EXHIBIT 10.2
GEORGIA-PACIFIC CORPORATION
$350,000,000 7 3/8% SENIOR NOTES DUE 2008
$150,000,000 8% SENIOR NOTES DUE 2014
UNCONDITIONALLY GUARANTEED AS TO THE
PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST BY
FORT XXXXX CORPORATION
AND
FORT XXXXX OPERATING COMPANY
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EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
June 3, 2003
Banc of America Securities LLC,
Citigroup Global Markets Inc.,
Xxxxxxx, Xxxxx & Co.,
UBS Warburg LLC,
As representatives of the several Purchasers
named in Schedule I to the Purchase Agreement
c/o Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Georgia-Pacific Corporation, a Georgia corporation (the "Company"),
proposes to issue and sell to the Purchasers (as defined herein) upon the terms
set forth in the Purchase Agreement (as defined herein) its 7 3/8% Senior Notes
due 2008 (the "2008 Notes") and 8% Senior Notes due 2014 (the "2014 Notes"),
which are unconditionally guaranteed by Fort Xxxxx Corporation, a Virginia
corporation ("Fort Xxxxx"), and Fort Xxxxx Operating Company, a Virginia
corporation ("Fort Xxxxx Operating Co."). As an inducement to the Purchasers to
enter into the Purchase Agreement and in satisfaction of a condition to the
obligations of the Purchasers thereunder, the Company agrees with the Purchasers
for the benefit of Holders (as defined herein) from time to time of the
Registrable Securities (as defined herein) as follows:
1. Certain Definitions. For purposes of this Exchange and
Registration Rights Agreement, the following terms shall have the following
respective meanings:
"Base Interest" shall mean the interest that would otherwise accrue on
the Securities under the terms thereof and the Indentures, without giving effect
to the provisions of this Exchange and Registration Rights Agreement.
"Broker-dealer" shall mean any broker or dealer registered with the
Commission under the Exchange Act.
"Closing Date" shall mean the date on which the Securities are
initially issued.
"Commission" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Exchange
Act or the Securities Act, whichever is the relevant statute for the particular
purpose.
"Effective Time," in the case of (i) an Exchange Registration, shall
mean the time and date as of which the Commission declares the Exchange
Registration Statement effective or as of which the Exchange Registration
Statement otherwise becomes effective and (ii) a Shelf Registration, shall mean
the time and date as of which the Commission declares the Shelf Registration
Statement effective or as of which the Shelf Registration Statement otherwise
becomes effective.
"Electing Holder" shall mean any Holder of Registrable Securities that
has returned a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(d)(ii) or 3(d)(iii) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any
successor thereto, as the same shall be amended from time to time.
"Exchange Offer" shall have the meaning assigned thereto in Section
2(a) hereof.
"Exchange Registration" shall have the meaning assigned thereto in
Section 3(c) hereof.
"Exchange Registration Statement" shall have the meaning assigned
thereto in Section 2(a) hereof.
"Exchange Securities" shall have the meaning assigned thereto in
Section 2(a) hereof.
"Holder" shall mean each of the Purchasers and other Persons who
acquire Registrable Securities from time to time (including any successors or
assigns), in each case for so long as such Person owns any Registrable
Securities.
"Indentures" shall mean the 2008 Note Indenture and the 2014 Note
Indenture.
"Notice and Questionnaire" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Exhibit A-1
hereto, in the case of the 2008 Notes, and Exhibit A-2 hereto, in the case of
the 2014 Notes.
"Person" shall mean a corporation, association, partnership, limited
liability company, organization, business, individual, government or political
subdivision thereof or governmental agency.
"Purchase Agreement" shall mean the Purchase Agreement, dated as of May
21, 2003, among the Purchasers, the Company, Fort Xxxxx and Fort Xxxxx Operating
Co., relating to the Securities.
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"Purchasers" shall mean the Purchasers named in Schedule I to the
Purchase Agreement.
"Registrable Securities" shall mean the Securities; provided, however,
that a Security shall cease to be a Registrable Security when (i) in the
circumstances contemplated by Section 2(a) hereof, the Security has been
exchanged for an Exchange Security in an Exchange Offer as contemplated in
Section 2(a) hereof (provided that any Exchange Security that, pursuant to the
last two sentences of Section 2(a) hereof, is included in a prospectus for use
in connection with resales by Broker-dealers shall be deemed to be a Registrable
Security with respect to Sections 5, 6 and 9 hereof until resale of such
Registrable Security has been effected within the 180-day period referred to in
Section 2(a)(4) hereof); (ii) in the circumstances contemplated by Section 2(b)
hereof, a Shelf Registration Statement registering such Security under the
Securities Act has been declared or becomes effective and such Security has been
sold or otherwise transferred by the Holder thereof pursuant to and in a manner
contemplated by such effective Shelf Registration Statement; (iii) such Security
is sold pursuant to Rule 144 under circumstances in which any legend borne by
such Security relating to restrictions on transferability thereof, under the
Securities Act or otherwise, is removed by the Company or pursuant to the
Indentures; (iv) such Security is eligible to be sold pursuant to paragraph (k)
of Rule 144; or (v) such Security shall cease to be outstanding.
"Registration Default" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in Section 2(a)
hereof.
"Restricted Holder" shall mean (i) a Holder that is an affiliate of the
Company within the meaning of Rule 405; (ii) a Holder who acquires Exchange
Securities outside the ordinary course of such Holder's business; (iii) a Holder
who has arrangements or understandings with any Person to participate in the
Exchange Offer for the purpose of distributing Exchange Securities; and (iv) a
Holder that is a Broker-dealer, but only with respect to Exchange Securities
received by such Broker-dealer pursuant to the Exchange Offer in exchange for
Registrable Securities acquired by the Broker-dealer directly from the Company.
"Rule 144," "Rule 405" and "Rule 415" shall mean, in each case, such
rule promulgated under the Securities Act (or any successor provision), as the
same shall be amended from time to time.
"Securities" shall mean, collectively, the 2008 Notes and the 2014
Notes of the Company to be issued and sold to the Purchasers, and securities
issued in exchange therefor or in lieu thereof pursuant to the Indentures. Each
Security is entitled to the benefit of the guarantees provided for in the
Indentures (the "Guarantees") and, unless the context otherwise requires, any
reference herein to a "Security," an "Exchange Security" or a "Registrable
Security" shall include a reference to the related Guarantee.
"Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto in Section
2(b) hereof.
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"Shelf Registration Statement" shall have the meaning assigned thereto
in Section 2(b) hereof.
"Special Interest" shall have the meaning assigned thereto in Section
2(c) hereof.
"Trustees" shall mean the 2008 Note Trustee and the 2014 Note Trustee.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
"2008 Note Indenture" shall mean the Indenture, dated as of June 3,
2003, among the Company, Fort Xxxxx, Fort Xxxxx Operating Co. and The Bank of
New York, as trustee, pursuant to which the 2008 Notes are being issued, as the
same shall be amended from time to time.
"2014 Note Indenture" shall mean the Indenture, dated as of June 3,
2003, among the Company, Fort Xxxxx, Fort Xxxxx Operating Co. and The Bank of
New York, as trustee, pursuant to which the 2014 Notes are being issued, as the
same shall be amended from time to time.
"2008 Note Trustee" shall mean trustee under the 2008 Note Indenture
and the trustee (if any) under any indenture governing the Exchange Securities.
"2014 Note Trustee" shall mean trustee under the 2014 Note Indenture
and the trustee (if any) under any indenture governing the Exchange Securities.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Exchange and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the
Company, Fort Xxxxx and Fort Xxxxx Operating Co. agree to file under
the Securities Act, as soon as practicable, but no later than 90 days
after the Closing Date, a registration statement relating to an offer
to exchange (such registration statement, the "Exchange Registration
Statement", and such offer, the "Exchange Offer") any and all of the
Securities for a like aggregate principal amount of debt securities
issued by the Company and guaranteed, jointly and severally, by Fort
Xxxxx and Fort Xxxxx Operating Co., which debt securities and
guarantees are substantially identical to the Securities and the
related Guarantees, respectively (and are entitled to the benefits of a
trust indenture which is substantially identical to the 2008 Note
Indenture or the 2014 Note Indenture, as applicable, or is the 2008
Note Indenture or the 2014 Note Indenture, as applicable, and which has
been qualified under the Trust Indenture Act), except that such new
debt securities have been registered pursuant to an effective
registration statement under the Securities Act and do not contain
provisions for the additional interest contemplated in Section 2(c)
below (such new debt securities hereinafter called "Exchange
Securities"). The Company, Fort Xxxxx and Fort Xxxxx Operating Co.
agree to use their reasonable best efforts to cause
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the Exchange Registration Statement to become effective under the
Securities Act as soon as practicable, but no later than 180 days after
the Closing Date. The Exchange Offer will be registered under the
Securities Act on the appropriate form and will comply with all
applicable tender offer rules and regulations under the Exchange Act.
The Company, Fort Xxxxx and Fort Xxxxx Operating Co. further agree to
use their reasonable best efforts to commence and complete the Exchange
Offer promptly, but no later than 30 business days (or such longer
period as may be required by federal securities law) after the
Effective Time of such Exchange Registration Statement, hold the
Exchange Offer open for at least 30 days and exchange Exchange
Securities for all Registrable Securities that have been properly
tendered and not withdrawn on or prior to the expiration of the
Exchange Offer. The Exchange Offer will be deemed to have been
"completed" only if the Exchange Securities and the related guarantees
received by Holders other than Restricted Holders in the Exchange Offer
for Registrable Securities are, upon receipt, transferable by each such
Holder without restriction under the Securities Act and the Exchange
Act and without material restrictions under the blue sky or securities
laws of a substantial majority of the States of the United States of
America. The Exchange Offer shall be deemed to have been completed upon
the earlier to occur of (i) the Company having exchanged the Exchange
Securities for all outstanding Registrable Securities pursuant to the
Exchange Offer and (ii) the Company having exchanged, pursuant to the
Exchange Offer, Exchange Securities for all Registrable Securities that
have been properly tendered and not withdrawn before the expiration of
the Exchange Offer, which shall be on a date that is not less than 30
days following the commencement of the Exchange Offer. The Company,
Fort Xxxxx and Fort Xxxxx Operating Co. agree (x) to include in the
Exchange Registration Statement a prospectus for use in any resales by
any Holder of Exchange Securities that is a Broker dealer and (y) to
keep such Exchange Registration Statement effective for a period (the
"Resale Period") beginning at the Effective Time of such Exchange
Registration Statement and ending upon the earlier of the expiration of
the 180th day after the Exchange Offer has been completed or such time
as such Broker-dealers no longer own any Registrable Securities. With
respect to such Exchange Registration Statement, such Holders shall
have the benefit of the rights of indemnification and contribution set
forth in Sections 6(a), (c), (d) and (e) hereof.
(b) If (i) the Company, Fort Xxxxx and Fort Xxxxx
Operating Co. are not required to file the Exchange Registration
Statement, (ii) the Company, Fort Xxxxx and Fort Xxxxx Operating Co.
are not permitted to consummate the Exchange Offer because it is not
permitted by applicable law or Commission policy, or (iii) any Holder
of Registrable Securities provides written notice to the Company at any
time prior to the 20th day following the consummation of the Exchange
Offer that (A) such Holder is prohibited under applicable law or under
the rules, regulations or policies of the Commission from participating
in the Exchange Offer, (B) it may not resell Exchange Securities
acquired by such Holder in the Exchange Offer without delivering a
prospectus and the prospectus contained in the Exchange Registration
Statement is not appropriate or available for such resale, or (C) it is
a Broker-dealer and it holds securities acquired directly from the
Company or an affiliate of the Company, the Company, Fort Xxxxx and
Fort Xxxxx Operating Co. shall, in lieu of (or, in the case of clause
(iii), in addition to) conducting the Exchange Offer contemplated by
Section 2(a) hereof, file under the Securities Act as soon as
practicable, but no later than 60 days after the time such obligation
to file arises, a "shelf" registration statement under the Securities
Act providing for the registration of, and the sale on a continuous or
delayed basis by the Holders of, all of the Registrable Securities,
pursuant to Rule 415 or any similar rule that
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may be adopted by the Commission (such filing, the "Shelf Registration"
and such registration statement, the "Shelf Registration Statement").
The Company, Fort Xxxxx and Fort Xxxxx Operating Co. agree to use their
reasonable best efforts (x) to cause the Shelf Registration Statement
to become or be declared effective no later than 150 days after the
obligation to file such Shelf Registration Statement arises and,
subject to Section 2(f) hereof, to keep such Shelf Registration
Statement continuously effective for a period ending on the earlier of
the second anniversary of the Effective Time or such time as any
Registrable Securities registered under the Shelf Registration
Statement cease to be Registrable Securities as defined in this
Exchange and Registration Rights Agreement, provided, however, that no
Holder shall be entitled to be named as a selling securityholder in the
Shelf Registration Statement or to use the prospectus forming a part
thereof for resales of Registrable Securities unless such Holder is an
Electing Holder, and (y) after the Effective Time of the Shelf
Registration Statement, promptly upon the request of any Holder of
Registrable Securities registered under the Shelf Registration
Statement that is not then an Electing Holder, to take any action
reasonably necessary to enable such Holder to use the prospectus
forming a part of the Shelf Registration Statement for resales of
Registrable Securities, including, without limitation, any action
necessary to identify such Holder as a selling securityholder in the
Shelf Registration Statement, provided, however, that nothing in this
clause (y) shall relieve any such Holder of the obligation to return a
completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(d)(iii) hereof. Subject to Section 2(f)
hereof, the Company, Fort Xxxxx and Fort Xxxxx Operating Co. further
agree to supplement or make amendments to the Shelf Registration
Statement, as and when 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 rules
and regulations thereunder for shelf registration, and the Company
agrees to furnish to each Electing Holder copies of any such supplement
or amendment prior to its being used or promptly following its filing
with the Commission.
(c) In the event that (i) the Company, Fort Xxxxx and
Fort Xxxxx Operating Co. have not filed the Exchange Registration
Statement or Shelf Registration Statement on or before the date on
which such registration statement is required to be filed pursuant to
Section 2(a) or 2(b) hereof, respectively, or (ii) such Exchange
Registration Statement or Shelf Registration Statement has not become
effective or been declared effective by the Commission on or before the
date on which such registration statement is required to become or be
declared effective pursuant to Section 2(a) or 2(b) hereof,
respectively, or (iii) the Exchange Offer has not been completed within
30 business days after the Effective Time of the Exchange Registration
Statement relating to the Exchange Offer (if the Exchange Offer is then
required to be made) or (iv) any Exchange Registration Statement or
Shelf Registration Statement required by Section 2(a) or 2(b) hereof is
filed and declared effective but shall thereafter either be withdrawn
by the Company or shall become subject to an effective stop order
issued pursuant to Section 8(d) of the Securities Act suspending the
effectiveness of such registration statement (except as specifically
permitted herein) without being succeeded immediately by an additional
registration statement filed and declared effective (each such event
referred to in clauses (i) through (iv), a "Registration Default" and
each period during which a Registration Default has occurred and is
continuing, a "Registration Default Period"), then, as liquidated
damages for such Registration Default, subject to the provisions of
Section 9(b) hereof, special interest ("Special Interest"), in addition
to the Base Interest, shall accrue at a per annum rate of 0.25% for the
first 90 days of the Registration Default
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Period, at a per annum rate of 0.50% for the second 90 days of the
Registration Default Period, at a per annum rate of 0.75% for the third
90 days of the Registration Default Period and at a per annum rate of
1.0% thereafter for the remaining portion of the Registration Default
Period.
(d) The Company shall take, and shall cause Fort Xxxxx
and Fort Xxxxx Operating Co. to take, all actions necessary to ensure
that the transactions contemplated herein are effected as so
contemplated, including all actions necessary to register the
Guarantees under the registration statement contemplated in Section
2(a) or 2(b) hereof, as applicable.
(e) Any reference herein to a registration statement as
of any time shall be deemed to include any document incorporated, or
deemed to be incorporated, therein by reference as of such time and any
reference herein to any post-effective amendment to a registration
statement as of any time shall be deemed to include any document
incorporated, or deemed to be incorporated, therein by reference as of
such time.
(f) Notwithstanding any other provisions of this Exchange
and Registration Rights Agreement (but subject to the further
provisions of this Section 2(f)), the Company may for valid business
reasons, including, without limitation, a potential acquisition,
divestiture of assets or other material corporate event or transaction,
issue a notice to Holders of Registrable Securities registered under
any Shelf Registration Statement that such Shelf Registration Statement
is no longer effective or that the prospectus included therein is no
longer usable for offers and sales of Registrable Securities covered by
the Shelf Registration Statement and may issue any notice suspending
use of the Shelf Registration Statement required under applicable law
to be issued; provided that the use of the Shelf Registration Statement
shall not be suspended for more than 45 days in the aggregate in any
consecutive 12-month period.
3. Registration Procedures.
If the Company, Fort Xxxxx and Fort Xxxxx Operating Co. file a
registration statement pursuant to Section 2(a) or Section 2(b) hereof, the
following provisions shall apply:
(a) At or before the Effective Time of the Exchange
Registration Statement or the Shelf Registration Statement, as the case
may be, the Company shall qualify the Indentures under the Trust
Indenture Act.
(b) In the event that such qualification would require
the appointment of a new trustee under either of the Indentures, the
Company shall appoint a new trustee thereunder pursuant to the
applicable provisions of that Indenture.
(c) In connection with the Company's, Fort Xxxxx' and
Fort Xxxxx Operating Co.'s obligations with respect to the registration
of Exchange Securities as contemplated by Section 2(a) hereof (the
"Exchange Registration"), if applicable, the Company, Fort Xxxxx and
Fort Xxxxx Operating Co. shall, as soon as practicable (or as otherwise
specified):
(i) prepare and file with the Commission, no
later than 90 days after the Closing Date, an Exchange
Registration Statement on any form which may be utilized by
the Company and which shall permit the Exchange Offer and
resales of Exchange Securities by Broker-dealers during the
Resale Period to be
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effected as contemplated by Section 2(a) hereof, and use their
reasonable best efforts to cause such Exchange Registration
Statement to become effective no later than 180 days after the
Closing Date;
(ii) prepare and file with the Commission such
amendments and supplements to such Exchange Registration
Statement and the prospectus included therein as may be
necessary to effect and maintain the effectiveness of such
Exchange Registration Statement for the periods and purposes
contemplated in Section 2(a) hereof and as may be required by
the applicable rules and regulations of the Commission and the
instructions applicable to the form of such Exchange
Registration Statement, and promptly provide each
Broker-dealer holding Exchange Securities with such number of
copies of the prospectus included in the Exchange Registration
Statement (as then amended or supplemented), in conformity in
all material respects with the requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations
of the Commission thereunder, as such Broker-dealer reasonably
may request prior to the expiration of the Resale Period, for
use in connection with resales of Exchange Securities;
(iii) promptly notify each Broker-dealer that has
requested or received copies of the prospectus included in
such Exchange Registration Statement, and confirm such advice
in writing, (A) when such Exchange Registration Statement or
the prospectus included therein or any prospectus amendment or
supplement or post effective amendment has been filed, and,
with respect to such Exchange Registration Statement or any
post effective amendment, when the same has become effective,
(B) of any request by the Commission for amendments or
supplements to such Exchange Registration Statement or
prospectus or for additional information, (C) of the issuance
by the Commission of any stop order suspending the
effectiveness of such Exchange Registration Statement or the
initiation or threatening of any proceedings for that purpose,
(D) if at any time the representations and warranties of the
Company contemplated by Section 5 hereof cease to be true and
correct in all material respects, (E) of the receipt by the
Company of any notification with respect to the suspension of
the qualification of the Exchange Securities for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose, or (F) at any time during the
Resale Period when a prospectus is required to be delivered
under the Securities Act, that such Exchange Registration
Statement, prospectus, prospectus amendment or supplement or
post effective amendment does not conform in all material
respects to the applicable requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of
the Commission thereunder or contains an untrue statement of a
material fact or omits to state any material fact required to
be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
(iv) in the event that the Company would be
required, pursuant to Section 3(c)(iii)(B) or (F) above, to
notify any Broker-dealers holding Exchange Securities,
promptly prepare and furnish to each such Holder a reasonable
number of copies of a prospectus supplemented or amended so
that, as thereafter delivered to purchasers of such Exchange
Securities during the Resale Period, such prospectus shall
conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act
and the rules and
8
regulations of the Commission thereunder and shall not contain
an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances then existing;
(v) use their reasonable best efforts to obtain
the withdrawal of any order suspending the effectiveness of
such Exchange Registration Statement or any post effective
amendment thereto at the earliest practicable date;
(vi) use their reasonable best efforts to (A)
register or qualify the Exchange Securities under the
securities laws or blue sky laws of such jurisdictions as are
contemplated by Section 2(a) hereof no later than the
commencement of the Exchange Offer, (B) keep such
registrations or qualifications in effect and comply with such
laws so as to permit the continuance of offers, sales and
dealings therein in such jurisdictions until the expiration of
the Resale Period and (C) take any and all other actions as
may be reasonably necessary or advisable to enable each
Broker-dealer holding Exchange Securities to consummate the
disposition thereof in such jurisdictions; provided, however,
that none of the Company, Fort Xxxxx or Fort Xxxxx Operating
Co. shall be required for any such purpose to (1) qualify as a
foreign corporation in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of
this Section 3(c)(vi), (2) consent to general service of
process in any such jurisdiction or (3) make any changes to
its certificate of incorporation or by laws or any agreement
between it and its shareholders;
(vii) use their reasonable best efforts to obtain
the consent or approval of each governmental agency or
authority, whether federal, state or local, which may be
required to effect the Exchange Registration, the Exchange
Offer and the offering and sale of Exchange Securities by
Broker-dealers during the Resale Period;
(viii) provide a CUSIP number for all Exchange
Securities, not later than the Effective Time of the Exchange
Registration Statement;
(ix) comply with all applicable rules and
regulations of the Commission, and make generally available to
its securityholders as soon as practicable but no later than
eighteen months after the Effective Time of such Exchange
Registration Statement, an earning statement of the Company
and its subsidiaries complying with Section 11(a) of the
Securities Act (including, at the option of the Company, Rule
158 thereunder).
(d) In connection with the Company's, Fort Xxxxx' and
Fort Xxxxx Operating Co.'s obligations with respect to the Shelf
Registration, if applicable, the Company, Fort Xxxxx and Fort Xxxxx
Operating Co. shall, as soon as practicable (or as otherwise
specified):
(i) prepare and file with the Commission, within
the time periods specified in Section 2(b) hereof, a Shelf
Registration Statement on any form which may be utilized by
the Company and which shall register all of the Registrable
Securities for resale by the Holders thereof in accordance
with such method or methods of disposition as may be specified
by such of the Holders as,
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from time to time, may be Electing Holders and use their
reasonable best efforts to cause such Shelf Registration
Statement to become effective within the time periods
specified in Section 2(b) hereof;
(ii) not less than 30 calendar days prior to the
Effective Time of the Shelf Registration Statement, mail the
Notice and Questionnaire to the Holders of Registrable
Securities registered under the Shelf Registration Statement;
no Holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement as of the
Effective Time, and no Holder shall be entitled to use the
prospectus forming a part thereof for resales of Registrable
Securities at any time, unless such Xxxxxx has returned a
completed and signed Notice and Questionnaire to the Company
by the deadline for response set forth therein; provided,
however, Holders of Registrable Securities shall have at least
28 calendar days from the date on which the Notice and
Questionnaire is first mailed to such Holders to return a
completed and signed Notice and Questionnaire to the Company;
(iii) after the Effective Time of the Shelf
Registration Statement, upon the written request of any Holder
of Registrable Securities registered under the Shelf
Registration Statement that is not then an Electing Holder,
promptly send a Notice and Questionnaire to such Holder;
provided that the Company shall not be required to take any
action to name such Holder as a selling securityholder in the
Shelf Registration Statement or to enable such Holder to use
the prospectus forming a part thereof for resales of
Registrable Securities until such Xxxxxx has returned a
completed and signed Notice and Questionnaire to the Company;
(iv) as soon as practicable prepare and file with
the Commission such amendments and supplements to such Shelf
Registration Statement and the prospectus included therein as
may be necessary to effect and maintain the effectiveness of
such Shelf Registration Statement for the period specified in
Section 2(b) hereof and as may be required by the applicable
rules and regulations of the Commission and the instructions
applicable to the form of such Shelf Registration Statement,
and furnish to the Electing Holders copies of any such
supplement or amendment simultaneously with or prior to its
being used or filed with the Commission;
(v) comply with the provisions of the Securities
Act with respect to the disposition of all of the Registrable
Securities covered by such Shelf Registration Statement in
accordance with the intended methods of disposition by the
Electing Holders provided for in such Shelf Registration
Statement;
(vi) provide (A) the Electing Holders, (B) the
underwriters (which term, for purposes of this Exchange and
Registration Rights Agreement, shall include a Person deemed
to be an underwriter within the meaning of Section 2(a)(11) of
the Securities Act), if any, thereof, (C) any sales or
placement agent therefor, (D) counsel for any such underwriter
or agent and (E) not more than one counsel for all the
Electing Holders the opportunity to participate in the
preparation of such Shelf Registration Statement, each
prospectus included therein or filed with the Commission and
each amendment or supplement thereto;
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(vii) for a reasonable period prior to the filing
of such Shelf Registration Statement, and throughout the
period specified in Section 2(b) hereof, make available at
reasonable times at the Company's principal place of business
or such other reasonable place for inspection by the Persons
referred to in Section 3(d)(vi) hereof who shall certify in
writing to the Company that they have a current intention to
sell the Registrable Securities pursuant to the Shelf
Registration Statement such financial and other information
and books and records of the Company, and cause the officers,
employees, counsel and independent certified public
accountants of the Company to respond to such inquiries, as
shall be reasonably necessary, in the judgment of the
respective counsel referred to in 3(d)(vi) hereof, to conduct
a reasonable investigation within the meaning of Section 11 of
the Securities Act; provided, however, that each such party
shall be required to maintain in confidence and not to
disclose to any other Person any information or records
reasonably designated by the Company as being confidential,
until such time as (A) such information becomes a matter of
public record (whether by virtue of its inclusion in such
registration statement or otherwise), or (B) such Person shall
be required so to disclose such information pursuant to a
subpoena or order of any court or other governmental agency or
body having jurisdiction over the matter (subject to the
requirements of such order, and only after such Person shall
have given the Company prompt prior written notice of such
requirement), or (C) such information is required to be set
forth in such Shelf Registration Statement or the prospectus
included therein or in an amendment to such Shelf Registration
Statement or an amendment or supplement to such prospectus in
order that such Shelf Registration Statement, prospectus,
amendment or supplement, as the case may be, complies with
applicable requirements of the federal securities laws and the
rules and regulations of the Commission and does not contain
an untrue statement of a material fact or omit to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in
light of the circumstances then existing;
(viii) promptly notify each of the Electing
Holders, any sales or placement agent therefor and any
underwriter thereof (which notification may be made through
any managing underwriter that is a representative of such
underwriter for such purpose) and confirm such advice in
writing, (A) when such Shelf Registration Statement or the
prospectus included therein or any prospectus amendment or
supplement or post effective amendment has been filed, and,
with respect to such Shelf Registration Statement or any post
effective amendment, when the same has become effective, (B)
of any request by the Commission for amendments or supplements
to such Shelf Registration Statement or prospectus or for
additional information, (C) of the issuance by the Commission
of any stop order suspending the effectiveness of such Shelf
Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the
representations and warranties of the Company, Fort Xxxxx and
Fort Xxxxx Operating Co. contemplated by Section 3(d)(xvii) or
Section 5 hereof cease to be true and correct in all material
respects, (E) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose, or (F) if at any time when a
prospectus is required to be delivered under the Securities
Act, that such Shelf Registration Statement, prospectus,
prospectus amendment or supplement
11
or post effective amendment does not conform in all material
respects to the applicable requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of
the Commission thereunder or contains an untrue statement of a
material fact or omits to state any material fact required to
be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
(ix) use their reasonable best efforts to obtain
the withdrawal of any order suspending the effectiveness of
such registration statement or any post effective amendment
thereto at the earliest practicable date;
(x) if requested by any managing underwriter or
underwriters, any placement or sales agent or any Electing
Holder, promptly incorporate in a prospectus supplement or
post effective amendment such information as is required by
the applicable rules and regulations of the Commission and as
such managing underwriter or underwriters, such agent or such
Electing Holder specifies should be included therein relating
to the terms of the sale of such Registrable Securities,
including information with respect to the principal amount of
Registrable Securities being sold by such Electing Holder or
agent or to any underwriters, the name and description of such
Electing Holder, agent or underwriter, the offering price of
such Registrable Securities and any discount, commission or
other compensation payable in respect thereof, the purchase
price being paid therefor by such underwriters and with
respect to any other terms of the offering of the Registrable
Securities to be sold by such Electing Holder or agent or to
such underwriters; and make all required filings of such
prospectus supplement or post effective amendment promptly
after notification of the matters to be incorporated in such
prospectus supplement or post effective amendment;
(xi) furnish to each Electing Holder, each
placement or sales agent, if any, therefor, each underwriter,
if any, thereof and the respective counsel referred to in
Section 3(d)(vi) hereof an executed copy (or, in the case of
an Electing Holder, a conformed copy) of such Shelf
Registration Statement, each such amendment and supplement
thereto (in each case including all exhibits thereto (in the
case of an Electing Holder of Registrable Securities, upon
written request) and documents incorporated by reference
therein) and such number of copies of such Shelf Registration
Statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically so
requested by such Electing Holder, agent or underwriter, as
the case may be) and of the prospectus included in such Shelf
Registration Statement (including each preliminary prospectus
and any summary prospectus), in conformity in all material
respects with the applicable requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations
of the Commission thereunder, and such other documents, as
such Electing Holder, agent, if any, and underwriter, if any,
may reasonably request in order to facilitate the offering and
disposition of the Registrable Securities owned by such
Electing Holder, offered or sold by such agent or underwritten
by such underwriter and to permit such Electing Holder, agent
and underwriter to satisfy the prospectus delivery
requirements of the Securities Act; and the Company hereby
consents to the use of such prospectus (including such
preliminary and summary prospectus) and any amendment or
supplement thereto by each such Electing Holder and by any
12
such agent and underwriter, in each case in the form most
recently provided to such Person by the Company, in connection
with the offering and sale of the Registrable Securities
covered by the prospectus (including such preliminary and
summary prospectus) or any supplement or amendment thereto;
(xii) use their reasonable best efforts to (A)
register or qualify the Registrable Securities to be included
in such Shelf Registration Statement under such securities
laws or blue sky laws of such jurisdictions as any Electing
Holder and each placement or sales agent, if any, therefor and
underwriter, if any, thereof shall reasonably request, (B)
keep such registrations or qualifications in effect and comply
with such laws so as to permit the continuance of offers,
sales and dealings therein in such jurisdictions during the
period the Shelf Registration Statement is required to remain
effective under Section 2(b) above and for so long as may be
necessary to enable any such Electing Holder, agent or
underwriter to complete its distribution of Securities
pursuant to such Shelf Registration Statement and (C) take any
and all other actions as may be reasonably necessary or
advisable to enable each such Electing Holder, agent, if any,
and underwriter, if any, to consummate the disposition in such
jurisdictions of such Registrable Securities; provided,
however, that none of the Company, Fort Xxxxx or Fort Xxxxx
Operating Co. shall be required for any such purpose to (1)
qualify as a foreign corporation in any jurisdiction wherein
it would not otherwise be required to qualify but for the
requirements of this Section 3(d)(xii), (2) consent to general
service of process in any such jurisdiction or (3) make any
changes to its certificate of incorporation or by laws or any
agreement between it and its shareholders;
(xiii) use their reasonable best efforts to obtain
the consent or approval of each governmental agency or
authority, whether federal, state or local, which may be
required to effect the Shelf Registration or the offering or
sale in connection therewith or to enable the selling Holder
or Holders to offer, or to consummate the disposition of,
their Registrable Securities;
(xiv) unless any Registrable Securities shall be
in book-entry only form, cooperate with the Electing Holders
and the managing underwriters, if any, to facilitate the
timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates, if so
required by any securities exchange upon which any Registrable
Securities are listed, shall be penned, lithographed or
engraved, or produced by any combination of such methods, on
steel engraved borders, and which certificates shall not bear
any restrictive legends; and, in the case of an underwritten
offering, enable such Registrable Securities to be in such
denominations and registered in such names as the managing
underwriters may request at least two business days prior to
any sale of the Registrable Securities;
(xv) provide a CUSIP number for all Registrable
Securities, not later than the Effective Time of the Shelf
Registration Statement;
(xvi) enter into one or more underwriting
agreements, engagement letters, agency agreements, "best
efforts" underwriting agreements or similar agreements, as
appropriate, which may include customary provisions relating
to indemnification and contribution, and take such other
actions in connection
13
therewith as any Electing Holders aggregating at least 50% in
aggregate principal amount of the Registrable Securities at
the time outstanding shall request in order to expedite or
facilitate the disposition of such Registrable Securities;
(xvii) if an agreement of the type referred to in
Section 3(d)(xvi) hereof is entered into and the offering
contemplated by the Shelf Registration is an underwritten
offering or is made through a placement or sales agent or any
other entity, (A) make such representations and warranties to
the placement or sales agent, if any, therefor and the
underwriters, if any, thereof in form, substance and scope as
are customarily made in connection with an offering of debt
securities pursuant to any appropriate agreement or to a
registration statement filed on the form applicable to the
Shelf Registration; (B) obtain an opinion of counsel to the
Company in customary form and covering such matters, of the
type customarily covered by such an opinion, addressed to such
Electing Holder or Electing Holders and the placement or sales
agent, if any, therefor and the underwriters, if any, thereof
and dated the Effective Time of such Shelf Registration
Statement (and if such Shelf Registration Statement
contemplates an underwritten offering of a part or all of the
Registrable Securities, dated the date of the closing under
the underwriting agreement relating thereto) (it being agreed
that the matters to be covered by such opinion shall include
the due incorporation and good standing of the Company, Fort
Xxxxx and Fort Xxxxx Operating Co.; the qualification of the
Company, Fort Xxxxx and Fort Xxxxx Operating Co. to transact
business as foreign corporations; the due authorization,
execution and delivery of the relevant agreement of the type
referred to in Section 3(d)(xvi) hereof; the due
authorization, execution, authentication and issuance, and the
validity and enforceability, of the Securities; the absence of
material legal or governmental proceedings involving the
Company; the absence of a breach by the Company or any of its
subsidiaries of, or a default under, material agreements
binding upon the Company or any subsidiary of the Company; the
absence of governmental approvals required to be obtained in
connection with the Shelf Registration, the offering and sale
of the Registrable Securities, this Exchange and Registration
Rights Agreement or any agreement of the type referred to in
Section 3(d)(xvi) hereof, except such approvals as may be
required under state securities or blue sky laws; the material
compliance as to form of such Shelf Registration Statement and
any documents incorporated by reference therein and of the
Indentures with the requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the
Commission thereunder, respectively; and, as of the date of
the opinion and of the Shelf Registration Statement or most
recent post effective amendment thereto, as the case may be,
the absence from such Shelf Registration Statement and the
prospectus included therein, as then amended or supplemented,
and from the documents incorporated by reference therein (in
each case other than the financial statements and other
financial information contained therein) of an untrue
statement of a material fact or the omission to state therein
a material fact necessary to make the statements therein not
misleading (in the case of such documents, in the light of the
circumstances existing at the time that such documents were
filed with the Commission under the Exchange Act)); (C) obtain
a "cold comfort" letter or letters from the independent
certified public accountants of the Company addressed to the
selling Electing Holders, the placement or sales agent, if
any, therefor or the underwriters, if any, thereof, dated (i)
the
14
Effective Time of such Shelf Registration Statement and (ii)
the effective date of any prospectus supplement to the
prospectus included in such Shelf Registration Statement or
post effective amendment to such Shelf Registration Statement
which includes unaudited or audited financial statements as of
a date or for a period subsequent to that of the latest such
statements included in such prospectus (and, if such Shelf
Registration Statement contemplates an underwritten offering
pursuant to any prospectus supplement to the prospectus
included in such Shelf Registration Statement or post
effective amendment to such Shelf Registration Statement which
includes unaudited or audited financial statements as of a
date or for a period subsequent to that of the latest such
statements included in such prospectus, dated the date of the
closing under the underwriting agreement relating thereto),
such letter or letters to be in customary form and covering
such matters of the type customarily covered by letters of
such type; (D) deliver such documents and certificates,
including officers' certificates, as may be reasonably
requested by any Electing Holders holding at least 50% in
aggregate principal amount of the Registrable Securities at
the time outstanding or the placement or sales agent, if any,
therefor and the managing underwriters, if any, thereof to
evidence the accuracy of the representations and warranties
made pursuant to clause (A) above or those contained in
Section 5(a) hereof and the compliance with or satisfaction of
any agreements or conditions contained in the underwriting
agreement or other agreement entered into by the Company, Fort
Xxxxx or Fort Xxxxx Operating Co.; and (E) undertake such
obligations relating to expense reimbursement, indemnification
and contribution as are provided in Section 6 hereof;
(xviii) notify in writing each Holder of Registrable
Securities of any amendment or waiver of any provision of this
Exchange and Registration Rights Agreement pursuant to Section
9(h) hereof, each of which notices shall contain the text of
the amendment or waiver effected;
(xix) in the event that any Broker dealer
registered under the Exchange Act shall underwrite any
Registrable Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Conduct Rules (the
"Conduct Rules") of the National Association of Securities
Dealers, Inc. ("NASD") or any successor thereto, as amended
from time to time) thereof, whether as a Holder of such
Registrable Securities or as an underwriter, a placement or
sales agent or a broker or dealer in respect thereof, or
otherwise, assist such Broker dealer in complying with the
requirements of such Conduct Rules, including by (A) if such
Conduct Rules shall so require, engaging a "qualified
independent underwriter" (as defined in such Conduct Rules) to
participate in the preparation of the Shelf Registration
Statement relating to such Registrable Securities, to exercise
usual standards of due diligence in respect thereto and, if
any portion of the offering contemplated by such Shelf
Registration Statement is an underwritten offering or is made
through a placement or sales agent, to recommend the yield of
such Registrable Securities, (B) indemnifying any such
qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 6 hereof
(or to such other customary extent as may be requested by such
underwriter), and (C) providing such information to such
Broker dealer as may be required in order for such Broker
dealer to comply with the requirements of the Conduct Rules;
and
15
(xx) comply with all applicable rules and
regulations of the Commission, and make generally available to
its securityholders as soon as practicable but in any event
not later than eighteen months after the effective date of
such Shelf Registration Statement, an earning statement of the
Company and its subsidiaries complying with Section 11(a) of
the Securities Act (including, at the option of the Company,
Rule 158 thereunder).
(e) If the Company notifies the Broker-dealers in
accordance with Sections 2(f), 3(c)(iii)(B) or 3(c)(iii)(F) above to
suspend the use of the prospectus until the suspension has terminated,
the requisite changes to the prospectus have been made or any stop
order has been lifted, as the case may be, then any such Broker-dealers
shall suspend the use of such prospectus, and, in the case of a
suspension under Sections 3(c)(iii)(B) or (F), the period of
effectiveness of the Exchange Registration Statement provided for in
Section 2(a) above shall be extended (i) by the number of days from and
including the date of the giving of such notice to and including the
date when Broker-dealers shall have received such amended or
supplemented prospectus pursuant to Section 3(c)(iv) hereof or (ii) if
earlier, until the date when none of the Securities represent
Registrable Securities. In the event that the Company would be
required, pursuant to Section 3(d)(viii)(B) or (F) above, to notify the
Electing Holders, the placement or sales agent, if any, therefor and
the managing underwriters, if any, thereof, the Company shall without
delay prepare and furnish to each of the Electing Holders, to each
placement or sales agent, if any, and to each such underwriter, if any,
a reasonable number of copies of a prospectus supplemented or amended
so that, as thereafter delivered to purchasers of Registrable
Securities, such prospectus shall conform in all material respects to
the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder and shall not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing. Each Electing Holder agrees that upon
receipt of any notice from the Company pursuant to Section
3(d)(viii)(B) or (F) hereof, such Electing Holder shall forthwith
discontinue the disposition of Registrable Securities pursuant to the
Shelf Registration Statement applicable to such Registrable Securities
until such Electing Holder shall have received copies of such amended
or supplemented prospectus, and if so directed by the Company, such
Electing Holder shall deliver to the Company (at the Company's expense)
all copies, other than permanent file copies, then in such Electing
Holder's possession of the prospectus covering such Registrable
Securities at the time of receipt of such notice.
(f) In the event of a Shelf Registration, in addition to
the information required to be provided by each Electing Holder in its
Notice and Questionnaire, the Company may require such Electing Holder
to furnish to the Company such additional information regarding such
Electing Holder and such Electing Xxxxxx's intended method of
distribution of Registrable Securities as may be required in order to
comply with the Securities Act. Each such Electing Holder agrees to
notify the Company as promptly as practicable of any inaccuracy or
change in information previously furnished by such Electing Holder to
the Company or of the occurrence of any event in either case as a
result of which any prospectus relating to such Shelf Registration
contains or would contain an untrue statement of a material fact
regarding such Electing Holder or such Electing Holder's intended
method of disposition of such Registrable Securities or omits to state
any material fact regarding such Electing Holder or such Electing
Xxxxxx's intended method of disposition of such Registrable Securities
required to be stated
16
therein or necessary to make the statements therein not misleading in
light of the circumstances then existing, and promptly to furnish to
the Company any additional information required to correct and update
any previously furnished information or required so that such
prospectus shall not contain, with respect to such Electing Holder or
the disposition of such Registrable Securities, an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in
light of the circumstances then existing.
(g) Until the expiration of two years after the Closing
Date, the Company will not, and will not permit any of its "affiliates"
(as defined in Rule 144) to, resell any of the Securities that have
been reacquired by any of them except pursuant to an effective
registration statement under the Securities Act.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly all
expenses incident to the Company's performance of or compliance with this
Exchange and Registration Rights Agreement, including (a) all Commission and any
NASD registration, filing and review fees and expenses including reasonable fees
and disbursements of counsel for the placement or sales agent or underwriters in
connection with such registration, filing and review, (b) all fees and expenses
in connection with the qualification of the Securities for offering and sale
under the State securities and blue sky laws referred to in Section 3(d)(xii)
hereof and determination of their eligibility for investment under the laws of
such jurisdictions as any managing underwriters or the Electing Holders may
designate, including any fees and disbursements of counsel for the Electing
Holders or underwriters in connection with such qualification and determination
in an amount not to exceed $5,000, (c) all expenses relating to the preparation,
printing, production, distribution and reproduction of each registration
statement required to be filed hereunder, each prospectus included therein or
prepared for distribution pursuant hereto, each amendment or supplement to the
foregoing, the expenses of preparing the Securities for delivery and the
expenses of printing or producing any underwriting agreements, agreements among
underwriters, selling agreements and blue sky or legal investment memoranda and
all other documents in connection with the offering, sale or delivery of
Securities to be disposed of (including certificates representing the
Securities), (d) messenger, telephone and delivery expenses relating to the
offering, sale or delivery of Securities and the preparation of documents
referred in clause (c) above, (e) fees and expenses of the Trustees under the
Indentures, any agent of the Trustees and any counsel for the Trustees and of
any collateral agent or custodian, (f) internal expenses (including all salaries
and expenses of the Company's officers and employees performing legal or
accounting duties), (g) fees, disbursements and expenses of counsel and
independent certified public accountants of the Company (including the expenses
of any opinions or "cold comfort" letters required by or incident to such
performance and compliance), (h) reasonable fees, disbursements and expenses of
any "qualified independent underwriter" engaged pursuant to Section 3(d)(xix)
hereof, (i) reasonable fees, disbursements and expenses of one counsel for the
Electing Holders retained in connection with a Shelf Registration, as selected
by the Electing Holders of at least a majority in aggregate principal amount of
the Registrable Securities held by Electing Holders (which counsel shall be
reasonably satisfactory to the Company), (j) any fees charged by securities
rating services for rating the Securities, and (k) fees, expenses and
disbursements of any other Persons, including special experts, retained by the
Company in connection with such registration (collectively, the "Registration
Expenses"). To the extent that any Registration Expenses are incurred, assumed
or paid by any Holder of Registrable Securities or any placement or sales agent
therefor or underwriter thereof, the Company shall reimburse such Person for the
full amount of the
17
Registration Expenses so incurred, assumed or paid promptly after receipt of a
request therefor. Notwithstanding the foregoing, the Holders of the Registrable
Securities being registered shall pay all agency fees and commissions and
underwriting discounts and commissions attributable to the sale of such
Registrable Securities and the fees and disbursements of any counsel or other
advisors or experts retained by such Holders (severally or jointly), other than
the counsel and experts specifically referred to above.
5. Representations and Warranties.
Each of the Company, Fort Xxxxx and Fort Xxxxx Operating Co. represents
and warrants to, and agrees with, each Purchaser and each of the Holders from
time to time of Registrable Securities that:
(a) Each registration statement covering Registrable
Securities and each prospectus (including any preliminary or summary
prospectus) contained therein or furnished pursuant to Section 3(d) or
Section 3(c) hereof and any further amendments or supplements to any
such registration statement or prospectus, when it becomes effective or
is filed with the Commission, as the case may be, and, in the case of
an underwritten offering of Registrable Securities, at the time of the
closing under the underwriting agreement relating thereto, will conform
in all material respects to the requirements of the Securities Act and
the Trust Indenture Act and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and at all
times subsequent to the Effective Time when a prospectus would be
required to be delivered under the Securities Act, other than from (i)
such time as a notice has been given to Holders of Registrable
Securities pursuant to Section 3(d)(viii)(F) or Section 3(c)(iii)(F)
hereof until (ii) such time as the Company furnishes an amended or
supplemented prospectus pursuant to Section 3(e) or Section 3(c)(iv)
hereof, each such registration statement, and each prospectus
(including any summary prospectus) contained therein or furnished
pursuant to Section 3(d) or Section 3(c) hereof, as then amended or
supplemented, will conform in all material respects to the requirements
of the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by a Holder of
Registrable Securities expressly for use therein.
(b) Any documents incorporated by reference in any
prospectus referred to in Section 5(a) hereof, when they become or
became effective or are or were filed with the Commission, as the case
may be, will conform or conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable,
and none of such documents will contain or contained an untrue
statement of a material fact or will omit or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by a Holder of Registrable
Securities expressly for use therein.
18
(c) The compliance by the Company with all of the
provisions of this Exchange and Registration Rights Agreement and the
consummation of the transactions herein contemplated will not (i)
conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company or any subsidiary of the Company is a party or by which the
Company or any subsidiary of the Company is bound or to which any of
the property or assets of the Company or any subsidiary of the Company
is subject, or (ii) result in any violation of (A) the provisions of
the articles of incorporation, as amended, or the by laws of the
Company, Fort Xxxxx or Fort Xxxxx Operating Co. or (B) any statute or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any subsidiary of the
Company or any of their properties, except with respect to clauses (i)
and (ii)(B), for such conflicts, breaches, violations or defaults which
have been consented to or waived or which would not otherwise have a
Material Adverse Effect (as defined in the Purchase Agreement); no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required
for the consummation by the Company, Fort Xxxxx or Fort Xxxxx Operating
Co. of the transactions contemplated by this Exchange and Registration
Rights Agreement, except the registration under the Securities Act of
the Securities, qualification of the Indentures under the Trust
Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under State
securities or blue sky laws in connection with the offering and
distribution of the Securities.
(d) This Exchange and Registration Rights Agreement has
been duly authorized, executed and delivered by the Company, Fort Xxxxx
and Fort Xxxxx Operating Co..
6. Indemnification.
(a) Indemnification by the Company, Fort Xxxxx and Fort
Xxxxx Operating Co. Each of the Company, Fort Xxxxx and Fort Xxxxx
Operating Co., jointly and severally, will indemnify and hold harmless
each of the Holders of Registrable Securities included in an Exchange
Registration Statement, each of the Electing Holders of Registrable
Securities included in a Shelf Registration Statement and each Person
who participates as a placement or sales agent or as an underwriter in
any offering or sale of such Registrable Securities against any losses,
claims, damages or liabilities, joint or several, to which such Holder,
agent or underwriter may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in
any Exchange Registration Statement or Shelf Registration Statement, as
the case may be, under which such Registrable Securities were
registered under the Securities Act, or any preliminary, final or
summary prospectus contained therein or furnished by the Company to any
such Holder, Electing Holder, agent or underwriter, or 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
will reimburse such Holder, such Electing Holder, such agent and such
underwriter for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such action or claim
as such expenses are incurred; provided, however, that none of the
Company, Fort Xxxxx or Fort Xxxxx Operating Co. shall be liable to any
such Person in any such case to the extent that any such loss, claim,
damage or
19
liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in such
registration statement, or preliminary, final or summary prospectus, or
amendment or supplement thereto, in reliance upon and in conformity
with written information furnished to the Company by such Person
expressly for use therein.
(b) Indemnification by the Holders and any Agents and
Underwriters. The Company may require, as a condition to including any
Registrable Securities in any registration statement filed pursuant to
Section 2(b) hereof and to entering into any underwriting agreement
with respect thereto, that the Company shall have received an
undertaking reasonably satisfactory to it from the Electing Holder of
such Registrable Securities and from each underwriter named in any such
underwriting agreement, severally and not jointly, to (i) indemnify and
hold harmless the Company, Fort Xxxxx, Fort Xxxxx Operating Co. and all
other Holders of Registrable Securities, against any losses, claims,
damages or liabilities to which the Company, Fort Xxxxx, Fort Xxxxx
Operating Co. or such other Holders of Registrable Securities may
become subject, under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the Shelf Registration
Statement, or any preliminary, final or summary prospectus contained
therein or furnished by the Company to any such Electing Holder, agent
or underwriter, or 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, 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 reliance upon and in
conformity with written information furnished to the Company by such
Electing Holder or underwriter expressly for use therein, and (ii)
reimburse the Company, Fort Xxxxx and Fort Xxxxx Operating Co. for any
legal or other expenses reasonably incurred by the Company, Fort Xxxxx
and Fort Xxxxx Operating Co. in connection with investigating or
defending any such action or claim as such expenses are incurred;
provided, however, that no such Electing Holder shall be required to
undertake liability to any Person under this Section 6(b) for any
amounts in excess of the dollar amount of the proceeds to be received
by such Electing Holder from the sale of such Electing Holder's
Registrable Securities pursuant to such Shelf Registration.
(c) Notices of Claims, Etc. Promptly after receipt by an
indemnified party under subsection (a) or (b) above of written notice
of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against an indemnifying party
pursuant to the indemnification provisions of or contemplated by this
Section 6, notify such indemnifying party in writing of the
commencement of such action; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may
have to any indemnified party otherwise than under the indemnification
provisions of or contemplated by Section 6(a) or 6(b) hereof. In case
any such action shall be brought against any indemnified party and it
shall notify an indemnifying party of the commencement thereof, such
indemnifying party shall be entitled to participate therein and, to the
extent that it shall 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, such
20
indemnifying party shall not be liable to such indemnified party for
any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent
to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may
be sought hereunder (whether or not the indemnified party is an actual
or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or
claim and (ii) 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 party.
(d) Contribution. If for any reason the indemnification
provisions contemplated by Section 6(a) or Section 6(b) hereof are
unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to in Sections 6(a) and 6(b) hereof, then
each indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages
or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and
the indemnified party in connection with the statements or omissions
which 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 such indemnifying party and
indemnified party 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 such indemnifying party or by such
indemnified party, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The parties hereto agree that it would not be just and
equitable if contributions pursuant to this Section 6(d) were
determined by pro rata allocation (even if the Holders or any agents or
underwriters or all of them 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
6(d). The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or
other fees or expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6(d), no Holder shall be
required to contribute any amount in excess of the amount by which the
dollar amount of the proceeds received by such Holder from the sale of
any Registrable Securities (after deducting any fees, discounts and
commissions applicable thereto) exceeds the amount of any damages which
such Holder has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission, and no
underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such underwriter has
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. The Holders'
and any underwriters' obligations in this Section 6(d) to contribute
shall be several in proportion
21
to the principal amount of Registrable Securities registered or
underwritten, as the case may be, by them and not joint.
(e) The obligations of the Company, Fort Xxxxx and Fort
Xxxxx Operating Co. under this Section 6 shall be in addition to any
liability which the Company, Fort Xxxxx or Fort Xxxxx Operating Co. may
otherwise have and shall extend, upon the same terms and conditions, to
each officer, director and partner of each Holder, agent and
underwriter and each Person, if any, who controls any Holder, agent or
underwriter within the meaning of the Securities Act; and the
obligations of the Holders and any agents or underwriters contemplated
by this Section 6 shall be in addition to any liability which the
respective Holder, agent or underwriter may otherwise have and shall
extend, upon the same terms and conditions, to each officer and
director of the Company, Fort Xxxxx or Fort Xxxxx Operating Co.
(including any Person who, with his consent, is named in any
registration statement as about to become a director of the Company,
Fort Xxxxx or Fort Xxxxx Operating Co.) and to each Person, if any, who
controls the Company, Fort Xxxxx or Fort Xxxxx Operating Co. within the
meaning of the Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable
Securities covered by the Shelf Registration are to be sold pursuant to
an underwritten offering, the managing underwriter or underwriters
thereof shall be designated by Electing Holders holding at least a
majority in aggregate principal amount of the Registrable Securities to
be included in such offering, provided that such designated managing
underwriter or underwriters is or are reasonably acceptable to the
Company.
(b) Participation by Holders. Each Holder of Registrable
Securities hereby agrees with each other such Holder that no such
Holder may participate in any underwritten offering hereunder unless
such Xxxxxx (i) agrees to sell such Xxxxxx's Registrable Securities on
the basis provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
8. Rule 144.
The Company covenants to the Holders of Registrable Securities that to
the extent it shall be required to do so under the Exchange Act, the Company
shall timely file the reports required to be filed by it under the Exchange Act
or the Securities Act (including the reports under Section 13 and 15(d) of the
Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted by the
Commission under the Securities Act) and the rules and regulations adopted by
the Commission thereunder, and shall take such further action as any Holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such Holder to sell Registrable Securities without
registration under the Securities Act within the limitations of the exemption
provided by Rule 144 under the Securities Act, as such Rule may be amended from
time to time, or any similar or successor rule or regulation hereafter adopted
by the Commission. Upon the written request of any Holder of Registrable
Securities in connection with that Xxxxxx's sale pursuant to Rule 144, the
Company shall deliver to such Holder a written statement as to whether it has
complied with such requirements.
22
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents,
warrants, covenants and agrees that it has not granted, and shall not
grant, registration rights with respect to Registrable Securities or
any other securities which would be inconsistent with the terms
contained in this Exchange and Registration Rights Agreement.
(b) Specific Performance. The parties hereto acknowledge
that there would be no adequate remedy at law if the Company fails to
perform any of its obligations hereunder and that the Purchasers and
the Holders from time to time of the Registrable Securities may be
irreparably harmed by any such failure, and accordingly agree that the
Purchasers and such Holders, in addition to any other remedy to which
they may be entitled at law or in equity, shall be entitled to compel
specific performance of the obligations of the Company under this
Exchange and Registration Rights Agreement in accordance with the terms
and conditions of this Exchange and Registration Rights Agreement, in
any court of the United States or any State thereof having
jurisdiction.
(c) Notices. All notices, requests, claims, demands,
waivers and other communications hereunder shall be in writing and
shall be deemed to have been duly given when delivered by hand, if
delivered personally or by courier, or three days after being deposited
in the mail (registered or certified mail, postage prepaid, return
receipt requested) as follows: If to the Company, to it at 000
Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000, Attention: Corporate
Secretary, and if to a Holder, to the address of such Holder set forth
in the security register or other records of the Company, or to such
other address as the Company or any such Holder may have furnished to
the other in writing in accordance herewith, except that notices of
change of address shall be effective only upon receipt.
(d) Parties in Interest. All the terms and provisions of
this Exchange and Registration Rights Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the parties
hereto and the Holders from time to time of the Registrable Securities
and the respective successors and assigns of the parties hereto and
such Holders. In the event that any transferee of any Holder of
Registrable Securities shall acquire Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or
otherwise, such transferee shall, without any further writing or action
of any kind, be deemed a beneficiary hereof for all purposes and such
Registrable Securities shall be held subject to all of the terms of
this Exchange and Registration Rights Agreement, and by taking and
holding such Registrable Securities such transferee shall be entitled
to receive the benefits of, and be conclusively deemed to have agreed
to be bound by all of the applicable terms and provisions of this
Exchange and Registration Rights Agreement. If the Company shall so
request, any such successor, assign or transferee shall agree in
writing to acquire and hold the Registrable Securities subject to all
of the applicable terms hereof.
(e) Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this
Exchange and Registration Rights Agreement or made pursuant hereto
shall remain in full force and effect regardless of any investigation
(or statement as to the results thereof) made by or on behalf of any
Holder of Registrable Securities, any director, officer or partner of
such Holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling Person of any of the foregoing, and
shall survive delivery of and payment for the Registrable
23
Securities pursuant to the Purchase Agreement and the transfer and
registration of Registrable Securities by such Holder and the
consummation of an Exchange Offer.
(f) GOVERNING LAW. THIS EXCHANGE AND REGISTRATION RIGHTS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
(g) Headings. The descriptive headings of the several
Sections and paragraphs of this Exchange and Registration Rights
Agreement are inserted for convenience only, do not constitute a part
of this Exchange and Registration Rights Agreement and shall not affect
in any way the meaning or interpretation of this Exchange and
Registration Rights Agreement.
(h) Entire Agreement; Amendments. This Exchange and
Registration Rights Agreement and the other writings referred to herein
(including the Indentures and the form of Securities) or delivered
pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to its subject matter. This
Exchange and Registration Rights Agreement supersedes all prior
agreements and understandings between the parties with respect to its
subject matter. This Exchange and Registration Rights Agreement may be
amended and the observance of any term of this Exchange and
Registration Rights Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only by
a written instrument duly executed by the Company and the Holders of at
least a majority in aggregate principal amount of the Registrable
Securities at the time outstanding. Each Holder of any Registrable
Securities at the time or thereafter outstanding shall be bound by any
amendment or waiver effected pursuant to this Section 9(h), whether or
not any notice, writing or marking indicating such amendment or waiver
appears on such Registrable Securities or is delivered to such Holder.
(i) Inspection. For so long as this Exchange and
Registration Rights Agreement shall be in effect, this Exchange and
Registration Rights Agreement and a complete list of the names and
addresses of all the Holders of Registrable Securities shall be made
available for inspection and copying on any business day by any Holder
of Registrable Securities for proper purposes only (which shall include
any purpose related to the rights of the Holders of Registrable
Securities under the Securities, the Indentures and this Exchange and
Registration Rights Agreement) at the offices of the Company at the
address thereof set forth in Section 9(c) above and at the office of
the Trustees under the Indentures.
(j) Counterparts. This agreement may be executed by the
parties in counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together
constitute one and the same instrument.
24
If the foregoing is in accordance with your understanding, please sign
and return to us five counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Purchasers, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Purchasers, the Company,
Fort Xxxxx and Fort Xxxxx Operating Co. It is understood that your acceptance of
this letter on behalf of each of the Purchasers is pursuant to the authority set
forth in a form of Agreement among Purchasers, the form of which shall be
submitted to the Company for examination upon request, but without warranty on
your part as to the authority of the signers thereof.
Very truly yours,
Georgia-Pacific Corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
and General Counsel
Fort Xxxxx Corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
and General Counsel
Fort Xxxxx Operating Company
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
and General Counsel
Accepted as of the date hereof:
Banc of America Securities LLC
By: /s/
-----------------------
Name:
Title:
Citigroup Global Markets Inc.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
25
Xxxxxxx, Xxxxx & Co.
By: /s/ (Xxxxxxx, Xxxxx & Co.)
---------------------------
(Xxxxxxx, Xxxxx & Co.)
UBS Warburg LLC
By: /s/ Xxxx Xxxxxx
------------------------
Name: Xxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxx Xxxxxx
----------------------
Name: Xxxx Xxxxxx
Title: Executive Director
On behalf of themselves and the other Purchasers listed in Schedule 1 to the
Purchase Agreement.
26
EXHIBIT A-1
GEORGIA-PACIFIC CORPORATION
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE:
The Depository Trust Company ("DTC") has identified you as a DTC
Participant through which beneficial interests in the Georgia-Pacific
Corporation (the "Company") 7 3/8% Senior Notes due 2008 (the "Securities") are
held.
The Company is in the process of registering the Securities under the
Securities Act of 1933 for resale by the beneficial owners thereof. In order to
have their Securities included in the registration statement, beneficial owners
must complete and return the enclosed Notice of Registration Statement and
Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy
of the enclosed materials as soon as possible as their rights to have the
Securities included in the registration statement depend upon their returning
the Notice and Questionnaire by . Please forward a copy of the enclosed
documents to each beneficial owner that holds interests in the Securities
through you. If you require more copies of the enclosed materials or have any
questions pertaining to this matter, please contact Georgia-Pacific Corporation,
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000, (000) 000-0000.
-------------------------
* Not less than 28 calendar days from of mailing.
A-1-1
GEORGIA-PACIFIC CORPORATION
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Exchange and Registration Rights Agreement (the
"Exchange and Registration Rights Agreement") between Georgia-Pacific
Corporation (the "Company") and the Purchasers named therein. Pursuant to the
Exchange and Registration Rights Agreement, the Company has filed with the
United States Securities and Exchange Commission (the "Commission") a
registration statement on Form __ (the "Shelf Registration Statement") for the
registration and resale under Rule 415 of the Securities Act of 1933, as amended
(the "Securities Act"), of the Company's 7 3/8% Senior Notes due 2008 (the
"Securities"). A copy of the Exchange and Registration Rights Agreement is
attached hereto. All capitalized terms not otherwise defined herein shall have
the meanings ascribed thereto in the Exchange and Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined in the Exchange and
Registration Rights Agreement) is entitled to have the Registrable Securities
beneficially owned by it included in the Shelf Registration Statement. In order
to have Registrable Securities included in the Shelf Registration Statement,
this Notice of Registration Statement and Selling Securityholder Questionnaire
("Notice and Questionnaire") must be completed, executed and delivered to the
Company's counsel at the address set forth herein for receipt ON OR BEFORE .
Beneficial owners of Registrable Securities who do not complete, execute and
return this Notice and Questionnaire by such date (i) will not be named as
selling securityholders in the Shelf Registration Statement and (ii) may not use
the Prospectus forming a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and related Prospectus. Accordingly, Holders
and beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Shelf Registration Statement and
related Prospectus.
A-1-2
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable Securities
hereby elects to include in the Shelf Registration Statement the Registrable
Securities beneficially owned by it and listed below in Item (3). The
undersigned, by signing and returning this Notice and Questionnaire, agrees to
be bound with respect to such Registrable Securities by the terms and conditions
of this Notice and Questionnaire and the Exchange and Registration Rights
Agreement, including, without limitation, Section 6 of the Exchange and
Registration Rights Agreement, as if the undersigned Selling Securityholder were
an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
and Trustee the Notice of Transfer set forth in Appendix A to the Prospectus and
as Exhibit B-1, in the case of the 2008 Notes, and as Exhibit B-2, in the case
of the 2014 Notes, to the Exchange and Registration Rights Agreement.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
A-1-3
QUESTIONNAIRE
(1)(a) Full Legal Name of Selling Securityholder:
(b) Full Legal Name of Registered Holder (if not the same as in (a) above)
of Registrable Securities Listed in Item (3) below:
(c) Full Legal Name of DTC Participant (if applicable and if not the same
as (b) above) Through Which Registrable Securities Listed in Item (3)
below are Held:
(2) Address for Notices to Selling Securityholder:
___________________
___________________
___________________
Telephone: _____________________________
Fax: _____________________________
Contact Person: _____________________________
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Principal amount of Registrable Securities beneficially owned:_________
CUSIP No(s). of such Registrable Securities:___________________________
(b) Principal amount of Securities other than Registrable Securities
beneficially owned:____________________________________________________
CUSIP No(s). of such other Securities:_________________________________
(c) Principal amount of Registrable Securities which the undersigned wishes
to be included in the Shelf Registration Statement:____________________
CUSIP No(s). of such Registrable Securities to be included in the Shelf
Registration Statement:________________________________________________
A-1-4
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other
securities of the Company, other than the Securities listed above in
Item (3).
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any
of its affiliates, officers, directors or principal equity holders (5%
or more) has held any position or office or has had any other material
relationship with the Company (or its predecessors or affiliates)
during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in Item
(3) only as follows (if at all): Such Registrable Securities may be
sold from time to time directly by the undersigned Selling
Securityholder or, alternatively, through underwriters, Broker-dealers
or agents. Such Registrable Securities may be sold in one or more
transactions at fixed prices, at prevailing market prices at the time
of sale, at varying prices determined at the time of sale, or at
negotiated prices. Such sales may be effected in transactions (which
may involve crosses or block transactions) (i) on any national
securities exchange or quotation service on which the Registered
Securities may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such
exchanges or services or in the over-the-counter market, or (iv)
through the writing of options. In connection with sales of the
Registrable Securities or otherwise, the Selling Securityholder may
enter into hedging transactions with Broker-dealers, which may in turn
engage in short sales of the Registrable Securities in the course of
hedging the positions they assume. The Selling Securityholder may also
sell Registrable Securities short and deliver Registrable Securities to
close out such short positions, or loan or pledge Registrable
Securities to Broker-dealers that in turn may sell such securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
A-1-5
In the event that the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Company, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section 3(d) of
the Exchange and Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Securityholder agrees to promptly notify the Company of any inaccuracies
or changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Exchange and Registration
Rights Agreement shall be made in writing, by hand-delivery, first-class mail,
or air courier guaranteeing overnight delivery as follows:
(i) To the Company:
Georgia-Pacific Corporation
000 Xxxxxxxxx Xxxxxx, N.E.
Atlanta, Georgia 30303
Attention: Corporate Secretary
(ii) With a copy to:
King & Spalding LLP
000 Xxxxxxxxx Xxxxxx, N.E.
Atlanta, Georgia 30303
Attention: Xxxxxxx X. Xxxxxxxx
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Company and the
Selling Securityholder (with respect to the Registrable Securities beneficially
owned by such Selling Securityholder and listed in Item (3) above. This
Agreement shall be governed in all respects by the laws of the State of New
York.
A-1-6
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated: _________________
_______________________________________________________________________
Selling Securityholder
(Print/type full legal name of beneficial owner of Registrable
Securities)
By: ___________________________________________________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE TO THE COMPANY'S COUNSEL AT:
King & Spalding LLP
000 Xxxxxxxxx Xxxxxx, N.E.
Atlanta, Georgia 30303
Attention: Xxxxxxx X. Xxxxxxxx
A-1-7
EXHIBIT A-2
GEORGIA-PACIFIC CORPORATION
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: *
The Depository Trust Company ("DTC") has identified you as a DTC Participant
through which beneficial interests in the Georgia-Pacific Corporation (the
"Company") 8% Senior Notes due 2014 (the "Securities") are held.
The Company is in the process of registering the Securities under the Securities
Act of 1933 for resale by the beneficial owners thereof. In order to have their
Securities included in the registration statement, beneficial owners must
complete and return the enclosed Notice of Registration Statement and Selling
Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy of the
enclosed materials as soon as possible as their rights to have the Securities
included in the registration statement depend upon their returning the Notice
and Questionnaire by . Please forward a copy of the enclosed documents to
each beneficial owner that holds interests in the Securities through you. If you
require more copies of the enclosed materials or have any questions pertaining
to this matter, please contact Georgia-Pacific Corporation, 000 Xxxxxxxxx
Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000, (000) 000-0000.
----------------------------
* Not less than 28 calendar days from date of mailing.
A-2-1
GEORGIA-PACIFIC CORPORATION
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Exchange and Registration Rights Agreement (the
"Exchange and Registration Rights Agreement") between Georgia-Pacific
Corporation (the "Company") and the Purchasers named therein. Pursuant to the
Exchange and Registration Rights Agreement, the Company has filed with the
United States Securities and Exchange Commission (the "Commission") a
registration statement on Form __ (the "Shelf Registration Statement") for the
registration and resale under Rule 415 of the Securities Act of 1933, as amended
(the "Securities Act"), of the Company's 8% Senior Notes due 2014 (the
"Securities"). A copy of the Exchange and Registration Rights Agreement is
attached hereto. All capitalized terms not otherwise defined herein shall have
the meanings ascribed thereto in the Exchange and Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined in the Exchange and
Registration Rights Agreement) is entitled to have the Registrable Securities
beneficially owned by it included in the Shelf Registration Statement. In order
to have Registrable Securities included in the Shelf Registration Statement,
this Notice of Registration Statement and Selling Securityholder Questionnaire
("Notice and Questionnaire") must be completed, executed and delivered to the
Company's counsel at the address set forth herein for receipt ON OR BEFORE .
Beneficial owners of Registrable Securities who do not complete, execute and
return this Notice and Questionnaire by such date (i) will not be named as
selling securityholders in the Shelf Registration Statement and (ii) may not use
the Prospectus forming a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and related Prospectus. Accordingly, Holders
and beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Shelf Registration Statement and
related Prospectus.
A-2-2
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable Securities
hereby elects to include in the Shelf Registration Statement the Registrable
Securities beneficially owned by it and listed below in Item (3). The
undersigned, by signing and returning this Notice and Questionnaire, agrees to
be bound with respect to such Registrable Securities by the terms and conditions
of this Notice and Questionnaire and the Exchange and Registration Rights
Agreement, including, without limitation, Section 6 of the Exchange and
Registration Rights Agreement, as if the undersigned Selling Securityholder were
an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
and Trustee the Notice of Transfer set forth in Appendix A to the Prospectus and
as Exhibit B-1, in the case of the 2008 Notes, and as Exhibit B-2, in the case
of the 2014 Notes, to the Exchange and Registration Rights Agreement.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
A-2-3
QUESTIONNAIRE
(1)(a) Full Legal Name of Selling Securityholder:
(b) Full Legal Name of Registered Holder (if not the same as in (a) above)
of Registrable Securities Listed in Item (3) below:
(c) Full Legal Name of DTC Participant (if applicable and if not the same
as (b) above) Through Which Registrable Securities Listed in Item (3)
below are Held:
(2) Address for Notices to Selling Securityholder:
___________________
___________________
___________________
Telephone: _____________________________
Fax: _____________________________
Contact Person: _____________________________
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Principal amount of Registrable Securities beneficially owned: CUSIP
No(s). of such Registrable Securities: :_______________________________
(b) Principal amount of Securities other than Registrable Securities
beneficially owned:____________________________________________________
CUSIP No(s). of such other Securities: :_______________________________
c) Principal amount of Registrable Securities which the undersigned wishes
to be included in the Shelf Registration Statement: :__________________
CUSIP No(s). of such Registrable Securities to be included in the Shelf
Registration Statement: :______________________________________________
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other
securities of the Company, other than the Securities listed above in
Item (3).
State any exceptions here:
A-2-4
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any
of its affiliates, officers, directors or principal equity holders (5%
or more) has held any position or office or has had any other material
relationship with the Company (or its predecessors or affiliates)
during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in Item
(3) only as follows (if at all): Such Registrable Securities may be
sold from time to time directly by the undersigned Selling
Securityholder or, alternatively, through underwriters, Broker-dealers
or agents. Such Registrable Securities may be sold in one or more
transactions at fixed prices, at prevailing market prices at the time
of sale, at varying prices determined at the time of sale, or at
negotiated prices. Such sales may be effected in transactions (which
may involve crosses or block transactions) (i) on any national
securities exchange or quotation service on which the Registered
Securities may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such
exchanges or services or in the over-the-counter market, or (iv)
through the writing of options. In connection with sales of the
Registrable Securities or otherwise, the Selling Securityholder may
enter into hedging transactions with Broker-dealers, which may in turn
engage in short sales of the Registrable Securities in the course of
hedging the positions they assume. The Selling Securityholder may also
sell Registrable Securities short and deliver Registrable Securities to
close out such short positions, or loan or pledge Registrable
Securities to Broker-dealers that in turn may sell such securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
In the event that the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Company, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling
A-2-5
Securityholder understands that such information will be relied upon by the
Company in connection with the preparation of the Shelf Registration Statement
and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section 3(d) of
the Exchange and Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Securityholder agrees to promptly notify the Company of any inaccuracies
or changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Exchange and Registration
Rights Agreement shall be made in writing, by hand-delivery, first-class mail,
or air courier guaranteeing overnight delivery as follows:
(i) To the Company:
Georgia-Pacific Corporation
000 Xxxxxxxxx Xxxxxx, N.E.
Atlanta, Georgia 30303
Attention: Corporate Secretary
(ii) With a copy to:
King & Spalding LLP
000 Xxxxxxxxx Xxxxxx, N.E.
Atlanta, Georgia 30303
Attention: Xxxxxxx X. Xxxxxxxx
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Company and the
Selling Securityholder (with respect to the Registrable Securities beneficially
owned by such Selling Securityholder and listed in Item (3) above. This
Agreement shall be governed in all respects by the laws of the State of New
York.
A-2-6
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated: _________________
_______________________________________________________________________
Selling Securityholder
(Print/type full legal name of beneficial owner of Registrable
Securities)
By: ___________________________________________________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE TO THE COMPANY'S COUNSEL AT:
King & Spalding LLP
000 Xxxxxxxxx Xxxxxx, N.E.
Atlanta, Georgia 30303
Attention: Xxxxxxx X. Xxxxxxxx
A-2-7
EXHIBIT B-1
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
The Bank of New York
Georgia-Pacific Corporation
c/o The Bank of New York
000 Xxxxxxx Xxxxxx
Corporate Trust Administration - Floor 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Trust Officer
Re: Georgia-Pacific Corporation (the "Company")
7 3/8% Senior Notes due 2008
Dear Sirs:
Please be advised that___________________________has transferred $______________
aggregate principal amount of the above-referenced Notes pursuant to an
effective Registration Statement on Form (File No. 333-__________ ) filed by the
Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Notes is named as a "Selling Holder" in the Prospectus
dated _____________ or in supplements thereto, and that the aggregate principal
amount of the Notes transferred are the Notes listed in such Prospectus opposite
such owner's name.
Dated:
Very truly yours,
_______________________________
(Name)
By: _______________________________
(Authorized Signature)
B-1-1
EXHIBIT B-2
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
The Bank of New York
Georgia-Pacific Corporation
c/o The Bank of New York
000 Xxxxxxx Xxxxxx
Corporate Trust Administration - Floor 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Trust Officer
Re: Georgia-Pacific Corporation (the "Company")
8% Senior Notes due 2014
Dear Sirs:
Please be advised that____________________________has transferred $_____________
aggregate principal amount of the above-referenced Notes pursuant to an
effective Registration Statement on Form (File No. 333-_________ ) filed by the
Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Notes is named as a "Selling Holder" in the Prospectus
dated _____________ or in supplements thereto, and that the aggregate principal
amount of the Notes transferred are the Notes listed in such Prospectus opposite
such owner's name.
Dated: __________________
Very truly yours,
_____________________________
(Name)
By: _____________________________
(Authorized Signature)
B-2-1
