Exhibit 4.21
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
XXXXX-XXXXXXXX GLASS CONTAINER INC.
AND
THE GUARANTORS
LISTED HEREIN
AND
BANC OF AMERICA SECURITIES LLC
XXXXXXX, SACHS & CO.
DEUTSCHE BANC ALEX. XXXXX INC.
XXXXXX XXXXXXX & CO. INCORPORATED
SCOTIA CAPITAL (USA) INC.
DATED AS OF JANUARY 24, 2002
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of January 24, 2002, by and among Xxxxx-Xxxxxxxx Glass Container
Inc., a Delaware corporation (the "COMPANY"), the Guarantors listed on the
signature pages hereof (each individually a "GUARANTOR" and collectively,
"GUARANTORS") and Banc of America Securities LLC, Xxxxxxx, Xxxxx & Co., Deutsche
Banc Alex. Xxxxx Inc., Xxxxxx Xxxxxxx & Co. Incorporated and Scotia Capital
(USA) Inc. (each an "INITIAL PURCHASER" and, collectively, the "INITIAL
PURCHASERS"), each of whom has agreed to purchase the Company's 8?% Senior
Secured Notes due 2009 (the "INITIAL NOTES") pursuant to the Purchase Agreement
(as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated as of
January 16, 2002 (the "PURCHASE AGREEMENT"), by and among the Company, the
Guarantors and the Initial Purchasers. In order to induce the Initial Purchasers
to purchase the Initial Notes, the Company and the Guarantors have agreed to
provide the registration rights set forth in this Agreement. The execution and
delivery of this Agreement is a condition to the obligations of the Initial
Purchasers set forth in Section 5(h) of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
AFFILIATE: With respect to any specified person, "Affiliate" shall
mean any other person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified person. For the
purposes of this definition, "control," when used with respect to any person,
means the power to direct the management and policies of such person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise and the terms "affiliated," "controlling" and "controlled" have
meanings correlative to the foregoing.
BROKER-DEALER: Any broker or dealer registered under the Exchange Act.
BROKER-DEALER TRANSFER RESTRICTED SECURITIES: Exchange Notes that are
acquired by a Broker-Dealer in the Exchange Offer in exchange for Initial Notes
that such Broker-Dealer acquired for its own account as a result of
market-making activities or other trading activities (other than Initial Notes
acquired directly from the Company or any of its Affiliates).
BUSINESS DAY: Any day except a Saturday, Sunday or other day in the
City of New York, or in the city of the corporate trust office of the Trustee,
on which banks are authorized to close.
CLOSING DATE: The date of this Agreement.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the Securities Act of the Exchange Offer Registration
Statement relating to the Exchange Notes to be issued in the Exchange Offer,
(ii) the maintenance of such Registration Statement continuously effective and
the keeping of the Exchange Offer open for a period not less than the minimum
period required pursuant to Section 3(b) hereof, and (iii) the delivery by the
Company to the Registrar under the Indenture of Exchange Notes in the same
aggregate principal amount as the aggregate principal amount of Initial Notes
that were tendered by Holders thereof pursuant to the Exchange Offer.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE NOTES: The 8 7/8% Senior Secured Notes due 2009, of the same
series under the Indenture as the Initial Notes, to be issued to Holders in
exchange for Transfer Restricted Securities pursuant to this Agreement.
EXCHANGE OFFER: The registration by the Company and the Guarantors
under the Securities Act of the Exchange Notes and the related guarantees
pursuant to a Registration Statement pursuant to which the Company offers the
Holders of all outstanding Transfer Restricted Securities the opportunity to
exchange all such outstanding Transfer Restricted Securities held by such
Holders for Exchange Notes in an aggregate principal amount equal to the
aggregate principal amount of the Transfer Restricted Securities tendered in
such exchange offer by such Holders.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
HOLDERS: As defined in Section 2(b) hereof.
INDEMNIFIED PARTY: As defined in Section 8(c) hereof.
INDEMNIFYING PARTY: As defined in Section 8(c) hereof.
INDENTURE: The Indenture, dated as of January 24, 2002, among the
Company, the Guarantors and U.S. Bank, N.A., as trustee (the "TRUSTEE"), as
supplemented by the First Supplemental Indenture, dated as of January 24, 2002,
among the Company, the Guarantors and the Trustee, pursuant to which the Notes
are to be issued, as such Indenture and First Supplemental Indenture are amended
or supplemented from time to time in accordance with the terms thereof.
INITIAL NOTES: The 8 7/8% Senior Secured Notes due 2009, of the same
series under the Indenture as the Exchange Notes, for so long as such securities
constitute Transfer Restricted Securities.
INITIAL PLACEMENT: The issuance and sale by the Company of the Initial
Notes to the Initial Purchasers pursuant to the Purchase Agreement.
INITIAL PURCHASER: As defined in the preamble hereto.
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INTEREST PAYMENT DATE: As defined in the Indenture and the Notes.
LIQUIDATED DAMAGES: As defined in Section 5 hereof.
NASD: National Association of Securities Dealers, Inc.
NOTES: The Initial Notes and the Exchange Notes.
PERSON: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
PROSPECTUS: The prospectus included in a Registration Statement, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the Company and
the Guarantors relating to (a) an offering of Exchange Notes and the related
guarantees pursuant to an Exchange Offer or (b) the registration for resale of
Transfer Restricted Securities pursuant to the Shelf Registration Statement,
which is filed pursuant to the provisions of this Agreement, in each case,
including the Prospectus included therein, all amendments and supplements
thereto (including post-effective amendments) and all exhibits and material
incorporated by reference therein.
SECURITIES ACT: The Securities Act of 1933, as amended.
SHELF FILING DEADLINE: As defined in Section 4 hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 4 hereof.
TRUST INDENTURE ACT: The Trust Indenture Act of 1939 (15 U.S.C.
Section 77aaa-77bbbb) as in effect on the date of the Indenture.
TRANSFER RESTRICTED SECURITIES: Each Initial Note, until the earliest
to occur of (a) the date on which such Note has been exchanged by a Person other
than a broker-dealer for an Exchange Note in the Exchange Offer, (b) following
the exchange by a broker-dealer in the Exchange Offer of an Initial Note for an
Exchange Note, the date on which such Exchange Note is sold to a purchaser who
receives from such broker-dealer on or prior to the date of such sale a copy of
the Prospectus contained in the Exchange Offer Registration Statement, (c) the
date on which such Initial Note has been effectively registered under the
Securities Act and disposed of in accordance with the Shelf Registration
Statement; or (d) the date on which such Initial Note is distributed to the
public pursuant to Rule 144 under the Securities Act.
UNDERWRITTEN REGISTRATION or UNDERWRITTEN OFFERING: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
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SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) TRANSFER RESTRICTED SECURITIES. The securities entitled to the benefits
of this Agreement are the Transfer Restricted Securities.
(b) HOLDERS OF TRANSFER RESTRICTED SECURITIES. A Person is deemed to be a
holder of Transfer Restricted Securities (each, a "HOLDER") whenever such Person
owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible under applicable law
or Commission policy (after the procedures set forth in Section 6(a) below have
been complied with), the Company and the Guarantors shall (i) use their best
efforts to cause to be filed with the Commission on or prior to 120 days after
the Closing Date, a Registration Statement under the Securities Act relating to
the Exchange Notes and the Exchange Offer, (ii) use their commercially
reasonable efforts to cause such Registration Statement to become effective on
or prior to 200 days after the Closing Date, (iii) in connection with the
foregoing, file (A) all pre-effective amendments to such Registration Statement
as may be necessary in order to cause such Registration Statement to become
effective, (B) if applicable, a post-effective amendment to such Registration
Statement pursuant to Rule 430A under the Securities Act and (C) cause all
necessary filings in connection with the registration and qualification of the
Exchange Notes to be made under the Blue Sky laws of such jurisdictions as are
necessary to permit Consummation of the Exchange Offer, and (iv) upon the
effectiveness of such Registration Statement, commence the Exchange Offer. The
Exchange Offer shall be on the appropriate form permitting registration of the
Exchange Notes to be offered in exchange for the Transfer Restricted Securities
and to permit resales of Broker-Dealer Transfer Restricted Securities by
Broker-Dealers as contemplated by Section 3(c) below.
(b) The Company and the Guarantors shall cause the Exchange Offer
Registration Statement to be effective continuously and shall keep the Exchange
Offer open for a period of not less than the minimum period required under
applicable federal and state securities laws to Consummate the Exchange Offer;
provided, however, that in no event shall such period be less than 20 Business
Days. The Company and the Guarantors shall cause the Exchange Offer to comply
with all applicable federal and state securities laws. No securities other than
the Notes shall be included in the Exchange Offer Registration Statement. The
Company and the Guarantors shall use their commercially reasonable efforts to
cause the Exchange Offer to be Consummated within 40 days after the Exchange
Offer Registration Statement has become effective
(c) The Company shall indicate in a "Plan of Distribution" section
contained in the Prospectus forming a part of the Exchange Offer Registration
Statement that any Broker-Dealer who holds Initial Notes that are Transfer
Restricted Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company or one of its
Affiliates), may exchange such Initial Notes pursuant to the Exchange Offer;
however, such Broker-Dealer may be deemed to be an "underwriter" within the
meaning of the Securities Act and must, therefore, deliver a prospectus meeting
the requirements of the Securities Act in connection with any resales of the
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Exchange Notes received by such Broker-Dealer in the Exchange Offer, which
prospectus delivery requirement may be satisfied by the delivery by such
Broker-Dealer of the Prospectus contained in the Exchange Offer Registration
Statement. Such "Plan of Distribution" section shall also contain all other
information with respect to such resales by Broker-Dealers that the Commission
may require in order to permit such resales pursuant thereto, but such "Plan of
Distribution" shall not name any such Broker-Dealer or disclose the amount of
Notes held by any such Broker-Dealer except to the extent required by the
Commission as a result of a change in policy after the date of this Agreement.
The Company and the Guarantors shall use their commercially reasonable
efforts to keep the Exchange Offer Registration Statement continuously
effective, supplemented and amended as required by the provisions of Section
6(c) below to the extent necessary to ensure that it is available for resales of
Broker-Dealer Transfer Restricted Securities acquired by Broker-Dealers, and to
ensure that it conforms with the requirements of this Agreement, the Securities
Act and the policies, rules and regulations of the Commission as announced from
time to time, for a period ending on the earlier of (i) 90 days from the date on
which the Exchange Offer Registration Statement is declared effective and (ii)
the date on which a Broker-Dealer is no longer required to deliver a prospectus
in connection with market-making or other trading activities.
The Company shall provide sufficient copies of the latest version of
such Prospectus to such Broker-Dealers promptly upon request at any time during
such 90-day (or shorter as provided in the foregoing sentence) period in order
to facilitate such resales.
SECTION 4. SHELF REGISTRATION
(a) SHELF REGISTRATION. If (i) the Company and the Guarantors are not
permitted to consummate the Exchange Offer because the Exchange Offer is not
permitted by applicable law or Commission policy (after the procedures set forth
in Section 6(a) below have been complied with), or (ii) any Holder of Transfer
Restricted Securities shall notify the Company on or prior to the 20th day
following the Consummation of the Exchange Offer that (A) such Holder is
prohibited by applicable law or Commission policy from participating in the
Exchange Offer, (B) such Holder may not resell the Exchange Notes acquired by it
in the Exchange Offer to the public without delivering a prospectus and that the
Prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder, or (C) such Holder is
a Broker-Dealer and owns Notes acquired directly from the Company or an
affiliate of the Company, then, the Company and the Guarantors shall:
(x) use their best efforts to cause to be filed a shelf registration
statement pursuant to Rule 415 under the Securities Act, which may be an
amendment to the Exchange Offer Registration Statement (in either event,
the "SHELF REGISTRATION STATEMENT") on or prior to 60 days after such
filing obligation arises pursuant to this paragraph 4(a), (such date being
the "SHELF FILING DEADLINE"), which Shelf Registration Statement shall
provide for resales of all Transfer Restricted Securities the Holders of
which shall have provided the information required pursuant to Section 4(b)
hereof; and
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(y) use their commercially reasonable efforts to cause such Shelf
Registration Statement to be declared effective by the Commission on or
prior to 120 days after such filing obligation arises pursuant to paragraph
4(a) above.
The Company and the Guarantors shall use their commercially reasonable efforts
to keep such Shelf Registration Statement continuously effective, supplemented
and amended as required by the provisions of Sections 6(b) and (c) hereof to the
extent necessary to ensure that it is available for resales of Notes by the
Holders of Transfer Restricted Securities entitled to the benefit of this
Section 4(a), and to ensure that it conforms with the requirements of this
Agreement, the Securities Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period of at least two years
following the effective date of such Shelf Registration Statement (or shorter
period that will terminate when all the Notes covered by such Shelf Registration
Statement have been sold pursuant to such Shelf Registration Statement).
(b) PROVISION BY HOLDERS OF CERTAIN INFORMATION IN CONNECTION WITH THE
SHELF REGISTRATION STATEMENT. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 days after receipt of a request therefor, such
information as the Company may reasonably request for use in connection with any
Shelf Registration Statement or Prospectus or preliminary Prospectus included
therein. Each Holder as to which any Shelf Registration Statement is being
effected agrees to furnish promptly to the Company all information required to
be disclosed in order to make the information previously furnished to the
Company by such Holder not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any of the Registration Statements required by this Agreement
is not filed with the Commission on or prior to the date specified for such
filing in this Agreement, (ii) any of such Registration Statements has not been
declared effective by the Commission on or prior to the date specified for such
effectiveness in this Agreement, (iii) the Exchange Offer has not been
Consummated within 40 days after the Exchange Offer Registration Statement is
declared effective or (iv) any Registration Statement required by this Agreement
is filed and declared effective but shall thereafter cease to be effective or
fail to be usable for its intended purpose without being succeeded immediately
by a post-effective amendment to such Registration Statement that cures such
failure and that is itself immediately declared effective (each such event
referred to in clauses (i) through (iv), a "REGISTRATION DEFAULT"), the Company
and the Guarantors hereby agree to pay liquidated dames to each Holder of
outstanding Notes ("LIQUIDATED DAMAGES") during the period of one or more
Registration Defaults, with respect to the first 90-day period immediately
following the occurrence of the first Registration Default in an amount equal to
0.25% per annum (which amount will be increased by an additional 0.25% per annum
for each subsequent 90-day period that any liquidated damages continue to
accrue; provided that the amounts at which liquidated damages accrue may in no
event exceed 1.0% per annum) in respect of the Transfer Restricted Securities
held by such Holder until the applicable Registration Statement is filed, the
Exchange Offer Registration Statement is declared effective and the Exchange
Offer is Consummated or the Shelf Registration Statement is declared effective
or again becomes effective, as the case may be. All accrued Liquidated Damages
will be paid by the Company and the Guarantors on each Interest Payment Date to
Holders of global
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Notes by wire transfer of immediately available funds or by federal funds check
and to holders of certificated Notes by wire transfer to the accounts specified
by them or by mailing checks to their registered addresses if no such accounts
have been specified. Following the cure of all Registration Defaults, the
accrual of Liquidated Damages will cease; provided, however, that, if after the
cessation of the accrual of Liquidated Damages, a different Registration Default
occurs, Liquidated Damages shall again accrue pursuant to the foregoing
provisions.
All obligations of the Company and the Guarantors set forth in the
preceding paragraph that are outstanding with respect to any Transfer Restricted
Security at the time such security ceases to be a Transfer Restricted Security
shall survive until such time as all such obligations with respect to such Note
shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) EXCHANGE OFFER REGISTRATION STATEMENT. In connection with the Exchange
Offer, the Company and the Guarantors shall comply with the applicable
provisions of Section 6(c) below, shall use their commercially reasonable
efforts to effect such exchange to permit the sale of Broker-Dealer Transfer
Restricted Securities being sold in accordance with the intended method or
methods of distribution thereof (which shall be in a manner consistent with the
terms of this Agreement), and shall comply with all of the following provisions:
(i) If in the reasonable opinion of counsel to the Company there is a
question as to whether the Exchange Offer is permitted by applicable law, the
Company and the Guarantors hereby agree to seek a no-action letter or other
favorable decision from the Commission allowing the Company and the Guarantors
to Consummate an Exchange Offer for such Initial Notes. The Company and the
Guarantors each hereby agree to pursue the issuance of such a decision to the
Commission staff level but shall not be required to take commercially
unreasonable action to effect a change of Commission policy. The Company and the
Guarantors each hereby agree, however, to (A) participate in telephonic
conferences with the staff of Commission, (B) deliver to the Commission staff an
analysis prepared by counsel to the Company setting forth the legal bases, if
any, upon which such counsel has concluded that such an Exchange Offer should be
permitted and (C) use commercially reasonable efforts to diligently pursue a
favorable resolution by the Commission staff of such submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer Restricted
Securities shall furnish, upon the request of the Company, prior to the
Consummation thereof, a written representation to the Company (which may be
contained in the letter of transmittal contemplated by the Exchange Offer
Registration Statement) to the effect that (A) it is not an affiliate of the
Company, (B) it is not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any person to participate in, a distribution
of the Exchange Notes to be issued in the Exchange Offer and (C) it is acquiring
the Exchange Notes in its ordinary course of business. In addition, all such
Holders of Transfer Restricted Securities shall otherwise cooperate in the
Company's and the Guarantor's preparations for the Exchange Offer. Each Holder
hereby acknowledges and agrees that any Broker-Dealer and any such Holder using
the Exchange Offer to participate in a distribution of the securities to be
acquired in the Exchange Offer (1) could not under Commission policy as in
effect on the date of this Agreement rely on the position of the Commission
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enunciated in XXXXXX XXXXXXX AND CO., INC. (available June 5, 1991) and EXXON
CAPITAL HOLDINGS CORPORATION (available May 13, 1988), as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993, and similar
no-action letters (which may include any no-action letter obtained pursuant to
clause (i) above), and (2) must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with a secondary
resale transaction and that such a secondary resale transaction should be
covered by an effective registration statement containing the selling security
holder information required by Item 507 or 508, as applicable, of Regulation S-K
if the resales are of Exchange Notes obtained by such Holder in exchange for
Initial Notes acquired by such Holder directly from the Company.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Company and the Guarantors shall provide a supplemental letter to
the Commission (A) stating that the Company and the Guarantors are registering
the Exchange Offer in reliance on the position of the Commission enunciated in
Exxon Capital Holdings Corporation (available May 13, 1988), Xxxxxx Xxxxxxx and
Co., Inc. (available June 5, 1991) and, if applicable, any no-action letter
obtained pursuant to clause (i) above, (B) including a representation that
neither the Company nor any Guarantor has entered into any arrangement or
understanding with any Person to distribute the Initial Notes to be received in
the Exchange Offer and that, to the best of the Company's information and
belief, each Holder participating in the Exchange Offer is acquiring the Initial
Notes in its ordinary course of business and has no arrangement or understanding
with any Person to participate in the distribution of the Initial Notes received
in the Exchange Offer and (C) any other undertaking or representation required
by the Commission as set forth in any no-action letter obtained pursuant to
clause (i) above.
(b) SHELF REGISTRATION STATEMENT. In connection with the Shelf Registration
Statement, the Company and the Guarantors shall comply with all the provisions
of Section 6(c) below and shall use their commercially reasonable efforts to
effect such registration to permit the sale of the Transfer Restricted
Securities being sold in accordance with the intended method or methods of
distribution thereof, and pursuant thereto the Company will as expeditiously as
possible prepare and file with the Commission a Registration Statement relating
to the registration on any appropriate form under the Securities Act, which form
shall be available for the sale of the Transfer Restricted Securities in
accordance with the intended method or methods of distribution thereof.
(c) GENERAL PROVISIONS. In connection with any Registration Statement and
any Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities (including, without limitation, any Exchange
Offer Registration Statement and the related Prospectus required to permit
resales of Broker-Dealer Transfer Restricted Securities by Broker-Dealers), the
Company and the Guarantors shall:
(i) use their commercially reasonable efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements (including, if required by the Securities Act or any
regulation thereunder, financial statements of the Guarantors) for the period
specified in Section 3 or 4 of this Agreement, as applicable; upon the
occurrence of any event that would cause any such Registration Statement or the
Prospectus contained therein (A) to contain a material misstatement or omission
or (B) not to be effective and usable for resale of Transfer Restricted
Securities during the period required by this Agreement, the Company shall
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file promptly an appropriate amendment to such Registration Statement, in the
case of clause (A), correcting any such misstatement or omission, and, in the
case of either clause (A) or (B), use their commercially reasonable efforts to
cause such amendment to be declared effective and such Registration Statement
and the related Prospectus to become usable for their intended purpose(s) as
soon as practicable thereafter;
(ii) use commercially reasonable efforts to prepare and file with the
Commission such amendments and post-effective amendments to the Registration
Statement as may be necessary to keep the Registration Statement effective for
the applicable period set forth in Section 3 or 4 hereof, as applicable, or such
shorter period as will terminate when all Transfer Restricted Securities covered
by such Registration Statement have been sold; cause the 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 to comply fully with
the applicable provisions of Rules 424 and 430A under the Securities Act in a
timely manner; and comply with the provisions of the Securities Act with respect
to the disposition of all securities covered by such Registration Statement
during the applicable period in accordance with the intended method or methods
of distribution by the sellers thereof set forth in such Registration Statement
or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders promptly
and, if requested by such Persons, to confirm such advice in writing, (A) when
the Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to any Registration Statement or any post-effective
amendment thereto, when the same has become effective, (B) of any request by the
Commission for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information relating thereto,
(C) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Securities Act or of the
suspension by any state securities commission of the qualification of the
Transfer Restricted Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes, (D) of the
existence of any fact or the happening of any event that makes any statement of
a material fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto, or any document incorporated by reference
therein untrue, or that requires the making of any additions to or changes in
the Registration Statement or the Prospectus in order to make the statements
therein not misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or Blue Sky laws, the Company and
the Guarantors shall use their commercially reasonable efforts to obtain the
withdrawal or lifting of such order at the earliest possible time;
(iv) in the case of a Shelf Registration Statement, furnish without
charge to each of the Initial Purchasers, each selling Holder named in any
Registration Statement, and each of the underwriter(s), if any, before filing
with the Commission, copies of any Registration Statement or any Prospectus
included therein or any amendments or supplements to any such Registration
Statement or Prospectus (including all documents incorporated by reference after
the initial filing of such Registration Statement), which documents will be
subject to the review of such Holders and underwriter(s) in connection with such
sale, if any, for a period of at least three
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Business Days, and neither the Company nor the Guarantors will file any such
Registration Statement or Prospectus or any amendment or supplement to any such
Registration Statement or Prospectus (including all such documents incorporated
by reference) to which an Initial Purchaser or the underwriter(s), if any, shall
reasonably object in writing within five Business Days after the receipt thereof
(such objection to be deemed timely made upon confirmation of telecopy
transmission within such period). The objection of an Initial Purchaser or
underwriter, if any, shall be deemed to be reasonable if such Registration
Statement, amendment, Prospectus or supplement, as applicable, as proposed to be
filed, contains a material misstatement or omission;
(v) in connection with any underwritten offering pursuant to a Shelf
Registration Statement, promptly prior to the filing of any document that is to
be incorporated by reference into a Shelf Registration Statement or Prospectus,
provide copies of such document to the Initial Purchasers, each selling Holder
named in any Shelf Registration Statement, and to the underwriter(s), if any,
make the Company's representatives and representatives of the Guarantors
available for discussion of such document and other customary due diligence
matters, and include such information in such document prior to the filing
thereof as such selling Holders or underwriter(s), if any, reasonably may
request;
(vi) in connection with any underwritten offering pursuant to a Shelf
Registration Statement, make available at reasonable times during normal
business hours for inspection by the Initial Purchasers, any managing
underwriter participating in any disposition pursuant to such Registration
Statement and any attorney or accountant retained by such Initial Purchasers or
any of the underwriter(s), all financial and other records, pertinent corporate
documents and properties of the Company and the Guarantors and cause the
Company's and the Guarantors' officers, directors and employees to supply all
information reasonably requested by any such Holder, underwriter, attorney or
accountant in connection with such Registration Statement subsequent to the
filing thereof and prior to its effectiveness;
(vii) if requested by any selling Holders or the underwriter(s), if
any, promptly incorporate in any Registration Statement or Prospectus, pursuant
to a supplement or post-effective amendment if necessary, such information as
such selling Holders and underwriter(s), if any, may reasonably request to have
included therein, including, without limitation, information relating to the
"Plan of Distribution" of the Transfer Restricted Securities, information with
respect to the principal amount of Transfer Restricted Securities being sold to
such underwriter(s), the purchase price being paid therefor and any other terms
of the offering of the Transfer Restricted Securities to be sold in such
offering; and make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the Company or a Guarantor
is notified of the matters to be incorporated in such Prospectus supplement or
post-effective amendment;
(viii) furnish to each selling Holder and each of the underwriter(s),
if any, without charge, at least one copy of the Registration Statement, as
first filed with the Commission, and of each amendment thereto, including
financial statements and schedules, all documents incorporated by reference
therein and all exhibits (including exhibits incorporated therein by reference);
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(ix) deliver to each selling Holder and each of the underwriter(s), if
any, without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such Persons
reasonably may request; the Company and the Guarantors hereby consent to the use
of the Prospectus and any amendment or supplement thereto by each of the selling
Holders and each of the underwriter(s), if any, in connection with the offering
and the sale of the Transfer Restricted Securities covered by the Prospectus or
any amendment or supplement thereto;
(x) in connection with any underwritten offering of Transfer
Restricted Securities pursuant to a Shelf Registration Statement, enter into,
and cause the Guarantors to enter into, such agreements (including an
underwriting agreement), and make, and cause the Guarantors to make, such
representations and warranties, and take all such other actions in connection
therewith reasonably necessary to expedite or facilitate the disposition of the
Transfer Restricted Securities, all to such extent as may be reasonably
requested by any Holder of Transfer Restricted Securities or underwriter in
connection with any sale or resale pursuant to underwritten offerings of
Transfer Restricted Securities pursuant to a Shelf Registration Statement
contemplated by this Agreement and shall:
(A) furnish to each Initial Purchaser, each selling Holder and each
underwriter, if any, in such substance and scope as they may reasonably
request and as are customarily made by issuers to underwriters in primary
underwritten offerings, upon the date of the Consummation of the Exchange
Offer and, if applicable, the effectiveness of the Shelf Registration
Statement:
(1) a certificate, dated the date of effectiveness of the Shelf
Registration Statement, signed by (y) the Chairman of the Board, the
Chief Executive Officer, President, any Executive Vice President or any
Vice President and (z) a principal financial or accounting officer of
each of the Company and Xxxxx-Illinois Group, Inc., confirming, as of
the date thereof, the matters set forth in paragraphs (i), (ii) and
(iii) of Section 5 (e) of the Purchase Agreement or such other matters
as such parties may reasonably request;
(2) opinions, dated the date of effectiveness of the Shelf
Registration Statement of counsel for the Company and the Guarantors,
covering the matters set forth in paragraph (c) of Section 5 of the
Purchase Agreement and Exhibits B and C referred to therein and such
other matters as such parties may reasonably request; and
(3) a customary comfort letter, dated as of the date of
effectiveness of the Shelf Registration Statement from the Company's
independent accountants, in the customary form and covering matters of
the type customarily covered in comfort letters by underwriters in
connection with primary underwritten offerings, and affirming the
matters set forth in the comfort letter delivered pursuant to Section
5(a) of the Purchase Agreement;
(B) set forth in full or incorporate by reference in the underwriting
agreement, if any, indemnification provisions and procedures of Section 8
hereof with respect to all
11
parties to be indemnified pursuant to said Section (or such other provisions
or procedures acceptable to selling Holders representing a majority in
aggregate principal amount of Transfer Restricted Securities covered by such
Shelf Registration Statement and the Underwriters, if any); and
(C) deliver such other documents and certificates as may be reasonably
requested by such parties to evidence compliance with clause (A) above and
with any customary conditions contained in the underwriting agreement or
other agreement entered into by the Company or the Guarantors pursuant to
this clause (xi), if any.
If at any time the representations and warranties of the Company and
the Guarantors contemplated in clause (A)(1) above cease to be true and correct
in all material respects, the Company or the Guarantors shall so advise the
Initial Purchasers and the underwriter(s), if any, and each selling Holder
promptly and, if requested by such Persons, shall confirm such advice in
writing;
(xi) prior to any public offering of Transfer Restricted Securities,
cooperate with the selling Holders, the underwriter(s), if any, and their
respective counsel in connection with the registration and qualification of the
Transfer Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders or underwriter(s) may request and do any
and all other acts or things necessary or advisable to enable the disposition in
such jurisdictions of the Transfer Restricted Securities covered by the Shelf
Registration Statement; PROVIDED, HOWEVER, that neither the Company nor the
Guarantors shall be required to register or qualify as a foreign corporation
where it is not then so qualified or to take any action that would subject it to
the service of process in suits or to taxation, other than as to matters and
transactions relating to any Registration Statement, in any jurisdiction where
it is not then so subject;
(xii) shall issue, upon the request of any Holder of Initial Notes
covered by the Shelf Registration Statement, Exchange Notes, having an aggregate
principal amount equal to the aggregate principal amount of Initial Notes
surrendered to the Company by such Holder in exchange therefor or being sold by
such Holder; such Exchange Notes to be registered in the name of such Holder or
in the name of the purchaser(s) of such Notes, as the case may be; in return,
the Initial Notes held by such Holder shall be surrendered to the Company for
cancellation;
(xiii) cooperate with the selling Holders and the underwriter(s), if
any, to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing any
restrictive legends; and enable such Transfer Restricted Securities to be in
such denominations and registered in such names as the Holders or the
underwriter(s), if any, may request at least two Business Days prior to any sale
of Transfer Restricted Securities made by such underwriter(s);
(xiv) use their commercially reasonable efforts to cause the Transfer
Restricted Securities covered by the Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the underwriter(s), if any,
to consummate the disposition of such Transfer Restricted Securities, subject to
the proviso contained in clause (xii) above;
12
(xv) if any fact or event contemplated by clause (c)(iii)(D) above
shall exist or have occurred, prepare a supplement or post-effective amendment
to the Registration Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the Prospectus
will not contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading;
(xvi) provide a CUSIP number for all Transfer Restricted Securities
not later than the effective date of the Registration Statement and provide the
Trustee under the Indenture with printed certificates for the Transfer
Restricted Securities which are in a form eligible for deposit with the
Depositary Trust Company;
(xvii) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter") that is required
to be retained in accordance with the rules and regulations of the NASD, and use
their commercially reasonable efforts to cause such Registration Statement to
become effective and approved by such governmental agencies or authorities as
may be necessary to enable the Holders selling Transfer Restricted Securities to
consummate the disposition of such Transfer Restricted Securities;
(xviii) otherwise use their commercially reasonable efforts to comply
with all applicable rules and regulations of the Commission, and make generally
available to the Company's security holders, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158 (which need
not be audited) for the twelve-month period (A) commencing at the end of any
fiscal quarter in which Transfer Restricted Securities are sold to underwriters
in a firm or best efforts Underwritten Offering or (B) if not sold to
underwriters in such an offering, beginning with the first month of the
Company's first fiscal quarter commencing after the effective date of the
Registration Statement;
(xix) cause the Indenture to be qualified under the Trust Indenture
Act not later than the effective date of the first Registration Statement
required by this Agreement, and, in connection therewith, cooperate, and cause
the Guarantors to cooperate with, with the Trustee and the Holders of Notes to
effect such changes to the Indenture as may be required for such Indenture to be
so qualified in accordance with the terms of the Trust Indenture Act; and to
execute, and use their commercially reasonable efforts to cause the Trustee to
execute, all documents that may be required to effect such changes and all other
forms and documents required to be filed with the Commission to enable such
Indenture to be so qualified in a timely manner; and
(xx) provide promptly to each Holder upon request each document filed
with the Commission pursuant to the requirements of Section 13 and Section 15 of
the Exchange Act or provide each such requesting Holder the location where such
Holder can obtain such information without charge.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Company or any Guarantor of the
existence of any fact of the kind described in Section 6(c)(iii)(D) hereof, such
Holder will forthwith discontinue disposition of Transfer Restricted Securities
pursuant to the applicable Registration Statement until such
13
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(xvi) hereof, or until it is advised in writing (the
"ADVICE") by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated
by reference in the Prospectus. If so directed by the Company, each Holder will
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Transfer Restricted Securities that was current at the time of
receipt of such notice. In the event the Company or any Guarantor shall give any
such notice, the time period regarding the effectiveness of such Registration
Statement set forth in Section 3 or 4 hereof, as applicable, shall be extended
by the number of days during the period from and including the date of the
giving of such notice pursuant to Section 6(c)(iii)(D) hereof to and including
the date when each selling Holder covered by such Registration Statement shall
have received the copies of the supplemented or amended Prospectus contemplated
by Section 6(c)(xvi) hereof or shall have received the Advice; however, no such
extension shall be taken into account in determining whether Liquidated Damages
are due pursuant to Section 5 hereof or the amount of such Liquidated Damages,
it being agreed that the Company's and the Guarantor's option to suspend use of
a Registration Statement pursuant to this paragraph shall be treated as a
Registration Default for purposes of Section 5.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's or the Guarantors' performance
of or compliance with this Agreement will be borne by the Company or the
Guarantors, regardless of whether a Registration Statement becomes effective,
including without limitation: (i) all registration and filing fees and expenses
(including filings made by any Initial Purchaser or Holder with the NASD (and,
if applicable, the fees and expenses of any "qualified independent underwriter"
and its counsel that may be required by the rules and regulations of the NASD));
(ii) all fees and expenses of compliance with federal securities and state Blue
Sky or securities laws; (iii) all expenses of printing (including printing
certificates for the Exchange Notes to be issued in the Exchange Offer and
printing of Prospectuses), messenger and delivery services and telephone; (iv)
all fees and disbursements of counsel for the Company, the Guarantors and,
subject to Section 7(b) below, the Holders of Transfer Restricted Securities;
(v) all application and filing fees in connection with listing the Exchange
Notes on a national securities exchange or automated quotation system pursuant
to the requirements thereof; and (vi) all fees and disbursements of independent
certified public accountants of the Company and the Guarantors (including the
expenses of any special audit and comfort letters required by or incident to
such performance).
The Company and the Guarantors will, in any event, bear their internal
expenses (including, without limitation, all salaries and expenses of their
officers and employees performing legal or accounting duties), the expenses of
any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company or the Guarantors.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company and the Guarantors
will reimburse the Initial Purchasers and the Holders of Transfer Restricted
Securities being tendered in the Exchange Offer and/or resold pursuant to the
"Plan of Distribution" contained in the Exchange Offer Registration
14
Statement or registered pursuant to the Shelf Registration Statement, as
applicable, for the reasonable fees and disbursements of not more than one
counsel, who shall be Xxxxxxx Xxxxxxx & Xxxxxxxx or such other counsel as may be
chosen by the Holders of a majority in principal amount of the Transfer
Restricted Securities for whose benefit such Registration Statement is being
prepared.
SECTION 8. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE HOLDERS. The Company and each Guarantor, jointly
and severally, agree to indemnify and hold harmless each Holder, its directors,
officers and employees, and each person, if any, who controls any Holder within
the meaning of the Securities Act and the Exchange Act against any loss, claim,
damage, liability or expense, as incurred, to which such Holder or such
controlling person may become subject, under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, or at common law or
otherwise (including in settlement of any litigation, if such settlement is
effected with the written consent of the Company or Xxxxx-Illinois Group, Inc.),
insofar as such loss, claim, damage, liability or expense (or actions in respect
thereof as contemplated below) arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or Prospectus, or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
PROVIDED, HOWEVER, that the foregoing indemnity agreement shall not apply to any
loss, claim, damage, liability or expense to the extent, but only to the extent,
arising out of or based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in reliance upon and in conformity with
written information furnished to the Company by the Holders expressly for use in
any Registration Statement or Prospectus; PROVIDED, FURTHER, that the foregoing
indemnity agreement shall not inure to the benefit of any Holder, its directors,
officers and employees, and each person, if any, who controls such Holder within
the meaning of the Securities Act and the Exchange Act, who, in contravention of
a requirement of applicable law, failed to deliver, or otherwise convey the
information contained in, any Prospectus (as then amended or supplemented) to
the person asserting any losses, claims, damages, liabilities or expenses,
caused by any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, if such material
misstatement or omission or alleged material misstatement or omission was cured
in the Prospectus (as then amended or supplemented) and such Prospectus was
required by law to be delivered at or prior to the written confirmation of sale
to such person and the Prospectus and any amendment or supplement thereto was
provided by the Company to the Holder in the requisite quantity and on a timely
basis to permit proper delivery on or prior to the closing of such sale by such
Holder. The indemnity agreement set forth in this Section 8 shall be in addition
to any liabilities that the Company or any of the Guarantors may otherwise have.
(b) INDEMNIFICATION OF THE COMPANY, THE GUARANTORS AND THEIR DIRECTORS AND
OFFICERS. Each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company and the Guarantors and each of their respective directors,
and each person, if any, who controls the Company or the Guarantors, as the case
may be, within the meaning of the Securities Act or the Exchange Act, against
any loss, claim, damage, liability or expense, as incurred, to which the
15
Company or such Guarantor or any such director, or controlling person may become
subject, under the Securities Act, the Exchange Act, or other federal or state
statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of such Holder), insofar as such loss, claim, damage, liability or
expense (or actions in respect thereof as contemplated below) arises out of or
is based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or Prospectus, or the omission or
alleged omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Registration Statement or Prospectus, in reliance upon
and in conformity with written information furnished to the Company by the
Holders expressly for use therein; and to reimburse the Company and the
Guarantors, or any such director or controlling person for any legal and other
expenses reasonably incurred by the Company and the Guarantors, or any such
director or controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability,
expense or action. The indemnity agreement set forth in this Section 8 shall be
in addition to any liabilities that each Holder may otherwise have. In no event
shall the liability of any selling Holder hereunder be greater in amount than
the dollar amount of proceeds received by such Holder upon the sale of the
Securities giving rise to such indemnification obligation.
(c) NOTIFICATIONS AND OTHER INDEMNIFICATION PROCEDURES. Promptly after
receipt by any person in respect of which indemnity may be sought pursuant to
Section 8(a) or 8(b) (the "INDEMNIFIED PARTY") of notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to be
made against any person against whom indemnity may be sought pursuant to Section
8(a) or 8(b) (the "INDEMNIFYING PARTY"), notify the indemnifying party in
writing 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 for contribution or otherwise than under the indemnity
agreement contained in this Section 8 or to the extent it is not prejudiced as a
proximate result of such failure. In case any such action is brought against any
indemnified party and such indemnified party seeks or intends to seek indemnity
from an indemnifying party, the indemnifying party shall be entitled to
participate in and, to the extent that it shall elect, jointly with all other
indemnifying parties similarly notified, by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party; PROVIDED, HOWEVER, if the defendants in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded, based on the advice
of legal counsel, that a conflict may arise between the positions of the
indemnifying party and the indemnified party in conducting the defense of any
such action or that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of such indemnifying party's election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
shall not be liable to such indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by such
16
indemnified party in connection with the defense thereof unless the indemnified
party shall have employed separate counsel in accordance with the proviso to the
next preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate counsel
(together with local counsel), approved by the indemnifying party, representing
the indemnified parties who are parties to such action) or (ii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action, in each of which cases the fees and expenses of
counsel shall be at the expense of the indemnifying party.
(d) SETTLEMENTS. The indemnifying party under this Section 8 shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
against any loss, claim, damage, liability or expense by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by this
Section 8, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement, compromise or consent
to the entry of judgment in any pending or threatened action, suit or proceeding
in respect of which any indemnified party is or could have been a party and
indemnity was or could have been sought hereunder by such indemnified party,
unless such settlement, compromise or consent includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding.
(e) CONTRIBUTION. If the indemnification provided for in this Section 8 is
for any reason held to be unavailable to or otherwise insufficient to hold
harmless an indemnified party under Section 8(a) or Section 8(b) hereof (other
than by reason of exceptions provided in those Sections) in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or payable by
such indemnified party, as incurred, as a result of any losses, claims, damages,
liabilities or expenses referred to therein (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Guarantors, on the one hand, and the Holders, on the other hand, from the
Initial Placement (which, in the case of the Company and the Guarantors shall be
deemed to be equal to the total gross proceeds from the Initial Placement as set
forth on the cover page to the Offering Memorandum), the amount of Liquidated
Damages which did not become payable as a result of the filing of the
Registration Statement resulting in such losses, claims, damages, liabilities,
judgments actions or expenses, and such Registration Statement, or (ii) if the
allocation provided by clause (i) above 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 Company and
the Guarantors, on the one hand, and the Holders, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Guarantors, on the one hand, and the Holders,
17
on the other, with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from Initial Placement (before deducting
expenses) received by the Company and the Guarantors, on the one hand, and the
total net proceeds received by such Holder upon its resale of Notes less the
amount paid by such Holder for such Notes, on the other hand, bear to the total
sum of such amounts. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company and the Guarantors or such Holder, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. For the purposes
of the preceding two sentences, the net proceeds deemed to be received by the
Company shall be deemed to be also for the benefit of the Guarantors and the
information supplied by the Company shall also be deemed to have been supplied
by the Guarantors.
The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in Section 8(a), any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim. The provisions set forth in this
Section 8 with respect to notice of commencement of any action shall apply if a
claim for contribution is to be made under this Section 8(e); PROVIDED, HOWEVER,
that no additional notice shall be required with respect to any action for which
notice has been given under this Section 8 for purposes of indemnification.
The Company, the Guarantors and the Holders agree that it would not be
just and equitable if contribution pursuant to this Section 8(e) 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 which does not take account of the
equitable considerations referred to in this Section 8(e). Notwithstanding the
provisions of this Section 8(e), no Holder shall be required to contribute any
amount in excess of the amount by which the total net proceeds received by such
Holder upon its resale of Initial Notes exceeds the sum of the amount paid by
such Holder for such Initial Notes (or, if such Initial Notes have not been sold
by such Holder, the total discount received by such Holder with respect to such
Initial Notes) and the amount of any damages which such Holder has otherwise
paid or become liable to pay by reason of any untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11 of the Securities Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Holders' obligations to contribute pursuant to
this Section 8(e) are several, and not joint, in proportion to the respective
principal amount of Initial Notes held by each of the Holders hereunder. For
purposes of this Section 8(e), each director, officer and employee of an Holder
and each person, if any, who controls an Holder within the meaning of the
Securities Act and the Exchange Act shall have the same rights to contribution
as such Holder, and each director of the Company and the Guarantors, and each
person, if any, who controls the Company with the meaning of the Securities Act
and the Exchange Act shall have the same rights to contribution as the Company
and the Guarantors.
(f) The remedies provided for in this Section 8 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
18
SECTION 9. RULE 144A
The Company and the Guarantors each hereby agree with each Holder,
for so long as any Transfer Restricted Securities remain outstanding, to make
available to any Holder or beneficial owner of Transfer Restricted Securities in
connection with any sale thereof and any prospective purchaser of such Transfer
Restricted Securities from such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Securities Act in order to permit resales
of such Transfer Restricted Securities pursuant to Rule 144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering shall be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; PROVIDED, that such investment bankers and managers must be
reasonably satisfactory to the Company.
SECTION 12. MISCELLANEOUS
(a) REMEDIES. The Company and the Guarantors each hereby agree that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agree to
waive the defense in any action for specific performance that a remedy at law
would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Company shall not, and shall cause the
Guarantors not to, on or after the date of this Agreement enter into any
agreement with respect to the Company's securities that would prevent the
Company or any Guarantor from satisfying its obligations hereunder or that would
otherwise conflict with the provisions hereof. Neither the Company nor any of
the Guarantors has entered into any agreement granting any registration rights
with respect to the Company's securities to any Person. 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 securities under any
agreement in effect on the date hereof.
(c) ADJUSTMENTS AFFECTING THE NOTES. The Company shall not take any action,
or permit any change to occur, with respect to the Notes that would materially
and adversely affect the ability of the Holders to Consummate any Exchange
Offer.
19
(d) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to the
rights of Holders whose securities are being tendered pursuant to the Exchange
Offer and that does not affect directly or indirectly the rights of other
Holders whose securities are not being tendered pursuant to such Exchange Offer
may be given by the Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities being tendered or registered; provided that, with
respect to any matter that directly or indirectly affects the rights of any
Initial Purchaser hereunder, the Company shall obtain the written consent of
each such Initial Purchaser with respect to which such amendment, qualification,
supplement, waiver, consent or departure is to be effective.
(e) NOTICES. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Indenture, with a copy to the Registrar under the Indenture;
and
(ii) if to the Company:
Xxxx-Xxxxxxxx Glass Container Inc.
One XxxXxxx Xxxxxx,
XX 00000 Telecopier No.: 000-000-0000
Attention: Treasurer
With a copy to:
Xxxxxx & Xxxxxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Telecopier No.: 000-000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
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 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.
20
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders of Transfer Restricted Securities; provided, however, that this
Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities from such Holder.
(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) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(j) ENTIRE AGREEMENT. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company and the
Guarantors with respect to the Transfer Restricted Securities. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
(k) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. -
21
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
XXXXX-XXXXXXXX GLASS CONTAINER INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
On behalf of each entity
named on the attached
EXHIBIT A, in the capacity
set forth for such entity
on such EXHIBIT A
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxx
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written.
BANC OF AMERICA SECURITIES LLC
XXXXXXX, XXXXX & CO.
DEUTSCHE BANC ALEX. XXXXX INC.
XXXXXX XXXXXXX & CO. INCORPORATED
SCOTIA CAPITAL (USA) INC.
By: BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
22
EXHIBIT A
TITLE OF OFFICER EXECUTING ON
BEHALF OF SUCH ENTITY
NAME OF ENTITY
Xxxxx-Illinois Group, Inc. Vice President, Director of
Finance and Secretary
OI General FTS Inc. Vice President and Secretary
OI Plastic Products FTS Inc. Vice President and Secretary
O-I Health Care Holding Corp. Vice President and Secretary
OI General Finance Inc. Vice President and Secretary
Specialty Packaging Licensing Company Vice President and Secretary
Xxxxx-Illinois Closure Inc. Vice President and Secretary
Product Design & Engineering, Inc. Vice President and Secretary
OI Brazil Closure Inc. Vice President and Secretary
Xxxxx-Illinois Prescription Products Inc. Vice President and Secretary
OI Medical Inc. Vice President and Secretary
MARC Industries, Inc. Vice President and Secretary
OI Medical Holdings Inc. Vice President and Secretary
Anamed International, Inc. Vice President and Secretary
Xxxxxxx Medical Products, Incorporated Vice President and Secretary
Xxxxx-XxxXxx Medical Company Vice President and Secretary
of each general partner
BriGam, Inc. Vice President and Secretary
BriGam Medical, Inc. Vice President and Secretary
BriGam Ventures, Inc. Vice President and Secretary
Xxxxx-Xxxxxxxx Plastic Products Inc. Vice President and Secretary
Xxxxx-Illinois Specialty Products Puerto Vice President and Secretary
Rico, Inc.
A-1
TITLE OF OFFICER EXECUTING ON
BEHALF OF SUCH ENTITY
NAME OF ENTITY
OI Regioplast STS Inc. Vice President and Secretary
OI Australia Inc. Vice President and Secretary
ACI America Holdings Inc. Vice President and Secretary
Continental PET Technologies, Inc. Vice President and Secretary
OI Venezuela Plastic Products Inc. Vice President and Secretary
OI Castalia STS Inc. Vice President and Secretary
OI Levis Park STS Inc. Vice President and Secretary
OI AID STS Inc. Vice President and Secretary
Xxxxx-Illinois General Inc. Vice President and Secretary
O-I Holding Company, Inc. Vice President and Secretary
Universal Materials, Inc. Vice President and Secretary
Xxxxx-Xxxxxxxx Packaging, Inc. Vice President and Secretary
Xxxxxxxx Realty Corporation Vice President and Secretary
Xxxxxxxx Research, Inc. Vice President and Secretary
NHW Auburn, LLC Vice President and Secretary
of its sole member
OI Auburn Inc. Vice President and Secretary
Seagate, Inc. Vice President and Secretary
Seagate II, Inc. Vice President and Secretary
Seagate III, Inc. Vice President and Secretary
Xxxxx-Xxxxxxxx Glass Container Trading Vice President and Secretary
Company
OB Cal South Inc. Vice President and Secretary
Overseas Finance Company Vice President and Secretary
A-2
TITLE OF OFFICER EXECUTING ON
NAME OF ENTITY BEHALF OF SUCH ENTITY
OIB Produvisa Inc. Vice President and Secretary
OI Consol STS Inc. Vice President and Secretary
OI California Containers Inc. Vice President and Secretary
OI Puerto Rico STS Inc. Vice President and Secretary
OI Ecuador STS Inc. Vice President and Secretary
OI Europe & Asia Inc. Vice President and Secretary
OI Peru STS Inc. Vice President and Secretary
OI Poland Inc. Vice President and Secretary
OI Hungary Inc. Vice President and Secretary
OI International Holdings Inc. Vice President and Secretary
A-3
