EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT DATED JULY 22, 2002 (THE "AGREEMENT")
is entered into by and among Xxxxx Plastics Corporation, a Delaware corporation
(the "COMPANY"), BPC Holding Corporation, a Delaware corporation ("HOLDING"),
the other guarantors listed on the signature page hereof (together with Holding,
the "GUARANTORS"), and X.X. Xxxxxx Securities Inc. ("JPMORGAN"), Xxxxxxx, Xxxxx
& Co. ("XXXXXXX, SACHS"), The Royal Bank of Scotland ("ROYAL BANK") and Credit
Suisse First Boston Corporation ("CSFB" and, together with JPMorgan, Xxxxxxx,
Xxxxx and Royal Bank, the "INITIAL PURCHASERS").
The Company, Holding, the other Guarantors and the Initial Purchasers are
parties to the Purchase Agreement dated July 17, 2002 (the "PURCHASE
AGREEMENT"), which provides for the sale by the Company to the Initial
Purchasers of $250,000,000 aggregate principal amount of the Company's 10 3/4 %
Senior Subordinated Notes due 2012 (the "SECURITIES"), which will be guaranteed
on an unsecured senior subordinated basis by each of the Guarantors. As an
inducement to the Initial Purchasers to enter into the Purchase Agreement, the
Company and the Guarantors have agreed to provide to the Initial Purchasers, the
Market-Makers (as defined herein) and their direct and indirect transferees the
registration rights set forth in this Agreement. The execution and delivery 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 terms shall
have the following meanings:
"BUSINESS DAY" shall mean any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed.
"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 DATES" shall have the meaning set forth in Section 2(a)(ii)
hereof.
"EXCHANGE OFFER" shall mean the exchange offer by the Company and the
Guarantors of Exchange Securities for Registrable Securities pursuant to Section
2(a) hereof.
"EXCHANGE OFFER REGISTRATION" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form) and all amendments and supplements to such registration statement, in each
case including the Prospectus contained therein, all exhibits thereto and any
document incorporated by reference therein.
"EXCHANGE SECURITIES" shall mean senior subordinated notes issued by the
Company and guaranteed by the Guarantors under the Indenture containing terms
identical to the Securities (except that the Exchange Securities will not be
subject to restrictions on transfer or to any increase in annual interest rate
for failure to comply with this Agreement) and to be offered to Holders of
Securities in exchange for Securities pursuant to the Exchange Offer.
"XXXXXXX, SACHS" shall have the meaning set forth in the preamble.
"GUARANTORS" shall have the meaning set forth in the preamble and shall
also include any Guarantor's successors.
"HOLDERS" shall mean the Initial Purchasers, for so long as they own any
Registrable Securities, and each of their successors, assigns and direct and
indirect transferees who become owners of Registrable Securities under the
Indenture; PROVIDED that for purposes of Sections 4 and 6 of this Agreement, the
term "Holders" shall include Participating Broker-Dealers; and PROVIDED,
FURTHER, that for the purposes of Section 6 of this Agreement, the term
"Holders" shall include the Market-Makers.
"INITIAL PURCHASERS" shall have the meaning set forth in the preamble.
"INDENTURE" shall mean the Indenture relating to the Securities dated as
of July 22, 2002, among the Company, Holding, the other Guarantors and U.S. Bank
Trust National Association, as trustee, and as the same may be amended from time
to time in accordance with the terms thereof.
"JPMORGAN" 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 Securities; PROVIDED that whenever
the consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities owned directly or
indirectly by Holding or any of its affiliates shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage or amount; PROVIDED, FURTHER, HOWEVER, that the foregoing
proviso shall not apply to Section 5 hereof.
"MARKET-MAKER" shall have the meaning set forth in Section 5(a) hereof.
"MARKET-MAKER'S INFORMATION" shall have the meaning set forth in Section
5(e) hereof.
"MARKET-MAKING REGISTRATION STATEMENT" shall have the meaning set forth in
Section 5(a)(i) hereof.
"PARTICIPATING BROKER-DEALERS" shall have the meaning set forth in Section
4(a) hereof.
"PERSON" shall mean an individual, partnership, limited liability company,
corporation, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"PROSPECTUS" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to such prospectus, and in each case including
any document incorporated by reference therein.
"PURCHASE AGREEMENT" shall have the meaning set forth in the preamble.
"REGISTRABLE SECURITIES" shall mean the Securities; PROVIDED that the
Securities shall cease to be Registrable Securities (i) when a Registration
Statement with respect to such Securities has been declared effective under the
Securities Act and such Securities have been exchanged or disposed of
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pursuant to such Registration Statement, (ii) when such Securities are eligible
to be sold pursuant to Rule 144(k) (or any similar provision then in force, but
not Rule 144A) under the Securities Act, (iii) when such securities are sold
pursuant to Rule 144 under circumstances in which any legend borne by such
Securities relating to restrictions on transferability thereof, under the
Securities Act or otherwise, is removed by the Company or pursuant to the
Indenture in accordance with the Securities Act or (iv) when such Securities
cease to be outstanding.
"REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance by the Company and the Guarantors 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 (including reasonable fees and disbursements of counsel for any
Underwriters or Holders in connection with blue sky qualification of any
Exchange Securities or Registrable Securities, in any case, not to exceed
$10,000), (iii) all expenses relating to preparing, printing and distributing
any Registration Statement, any Prospectus and any amendments or supplements
thereto, any underwriting agreements, securities sales agreements or other
similar agreements and any other documents relating to the performance of and
compliance with this Agreement, (iv) all rating agency fees, (v) all fees and
disbursements relating to the qualification of the Indenture under applicable
securities laws, (vi) the fees and disbursements of the Trustee and its counsel,
(vii) the fees and disbursements of counsel for the Company and the Guarantors
and, in the case of a Shelf Registration Statement, the reasonable fees and
disbursements of one counsel for the Holders (which counsel shall be selected by
the Majority Holders and which counsel may also be counsel for the Initial
Purchasers), (viii) the reasonable fees and disbursements of one counsel in
connection with a Market-Making Registration Statement (which counsel shall be
mutually agreeable to the Market-Makers) and (ix) the fees and disbursements of
the independent public accountants of the Company and the Guarantors, including
the expenses of any special audits or "comfort" letters required by or incident
to the performance of and compliance with this Agreement, but excluding fees and
expenses of counsel to the Underwriters (other than fees and expenses set forth
in clause (ii) above) or the Holders and underwriting discounts and commissions
and transfer taxes, if any, relating to the sale or disposition of Registrable
Securities by a Holder.
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"REGISTRATION STATEMENT" shall mean any registration statement of the
Company and the Guarantors that covers any of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement, including,
without limitation, any Market-Making Registration Statement, 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 any document incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended from
time to time.
"SHELF EFFECTIVENESS PERIOD" shall have the meaning set forth in Section
2(b) hereof.
"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 and the Guarantors that covers all the Registrable Securities
(but no other securities unless approved by the Holders whose Registrable
Securities are to be covered by such Shelf Registration Statement) on an
appropriate form under Rule 415 under the Securities Act, or any similar rule
that may be adopted by the SEC, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and any
document incorporated by reference therein.
"STAFF" shall mean the staff of the SEC.
"TRUST INDENTURE ACT" shall mean the Trust Indenture Act of 1939, as
amended from time to time.
"TRUSTEE" shall mean the trustee with respect to the Securities under the
Indenture.
"UNDERWRITER" shall have the meaning set forth in Section 3 hereof.
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"UNDERWRITTEN OFFERING" shall mean an offering in which Registrable
Securities 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 interpretations of the Staff, the
Company and the Guarantors shall use their reasonable best efforts to (i) cause
to be filed an Exchange Offer Registration Statement covering an offer to the
Holders to exchange all the Registrable Securities for Exchange Securities and
(ii) have such Registration Statement remain effective until 180 days after the
closing of the Exchange Offer. The Company and the Guarantors shall commence the
Exchange Offer reasonably promptly after the Exchange Offer Registration
Statement is declared effective by the SEC and use their reasonable best efforts
to complete the Exchange Offer not later than 60 days after such effective date.
The Company and the Guarantors shall commence the Exchange Offer by
mailing the related Prospectus, appropriate letters of transmittal and other
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 Agreement and that
all Registrable Securities validly tendered and not properly withdrawn
will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least
20 Business Days from the date such notice is mailed) (the "EXCHANGE
DATES");
(iii) that any Registrable Security not tendered will remain outstanding and
continue to accrue interest but will not retain any rights under this
Agreement;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant
to the Exchange Offer will be required to surrender such Registrable
Security, together with the appropriate letters of transmittal, to the
institution and at the address (located in the Borough of Manhattan, The
City of New York) and in the manner specified in the notice, prior to the
close of business on the last Exchange Date; and
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(v) that any Holder will be entitled to withdraw its election, not later than
the close of business on the last Exchange Date, by sending to the
institution and at the address (located in the Borough of Manhattan, The
City of New York) specified in the notice, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the
principal amount of Registrable Securities delivered for exchange and a
statement that such Holder is withdrawing its election to have such
Securities exchanged.
As a condition to participating in the Exchange Offer, a Holder will be required
to represent to the Company and the Guarantors that (i) any Exchange Securities
to be received by it will be acquired in the ordinary course of its business,
(ii) at the time of the commencement of the Exchange Offer it has no arrangement
or understanding with any Person to participate in the distribution (within the
meaning of the Securities Act) of the Exchange Securities in violation of the
provisions of the Securities Act, (iii) it is not an "affiliate" (within the
meaning of Rule 405 under Securities Act) of the Company or any Guarantor and
(iv) if such Holder is a broker-dealer that will receive Exchange Securities for
its own account in exchange for Registrable Securities that were acquired as a
result of market-making or other trading activities, then such Holder will
deliver a Prospectus in connection with any resale of such Exchange Securities.
As soon as practicable after the last Exchange Date, the Company and the
Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly
tendered and not properly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all
Registrable Securities or portions thereof so accepted for exchange by the
Company and issue, and cause the Trustee to promptly authenticate and
deliver to each Holder, Exchange Securities equal in principal amount to
the principal amount of the Registrable Securities surrendered by such
Holder.
The Company and the Guarantors shall use their 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
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applicable laws and regulations in connection with the Exchange Offer. The
Exchange Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate any applicable law or applicable interpretations
of the Staff of the SEC.
(b) In the event that (i) the Company and the Guarantors determine that
the Exchange Offer Registration provided for in Section 2(a) above is not
available or may not be completed as soon as practicable after the last Exchange
Date because it would violate any applicable law or applicable interpretations
of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason
completed by April 22, 2003 or (iii) the Exchange Offer has been completed and
in the opinion of counsel for the Initial Purchasers a Registration Statement
must be filed and a Prospectus must be delivered by the Initial Purchasers in
connection with any offering or sale of Registrable Securities originally
purchased and still held by the Initial Purchasers, the Company and the
Guarantors shall use their reasonable best efforts to cause to be filed as soon
as practicable after such determination, date or notice of such opinion of
counsel is given to the Company, as the case may be, a Shelf Registration
Statement providing for the sale of all the Registrable Securities by the
Holders thereof and to have such Shelf Registration Statement declared effective
by the SEC. To the extent a Shelf Registration Statement is required to be filed
pursuant to clause (ii) but the Exchange Offer is completed on a date later than
April 22, 2003, upon completion of the Exchange Offer the Company and the
Guarantors will no longer be required to file, make effective or continue the
effectiveness of the Shelf Registration Statement.
In the event that the Company and the Guarantors are required to file a Shelf
Registration Statement pursuant to clause (iii) of the preceding sentence, the
Company and the Guarantors shall use their reasonable best efforts to file and
have declared effective by the SEC both an Exchange Offer Registration Statement
pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf
Registration Statement (which may be a combined Registration Statement with the
Exchange Offer Registration Statement) with respect to offers and sales of
Registrable Securities held by the Initial Purchasers after completion of the
Exchange Offer.
The Company and the Guarantors agree to use their reasonable best efforts
to keep the Shelf Registration Statement continuously effective until the
expiration of the period referred to in Rule 144(k) under the
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Securities Act with respect to the Registrable Securities or such shorter period
that will terminate when the Exchange Offer has been consummated or all the
Registrable Securities covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement or are no longer outstanding
(the "SHELF EFFECTIVENESS PERIOD"). The Company and the Guarantors further agree
to supplement or amend the Shelf Registration Statement and the related
Prospectus if required by the rules, regulations or instructions applicable to
the registration form used by the Company and the Guarantors for such Shelf
Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registration or if reasonably and timely
requested by a Holder of Registrable Securities with respect to information
relating to such Holder, and to use their reasonable best efforts to cause any
such amendment to become effective and such Shelf Registration Statement and
Prospectus to become usable as soon as thereafter practicable. The Company and
the Guarantors agree to furnish to the Holders of Registrable Securities copies
of any such supplement or amendment promptly after its being used or filed with
the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses
in connection with the registration pursuant to Section 2(a) and Section 2(b)
hereof. Each Holder shall pay all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to the 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.
In the event that either the Exchange Offer is not completed or the Shelf
Registration Statement, if required hereby, is not declared effective on or
prior to April 22, 2003 (the "TARGET REGISTRATION DATE"), the interest rate on
the Registrable Securities will be increased by (i) 0.25% per annum for the
first 90-day period immediately following the Target Registration Date and (ii)
an additional 0.25% per annum with respect to each subsequent 90-day period, in
each case until the Exchange Offer is completed or the Shelf Registration
Statement, if required hereby, is declared effective by the SEC or the
Securities become freely tradable under the Securities Act, up to a maximum
aggregate increase of 1.00% per annum of additional interest.
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If the Shelf Registration Statement has been declared effective and thereafter
either ceases to be effective or the Prospectus contained therein ceases to be
usable at any time during the Shelf Effectiveness Period, and such failure to
remain effective or usable exists for more than 45 consecutive days or more than
60 days (whether or not consecutive) in any 12-month period, then the interest
rate on the Registrable Securities will be increased by 0.25% per annum
commencing on the 46th or 61st day in such 12-month period, with further
increases, subject to a maximum of 1.00% per annum of additional interest, in
accordance with the schedule in the prior paragraph, and ending on such date
that the Shelf Registration Statement has again been declared effective or the
Prospectus again becomes usable.
(e) Without limiting the remedies available to the Initial Purchasers
and the Holders, the Company and the Guarantors acknowledge that any failure by
the Company or the Guarantors to comply with their obligations under Section
2(a) and Section 2(b) hereof may result in material irreparable injury to the
Initial Purchasers or the Holders for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries precisely and
that, although any monetary damages will be limited to the amounts specified in
Section 2(d) hereof, in the event of any such failure, the Initial Purchasers or
any Holder may obtain such other relief as may be required to specifically
enforce the Company's and the Guarantors' obligations under Section 2(a) and
Section 2(b) hereof.
3. REGISTRATION PROCEDURES. In connection with their obligations
pursuant to Section 2(a) and Section 2(b) hereof, the Company and the Guarantors
shall use commercially reasonable efforts to:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the Securities Act, which form (x) shall be selected by
the Company and the Guarantors, (y) shall, in the case of a Shelf Registration,
be available for the sale of the Registrable Securities by the selling Holders
thereof and (z) shall comply as to form in all material respects with the
requirements of the applicable form and include all financial statements
required by the SEC to be filed therewith; and use their commercially reasonable
efforts to cause such Registration Statement to become effective within the
timeframe required under this Agreement and remain effective for the applicable
period in accordance with Section 2 hereof;
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(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 in accordance with
Section 2 hereof and cause each Prospectus to be supplemented by any required
prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424
under the Securities Act; and keep each Prospectus current during the period
described in Section 4(3) of and Rule 174 under the Securities Act that is
applicable to transactions by brokers or dealers with respect to the Registrable
Securities or Exchange Securities;
(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, to counsel for such Holders and to each Underwriter of
an Underwritten Offering of Registrable Securities, if any, without charge, as
many copies of each Prospectus as reasonably requested, including each
preliminary Prospectus, and any amendment or supplement thereto, in order to
facilitate the sale or other disposition of the Registrable Securities
thereunder; and the Company and the Guarantors consent 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 Securities and any such
Underwriters in connection with the offering and sale of the Registrable
Securities covered by and in the manner described in such Prospectus or any
amendment or supplement thereto in accordance with applicable law;
(d) endeavor to register or qualify the Registrable Securities under all
applicable state securities or blue sky laws of such jurisdictions as any Holder
of Registrable Securities covered by a Registration Statement shall reasonably
request in writing by the time the applicable Registration Statement is declared
effective by the SEC; cooperate with the 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 that may be reasonably necessary or
advisable to enable each Holder to complete the disposition in each such
jurisdiction of the Registrable Securities owned by such Holder; PROVIDED that
neither the Company nor any Guarantor shall be required to (i) qualify as a
foreign corporation or other entity or as a dealer in securities in any such
jurisdiction where it would not otherwise be required to so qualify, (ii) file
any general consent to service of process in any such jurisdiction or (iii)
subject itself to taxation in any such jurisdiction if it is not so subject;
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(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities and counsel for such Holders promptly and, if requested
by any such Holder or counsel, 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 Securities covered thereby, the representations and
warranties of the Company or any Guarantor contained in any underwriting
agreement, securities sales agreement or other similar agreement, if any,
relating to an offering of such Registrable Securities cease to be true and
correct in all material respects or if the Company or any Guarantor receives any
notification with respect to the suspension of the qualification of the
Registrable Securities 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 Shelf Registration Statement is effective that makes any statement made in
such Registration Statement or the related Prospectus untrue in any material
respect or that 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 or any Guarantor that a
post-effective amendment to a Registration Statement would be appropriate;
(f) use their reasonable 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 Securities, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto (without any
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 Securities to facilitate the timely preparation and
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delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends and enable such Registrable Securities to be
issued in such denominations and registered in such names (consistent with the
provisions of the Indenture) as the selling Holders may reasonably request at
least one Business Day prior to the closing of any sale of Registrable
Securities;
(i) in the case of a Shelf Registration, upon the occurrence of any
event contemplated by Section 3(e)(v) hereof, use their reasonable best efforts
to prepare and file with the SEC 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 purchasers of the Registrable Securities, 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; and the Company and the Guarantors
shall notify the Holders of Registrable Securities to suspend use of the
Prospectus as promptly as practicable after the occurrence of such an event, and
such Holders hereby agree to suspend use of the Prospectus until the Company and
the Guarantors have 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 of any document that is to be incorporated by
reference into a Registration Statement or a Prospectus after initial filing of
a Registration Statement, provide copies of such document to the Initial
Purchasers and their counsel (and, in the case of a Shelf Registration
Statement, to the Holders of Registrable Securities and their counsel) and make
such of the representatives of the Company and the Guarantors as shall be
reasonably requested by the Initial Purchasers or their counsel (and, in the
case of a Shelf Registration Statement, the Holders of Registrable Securities or
their counsel) available for discussion of such document; and the Company and
the Guarantors shall not, at any time after initial filing of a Registration
Statement, file any Prospectus, any amendment of or supplement to a Registration
Statement or a Prospectus, or any document that is to be incorporated by
reference into a Registration Statement or a Prospectus, of which the Initial
Purchasers and their counsel (and, in the case of a Shelf Registration
Statement, the Holders of Registrable Securities and their counsel) shall not
have previously been advised and furnished a copy or to which the Initial
Purchasers or their counsel (and, in the case of a Shelf Registration Statement,
the Holders or their counsel) shall object;
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(k) obtain a CUSIP number for all Exchange Securities or Registrable
Securities, as the case may be, not later than the effective date of a
Registration Statement;
(l) cause the Indenture to be qualified under the Trust Indenture Act in
connection with the registration of the Exchange Securities or Registrable
Securities, as the case may be; cooperate with the Trustee and the Holders to
effect such changes to the Indenture as may be required for the Indenture to be
so qualified in accordance with the terms of the Trust Indenture Act; and
execute, and use their reasonable best efforts to cause the Trustee to execute,
all documents as may be required to effect such changes and all other forms and
documents required to be filed with the SEC to enable the Indenture to be so
qualified in a timely manner;
(m) in the case of a Shelf Registration, make available for inspection
by an appropriate representative of the Holders of the Registrable Securities
(an "INSPECTOR") who is not a direct or indirect competitor of the Company or
any Guarantor, any Underwriter 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 pertinent financial
and other records, documents and properties of the Company and the Guarantors,
and cause the respective officers, directors and employees of the Company and
the Guarantors to supply all information reasonably requested by any such
Inspector, Underwriter, attorney or accountant in connection with a Shelf
Registration Statement; PROVIDED that if any such information is identified by
the Company or any Guarantor as being confidential or proprietary, prior to
being given such information, each Person receiving such information shall take
such actions as are reasonably necessary to protect the confidentiality of such
information, including executing a customary confidentiality agreement that is
not inconsistent with the rights and interests of any Inspector, Holder or
Underwriter;
(n) in the case of a Shelf Registration, use their reasonable best
efforts to cause all Registrable Securities to be listed on any securities
exchange or any automated quotation system on which similar securities issued or
guaranteed by the Company or any Guarantor are then listed if requested by the
Majority Holders, to the extent such Registrable Securities satisfy applicable
listing requirements;
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(o) if reasonably requested by any Holder of Registrable Securities
covered by a Registration Statement, 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 make all
required filings of such Prospectus supplement or such post-effective amendment
as soon as the Company and the Guarantors have received notification of the
matters to be incorporated in such filing; and
(p) in the case of a Shelf Registration, enter into such customary
agreements and take all such other actions in connection therewith (including
those requested by the Holders of a majority in principal amount of the
Registrable Securities being sold) in order to expedite or facilitate the
disposition of such Registrable Securities including, but not limited to, an
Underwritten Offering and in such connection, (i) to the extent possible, make
such representations and warranties to the Holders and any Underwriters of such
Registrable Securities with respect to the business of Holding 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 issuers to underwriters in
underwritten offerings and confirm the same if and when requested, (ii) obtain
opinions of counsel to the Company and the Guarantors (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 Securities, 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 the Guarantors (and, if necessary, any other certified public
accountant of any subsidiary of the Company or any Guarantor, or of any business
acquired by the Company or any Guarantor 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 Securities to
the extent permitted by appropriate accounting standards, such letters to be in
customary form and covering matters of the type customarily covered in "comfort"
letters in connection with underwritten offerings and (iv) deliver such
documents and certificates as may be reasonably requested by the Holders of a
majority in principal
15
amount of the Registrable Securities being sold or the Underwriters, and which
are customarily delivered in underwritten offerings, to evidence the continued
validity of the representations and warranties of the Company and the Guarantors
made pursuant to clause (i) above and to evidence compliance with any customary
conditions contained in an underwriting agreement.
In the case of a Shelf Registration Statement, the Company or any
Guarantor may require each Holder of Registrable Securities to furnish to the
Company and the Guarantors such information regarding such Holder and the
proposed disposition by such Holder of such Registrable Securities as the
Company and the Guarantors may from time to time reasonably request in writing.
In the case of a Shelf Registration Statement, each Holder of Registrable
Securities agrees that, upon receipt of any notice from the Company and the
Guarantors of the happening of any event of the kind described in Section
3(e)(iii) or 3(e)(v) hereof or a notice pursuant to the last sentence of this
paragraph, such Holder will forthwith discontinue disposition of Registrable
Securities pursuant to a Shelf 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 and the Guarantors, such
Holder will deliver to the Company and the Guarantors all copies in its
possession, other than permanent file copies then in such Holder's possession,
of the Prospectus covering such Registrable Securities that is current at the
time of receipt of such notice. In addition, the Company may give notice of the
suspension of the offering and sale under the Shelf Registration Statement for a
period or periods the Board of Directors of the Company reasonably determines to
be necessary, if the Board of Directors determines in good faith that such
action is in the best interests of the Company.
If the Company and the Guarantors shall give any such notice to suspend
the disposition of Registrable Securities pursuant to a Registration Statement,
the Company and the Guarantors 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 Company and the Guarantors may give any such notice only
twice during any 365-day period and any such suspensions shall not exceed 45
days for each suspension and there shall not be more than two suspensions in
effect during any 365-day period.
16
The Holders of Registrable Securities covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Securities 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 Majority Holders of the
Registrable Securities included in such offering, subject to the consent of the
Company, not to be unreasonably withheld.
4. PARTICIPATION OF BROKER-DEALERS IN EXCHANGE OFFER. (a) The Staff of
the SEC has taken the position that any broker-dealer that receives Exchange
Securities for its own account in the Exchange Offer in exchange for Securities
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" within the meaning of the Securities Act and must deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Securities.
The Company and the Guarantors understand 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
Securities, without naming the Participating Broker-Dealers or specifying the
amount of Exchange Securities 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 Securities for
their own accounts, so long as the Prospectus otherwise meets the requirements
of the Securities Act.
(b) In light of the above, and notwithstanding the other provisions of
this Agreement, the Company and the Guarantors agree 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 of up to 180 days after
the last Exchange Date (as such period may be extended pursuant to the
penultimate paragraph of Section 3 of this Agreement), if requested by the
Initial Purchasers or by one or more Participating Broker-Dealers,
17
in order to expedite or facilitate the disposition of any Exchange Securities by
Participating Broker-Dealers consistent with the positions of the Staff recited
in Section 4(a) above. The Company and the Guarantors further agree that
Participating Broker-Dealers shall be authorized to deliver such Prospectus
during such period in connection with the resales contemplated by this Section
4.
(c) The Initial Purchasers shall have no liability to the Company, any
Guarantor or any Holder with respect to any request that they may make pursuant
to Section 4(b) above.
5. MARKET-MAKING. (a) For so long as any of the Securities or Exchange
Securities are outstanding and Xxxxxxx, Xxxxx or JPMorgan (each, a
"MARKET-MAKER" and, together, the "MARKET-MAKERS") or any of their respective
affiliates are an affiliate of the Company, Holding or the Guarantors and
proposes to make a market in the Securities or Exchange Securities as part of
their business in the ordinary course, the following provisions shall apply for
the sole benefit of the Market-Makers:
18
(i) The Company and the Guarantors shall (A) on the date that the
Exchange Offer Registration Statement is filed with the SEC, file a
registration statement (the "MARKET-MAKING REGISTRATION STATEMENT") (which
may be the Exchange Offer Registration Statement or the Shelf Registration
Statement if permitted by the rules and regulations of the SEC) and use
its commercially reasonable efforts to cause such Market-Making
Registration Statement to be declared effective by the SEC on or prior to
the consummation of the Exchange Offer; (B) periodically amend such
Market-Making Registration Statement to the extent required so that the
information contained therein complies with the requirements of Section
10(a) under the Securities Act; (C) within 45 days following the end of
each of Holding's and its subsidiaries' fiscal quarters (or within 90 days
following the end of their fiscal year), file a supplement to the
prospectus contained in the Market-Making Registration Statement that sets
forth the financial results of Holding and its subsidiaries for such
quarter, unless such information is incorporated by reference in the
prospectus; (D) amend the Market-Making Registration Statement or
supplement the related prospectus when necessary to reflect any material
changes in the information provided therein in order to comply with
applicable laws; and (E) amend the Market-Making Registration Statement
when required to do so in order to comply with Section 10(a)(3) of the
Securities Act; PROVIDED, HOWEVER, that (1) prior to filing the
Market-Making Registration Statement, any amendment thereto or any
supplement to the related prospectus (other than a supplement filed
pursuant to clause (C) of this paragraph), the Company and the Guarantors
will furnish to each Market-Maker copies of all such documents proposed to
be filed, which documents will be subject to the review of each
Market-Maker and its respective counsel, (2) the Company and the
Guarantors will not file the Market-Making Registration Statement, any
amendment thereto or any supplement to the related prospectus (other than
a supplement filed pursuant to clause (C) of this paragraph) to which
either Market-Maker and its respective counsel shall reasonably object
unless the Company and the Guarantors are advised by counsel that such
Market-Making Registration Statement, amendment or supplement is required
to be filed and (3) the Company and the Guarantors will provide each
Market-Maker and its respective counsel with copies of the Market-Making
Registration Statement and each amendment and supplement filed.
19
(ii) The Company and the Guarantors shall notify each Market-Maker
and, if requested by either Market-Maker, confirm such advice in writing,
(A) when any post-effective amendment to the Market-Making Registration
Statement or any amendment or supplement to the related prospectus has
been filed, and, with respect to any post-effective amendment, when the
same has become effective; (B) of any request by the SEC for any
post-effective amendment to the Market-Making Registration Statement, any
supplement or amendment to the related prospectus or for additional
information; (C) the issuance by the SEC of any stop order suspending the
effectiveness of the Market-Making Registration Statement or the
initiation of any proceedings for that purpose; (D) of the receipt by the
Company or any Guarantor of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceedings for such
purpose; and (E) of the happening of any event that makes any statement
made in the Market-Making Registration Statement, the related prospectus
or any amendment or supplement thereto untrue or that requires the making
of any changes in the Market-Making Registration Statement, such
prospectus or any amendment or supplement thereto, in order to make the
statements therein not misleading.
(iii) If any event contemplated by Section 5(a)(ii)(B) through (E)
occurs during the period for which the Company and the Guarantors are
required to maintain an effective Market-Making Registration Statement,
the Company and the Guarantors shall promptly prepare and file with the
SEC a post-effective amendment to the Market-Making Registration Statement
or a supplement to the related prospectus or file any other required
document so that the prospectus will not include 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.
(iv) In the event of the issuance of any stop order suspending the
effectiveness of the Market-Making Registration Statement or of any order
suspending the qualification of the Securities or Exchange Securities for
sale in any jurisdiction, the Company and the Guarantors shall use
promptly their commercially reasonable efforts to obtain its withdrawal.
20
(v) The Company and the Guarantors shall furnish to each
Market-Maker, without charge, (i) at least one conformed copy of the
Market-Making Registration Statement and any post-effective amendment
thereto; and (ii) as many copies of the related prospectus and any
amendment or supplement thereto as each Market-Maker may reasonably
request.
(vi) The Company and the Guarantors shall consent to the use of the
prospectus contained in the Market-Making Registration Statement or any
amendment or supplement thereto by either Market-Maker in connection with
the offering and sale of the Securities or Exchange Securities.
(vii) Notwithstanding the foregoing provisions of this Section 5,
the Company and the Guarantors may for valid business reasons, including
without limitation, a potential acquisition, divestiture of assets or
other material corporate transaction, issue a notice that the
Market-Making Registration Statement is no longer effective or the
prospectus included therein is no longer usable for offers and sales of
the Securities or Exchange Securities and may issue any notice suspending
use of the Market-Making Registration Statement required under applicable
securities laws to be issued; PROVIDED that the use of the Market-Making
Registration Statement shall not be suspended for more than 60 days in the
aggregate in any consecutive 12 month period. Each Market-Maker agrees
that upon receipt of any notice from the Company pursuant to this Section
5(a)(vii), it will discontinue use of the Market-Making Registration
Statement until receipt of copies of the supplemented or amended
prospectus relating thereto or until advised in writing by the Company
that the use of the Market-Making Registration Statement may be resumed
and will not disclose the existence of the notice or the facts related
thereto.
(b) In connection with the Market-Making Registration Statement,
the Company and the Guarantors shall make reasonably available for inspection,
at reasonable times and in a reasonable manner by a representative of, and
counsel acting for, each Market-Maker all relevant financial and other records,
pertinent corporate documents and properties of the Company and the Guarantors
and (ii) use their reasonable best efforts to have their officers, directors,
employees, accountants and
21
counsel supply all relevant information reasonably requested by such
representative or counsel or either Market-Maker; PROVIDED that if any such
information is identified by the Company or any Guarantor as being confidential
or proprietary, prior to being given such information, each Person receiving
such information shall take such actions as are reasonably necessary to protect
the confidentiality of such information, including executing a customary
confidentiality agreement that is not inconsistent with the rights and interests
of any Market-Maker, representative thereof or counsel thereto;
(c) Prior to the effective date of the Market-Making Registration
Statement, the Company and the Guarantors will endeavor to register or qualify,
or cooperate with each Market-Maker and its counsel in connection with the
registration or qualification of, such Securities or Exchange Securities for
offer and sale under the securities or blue sky laws of such jurisdictions as
each Market-Maker reasonably requests in writing and do any and all other acts
or things necessary or advisable to enable the offer and sale in such
jurisdictions of the Securities or Exchange Securities covered by the
Market-Making Registration Statement; PROVIDED that neither the Company nor any
Guarantor shall be required to (i) qualify as a foreign corporation or other
entity or as a dealer of securities in any such jurisdiction where it would not
otherwise be required to so qualify, (ii) file any general consent to service of
process in any such jurisdiction or (iii) subject itself to taxation in any such
jurisdiction if it is not so subject.
(d) Each of the Company and the Guarantors represents that the
Market- Making Registration Statement, any post-effective amendments thereto,
any amendments or supplements to the related prospectus and any documents filed
by it under the Exchange Act will, when they become effective or are filed with
the SEC, as the case may be, conform in all material respects to the
requirements of the Securities Act and the Exchange Act and the rules and
regulations of the SEC thereunder and will not, as of the effective date of such
Market-Making Registration Statement or post-effective amendments and as of the
filing date of amendments or supplements to such prospectus or filings under the
Exchange Act, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; PROVIDED that no representation or warranty is made as
to information contained in or omitted from the Market-Making Registration
Statement or the related prospectus in reliance upon and in conformity with
written information furnished to the Company and the Guarantors by either
Market-Maker
22
specifically for inclusion therein, which information the parties hereto agree
will be limited to the statements concerning the Market-Making activities of
such Market-Maker to be set forth on the cover page and in the "Plan of
Distribution" section of the prospectus (the "MARKET-MAKER'S INFORMATION").
(e) At the time of effectiveness of the Market-Making Registration
Statement and concurrently with each time the Market-Making Registration
Statement or the related prospectus shall be amended or such prospectus shall be
supplemented, the Company and the Guarantors shall (if requested in writing by
either Market-Maker) furnish each Market-Maker and its respective counsel with a
certificate of its Chairman of the Board of Directors or Chief Financial Officer
to the effect that:
(i) the Market-Making Registration Statement has been declared
effective; (ii) in the case of an amendment or supplement, such amendment has
become effective under the Securities Act as of the date and time specified in
such certificate, if applicable; such amendment or supplement to the prospectus
was filed with the SEC pursuant to the subparagraph of Rule 424(b) under the
Securities Act specified in such certificate on the date specified therein;
(iii) to the knowledge of such officers, no stop order suspending the
effectiveness of the Market-Making Registration Statement has been issued and no
proceeding for that purpose is pending or threatened by the SEC; and (iv) such
officers have examined the Market-Making Registration Statement and the
prospectus (and, in the case of an amendment or supplement, such amendment or
supplement) and as of the date of such Market-Making Registration Statement,
amendment or supplement, as applicable, the Market-Making Registration Statement
and the prospectus, as amended or supplemented, if applicable, did not include
any untrue statement of a material fact and did not omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading.
23
(f) At the time of effectiveness of the Market-Making Registration
Statement and concurrently with each time the Market-Making Registration
Statement or the related prospectus shall be amended or such prospectus shall be
supplemented, the Company and the Guarantors shall (if requested in writing by
either Market-Maker) furnish each Market-Maker and its respective counsel with
the written opinion of counsel for the Company and the Guarantors satisfactory
to each Market-Maker to the effect that:
(i) the Market-Making Registration Statement has been declared
effective; (ii) in the case of an amendment or supplement, such amendment has
become effective under the Securities Act as of the date and time specified in
such opinion, if applicable; such amendment or supplement to the prospectus was
filed with the SEC pursuant to the subparagraph of Rule 424(b) under the
Securities Act specified in such opinion on the date specified therein; (iii) to
the knowledge of such counsel, no stop order suspending the effectiveness of the
Market- Making Registration Statement has been issued and no proceeding for that
purpose is pending or threatened by the SEC; and (iv) such counsel has reviewed
the Market-Making Registration Statement and the prospectus (and, in the case of
an amendment or supplement, such amendment or supplement) and participated with
officers of the Company and the Guarantors and independent public accountants
for the Company and the Guarantors in the preparation of such Market-Making
Registration Statement and prospectus (and, in the case of an amendment or
supplement, such amendment or supplement) and has no reason to believe that
(except for the financial statements and other financial data contained therein
as to which no belief is required) as of the date of such Market-Making
Registration Statement, amendment or supplement, as applicable, the
Market-Making Registration Statement and the prospectus, as amended or
supplemented, if applicable, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading. Such opinion shall be consistent
with the form of opinion delivered in connection with the Purchase Agreement.
(g) At the time of effectiveness of the Market-Making Registration
Statement and concurrently with each time the Market-Making Registration
Statement or the related prospectus shall be amended or such prospectus shall be
supplemented to include audited annual financial
24
information, the Company and the Guarantors shall (if requested in writing by
either Market-Maker) furnish each Market-Maker and its respective counsel with a
letter of Ernst & Young, LLP (or other independent public accountants for the
Company and the Guarantors of nationally recognized standing), in form
satisfactory to each Market-Maker, addressed to each Market-Maker and dated the
date of delivery of such letter, (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance with
the applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the SEC and, (ii) in all other respects,
substantially in the form of the letter delivered to the Initial Purchasers
pursuant to Section 5(e) of the Purchase Agreement, with, in the case of an
amendment or supplement to include audited financial information, such changes
as may be necessary to reflect the amended or supplemented financial
information.
(h) The Company and the Guarantors, on the one hand, and the
Market- Makers, on the other hand, hereby agree to indemnify each other, and, if
applicable, contribute to the other, in accordance with Section 6 of this
Agreement.
(i) The Company and the Guarantors will comply with the provisions
of this Section 5 at their own expense and will reimburse the Market-Makers for
their documented Registration Expenses associated with this Section 5.
(j) For purposes of this Section 5, any reference to the terms
"amend", "amendment" or "supplement" with respect to the Market-Making
Registration Statement or the prospectus contained therein shall be deemed to
refer to and include the filing under the Exchange Act of any document deemed to
be incorporated therein by reference.
6. INDEMNIFICATION AND CONTRIBUTION. (a) The Company and each Guarantor,
jointly and severally, agree to indemnify and hold harmless (x) each Initial
Purchaser and each Holder (including each Market-Maker), their respective
affiliates, directors and officers and each Person, if any, who controls any
Initial Purchaser or any Holder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, legal
fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted, as such fees and expenses are incurred), joint
or several, that arise out of, or are based
25
upon, any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (including any Market-Making
Registration Statement) or any Prospectus or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except insofar as such losses, claims,
damages or liabilities arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to any Initial Purchaser or any Holder
furnished to the Company in writing through JPMorgan or such selling Holder
expressly for use therein; PROVIDED that with respect to any such untrue
statement in or omission from any preliminary prospectus, the indemnity
agreement contained in this paragraph (a) shall not inure to the benefit of any
Initial Purchaser or any Holder (including any Market-Maker) from whom the
person asserting any such loss, claim, damage or liability received Securities
or Exchange Securities to the extent that any such loss, claim, damage or
liability of or with respect to such Initial Purchaser or Holder results from
the fact that both (i) a copy of the final prospectus was not sent or given to
such person at or prior to the written confirmation of the sale of such
Securities or Exchange Securities to such person and (ii) the untrue statement
in or omission from such preliminary prospectus was corrected in the final
prospectus unless, in either case, such failure to deliver the final prospectus
was a result of non-compliance by the Company or any Guarantor with the
provisions of Section 3 or 5 hereof; and (y) the Market- Makers from and against
any and all losses, claims, damages and liabilities (including, without
limitation, legal fees and other expenses incurred in connection with any suit,
action or proceeding or any claim asserted, as such fees and expenses are
incurred), joint or several that arise out of, or are based upon, any breach by
the Company or the Guarantors of their representations, warranties and
agreements contained in Section 5 of this Agreement. In connection with any
Underwritten Offering permitted by Section 3, the Company and the Guarantors,
jointly and severally, will also indemnify the Underwriters, if any, selling
brokers, dealers and similar securities industry professionals participating in
the distribution, their respective affiliates and each Person who controls such
Persons (within the meaning of the Securities Act and the Exchange Act) to the
same extent as provided above with respect to the indemnification of the
Holders, if requested in connection with any Registration Statement.
26
(b) Each Holder (including each Market-Maker) agrees, severally and not
jointly, to indemnify and hold harmless the Company, the Guarantors, the Initial
Purchasers and the other selling Holders, their respective affiliates, the
directors of the Company and the Guarantors, each officer of the Company and the
Guarantors who signed the Registration Statement or Market-Making Registration
Statement, as the case may be, and each Person, if any, who controls the
Company, the Guarantors, any Initial Purchaser and any other selling Holder
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the indemnity set forth in paragraph (a)
above, but only with respect to any losses, claims, damages or liabilities that
arise out of, or are based upon, any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with any
information relating to such Holder furnished to the Company in writing by such
Holder expressly for use in any Registration Statement (including any
Market-Making Registration Statement) and any Prospectus.
(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 indemnification may be sought pursuant to
paragraph (a) or (b) above, such Person (the "INDEMNIFIED PERSON") shall
promptly notify the Person against whom such indemnification may be sought (the
"INDEMNIFYING PERSON") in writing; PROVIDED that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have
under this Section 6 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and
provided, further, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person
otherwise than under this Section 6. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the Indemnified
Person and any others entitled to indemnification pursuant to this Section 6
that the Indemnifying Person 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 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 Person and the
Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time
27
to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the
Indemnified Person 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 Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person 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 Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the reasonable 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 as they are incurred
after receipt by the Company of appropriate documentation specifically
identifying this Section 6 of this Agreement. Any such separate firm (w) for any
Initial Purchaser, its affiliates, directors and officers and any control
Persons of such Initial Purchaser shall be designated in writing by JPMorgan,
(x) for any Market-Maker, its affiliates, directors and officers and any control
Persons of such Market-Maker shall be designated in writing by such
Market-Maker, (y) for any other Holder, its affiliates, directors and officers
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. The Indemnifying Person shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify each Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested in
writing, with such request specifically identifying this Section 6 of this
Agreement, that an Indemnifying Person reimburse the Indemnified Person for fees
and expenses of counsel as contemplated by this paragraph, the Indemnifying
Person shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by the Indemnifying Person of such request and (ii) the Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement, except with respect to amounts
reasonably challenged. No Indemnifying Person shall, without the written consent
of the Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnification could have been sought hereunder by such Indemnified
Person, unless such
28
settlement (A) includes an unconditional 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 or any admission of fault, culpability or a
failure to act by or on behalf of any Indemnified Person.
(d) If the indemnification provided for in paragraphs (a) and (b) above
is unavailable to an Indemnified Person or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Guarantors from the offering of the
Securities and the Exchange Securities, on the one hand, and by the Holders from
receiving Securities or Exchange Securities registered under the Securities Act,
on the other hand, or (ii) if the allocation provided by 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) but also the relative fault
of the Company and the Guarantors on the one hand and the Holders on the other
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and the Guarantors on the one
hand and the Holders on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company and the Guarantors or by the Holders and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The Company, the Guarantors, the Holders agree that it would not be
just and equitable if contribution pursuant to this Section 6 were determined by
pro rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses incurred
by such Indemnified Person in
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connection with any such action or claim. Notwithstanding the provisions of this
Section 6, in no event shall a Holder be required to contribute any amount in
excess of the amount by which the total price at which the Securities or
Exchange Securities sold by such Holder exceeds the amount of any damages that
such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, nor shall the
Market-Makers be required to contribute any amount in excess of its commission
from the market-making transactions at issue. 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.
(f) The remedies provided for in this Section 6 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to any
Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained in this Section
6 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Initial Purchasers, the Market-Makers or any Holder, their respective
affiliates or any Person controlling any Initial Purchaser or any Holder, or by
or on behalf of the Company or the Guarantors, their respective affiliates or
the officers or directors of or any Person controlling the Company or the
Guarantors, (iii) acceptance of any of the Exchange Securities and (iv) any sale
of Registrable Securities pursuant to a Shelf Registration Statement or a
Market-Making Registration Statement.
7. GENERAL.
(a) NO INCONSISTENT AGREEMENTS. The Company and the Guarantors
represent, warrant and agree that (i) the rights granted to the Holders or the
Market-Makers hereunder do not in any way conflict with and are not inconsistent
with the rights granted to the holders of any other outstanding securities
issued or guaranteed by the Company or any Guarantor under any other agreement
and (ii) neither the Company nor any Guarantor has entered into, or on or after
the date of this Agreement will enter into, any agreement that is inconsistent
with the rights granted to the Holders of Registrable Securities or the
Market-Makers in this Agreement or otherwise conflicts with the provisions
hereof.
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(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 and the Guarantors have obtained the written consent of
Holders of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or consent or, with respect to the provisions of Section 5, the written
consent of each Market-Maker; PROVIDED that no amendment, modification,
supplement, waiver or consent to any departure from the provisions of Section 6
hereof shall be effective as against any Holder of Registrable Securities or
either Market-Maker unless consented to in writing by such Holder or such
Market-Maker, as applicable. Any amendments, modifications, supplements, waivers
or consents pursuant to this Section 7(b) shall be by a writing executed by each
of the parties hereto.
(c) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder or a Market-Maker, at the most current address given
by such Holder to the Company by means of a notice given in accordance with the
provisions of this Section 7(c), which address initially is, with respect to the
Initial Purchasers and the Market-Makers, the address of the Initial Purchasers
(including the Market-Makers) set forth in the Purchase Agreement; (ii) if to
the Company and the Guarantors, initially at the Company's address set forth in
the Purchase Agreement and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 7(c); and (iii) to such
other persons at their respective addresses as provided in the Purchase
Agreement and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 7(c). All such notices and
communications shall be deemed to have been duly given: at the time delivered by
hand, if personally delivered; five Business Days after being deposited in the
mail, postage prepaid, if mailed; when answered back, if telexed; when receipt
is acknowledged, if telecopied; and on the next Business Day if timely delivered
to an air courier guaranteeing overnight 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 address specified in the Indenture.
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(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; PROVIDED that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Purchase Agreement or the Indenture. If any
transferee of any Holder shall acquire Registrable Securities in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all the terms of this Agreement, and by taking and holding such
Registrable Securities 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 Initial
Purchasers (in their capacity as Initial Purchasers) shall have no liability or
obligation to the Company or the Guarantors with respect to any failure by a
Holder to comply with, or any breach by any Holder of, any of the obligations of
such Holder under this Agreement.
(e) PURCHASES AND SALES OF SECURITIES. The Company and the Guarantors
shall not, and shall use their reasonable best efforts to cause their affiliates
(as defined in Rule 405 under the Securities Act) not to, purchase and then
resell or otherwise transfer any Registrable Securities.
(f) THIRD PARTY BENEFICIARIES. Each Holder shall be a third party
beneficiary to the agreements made hereunder (excluding those agreements made in
Section 5 herein) between the Company and the Guarantors, on the one hand, and
the Initial 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 other Holders hereunder.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) HEADINGS. The headings in this Agreement are for convenience of
reference only, are not a part of this Agreement and shall not limit or
otherwise affect the meaning hereof.
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(i) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(j) MISCELLANEOUS. This Agreement contains the entire agreement between
the parties relating to the subject matter hereof and supersedes all oral
statements and prior writings with respect thereto. If any term, provision,
covenant or restriction contained in this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable or against public
policy, the remainder of the terms, provisions, covenants and restrictions
contained herein shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. The Company, the Guarantors and the Initial
Purchasers shall endeavor in good faith negotiations to replace the invalid,
void or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, void or unenforceable
provisions.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
BPC HOLDING CORPORATION
By:___________________________
Name:
Title:
XXXXX PLASTICS CORPORATION
By:___________________________
Name:
Title:
XXXXX IOWA CORPORATION
PACKERWARE CORPORATION
KNIGHT PLASTICS, INC.
XXXXX XXXXXXXX CORPORATION
XXXXX PLASTICS DESIGN CORPORATION
POLY-SEAL CORPORATION
VENTURE PACKAGING, INC.
VENTURE PACKAGING MIDWEST
XXXXX PLASTICS TECHNICAL SERVICES, INC.
CPI HOLDING CORPORATION
CARDINAL PACKAGING, INC.
AERO CON, INC.
XXXXX TRI-PLAS CORPORATION
XXXXX PLASTICS ACQUISITION CORPORATION III
PESCOR, INC.
By:___________________________
Name:
Title:
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Confirmed and accepted as of the date first above written:
X.X. XXXXXX SECURITIES INC.
For itself and on behalf of the
Initial Purchasers, and for itself
and on behalf of Xxxxxxx, Sachs & Co.
as Market-Makers
By___________________________
Authorized Signatory
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