counsel, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Party unless (i) the indemnifying party and the Indemnified
Party shall have mutually agreed to the contrary; (ii) the indemnifying
party has failed within a reasonable time to retain counsel reasonably
satisfactory to the Indemnified Party; (iii) the Indemnified Party shall
have reasonably concluded that there may be legal defenses available to it
that are different from or in addition to those available to the
indemnifying party; or (iv) the named parties in any such proceeding
(including any impleaded parties) include both the indemnifying party and
the Indemnified Party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing
interests between them. It is understood and agreed that the indemnifying
party shall not, in connection with any proceeding or related proceeding
in the same jurisdiction, be liable for the fees and expenses of more than
one separate firm (in
22
addition to any local counsel) for all Indemnified Parties, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm (x) for any Purchaser, its affiliates and any control
Persons of such Purchaser shall be agreed upon and designated in writing
by Xxxxxx Xxxxxxx and Salomon, (y) for any Holder, its affiliates and any
control Persons of such Holder shall be designated in writing by the
Majority Holders and (z) in all other cases shall be designated in writing
by the Company. No indemnifying party shall, without the prior written
consent of the Indemnified Party, which consent shall not be unreasonably
withheld, 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 includes an unconditional release of such
Indemnified Party, in form and substance reasonably satisfactory to such
indemnified person, from all liability on any claims that are the subject
matter of such action and does not include a statement as to or an
admission of fault, culpability or failure to act by or on behalf of any
Indemnified Party.
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, 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 Notes, 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 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
23
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 Notes 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 Notes 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.
The agreements contained in this Section 5 shall survive the exchange of
the Notes pursuant to a Registration Statement and shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any Indemnified
Party.
6. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not entered into, and
on or after the date of this Agreement will not enter into, any agreement
which is inconsistent with the rights granted to the Holders of
Registrable Notes in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in
any way conflict with and are not inconsistent with the rights granted to
the holders of the Company's other issued and outstanding securities under
any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given unless the Company has obtained the written
consent of Holders of at least a majority in aggregate principal amount of
the outstanding Registrable Notes affected by such amendment,
modification,
24
supplement, waiver or consent; provided, however, that no amendment,
modification, supplement, waiver or consent to any departure from the
provisions of Section 5 hereof or which would have the effect of reducing
the rate or extending the time of payment of interest on any Registrable
Note shall be effective as against any Holder of Registrable Notes unless
consented to in writing by such Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class
mail, facsimile transmission, or air courier which guarantees overnight
delivery: if to a Holder, at the most current address given by such Holder
to the Company;
(2) if to the Purchasers:
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
fax: (000) 000-0000
Attention: Global Capital Markets
(3) if to the Company, at its address as follows:
International Paper Company
000 Xxxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: The Secretary, and
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
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
25
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.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the person giving the same to the Trustee, at
the addresses specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of each of
the parties, including, without limitation and without the need for an
express assignment or assumption, subsequent Holders; provided that
nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Notes in violation of the terms of the Purchase
Agreement. If any transferees of any Holder shall acquire Registrable
Notes, in any manner, whether by operation of law or otherwise, such
Registrable Notes, shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Notes such person
shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement and such person shall be
entitled to receive the benefits hereof. The Purchasers shall have no
liability or obligation to the Company with respect to any failure by a
Holder to comply with, or any breach by any Holder of, the obligations of
such Holder under this Agreement.
(e) Purchases and Sales of Notes. The Company shall not, and shall
use its best efforts to cause its affiliates (as defined in rule 405 under
the 0000 Xxx) not to, purchase and then resell or otherwise transfer any
Notes other than to the Company or its affiliates.
(f) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the
one hand, and the Purchasers, on the other hand, and shall have the right
to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
26
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY LAWS OF THE
STATE OF NEW YORK AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PROVISIONS
THEREOF.
(j) Severability. In the event that one or more of the provisions
contained herein, or the application thereof in any circumstances, 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.
27
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
INTERNATIONAL PAPER COMPANY
By /s/ XXXXX X. XXXXXXXX
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXX XXXXX BARNEY INC.
By: XXXXXX XXXXXXX & CO. INCORPORATED
By /s/ XXXXXXX XXXXX
--------------------------------------
Name: Xxxxxxx Xxxxx
Title: Executive Director
By: XXXXXXX XXXXX BARNEY INC.
By /s/ XXXXXX XXXXXXX
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
For themselves and on behalf of the
several Purchasers listed
in Schedule I hereto
28
Schedule I
----------
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx Barney Inc.
Deutsche Bank Securities Inc.
X.X. Xxxxxx Securities Inc.
UBS Warburg LLC
ABN AMRO Incorporated
Banc of America Securities LLC
BNP Paribas Securities Corp.
Credit Suisse First Boston LLC
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Tokyo-Mitsubishi International plc
29
