REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of June 14, 2000, by and among International Paper Company (the
"Company"), a corporation duly organized and existing under the laws of the
State of New York, and the several initial purchasers listed on Schedule I
hereto (the "Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated June 7,
2000, by and among the Company and the Purchasers (the "Purchase Agreement"),
which provides for the sale by the Company to the Purchasers of $800,000,000
principal amount of its Floating Rate Notes due July 8, 2002 (the "Floating Rate
Notes"), $1,200,000,000 principal amount of its 8% Notes due July 8, 2003 (the
"Notes due 2003") and $1,000,000,000 principal amount of its 8-1/8% Notes due
July 8, 2005 (the "Notes due 2005"). The Notes are to be issued pursuant to the
provisions of an Indenture dated as of April 19, 1999 (the "Base Indenture")
between the Company and The Bank of New York, as Trustee (the "Trustee"), as
supplemented by the Floating Rate Notes Supplemental Indenture, the Notes due
2003 Supplemental Indenture and the Notes due 2005 Supplemental Indenture, each
dated as of the Closing Date between the Company and the Trustee (each a
"Supplemental Indenture" and collectively, with the Base Indenture, the
"Indenture").
In order to induce the Purchasers to enter into the Purchase Agreement,
the Company has agreed to provide to each Purchaser and its direct and indirect
transferees the registration rights with respect to the Notes set forth in this
Agreement. The execution of this Agreement is a condition to the closing under
the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Additional Interest" shall have the meaning set forth in Section 2(e).
"Closing Date" shall mean the Closing Date as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Exchange Date" shall have the meaning set forth in Section 2(a)(ii).
"Exchange Notes" means the debt securities of the Company to be offered
to Holders in exchange for Notes pursuant to the Exchange Offer or otherwise
pursuant to a registration of securities containing terms identical to the Notes
for which they are exchanged (except that (i) interest thereon shall accrue from
the last date on which interest was paid on the Notes or, if no such interest
has been paid, from the date of issuance of the Notes, (ii) the Exchange Notes
will not contain terms with respect to transfer restrictions, and (iii) certain
provisions relating to an increase in the stated rate of interest on the Notes
shall be eliminated).
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Notes for all Notes that are Registrable Notes pursuant to Section 2(a)
hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on an appropriate form and all amendments and supplements
to such registration statement, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Holder" shall mean each Purchaser, for so long as it owns any
Registrable Notes, and each of its successors, assigns and direct and indirect
transferees who become registered owners of Registrable Notes under the
Indenture; provided that for purposes of Sections 4 and 5 of this Agreement, the
term "Holder" shall include Participating Broker- Dealers (as defined in Section
4(a)).
"Indenture" shall have the meaning set forth in the preamble.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Notes; provided that, for
purposes of Section 6(b), whenever the consent or approval of Holders of a
specified percentage of Registrable Notes is required hereunder, Registrable
Notes held by the Company or any of its affiliates (as such term is defined in
Rule 405 under the Securities Act) shall not be considered outstanding and shall
not be counted in determining whether such consent or approval was given by the
Holders of such required percentage or amount.
"Notes" shall mean the Floating Rate Notes, the Notes due 2003, the
Notes due 2005, the Registrable Notes, the Exchange Notes and the Private
Exchange Notes.
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"Offer Termination Date" shall have the meaning set forth in Section
2(a)(iv).
"Participating Broker-Dealer" shall have the meaning set forth in
Section 4(a) hereof.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Private Exchange" shall have the meaning set forth in Section 2(a).
"Private Exchange Notes" shall have the meaning set forth in Section
2(a).
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Notes covered by a Shelf Registration Statement, and by all other
amendments and supplements to such prospectus, and in each case including all
material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Purchasers" shall have the meaning set forth in the preamble.
"Registrable Notes" shall mean the Floating Rate Notes, the Notes due
2003 and the Notes due 2005; provided, however, that such notes shall cease to
be Registrable Notes when (i) a Registration Statement with respect to such
notes or the resale thereof shall have been declared effective under the
Securities Act and such notes shall have been disposed of pursuant to such
Registration Statement, (ii) such notes have been sold pursuant to Rule 144(k)
(or any similar provision then in force, but not Rule 144A) under the Securities
Act, (iii) such notes shall have ceased to be outstanding or (iv) such notes
have been exchanged for Exchange Notes upon consummation of the Exchange Offer.
"Registration Default" shall have the meaning set forth in Section
2(e).
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws, (iii) all expenses of any Person in preparing or assisting in
preparing, word processing, printing and distributing, at the request of the
Company, any Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities sales agreements,
Notes and other documents relating to the performance of and compliance with
this Agreement, (iv)
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all fees and disbursements relating to the qualification of the Indenture under
applicable securities laws, (v) the fees and disbursements of the Trustee and
its counsel, (vi) the fees and disbursements of counsel for the Company and, in
the case of a Shelf Registration Statement, the fees and disbursements of one
counsel for the Holders incurred on or before the initial effectiveness of the
Shelf Registration Statement, which counsel shall be counsel for the Purchasers
or other counsel selected by the Company and not objected to by the Majority
Holders ("counsel for the Holders") and (vii) the fees and disbursements of the
independent public accountants of the Company, including the expenses of any
special audits or comfort letters required by or incident to such performance
and compliance, but excluding fees of counsel to the Underwriters or the Holders
and underwriting discounts, if any, and commissions and transfer taxes, if any,
relating to the sale or disposition of Registrable Notes by a Holder.
"Registration Statement" shall mean any registration statement of the
Company filed with the SEC that covers any of the Exchange Notes or the
Registrable Notes pursuant to the provisions of this Agreement and all
amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) of this
Agreement which covers all of the Registrable Notes ((or Private Exchange Notes)
except Registrable Notes that the Holders have elected not to include in such
Shelf Registration Statement) or Notes that represent an unsold allotment for
the original offering thereof on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including post-
effective amendments, in each case including the Prospectus contained therein,
all exhibits thereto and all material incorporated by reference therein.
"TIA" shall have the meaning set forth in Section 3(1) hereof.
"Trustee" shall have the meaning set forth in the preamble.
"Underwriters" shall have the meaning set forth in Section 3 hereof.
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"Underwritten Offering" shall mean a registration in which Registrable
Notes are sold to an Underwriter for reoffering to the public.
2. Registration under the Securities Act.
(a) To the extent not prohibited by any applicable law or
applicable interpretation of the Staff of the SEC, the Company shall
use its reasonable best efforts to cause to be filed an Exchange Offer
Registration Statement covering the offer by the Company to the
Holders to exchange all of the Registrable Notes for Exchange Notes on
or prior to the date that is 150 days after the Closing Date, to have
the Exchange Offer Registration Statement declared effective by the
SEC on or prior to the date that is 180 days after the Closing Date
and remain effective until the closing of the Exchange Offer and to
consummate the Exchange Offer on or prior to the date that is 210 days
after the Closing Date (or such longer period as may be necessary to
complete such Exchange Offer). For purposes hereof, "consummate" shall
mean that the Exchange Offer Registration Statement shall have been
declared effective, subject to Section 2(b), the period of the
Exchange Offer provided in accordance with clause (ii) below shall
have expired and all Registrable Notes validly tendered in connection
with such Exchange Offer shall have been exchanged for Exchange Notes
(assuming the Holder tendering such Notes is not an affiliate of the
Company within the meaning of Rule 405 of the Securities Act and is
not a broker-dealer tendering Registrable Notes acquired directly from
the Company for its own account, acquires the Exchange Notes in the
ordinary course of such Holder's business and has no arrangements or
understandings with any Person for the purpose of distributing the
Exchange Notes and that each such Holder makes a representation to the
Company to such effect). The Company shall commence the Exchange Offer
by mailing the related exchange offer Prospectus and accompanying
documents to each Holder stating, in addition to such other
disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to
this Registration Rights Agreement and that all Registrable
Notes validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be
a period of at least 20 business days or such longer period as
may be required by the Securities Act from the date such
notice is mailed) (each such date being an "Exchange Date");
(iii) that any Registrable Note not tendered will remain
outstanding and continues to accrue interest, but will not
retain any rights under this Agreement, other than Notes that
represent an unsold allotment for the original offering
thereof;
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(iv) that Holders electing to have a Registrable Note
exchanged pursuant to the Exchange Offer will be required to
surrender such Registrable Note, together with the enclosed
letters of transmittal, to the institution and at the address
specified in the notice prior to the close of business on the
last Exchange Date (the "Offer Termination Date"); and
(v) that Holders will be entitled to withdraw their
election, not later than the close of business on the Offer
Termination Date, by sending to the institution and at the
address specified in the notice a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder,
the principal amount of Registrable Notes delivered for
exchange and a statement that such Holder is withdrawing his
election to have such Registration Notes exchanged.
As soon as practicable after the Offer Termination Date, the Company
shall:
(A) accept for exchange in accordance with the Exchange Offer
Registration Statement and the letter of transmittal Registrable Notes or
portions thereof tendered and not validly withdrawn pursuant to the Exchange
Offer or the Private Exchange, as the case may be; and
(B) deliver, or cause to be delivered, to the Trustee for cancellation
all Registrable Notes or portions thereof so accepted for exchange by the
Company and issue, and cause the Trustee to promptly authenticate and deliver to
each Holder, an Exchange Note or Private Exchange Note, as the case may be,
equal in aggregate principal amount to the aggregate principal amount of the
Registrable Notes surrendered by such Holder.
To the extent not prohibited by any law or the Staff of the SEC, the
Company shall use its reasonable best efforts to complete the Exchange Offer as
provided above and shall comply with the applicable requirements of the
Securities Act, the Exchange Act and other applicable laws and regulations in
connection with the Exchange Offer. The Exchange Offer shall not be subject to
any conditions, other than that (i) the Exchange Offer does not violate
applicable law or any applicable interpretation of the Staff of the SEC and (ii)
the due tendering of Registrable Notes in accordance with the Exchange Offer.
Each Holder of Registrable Notes who wishes to exchange such Registrable Notes
for Exchange Notes in the Exchange Offer will be required to make certain
customary representations in connection therewith, including representations
that such Holder is not an affiliate of the Company within the meaning of Rule
405 under the Securities Act, that any Exchange Notes to be received by it will
be acquired in the ordinary course of business and that at the time of the
commencement of the Exchange
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Offer it has no arrangement with any Person to participate in the distribution
(within the meaning of the Securities Act) of the Exchange Notes.
If upon consummation of the Exchange Offer, any Purchaser holds
Registrable Notes acquired by it as part of their initial distribution, the
Company, simultaneously with the delivery of the Exchange Notes pursuant to the
Exchange Offer, shall issue and deliver to such Purchaser upon the request of
such Purchaser, in exchange (the "Private Exchange") for the Registrable Notes
held by such Purchaser, a like principal amount of debt securities of the
Company issued under the Indenture and identical in all material respects to the
Registrable Notes (the "Private Exchange Notes").
(b) In the event that (i) the Company determines that the
Exchange Offer Registration provided for in Section 2(a) above is not
available or may not be consummated as soon as practicable after the
Offer Termination Date because it would violate applicable law or the
applicable interpretations of the Staff of the SEC or (ii) in the
opinion of counsel for the Purchasers a Registration Statement must be
filed and a Prospectus must be delivered by the Purchasers in
connection with any offering or sale of Registrable Notes (or Private
Exchange Notes) because such Registrable Notes (or Private Exchange
Notes) represent an unsold allotment for the original offering
thereof, the Company shall use its reasonable best efforts to cause to
be filed within 150 days of the Closing Date, a Shelf Registration
Statement providing for the sale of such Registrable Notes (or Private
Exchange Notes) and to have such Shelf Registration Statement declared
effective within 180 days of the Closing Date by the SEC. In the event
the Company is required to file a Shelf Registration Statement solely
as a result of the matters referred to in clause (ii) of the preceding
sentence, the Company shall file and have declared effective by the
SEC both an Exchange Offer Registration Statement pursuant to Section
2(a) with respect to all Registrable Notes (or Private Exchange Notes)
and a Shelf Registration Statement with respect to offers and sales of
Registrable Notes (or Private Exchange Notes) held by the Purchasers
after completion of the Exchange Offer (or Private Exchange) . The
Company agrees to use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective until two years from the
effective date thereof or such shorter period that will terminate when
all of the Registrable Notes covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement
or cease to be outstanding. The Company further agrees to supplement
or amend the Shelf Registration Statement if required by the rules,
regulations or instructions applicable to the registration form used
by the Company for such Shelf Registration Statement or by the
Securities Act or by any other rules and regulations thereunder for
shelf registration or if reasonably requested by a Holder with respect
to information relating to such Holder, and to use its reasonable best
efforts to cause any such amendment to become effective and such Shelf
Registration Statement to become usable as soon as practicable
thereafter. The
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Company agrees to furnish to the Holders of Registrable Notes copies
of any such supplement or amendment promptly after its being used or
filed with the SEC.
(c) The Company shall pay all Registration Expenses in connection
with the registration pursuant to Section 2(a) or Section 2(b). Each
Holder shall pay all underwriting discounts, if any, and commissions
and transfer taxes, if any, relating to the sale or disposition of
such Holder's Registrable Notes pursuant to a Shelf Registration
Statement.
(d) An Exchange Offer Registration Statement pursuant to Section
2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b)
hereof will not be deemed to have become effective unless it has been
declared effective by the SEC; provided, however, that, if, after it
has been declared effective, the offering of Registrable Notes (or
Private Exchange Notes) pursuant to a Shelf Registration Statement is
interfered with by any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or court, such
Registration Statement will be deemed not to have become effective
during the period of such interference until the offering of
Registrable Notes (or Private Exchange Notes) pursuant to such
Registration Statement may legally resume.
(e) The parties hereto agree that the Holders will suffer
damages, and that it would not be feasible to ascertain the extent of
such damages with precision if, the Company fails to comply with its
obligations under Section 2(a) and Section 2(b) hereof (any such
failure, a "Registration Default"). Therefore, the parties hereto
agree that (i) if the Exchange Offer Registration Statement is not
filed with the SEC within 150 days of the Closing Date (or, if
applicable, the Shelf Registration Statement is not filed within 150
days of the Closing Date), then commencing on the day after such
required filing date, additional interest ("Additional Interest")
shall accrue on the Registrable Notes at a rate of 0.25% per annum,
(ii) if the Exchange Offer Registration Statement is not declared
effective by the SEC within 180 days after the Closing Date (or, if
applicable, the Shelf Registration Statement is not declared effective
by the SEC within 180 days after the Closing Date), then commencing on
the day after such required effective date, Additional Interest shall
accrue on the Registrable Notes at a rate of 0.25% per annum or (iii)
if the Company has not exchanged Exchange Notes for all Registrable
Notes validly tendered in accordance with the Exchange Offer within
210 days after the Closing Date (or such longer period as may be
necessary to complete such Exchange Offer), then commencing on the day
after such required exchange date, Additional Interest shall accrue on
the Registrable Notes at a rate of 0.25% per annum, provided that
Additional Interest shall not exceed 0.25% per annum in the aggregate
and Additional Interest pursuant to clause (i) shall cease to accrue
upon the filing of the Exchange Offer Registration Statement (or, if
applicable, the Shelf Registration Statement), Additional Interest
pursuant to
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clause (ii) shall cease to accrue upon the declaration of
effectiveness of the Exchange Offer Registration Statement (or, if
applicable, the declaration and continued effectiveness of the Shelf
Registration Statement) and Additional Interest pursuant to clause
(iii) shall cease to accrue upon the exchange of Exchange Notes for
the Registrable Notes.
3. Registration Procedures.
In connection with the obligations of the Company with respect to the
Registration Statements pursuant to Section 2(a) and Section 2(b) hereof, the
Company shall promptly:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the Securities Act, which form shall (x) be
selected by the Company, (y) in the case of a Shelf Registration, be
available for the sale of the Registrable Notes by the selling Holders
thereof and (z) comply as to form in all material respects with the
requirements of the applicable form and include all financial
statements required by the SEC to be filed therewith, and use its
reasonable best efforts to cause such Registration Statement to become
effective and remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement effective for the
applicable period and cause each Prospectus to be supplemented by any
required prospectus supplement and, as so supplemented, to be filed
pursuant to the instructions applicable to the form of such
Registration Statement under the Securities Act; and keep each
Prospectus current during the period described under Section 4(3) and
Rule 174 under the Securities Act that is applicable to transactions
by brokers or dealers with respect to the Registrable Notes or
Exchange Notes;
(c) in the case of a Shelf Registration, furnish to each Holder
of Registrable Notes and to counsel for the Holders and to each
Underwriter of an Underwritten Offering of Registrable Notes, if any,
without charge, as many copies of each Prospectus, including each
preliminary Prospectus and any amendment or supplement thereto,
including financial statements and schedules, and, if the Holder so
requests in writing, all exhibits thereto (including those, if any,
incorporated by reference) and such other documents as such Holder or
Underwriter may reasonably request, in order to facilitate the public
sale or other disposition of the Registrable Notes; and the Company
consents to the use of such Prospectus and any amendment or supplement
thereto in accordance with applicable law by each of the selling
Holders of Registrable Notes and any such Underwriters in connection
with the offering and sale of the Registrable Notes
9
covered by and in the manner described in such Prospectus or any
amendment or supplement thereto in accordance with applicable law;
(d) use its best efforts (i) to register or qualify the
Registrable Notes under all applicable state securities or blue sky
laws of such jurisdictions as any Holder of Registrable Notes covered
by a Registration Statement shall reasonably request in writing a
reasonable time prior to the time the applicable Registration
Statement is declared effective by the SEC and (ii) to cooperate with
such Holders in connection with any filings required to be made with
the National Association of Securities Dealers, Inc. and do any and
all other acts and things which may be reasonably necessary or
advisable to enable such Holder to consummate the disposition in each
such jurisdiction of such Registrable Notes owned by such Holder;
provided, however, that the Company shall not be required to (A)
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where they would not otherwise be required to qualify but
for this Section 3(d), (B) file any general consent to service of
process or (C) subject themselves to taxation in any such jurisdiction
if they are not so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Notes, counsel for the Holders and, if requested by such
Persons, confirm such advice in writing, (i) when a Registration
Statement has become effective and when any post-effective amendment
thereto has been filed and becomes effective, (ii) of any request by
the SEC or any state securities authority for amendments and
supplements to a Registration Statement and Prospectus or for
additional information after the Registration Statement has become
effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that
purpose, (iv) if, between the effective date of a Registration
Statement and the closing of any sale of Registrable Notes covered
thereby, the representations and warranties of the Company contained
in any underwriting agreement, securities sales agreement or other
similar agreement, if any, relating to the offering cease to be true
and correct in all material respects or if the Company receives any
notification with respect to the suspension of the qualification of
the Registrable Notes for sale in any jurisdiction or the initiation
of any proceeding for such purpose, (v) of the happening of any event
during the period a Shelf Registration Statement is effective which
makes any statement made in such Registration Statement or the related
Prospectus untrue in any material respect or which requires the making
of any changes in such Registration Statement or Prospectus in order
to make the statements therein not misleading and (vi) of any
determination by the Company that a post-effective amendment to a
Registration Statement would be appropriate;
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(f) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the
earliest possible moment and provide immediate notice to each Holder
of the withdrawal of any such order;
(g) in the case of a Shelf Registration, furnish to each Holder
of Registrable Notes, without charge, at least one conformed copy of
each Registration Statement and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits
thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Notes to facilitate the timely
preparation and delivery of certificates representing Registrable
Notes to be sold and not bearing any restrictive legends (unless
required by applicable securities laws) and enable such Registrable
Notes to be in such denominations (consistent with the provisions of
the Indenture) and registered in such names as the selling Holders may
reasonably request at least two business days prior to the closing of
any sale of Registrable Notes;
(i) in the case of a Shelf Registration, upon the occurrence of
any event contemplated by Section 3(e)(v) hereof, use its best efforts
to prepare a supplement or post-effective amendment to a Registration
Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Notes, such
Prospectus will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. The Company agrees to notify the Holders to suspend
use of the Prospectus as promptly as practicable after the occurrence
of such an event, and the Holders hereby agree to suspend use of the
Prospectus until the Company has amended or supplemented the
Prospectus to correct such misstatement or omission;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement
or amendment or supplement to a Prospectus, or any document which is
to be incorporated by reference into a Registration Statement or
Prospectus after the initial filing of a Registration Statement,
provide copies of such document to counsel for the Holders and make
such of the representatives of the Company as shall be reasonably
requested by counsel for the Holders available for discussion of such
document, and shall not at any time file or make any amendment to the
Registration Statement, any Prospectus or any amendment of or
supplement to a Registration Statement or a Prospectus or any document
which is to be incorporated by reference into a Registration Statement
or a Prospectus, of which
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counsel for the Holders shall not have, (i) with respect to an
Exchange Offer Registration Statement, simultaneously upon filing with
the SEC, been advised and furnished a copy or (ii) with respect to a
Shelf Registration Statement, previously been advised and furnished a
copy or to which counsel for the Holders shall reasonably object
(provided, however that this section 3(j) shall not prevent the
Company from complying with its ongoing reporting obligations under
applicable securities laws);
(k) obtain a CUSIP number for all Exchange Notes, Registrable
Notes or Private Exchange Notes, as the case may be, not later than
the effective date of a Registration Statement, and provide the
Trustee with certificates for the Exchange Notes, Registrable Notes or
Private Exchange Notes, as the case may be, in form eligible for
deposit with The Depository Trust Company;
(l) cause the Indenture to be qualified under the Trust Indenture
Act of 1939, as amended (the "TIA")(unless an exemption under Rule
4d-9 under the TIA is available), to the extent not already so
qualified, in connection with the registration of the Exchange Notes
or Registrable Notes, as the case may be, and cooperate with the
Trustee and the Holders to effect such changes to the Indenture as may
be required for the Indenture to be so qualified in accordance with
the terms of the TIA and execute, and use its best efforts to cause
the Trustee to execute, all documents as may be required to effect
such changes and all other forms and documents required to be filed
with the SEC to enable the Indenture to be so qualified in a timely
manner;
(m) in the case of a Shelf Registration, make available for
inspection by a representative of the Holders of the Registrable
Notes, any 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 relevant financial and other records, pertinent documents
and properties of the Company and cause the respective officers,
directors and employees of the Company to supply all information
reasonably requested by any such representative, Underwriter, attorney
or accountant in connection with a Shelf Registration Statement, in
each case that would customarily be reviewed or examined in connection
with "due diligence" review of the Company; provided, however, that
each such party shall be required to maintain confidences and not to
disclose to any other person any information or records reasonably
designated by the Company as being confidential;
(n) if reasonably requested by any Holder of Registrable Notes
covered by the Shelf Registration Statement, (i) promptly incorporate
in a Prospectus supplement or post-effective amendment such
information with respect to such Holder as such Holder reasonably
requests to be included therein and (ii) make all
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required filings of such Prospectus supplement or such post-effective
amendment as soon as reasonably practicable after the Company has
received notification of the matters to be incorporated in such
filing;
(o) cause all Registrable Notes covered by a Registration
Statement to be rated with the appropriate rating agencies, (i) if the
Notes have been rated prior to the initial resale by the Purchasers or
(ii) if the Notes have not been previously rated, if so requested by
the Majority Holders; and
(p) in the case of an Underwritten Offering pursuant to a Shelf
Registration, enter into such customary agreements and take all such
other customary actions in connection therewith (including, those
reasonably requested by counsel for the Holders) in order to expedite
or facilitate the disposition of such Registrable Notes and in such
connection, (i) to the extent possible, make such representations and
warranties to the Holders and any Underwriters of such Registrable
Notes with respect to the business of the Company and its
subsidiaries, the Registration Statement, Prospectus and documents
incorporated by reference or deemed incorporated by reference, if any,
in each case, in form, substance and scope as are customarily made by
Companies to underwriters in underwritten offerings and confirm the
same if and when requested, (ii) obtain opinions of counsel to the
Company (which counsel and opinions, in form, scope and substance,
shall be reasonably satisfactory to the Holders and such Underwriters
and their respective counsel) addressed to each selling Holder and
Underwriter of Registrable Notes, covering the matters customarily
covered in opinions requested in underwritten offerings, (iii) obtain
comfort letters from the independent certified public accountants of
the Company and Champion International Corporation ("Champion") (and,
if necessary, any other certified public accountant of any subsidiary
of the Company or any business acquired by the Company for which
financial statements and financial data are or are required to be
included in the Registration Statement) addressed to each selling
Holder and Underwriter of Registrable Notes, such letters to be in
customary form and covering matters of the type customarily covered in
comfort letters in connection with primary underwritten offerings,
subject to receipt of appropriate documentation as contemplated, and
only if permitted, by the Statement of Auditing Standards No. 72
comfort, and (iv) deliver such documents and certificates as may be
reasonably requested by counsel for the Holders to evidence the
continued validity of the representations and warranties of the
Company made pursuant to clause (i) above and to evidence compliance
with any customary conditions in an underwriting agreement. In the
case of any Underwritten Offering, the Company shall provide written
notice to the Holders of all Registrable Notes of such Underwritten
Offering at least 30 days prior to the filing of a prospectus
supplement for such Underwritten Offering. Such notice shall (x) offer
each such Holder the right to participate in such Underwritten
Offering, (y)
13
specify a date, which shall be no earlier than 10 days following the
date of such notice, by which such Holder must inform the Company of
its intent to participate in such Underwritten Offering and (z)
include the instructions such Holder must follow in order to
participate in such Underwritten Offering.
In the case of a Shelf Registration Statement, the Company may require
each Holder of Registrable Notes to promptly furnish, but not later than 15 days
after written request, to the Company such information regarding the Holder and
the proposed distribution by such Holder of such Registration Notes as the
Company may from time to time reasonably request in writing. Notwithstanding
anything in this Agreement to the contrary, if a Holder does not provide the
information required above, then such Holder will not be included in such Shelf
Registration Statement.
In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any notice from the Company of the happening of any event of the
kind described in Section 3(e)(v) hereof, such Holder will forthwith discontinue
disposition of Registrable Notes pursuant to a Registration Statement until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(i) hereof, and, if so directed by the Company, such
Holder will deliver to the Company (at its expense) all copies in its
possession, other than permanent file copies then in such Holder's possession,
of the Prospectus covering such Registration Notes current at the time of
receipt of such notice.
If the Company shall give any such notice to suspend the disposition of
Registrable Notes pursuant to a Registration Statement, the Company shall extend
the period during which the Registration Statement shall be maintained effective
pursuant to this Agreement by the number of days during the period from and
including the date of the giving of such notice to and including the date when
the Holders shall have received copies of the supplemented or amended Prospectus
necessary to resume such dispositions.
The Holders of Registrable Notes covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Notes in an Underwritten
Offering. In any such Underwritten Offering, the investment banker or investment
bankers and manager or managers (the "Underwriters") that will administer the
offering will be selected by the Holders of a majority in principal amount of
the Registrable Notes included in such offering; such selection must be approved
by the Company which approval shall not be unreasonably withheld or delayed.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The Company understands that the Staff of the SEC has taken
the position that any broker-dealer that receives Exchange Notes for
its own account
14
in the Exchange Offer in exchange for Notes that were acquired by such
broker-dealer as a result of market-making or other trading
activities (a "Participating Broker-Dealer"), may be deemed to be an
"underwriter" within the meaning of the Securities Act in connection
with any resale of such Exchange Notes.
The Company understands that it is the Staff's position that if the
Prospectus contained in the Exchange Offer Registration Statement includes a
plan of distribution containing a statement to the above effect and the means by
which Participating Broker- Dealers may resell the Exchange Notes, without
naming the Participating Broker-Dealers or specifying the amount of Exchange
Notes owned by them, such Prospectus may be delivered by Participating
Broker-Dealers to satisfy their prospectus delivery obligation under the
Securities Act in connection with resales of Exchange Notes for their own
accounts, so long as the Prospectus otherwise meets the requirements of the
Securities Act.
(b) In light of the above, notwithstanding the other provisions
of this Agreement, the Company agrees that the provisions of this
Agreement as they relate to a Shelf Registration shall also apply to
an Exchange Offer Registration to the extent, and with such reasonable
modifications thereto as may be, reasonably requested by the
Purchasers or by one or more Participating Broker-Dealers, in each
case as provided in clause (ii) below, in order to expedite or
facilitate the disposition of any Exchange Notes by Participating
Broker-Dealers consistent with the positions of the Staff recited in
Section 4(a) above; provided that:
(i) the Company shall not be required to amend or
supplement the Prospectus contained in the Exchange Offer
Registration Statement, as would otherwise be contemplated by
Section 3(i), for a period exceeding two years after the Offer
Termination Date (as such period may be extended pursuant to
the penultimate paragraph of Section 3) and Participating
Broker-Dealers shall not be authorized by the Company to
deliver and shall not deliver such Prospectus after such
period in connection with the resales contemplated by this
Section 4; and
(ii) the application of the Shelf Registration procedures
set forth in Section 3 of this Agreement to an Exchange Offer
Registration, to the extent not required by the positions of
the Staff of the SEC or the Securities Act and the rules and
regulations thereunder, will be in conformity with the
reasonable request in writing to the Company by one or more
broker-dealers who certify to the Company in writing that they
anticipate that they will be Participating Broker-Dealers; and
provided further that, in connection with such application of
the Shelf Registration procedures set forth in Section 3 to an
Exchange Offer Registration, the Company shall be obligated
(x) to deal only with one entity representing
15
the Participating Broker-Dealers which shall be Credit Suisse
First Boston Corporation ("CSFBC") if CSFBC so requests or
otherwise the Participating Broker-Dealer holding the largest
aggregate principal amount of Notes, (y) to pay the fees and
expenses of only one counsel representing the Participating
Broker-Dealers and (z) to cause to be delivered only one, if
any, comfort letter with respect to the Prospectus in the form
existing on the Offer Termination Date.
5. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Holder
of the Notes, any Participating Broker-Dealer and each person, if any,
who controls such Holder or such Participating Broker-Dealer within
the meaning of the Securities Act or the Exchange Act (each Holder,
any Participating Broker-Dealer, and such controlling persons are
referred to collectively as the "Indemnified Parties") from and
against any losses, claims, damages or liabilities, joint or several,
or any actions in respect thereof (including, but not limited to, any
losses, claims, damages, liabilities or actions relating to purchases
and sales of the Notes) to which each Indemnified Party may become
subject under the Securities Act, the Exchange Act or otherwise,
insofar as such losses, claims, damages, liabilities or actions arise
out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in a Registration Statement or
Prospectus or in any amendment or supplement thereto, or arise out of,
or are based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and shall reimburse, as incurred,
the Indemnified Parties for any legal or other expenses reasonably
incurred by the Indemnified Parties for any legal or other expenses
reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action in respect
thereof; provided, however, that (i) the Company shall not be liable
in any such case to the extent that such loss, claim, damage or
liability arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in a
Registration Statement or Prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to a Shelf
Registration in reliance upon and in conformity with written
information pertaining to such Indemnified Party and furnished to the
Company by or on behalf of such Holder and furnished to the Company by
or on behalf of such Holder specifically for inclusion therein and
(ii) with respect to any untrue statement or omission or alleged
untrue statement or omission made in any preliminary prospectus
relating to a Shelf Registration Statement, the indemnity agreement
contained in this subsection (a) shall not inure to the benefit of any
Holder or Participating Broker-Dealer from whom the person asserting
any such losses, claims, damages or liabilities purchased the Notes
concerned, to the extent that a prospectus relating to such Notes was
16
required to be delivered by such Holder or Participating Broker-Dealer
under the Securities Act in connection with such purchase or
distribution and any such loss, claim, damage or liability of such
Holder or Participating Broker-Dealer results from the fact that there
was not sent or given to such person, at or prior to the written
confirmation of the sale of such Notes to such person, a copy of the
final prospectus if the Company had previously furnished copies
thereof to such Holder or Participating Broker-Dealer; provided,
further, however, that this indemnity agreement will be in addition to
any liability which the Company may otherwise have to such Indemnified
Party. The Company shall also indemnify underwriters, their partners,
officers and directors and each person who controls such underwriters
within the meaning of the Securities Act or the Exchange Act to the
same extent as provided above with respect to the indemnification of
the Holders of the Notes if requested by such Holders.
(b) Each Holder of the Notes severally and not jointly, will
indemnify and hold harmless the Company and each person, if any, who
controls the Company within the meaning of the Securities Act or the
Exchange Act from and against any losses, claims, damages or
liabilities or any actions in respect thereof, to which the Company or
any such controlling person may become subject under the Securities
Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in a Registration Statement or Prospectus or in any
amendment or supplement thereto or in any preliminary prospectus
relating to a Shelf Registration, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
necessary to make the statements therein not misleading, but in each
case only to the extent that the untrue statement or omission or
alleged untrue statement or omission was made in reliance upon and in
conformity with written information pertaining to such Holder and
furnished to the Company by or on behalf of such Holder or Purchaser
specifically for inclusion therein; and, subject to the limitation set
forth immediately preceding this clause, shall reimburse, as incurred,
the Company for any legal or other expenses reasonably incurred by the
Company or any such controlling person in connection with
investigating or defending any loss, claim, damage, liability or
action in respect thereof. This indemnity agreement will be in
addition to any liability which such Holder or Purchaser may otherwise
have to the Company or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this
Section 5 of notice of commencement of any action or proceeding
(including a governmental investigation), such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying
party under this Section 5, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying
party will not, in any event, relieve the indemnifying party
17
from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. In
case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense
thereof the indemnifying party will not be liable to such indemnified
party under this Section 5 for any legal or other expenses, other than
reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been
a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional
release of such indemnified party from all liability on any claims
that are the subject matter of such action and does not include a
statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified parties.
(d) If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party
under subsections (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as
a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits
received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the exchange of the Notes,
pursuant to the Registered Exchange offer, or (ii) if the allocation
provided by the foregoing clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the
relative fault of the indemnifying party or parties on the one hand
and indemnified party on the other in connection with the statements
or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other
relevant equitable considerations. The relative fault of the parties
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Holder or such other
indemnified party, as the case may be, on the other, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence
18
of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding any other provision of
this Section 5(d), the Holders of the Notes shall not be required to
contribute any amount in excess of the amount by which the net
proceeds received by such Holders from the sale of the Notes pursuant
to a Registration Statement exceeds the amount of damages which such
Holders have otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this paragraph (d), each person, if any, who controls
such indemnified party within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as such
indemnified party and each person, if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act shall
have the same rights to contribution as the Company.
(e) The agreements contained in this Section 5 shall survive the
exchange of the Notes pursuant to a Registration Statement and shall
remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on
behalf of any indemnified party.
6. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not entered into,
and on or after the date of this Agreement will not enter into, any
agreement which is inconsistent with the rights granted to the Holders
of Registrable Notes in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not
in any way conflict with and are not inconsistent with the rights
granted to the holders of the Company's other issued and outstanding
securities under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given unless the Company has obtained
the written consent of Holders of at least a majority in aggregate
principal amount of the outstanding Registrable Notes affected by such
amendment, modification, supplement, waiver or consent; provided,
however, that no amendment, modification, supplement, waiver or
consent to any departure from the provisions of Section 5 hereof or
which would have the effect of reducing the rate or extending the time
of payment of interest on
19
any Registrable Note shall be effective as against any Holder of
Registrable Notes unless consented to in writing by such Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery,
first-class mail, facsimile transmission, or air courier which
guarantees overnight delivery:
(1) if to a Holder, at the most current address given by such
Holder to the Company;
(2) if to the Purchasers:
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attention: Transactions Advisory Group
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, and
(3) if to the Company, at its address as follows:
International Paper Company
Two Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Fax No. (000) 000-0000
Attention: The Secretary.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the person giving the same to the Trustee, at the
addresses specified in the Indenture.
20
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees
of each of the parties, including, without limitation and without the
need for an express assignment or assumption, subsequent Holders;
provided that nothing herein shall be deemed to permit any assignment,
transfer or other disposition of Registrable Notes in violation of the
terms of the Purchase Agreement. If any transferees of any Holder
shall acquire Registrable Notes, in any manner, whether by operation
of law or otherwise, such Registrable Notes, shall be held subject to
all of the terms of this Agreement, and by taking and holding such
Registrable Notes such person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions
of this Agreement and such person shall be entitled to receive the
benefits hereof. The Purchasers shall have no liability or obligation
to the Company with respect to any failure by a Holder to comply with,
or any breach by any Holder of, the obligations of such Holder under
this Agreement.
(e) Purchases and Sales of Notes. The Company shall not, and
shall use its best efforts to cause its affiliates (as defined in rule
405 under the 0000 Xxx) not to, purchase and then resell or otherwise
transfer any Notes other than to the Company or its affiliates.
(f) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on
the one hand, and the Purchasers, on the other hand, and shall have
the right to enforce such agreements directly to the extent it deems
such enforcement necessary or advisable to protect its rights or the
rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning
hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY LAWS OF
THE STATE OF NEW YORK AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS
PROVISIONS THEREOF.
(j) Severability. In the event that one or more of the provisions
contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable the validity, legality and
enforceability of any such
21
provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
INTERNATIONAL PAPER COMPANY
By /s/ Xxxxx Xxxxxxxx
---------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President - Finance
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
BANC OF AMERICA SECURITIES LLC
CHASE SECURITIES INC.
DEUTSCHE BANK SECURITIES, INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
XXXXXXX XXXXX BARNEY INC.
XXXXXXXX & PARTNERS, X.X.
XXXXXXXX CAPITAL PARTNERS, L.P.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
Acting on behalf of themselves
and as the representative
of the Purchasers
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Director
23
SCHEDULE I
Purchasers
CREDIT SUISSE FIRST BOSTON CORPORATION
BANC OF AMERICA SECURITIES LLC
CHASE SECURITIES INC.
DEUTSCHE BANK SECURITIES, INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
XXXXXXX XXXXX BARNEY INC.
XXXXXXXX & PARTNERS, X.X.
XXXXXXXX CAPITAL PARTNERS, L.P.
1
