EXCHANGE AND REGISTRATION RIGHTS AGREEMENT Dated as of September 20, 2006 by and among BPC ACQUISITION CORP. and GOLDMAN, SACHS & CO. GSMP 2006 ONSHORE US, LTD. GSMP 2006 OFFSHORE US, LTD. GSMP 2006 INSTITUTIONAL US, LTD.
Dated
as
of September 20, 2006
by
and
among
BPC
ACQUISITION CORP.
and
XXXXXXX,
XXXXX & CO.
GSMP
2006
ONSHORE US, LTD.
GSMP
2006
OFFSHORE US, LTD.
GSMP
2006
INSTITUTIONAL US, LTD.
ffny03\syselja\660743.6
[EXECUTION
VERSION]
Table
of Contents
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1.
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Definitions
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1
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2.
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Exchange
Offer
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4
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3.
|
Shelf
Registration Statement
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6
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4.
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Additional
Interest
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7
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5.
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Registration
Procedures
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8
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6.
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Indemnification
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14
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7.
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Rule
144A
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17
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8.
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Underwritten
Registrations of Registrable Notes
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17
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9.
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Miscellaneous
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17
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BPC
Acquisition Corp., a Delaware corporation (the “Company”
which
term, following the Acquisition shall mean and refer to BPC Holding Corporation,
a Delaware corporation, as the surviving corporation in the merger pursuant
to
which the Acquisition is effectuated), is issuing and selling to Xxxxxxx, Sachs
& Co., a New York partnership (the “Initial
Purchaser”)
for
resale to GS Mezzanine Partners 2006 Onshore US, Ltd., an exempted Cayman
Islands limited liability company (“GSMP
Onshore”),
GSMP
2006 Offshore US, Ltd., an exempted Cayman Islands limited liability company
(“GSMP
Offshore”),
GSMP
2006 Institutional US, Ltd., an exempted Cayman Islands limited liability
company (“GSMP
Institutional”
and
together with GSMP Onshore, GSMP Offshore and the Initial Purchaser, the
“Purchasers”),
$425
million original aggregate principal amount of 11% senior subordinated notes
of
the Company due 2016 (the “Notes”
which
term shall include any notes issued in exchange, substitution, or replacement
therefor) issued on the date hereof pursuant to the Note Purchase Agreement,
dated as of the date hereof (the “Purchase
Agreement”),
among
the Company, the Purchasers and certain of their affiliates. As an inducement
to
the Purchasers to enter into the Purchase Agreement, the Company agrees with
the
Purchasers, for the benefit of the Holders (as defined below) of the Notes
(including, without limitation, the Purchasers), as follows:
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1.
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Definitions
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Capitalized
terms that are used herein without definition and are defined in the Purchase
Agreement shall have the respective meanings ascribed to them in the Purchase
Agreement. As used herein the following terms shall have the meanings specified
herein (it being understood that defined terms shall include in the singular
number, the plural, and in the plural, the singular):
Additional
Interest:
See
Section 4(a).
Agreement:
This
Exchange and Registration Rights Agreement, dated as of the Closing Date, among
the Company and the Purchasers.
Applicable
Period:
See
Section 2(e).
Blackout
Period:
See
Section 5.
Business
Day:
A day
that is not a Saturday, a Sunday or a day on which banking institutions in
New
York are authorized or required by law, regulation or executive order to be
closed.
Closing
Date:
September 20, 2006.
Company:
See the
introductory paragraph to this Agreement.
Day:
Unless
otherwise expressly provided, a calendar day.
Demand
Date:
See
Section 2(a).
Demand
Registration Request:
See
Section 2(a).
Effectiveness
Date:
The day
that is six months after any Demand Date.
Effectiveness
Period:
See
Section 3(a).
1
Event
Date:
See
Section 4(b).
Exchange
Act:
The
Securities Exchange Act of 1934, as amended, and the rules and regulations
of
the SEC promulgated thereunder.
Exchange
Notes:
11%
Senior Subordinated Notes Due 2016 of the Company, identical in all material
respects to the Notes except for restrictive legends and additional interest
provisions.
Exchange
Offer:
See
Section 2(a).
Exchange
Offer Period:
See
Section 2(a).
Exchange
Offer Registration Statement:
See
Section 2(a).
Filing
Date:
The
90th
day
after the Demand Date; provided,
that
if the
Filing Date would otherwise fall on a day that is not a Business Day, then
the
Filing Date shall be the next succeeding Business Day.
GSMP
Institutional:
See the
introductory paragraph to this Agreement.
GSMP
Offshore:
See the
introductory paragraph to this Agreement.
GSMP
Onshore:
See the
introductory paragraph to this Agreement.
Holder:
Any
registered holder of Registrable Notes.
Indemnified
Party:
See
Section 6(c).
Indemnifying
Party:
See
Section 6(c).
Indenture: The
Indenture, dated as of the Closing Date, between the Company and the Trustee,
as
trustee, pursuant to which the Notes are being issued, as amended or
supplemented from time to time in accordance with the terms
thereof.
Initial
Purchaser:
See the
introductory paragraph to this Agreement.
Inspectors:
See
Section 5(n).
Losses: See
Section 6(a).
Maximum
Contribution Amount:
See
Section 6(d).
NASD:
National Association of Securities Dealers, Inc.
Notes:
See the
introductory paragraph to this Agreement.
Participant:
See
Section 6(a).
Participating
Broker-Dealer:
See
Section 2(e).
2
Person:
An
individual, trustee, corporation, partnership, limited liability company, joint
stock company, trust, unincorporated association, union, business association,
firm, government agency or political subdivision thereof, or other legal
entity.
Prospectus:
The
prospectus included in any Registration Statement (including, without
limitation, a prospectus that discloses information previously omitted from
a
prospectus filed as part of an effective registration statement in reliance
upon
Rule 430A promulgated under the Securities Act), as amended or supplemented
by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Notes covered by such Registration Statement, and
all
other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
Purchase
Agreement:
See the
introductory paragraph to this Agreement.
Purchasers:
See the
introductory paragraph to this Agreement.
Records:
See
Section 5(n).
Registrable
Notes:
(i)
Notes and (ii) Exchange Notes received in the Exchange Offer as to which Section
2(h)(ii) is applicable until, in each case, the earliest to occur of (i) a
Registration Statement (other than, with respect to any Exchange Notes as to
which Section 2(h)(ii) hereto is applicable, the Exchange Offer Registration
Statement) covering such Note or Exchange Note has been declared effective
by
the SEC, (ii) such Note has been exchanged pursuant to the Exchange Offer
for an Exchange Note or Exchange Notes that may be resold without restriction
under state and federal securities laws, (iii) such Note, or Exchange Note,
as the case may be, ceases to be outstanding or (iv) such Note or Exchange
Note, as the case may be, has been or may be resold without restriction pursuant
to Rule 144(k) (as amended or replaced) under the Securities
Act.
Registration
Statement:
Any
registration statement of the Company filed with the SEC under the Securities
Act (including, but not limited to, the Exchange Offer Registration Statement
and the Shelf Registration Statement) that covers any of the Registrable Notes,
pursuant to the provisions of this Agreement, including the Prospectus,
amendments and supplements to such registration statement, including
post-effective amendments, all exhibits and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
Rule
144:
Rule
144 promulgated under the Securities Act, as such Rule may be amended from
time
to time, or any similar rule (other than Rule 144A) or regulation hereafter
adopted by the SEC providing for offers and sales of securities made in
compliance therewith resulting in offers and sales by subsequent holders that
are not affiliates of an issuer of such securities being free of the
registration and prospectus delivery requirements of the Securities
Act.
Rule
144A:
Rule
144A promulgated under the Securities Act, as such Rule may be amended from
time
to time, or any similar rule (other than Rule 144) or regulation hereafter
adopted by the SEC.
Rule
415:
Rule
415 promulgated under the Securities Act, as such Rule may be amended from
time
to time, or any similar rule or regulation hereafter adopted by the
SEC.
Rule
430A:
Rule
430A promulgated under the Securities Act, as such Rule may be amended from
time
to time, or any similar rule or regulation hereafter adopted by the
SEC.
SEC:
The
Securities and Exchange Commission.
3
Securities:
The
Notes and the Exchange Notes.
Securities
Act:
The
Securities Act of 1933, as amended, and the rules and regulations of the SEC
promulgated thereunder.
Shelf
Notice:
See
Section 2(h).
Shelf
Registration Statement:
See
Section 3(a).
TIA:
The
Trust Indenture Act of 1939, as amended.
Trustee:
The
trustee under the Indenture.
WKSI:
See
Section 5.
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2.
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Exchange
Offer
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(a) Unless
the Exchange Offer would violate applicable law or a policy of the SEC or its
staff, the Company shall upon the written demand of holders (a “Demand
Registration Request”)
of a
majority in principal amount of the Registrable Notes given, on not more than
one occasion at any time commencing three months after the first to occur of
the
effectiveness of any registered public offering for cash of common stock of
the
Company or any parent holding company of the Company or of debt securities
of
the Company or any of its subsidiaries or any such holding company (each such
date, a “Demand
Date”)
(i) prepare and file with the SEC no later than the Filing Date, a
registration statement (the “Exchange
Offer Registration Statement”)
on an
appropriate form under the Securities Act with respect to an offer (an
“Exchange
Offer”)
to the
Holders of Notes to issue and deliver to such Holders, in exchange for the
Notes, a like principal amount of Exchange Notes, (ii) use commercially
reasonable efforts to cause the Exchange Offer Registration Statement to become
effective no later than the Effectiveness Date, (iii) use commercially
reasonable efforts to keep the Exchange Offer open for at least 20 Business
Days
(or longer if required by applicable law) after the date notice of the Exchange
Offer is mailed to Holders, and (iv) use commercially reasonable efforts to
consummate the Exchange Offer and issue, on or prior to 30 Business Days after
the Effectiveness Date (such period, the “Exchange
Offer Period”),
Exchange Notes in exchange for all Notes validly tendered and not withdrawn
prior thereto in the Exchange Offer. An Exchange Offer shall not be subject
to
any conditions, other than that (1) an Exchange Offer does not violate
applicable law or policy of the SEC or its staff; (2) no action or
proceeding shall have been instituted or threatened in any court or by any
governmental agency that might materially impair the ability of the Company
to
proceed with an Exchange Offer, and no material adverse development shall have
occurred in any existing action or proceeding with respect to the Company;
and
(3) all governmental approvals shall have been obtained, which approvals
the Company deems necessary for the consummation of an Exchange Offer.
(b) The
Exchange Notes shall be issued under, and entitled to the benefits of, the
Indenture.
(c) Interest
on each of the Exchange Notes will be payable from the later of (x) the last
interest payment date on which interest was paid on the Notes surrendered in
exchange therefor, or (y) if the Notes are surrendered for exchange on a date
within a period on or after the record date for an interest payment date to
occur on or after the date of such exchange and as to which interest will be
paid, the date of such interest payment date.
(d) The
Company may require each Holder as a condition to participation in the Exchange
Offer to represent (i) that any Exchange
4
(e) The
Company shall include within the Prospectus contained in the Exchange Offer
Registration Statement a section entitled “Plan of Distribution” which shall
contain all information that the SEC may require with respect to the potential
“underwriter” status of any broker-dealer that is the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by
such
broker-dealer in the Exchange Offer for its own account in exchange for Notes
that were acquired by it as a result of market-making or other trading activity
(a “Participating
Broker-Dealer”).
Such
“Plan of Distribution” section shall allow, to the extent permitted by
applicable policies and regulations of the SEC, or other applicable law, the
use
of the Prospectus by all Participating Broker-Dealers, and include a statement
describing the manner in which Participating Broker-Dealers may resell the
Exchange Notes. The Company shall use commercially reasonable efforts to keep
the Exchange Offer Registration Statement effective and to amend and supplement
the Prospectus contained therein, in order to permit such Prospectus to be
lawfully delivered by all Participating Broker-Dealers subject to the prospectus
delivery requirements of the Securities Act for such period of time as is
necessary to comply with applicable law in connection with the resale by such
Participating Broker-Dealers of the Exchange Notes; provided,
however,
that
such period shall not be required to exceed 90 days (unless such period is
extended pursuant to the third to last paragraph of Section 5 below) (the
“Applicable
Period”).
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(f)
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In
connection with the Exchange Offer, the Company shall:
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(i)
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mail
or cause to be mailed to each Holder of record a copy of the Prospectus
forming part of the Exchange Offer Registration Statement, together
with
an appropriate letter of transmittal and related
documents;
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(ii)
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utilize
the services of a depository for the Exchange Offer with an address
in the
Borough of Manhattan, the City of New York, which may be the Trustee
or an
affiliate thereof;
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(iii)
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permit
Holders to withdraw tendered Registrable Notes at any time prior
to the
close of business, New York time, on the last Business Day on which
the
Exchange Offer shall remain open;
and
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(iv)
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otherwise
comply in all material respects with all applicable
laws.
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(g)
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As
soon as practicable after the close of the Exchange Offer the Company
shall:
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5
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(i)
|
accept
for exchange all Registrable Notes validly tendered pursuant to the
Exchange Offer and not validly
withdrawn;
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(ii)
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deliver
to the Trustee for cancellation all Registrable Notes so accepted
for
exchange; and
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(iii)
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cause
the Trustee promptly to authenticate and deliver to each Holder,
Exchange
Notes equal in principal amount to the Notes of such Holder so accepted
for exchange; provided that,
in the case of any Notes held in global form by a depository,
authentication and delivery to such depositary of one or more replacement
Notes in global form in an equivalent principal amount thereto for
the
account of such Holders in accordance with the Indenture shall satisfy
such authentication and delivery
requirement.
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(h) If,
(i)
applicable interpretations of the staff of the SEC or other legal requirements
would not permit the consummation of the Exchange Offer as contemplated by
this
Section 2 or (ii) in the case of any Holder that participates in the Exchange
Offer, but does not receive Exchange Notes that it may resell to the public
without delivering a prospectus and the prospectus contained in the Exchange
Offer Registration Statement is not appropriate or available for such resales
(other than due solely to the status of such Holder as an affiliate of the
Company within the meaning of the Securities Act), then, in each case, the
Company shall promptly deliver to the Holders and the Trustee, if any, written
notice thereof (the “Shelf
Notice”)
and
shall on one and only one occasion file a Shelf Registration Statement pursuant
to Section 3.
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3.
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Shelf
Registration Statement
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If
a
Shelf Notice is properly delivered pursuant to Section 2(h), then:
(a) Shelf
Registration Statement.
The
Company shall file with the SEC a Registration Statement for an offering to
be
made on a continuous basis pursuant to Rule 415 covering all of the Registrable
Notes (the “Shelf
Registration Statement”).
The
Company shall use commercially reasonable efforts to file with the SEC the
Shelf
Registration Statement within 90 days of the delivery of the Shelf Notice and
shall use commercially reasonable efforts to cause such Shelf Registration
Statement to be declared effective under the Securities Act as promptly as
practicable thereafter. The Shelf Registration Statement shall be on Form S-1
or
another appropriate form permitting registration of such Registrable Notes
for
resale by Holders in the manner or manners reasonably designated by them. The
Company shall not permit any securities other than the Registrable Notes to
be
included in any Shelf Registration Statement. No Holder of Registrable Notes
shall be entitled to include any of its Registrable Notes in any Shelf
Registration Statement pursuant to this Agreement unless such Holder furnishes
to the Company and the Trustee in writing, within 20 days after receipt of
a
written request therefor, such information as the Company, after conferring
with
counsel with regard to information relating to Holders that would be required
by
the SEC to be included in such Shelf Registration Statement or Prospectus
included therein, may reasonably request for inclusion in any Shelf Registration
Statement or Prospectus included therein. The Company shall use commercially
reasonable efforts to keep the Shelf Registration Statement continuously
effective under the Securities Act until the date which is two years from the
Closing Date (the “Effectiveness
Period”),
or
such shorter period ending when (i) all Registrable Notes covered by the Shelf
Registration Statement have been sold in the manner set forth and as
contemplated in the Shelf Registration Statement; provided,
however,
that
the Company may suspend the effectiveness of the Shelf Registration Statement
by
written notice to any Holders solely (A) as a result of the filing of a
post-effective amendment to the Shelf
6
(b) Supplements
and Amendments.
The
Company shall promptly supplement and amend any Shelf Registration Statement
if
required by the rules, regulations or instructions applicable to the
registration form used for such Shelf Registration Statement, if required by
the
Securities Act, or if reasonably requested in writing by the Holders of a
majority in aggregate principal amount of the Registrable Notes covered by
such
Shelf Registration Statement with respect to the information included therein
regarding one or more of such Holders.
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4.
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Additional
Interest
|
(a) The
Company acknowledges and agrees that the Holders of Registrable Notes will
suffer damages if the Company fails to fulfill its material obligations under
Section 2 and/or Section 3 hereof and that it would not be feasible to ascertain
the extent of such damages with precision. Accordingly, the Company agrees
to
pay additional interest on the Notes (“Additional
Interest”)
under
the circumstances and to the extent set forth below (each of which shall be
given independent effect):
(i) if
(A)
neither the Exchange Offer Registration Statement nor the Shelf Registration
Statement has been filed on or prior to the Filing Date or (B) notwithstanding
that the Company has consummated or will consummate an Exchange Offer, the
Company is required to file a Shelf Registration and if such Shelf Registration
is not filed on or prior to the date required by this Agreement, Additional
Interest shall accrue on the principal amount of the Notes over and above any
stated interest at a rate of 0.25% per annum of the principal amount of such
Notes for the first 90 days immediately following the Filing Date, such
Additional Interest rate increasing by an additional 0.25% per annum at the
beginning of each subsequent 90-day period, subject to the proviso in the last
sentence of this subsection (a);
(ii) if
(A)
neither the Exchange Offer Registration Statement nor the Shelf Registration
Statement is declared effective on or prior to the Effectiveness Date, or (B)
notwithstanding that the Company has consummated or will consummate an Exchange
Offer, the Company is required to file a Shelf Registration Statement and such
Shelf Registration Statement is not declared effective by the SEC on or prior
to
the 180th
day
following the date such Shelf Registration Statement was filed, Additional
Interest shall accrue on the principal amount of the Notes over and above any
stated interest at a rate of 0.25% per annum of the principal amount of such
Notes for the first 90 days immediately following the Effectiveness Date, such
Additional Interest rate increasing by an additional 0.25% per annum at the
beginning of each subsequent 90-day period, subject to the proviso in the last
sentence of this subsection (a);
(iii) if
(A)
the Company has not exchanged Exchange Notes for all Notes validly tendered
in
accordance with the terms of the Exchange Offer on or prior to the end of the
Exchange Offer Period, or (B) if applicable, a Shelf Registration Statement
has
been declared effective and such Shelf Registration Statement ceases to be
effective at any time prior to the expiration of the Effectiveness Period (other
than during such time as all Notes registered thereunder have been disposed
of
or as contemplated in the proviso to the last sentence of Section 3(a)), then
Additional Interest shall accrue on the principal amount of the Notes, over
and
above any stated interest, at a rate of 0.25% per annum of the principal amount
of such Notes for the first 90 days commencing on (x) the Business Day following
the end of the Exchange Offer Period,
7
in
the case of clause (A) above, or (y) the day such Shelf Registration Statement
ceases to be effective in the case of clause (B) above, such Additional Interest
rate increasing by an additional 0.25% per annum at the beginning of each
subsequent 90-day period, subject to the proviso in the last sentence of this
subsection (a);
provided,
however,
that
the maximum Additional Interest rate on the Notes may not exceed at any one
time
in the aggregate 1.0% per annum; and provided further,
that
(1) upon the filing of the Exchange Offer Registration Statement or a Shelf
Registration Statement (in the case of (i) above), (2) upon the effectiveness
of
the Exchange Offer Registration Statement or a Shelf Registration Statement
(in
the case of (ii) above), or (3) upon the exchange of Exchange Notes for all
Notes tendered (in the case of (iii)(A) above), or upon the effectiveness of
a
Shelf Registration Statement, which had ceased to remain effective (in the
case
of (iii)(B) above), Additional Interest on the Notes as a result of such clause
(or the relevant subclause thereof), as the case may be, shall cease to accrue,
although it shall still accrue to the extent at such time another provision
of
clauses (i) through (iii) is applicable. Additional Interest will not accrue
under more than one of the foregoing clauses (i) through (iii) at any one time.
Notwithstanding the foregoing, no Additional Interest shall become due in the
event of any delay in filing or effectiveness of the Exchange Offer Registration
Statement or the Shelf Registration Statement or any delay in the consummation
of the Exchange Offer or any cessation of the effectiveness of the Shelf
Registration Statement that occurs by reason of a Blackout Period.
(b) The
Company shall notify the Trustee within 3 Business Days after each and every
date on which an event occurs in respect of which Additional Interest is
required to be paid (an “Event
Date”).
Any
amounts of Additional Interest due pursuant to clause (a)(i), (a)(ii) or
(a)(iii) of this Section 4 will be payable in cash on the dates and in the
manner provided in the Indenture, commencing with the first such quarterly
date
occurring after any such Additional Interest commences to accrue. The amount
of
Additional Interest will be determined by multiplying the applicable Additional
Interest rate by the principal amount of the Registrable Notes, multiplied
by a
fraction, the numerator of which is the number of days such Additional Interest
rate was applicable during such period (determined on the basis of a 360-day
year comprised of twelve 30-day months and, in the case of a partial month,
the
actual number of days elapsed), and the denominator of which is
360.
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5.
|
Registration
Procedures
|
In
connection with the filing of any Registration Statement pursuant to Section
2
or 3 hereof, the Company shall effect such registrations to permit the sale
of such securities covered thereby in accordance with the intended method or
methods of disposition thereof, and pursuant thereto and in connection with
any
Registration Statement filed by the Company hereunder, the Company
shall:
(a) prepare
and file with the SEC on or prior to the Filing Date, the Exchange Offer
Registration Statement or if the Exchange Offer Registration Statement is not
filed because of the circumstances contemplated by Section 2(h), a Shelf
Registration Statement as prescribed by Section 3, and use commercially
reasonable efforts to cause each such Registration Statement to become effective
and remain effective as provided herein; provided that,
if (1)
a Shelf Registration Statement is filed pursuant to Section 3 or (2) a
Prospectus contained in an Exchange Offer Registration Statement filed pursuant
to Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, before filing any Registration Statement or Prospectus or
any
amendments or supplements thereto, or any related free writing prospectus,
the
Company shall, if requested, furnish to and afford the Holders of the
Registrable Notes to be registered pursuant to such Shelf Registration
Statement, or each Participating Broker-Dealer and to their counsel, a
reasonable opportunity to review copies of all such documents (including copies
of
8
any
documents to be incorporated by reference therein and all exhibits thereto)
proposed to be filed (in each case at least 2 Business Days prior to such
filing). The Company shall not file any such Registration Statement or
Prospectus or any amendments or supplements thereto, or any free writing
prospectus related thereto, in respect of which the Holders must provide
information for the inclusion therein without the Holders being afforded an
opportunity to review such documentation if the holders of a majority in
aggregate principal amount of the Registrable Notes covered by such Registration
Statement, or any such Participating Broker-Dealer, as the case may be, their
counsel, , shall reasonably object in writing on a timely basis;
(b) provide
an indenture trustee for the Registrable Notes or the Exchange Notes, as the
case may be, and cause the Indenture (or other indenture relating to the
Registrable Notes) to be qualified under the TIA not later than the effective
date of the first Registration Statement; and in connection therewith, to effect
such changes to such indenture as may be required for such indenture to be
so
qualified in accordance with the terms of the TIA; and execute, and use
commercially reasonable efforts to cause such trustee to execute, all documents
as may be required to effect such changes, and all other forms and documents
required to be filed with the SEC to enable such indenture to be so qualified
in
a timely manner;
(c) prepare
and file with the SEC such amendments and post-effective amendments to each
Shelf Registration Statement or Exchange Offer Registration Statement, as the
case may be, as may be necessary to keep such Registration Statement
continuously effective for the Effectiveness Period or the Applicable Period,
as
the case may be; cause the related Prospectus to be supplemented by any
Prospectus supplement required by applicable law, and as so supplemented to
be
filed pursuant to Rule 424 (or any similar provisions then in force) promulgated
under the Securities Act; and comply with the provisions of the Securities
Act
and the Exchange Act applicable to them with respect to the disposition of
all
securities covered by such Registration Statement as so amended or in such
Prospectus as so supplemented and with respect to the subsequent resale of
any
securities being sold by a Participating Broker-Dealer covered by any such
Prospectus. The Company shall not, during the Applicable Period, voluntarily
take any action that would result in Participating Broker-Dealers seeking to
sell Exchange Notes not being able to sell such Exchange Notes during that
period, unless such action is required by applicable law, rule or regulation
or
permitted by this Agreement;
(d) furnish
to such selling Holders and Participating Broker-Dealers who so request in
writing in a timely fashion (i) such reasonable number of copies of such
Registration Statement and of each amendment and supplement thereto (in each
case including any documents incorporated therein by reference and all exhibits)
and (ii) such reasonable number of copies of the Prospectus included in such
Registration Statement (including each preliminary Prospectus), each amendment
and supplement thereto, and each free writing prospectus prepared by the Company
or used with the Company’s prior written consent in connection therewith, and
such reasonable number of copies of the final Prospectus as filed by the Company
pursuant to Rule 424(b) under the Securities Act, in conformity with the
requirements of the Securities Act and each amendment and supplement thereto.
The Company hereby consents to the use of the Prospectus or free writing
prospectus prepared by the Company or used with the Company’s prior written
consent for the following purposes by each of the selling Holders of Registrable
Notes or each such Participating Broker-Dealer, as the case may be, and dealers,
if any, in connection with the offering and sale of the Registrable Notes
covered by, or the sale by Participating Broker-Dealers of the Exchange Notes
pursuant to, such Prospectus and any amendment thereto, and each such selling
Holder and Participating Broker-Dealer agrees that it will not, and dealer
involved with any such offering or sale will not, use any written materials
in
connection therewith except for materials referred to in this sentence and
otherwise consented to in writing by the Company;
9
(e) if
(1) a
Shelf Registration Statement is filed pursuant to Section 3, or (2) a Prospectus
contained in an Exchange Offer Registration Statement filed pursuant to Section
2 is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period
relating thereto from whom the Company has received written notice that it
will
be a Participating Broker-Dealer in the Exchange Offer, notify the selling
Holders of Registrable Notes, or each such Participating Broker-Dealer, as
the
case may be, their counsel, promptly (but in any event within 2 Business Days),
and confirm such notice in writing, (i) when a Prospectus or any Prospectus
supplement or post-effective amendment or free writing prospectus prepared
by
the Company, or used with the Company’s prior written consent, has been filed,
and, with respect to a Registration Statement or any post-effective amendment,
when the same has become effective (including in such notice a written statement
that any Holder may, upon request, obtain, without charge, one conformed copy
of
such Registration Statement or post-effective amendment including financial
statements and schedules, documents incorporated or deemed to be incorporated
by
reference and exhibits), (ii) of the issuance by the SEC of any stop order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of any Prospectus or the initiation of any
proceedings for that purpose, (iii) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of a Registration Statement or any of the Registrable Notes
or the Exchange Notes to be sold by any Participating Broker-Dealer for offer
or
sale in any jurisdiction, or the initiation or threatening of any proceeding
for
such purpose, (iv) of the happening of any event, the existence of any condition
or any information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference, any free writing prospectus
prepared by the Company or used with the Company’s prior written consent, untrue
in any material respect or that requires the making of any changes in, or
amendments or supplements to, such Registration Statement, Prospectus or
documents so that, in the case of the Registration Statement and the Prospectus,
it will not contain any untrue statement of a material fact or omit to state
any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading and (vi) of any reasonable determination by the Company that a
post-effective amendment to a Registration Statement would be
appropriate;
(f) use
commercially reasonable efforts to prevent the issuance of any order suspending
the effectiveness of a Registration Statement or of any order preventing or
suspending the use of a Prospectus or suspending the qualification (or exemption
from qualification) of any of the Registrable Notes or the Exchange Notes to
be
sold by any Participating Broker-Dealer, for sale in any United States
jurisdiction (other than any jurisdiction to which the Company is not required
to register or qualify Registrable Notes or Exchange Notes for offer or sale
in
accordance with paragraph (h) of this Section 5), and, if any such order is
issued, to use commercially reasonable efforts to obtain the withdrawal of
any
such order at the earliest possible date;
(g) if
(A) a
Shelf Registration Statement is filed pursuant to Section 3 or (B) a Prospectus
contained in an Exchange Offer Registration Statement filed pursuant to Section
2 is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period
or
the Holders of a majority in aggregate principal amount of the Registrable
Notes
being sold in connection with an underwritten offering, (i) promptly incorporate
in a Prospectus supplement or post-effective amendment or free writing
prospectus such information or revisions to information therein relating to
such
selling Holders as such Holders or their counsel reasonably request in writing
to be included or made therein and (ii) make all required filings of such
Prospectus supplement or such post-effective amendment or such free writing
prospectus as soon as practicable after the Company has received notification
of
the matters to be incorporated in such Prospectus supplement or post-effective
amendment or free writing prospectus; provided,
however,
that
the Company shall not be required to take any action hereunder that would,
in
the written opinion of counsel to the Company, violate applicable
laws;
10
(h) prior
to
any public offering of Registrable Notes or any delivery of a Prospectus
contained in the Exchange Offer Registration Statement by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period,
use
commercially reasonable efforts to register or qualify, and to cooperate with
the selling Holders of Registrable Notes or each such Participating
Broker-Dealer, as the case may be and their respective counsel in connection
with the registration or qualification (or exemption from such registration
or
qualification) of such Registrable Notes or Exchange Notes, as the case may
be,
for offer and sale under the securities or blue sky laws of such jurisdictions
within the United States as any selling Holder, Participating Broker-Dealer
reasonably requests in writing; provided that
where
Exchange Notes held by Participating Broker-Dealers or Registrable Notes are
offered other than through an underwritten offering, the Company agrees to
cause
its counsel, or permit counsel for the Required Holders, to perform blue sky
investigations and file any registrations and qualifications required to be
filed pursuant to this Section 5(h), keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and all
other
acts or things reasonably necessary or advisable to enable the disposition
in
such jurisdictions of the Exchange Notes held by Participating Broker-Dealers
or
the Registrable Notes covered by the applicable Registration Statement;
provided that
the
Company shall not be required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any action that would
subject it to general service of process in any such jurisdiction where it
is
not then so subject or (C) subject itself to taxation in any such jurisdiction
where it is not then so subject;
(i) if
(A) a
Shelf Registration Statement is filed pursuant to Section 3 or (B) a Prospectus
contained in an Exchange Offer Registration Statement filed pursuant to Section
2 is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period,
cooperate with the selling Holders of Registrable Notes to facilitate the timely
preparation and delivery of certificates representing Registrable Notes to
be
sold, which certificates shall not bear any restrictive legends and shall be
in
a form eligible for deposit with The Depository Trust Company, and enable such
Registrable Notes to be in such denominations (subject to applicable
requirements contained in the Indenture) and registered in such names as the
Holders may reasonably request in writing at least five Business Days prior
to
any sale of such Registrable Notes;
(j) if
(1) a
Shelf Registration Statement is filed pursuant to Section 3, or (2) a Prospectus
contained in an Exchange Offer Registration Statement filed pursuant to Section
2 is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period,
upon the occurrence of any event contemplated by Section 5(e)(v) or 5(e)(vi)
hereof, as promptly as practicable, prepare and file with the SEC, at the
expense of the Company, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, or a free
writing prospectus prepared by the Company or used with the Company’s prior
written consent, or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Notes being sold thereunder
or to
the purchasers of the Exchange Notes to whom such Prospectus or free writing
prospectus prepared by the Company or used with the Company’s prior written
consent will be delivered by a selling Holder or a Participating Broker-Dealer,
such Prospectus and free writing prospectus 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, in light of the
circumstances under which they were made, not misleading;
11
(k) [Intentionally
Omitted];
(l) prior
to
the initial issuance of the Exchange Notes, (i) provide the Trustee with one
or
more certificates for the Registrable Notes in a form eligible for deposit
with
The Depository Trust Company and (ii) provide a CUSIP number for the Exchange
Notes;
(m) [Intentionally
Omitted];
(n) if
(1) a
Shelf Registration Statement is filed pursuant to Section 3, or (2) a Prospectus
contained in an Exchange Offer Registration Statement filed pursuant to Section
2 is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period,
make available for inspection by any selling Holder of such Registrable Notes
being sold, or each such Participating Broker-Dealer, as the case may be, in
any
such disposition of Registrable Notes, if any, and any attorney, accountant
or
other agent retained by any such selling Holder or each such Participating
Broker-Dealer, as the case may be (collectively, the “Inspectors”),
upon
written request, at the offices where normally kept, during reasonable business
hours, all pertinent financial and other records and pertinent corporate
documents of the Company and its subsidiaries (collectively, the “Records”)
as
shall be reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the officers, directors and employees
of
the Company and its subsidiaries to supply all information reasonably requested
in writing by any such Inspector in connection with such due diligence
responsibilities. Each Inspector shall agree in writing that it will keep the
Records confidential and not disclose, or use in connection with any market
transactions in violation of any applicable securities laws, any of the Records
unless (i) the release of such Records is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction, (ii) the information in
such
Records is public or has been made generally available to the public other
than
as a result of a disclosure or failure to safeguard by such Inspector, or (iii)
disclosure of such information is, in the reasonable written opinion of counsel
for any Inspector, necessary or advisable in connection with any action, claim,
suit or proceeding, directly or indirectly, involving or potentially involving
such Inspector and arising out of, based upon, related to, or involving this
Agreement, or any transaction contemplated hereby or arising hereunder,
including to demonstrate that such Inspector has satisfied its due diligence
defense in connection therewith. Each selling Holder of such Registrable Notes
and each such Participating Broker-Dealer will be required to agree that
information obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company unless and until such is made
generally available to the public. Each Inspector, each selling Holder of such
Registrable Notes and each such Participating Broker-Dealer will be required
to
further agree that it will, upon learning that disclosure of such Records is
sought in a court of competent jurisdiction, give notice to the Company and,
to
the extent practicable, use commercially reasonable efforts to allow the
Company, at its expense, to undertake appropriate action to prevent disclosure
of the Records deemed confidential;
(o) comply
with all applicable rules and regulations of the SEC and make generally
available to the security holders of the Company with regard to any applicable
Registration Statement earning statements (which need not be audited) satisfying
the provisions of section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act) no later than 45
days
after the end of any fiscal quarter (or 90 days after the end of any 12-month
period if such period is a fiscal year) commencing on the first day of the
first
fiscal quarter of the Company after the effective date of a Registration
Statement, which statements shall cover said 12-month periods;
12
(p) [Intentionally
Omitted];
(q) cooperate
with each seller of Registrable Notes covered by any Registration Statement,
participating in the disposition of such Registrable Notes and their respective
counsel in connection with any filings required to be made with the
NASD;
(r) use
commercially reasonable efforts to take all other steps reasonably necessary
to
effect the registration of the Registrable Notes covered by a Registration
Statement contemplated hereby; and
(s) take
all
reasonable action to ensure that any free writing prospectus prepared by the
Company or used with the Company’s prior written consent in connection with any
registration covered by Section 2 or 3 complies in all material respects with
the Securities Act, is filed in accordance with the Securities Act to the extent
required thereby, is retained in accordance with the Securities Act to the
extent required thereby and, when taken together with the related prospectus,
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
To
the
extent the Company is a well-known seasoned issuer (as defined in Rule 405
under
the Securities Act) (a “WKSI”)
at the
time any Demand Registration Request is submitted to the Company, and such
Demand Registration Request requests that the Company file an automatic shelf
registration statement (as defined in Rule 405 under the Securities Act) (an
“automatic shelf registration statement”) on Form S-3, the Company shall file an
automatic shelf registration statement which covers those Registrable Securities
which are requested to be registered. If the Company does not pay the filing
fee
covering the Registrable Securities at the time the automatic shelf registration
statement is filed, the Company agrees to pay such fee at such time or times
as
the Registrable Securities are to be sold. If at any time when the Company
is
required to re-evaluate its WKSI status the Company determines that it is not
a
WKSI, the Company shall use its commercially reasonable efforts to refile the
shelf registration statement on Form S-3 and, if such form is not available,
Form S-1 and keep such registration statement effective during the period during
which such registration statement is required to be kept effective.
The
Company may require each seller of Registrable Notes or Participating
Broker-Dealer as to which any registration is being effected to furnish to
the
Company such information regarding such seller or Participating Broker-Dealer
and the distribution of such Registrable Notes as the Company may, from time
to
time, reasonably request. The Company may exclude from such registration the
Registrable Notes of any seller who fails to furnish such information within
a
reasonable time (which time in no event shall exceed 30 days) after receiving
such request and in the event of such an exclusion (which the Company will
use
good faith reasonable efforts to avoid), the Company shall have no further
obligation under this Agreement to such seller or any subsequent holder of
such
Registrable Notes. Each seller of Registrable Notes or Participating
Broker-Dealer as to which any registration is being effected agrees to furnish
promptly to the Company all information required to be disclosed in order to
make the information previously furnished by such seller not materially
misleading.
Each
Holder and each Participating Broker-Dealer agrees by acquisition of Registrable
Notes or Exchange Notes that, upon the Company providing notice to such Holder
or Participating Broker-Dealer, as the case may be, (x) of the happening of
any
event of the kind described in Section 5(e)(ii), 5(e)(iii), 5(e)(iv), 5(e)(v),
or 5(e)(vi) hereof, or (y) that the Board of Directors of the Company has
resolved that the Company has a bona fide business purpose for doing so, then,
upon providing such notice (which shall refer to this paragraph), the Company
may delay the filing or the effectiveness of the Exchange Offer Registration
Statement or the Shelf Registration Statement (if not
13
All
fees
and expenses incident to the performance of or compliance with this Agreement
by
the Company (other than any or any fees and expenses incurred by any Holders
in
connection with the execution and delivery of this Agreement) shall be borne
by
the Company, whether or not the Exchange Offer or a Shelf Registration Statement
is filed or becomes effective, including, without limitation, (i) all
registration and filing fees, including, without limitation, (A) fees with
respect to filings required to be made with the NASD and (B) fees and expenses
of compliance with state securities or blue sky laws, (ii) messenger, telephone
and delivery expenses incurred in connection with the performance of its
obligations hereunder, (iii) fees and disbursements of counsel for the Company,
(iv) fees and disbursements of all independent certified public accountants
(including, without limitation, the expenses of any special audit and “cold
comfort” letters required by or incident to such performance), (v) Securities
Act liability insurance, if the Company desires such insurance, (vi) fees and
expenses of all other Persons retained by the Company, (vii) internal expenses
of the Company (including, without limitation, all salaries and expenses of
officers and employees of the Company performing legal or accounting duties),
(viii) the expense of any annual audit, (ix) the fees and expenses of any
trustee and the Exchange Agent and (x) the expenses relating to printing, word
processing and distributing all Registration Statements, securities sales
agreements, indentures and any other documents necessary in order to comply
with
this Agreement.
In
the
case of a Shelf Registration Statement, the Company shall reimburse the Holders
for the reasonable fees and disbursements of not more than one counsel chosen
by
the Holders of a majority in aggregate principal amount of the Registrable
Notes
to be included in any Registration Statement. The Company shall pay all
documentary, stamp, transfer or other transactional taxes attributable to the
issuance or delivery of the Exchange Notes in exchange for the Notes; provided
that the Company shall not be required to pay taxes payable in respect of any
transfer involved in the issuance or delivery of any Exchange Note in a name
other than that of the Holder of the Note in respect of which such Exchange
Note
is being issued.
14
|
6.
|
Indemnification
|
(a) Indemnification
by the Company.
The
Company agrees to indemnify and hold harmless each Holder of Registrable Notes
or Exchange Notes and each Participating Broker-Dealer selling Exchange Notes
during the Applicable Period, each Person, if any, who controls each such Holder
(within the meaning of Section 15 of the Securities Act or Section 20(a) of
the
Exchange Act) and the officers, directors, employees and partners of each such
Holder, Participating Broker-Dealer and controlling person (each, a
“Participant”)
from
and against any losses, claims, damages, liabilities, costs (including, without
limitation, reasonable costs of preparation and reasonable attorneys’ fees as
provided in this Section 6) and reasonable expenses (including, without
limitation, reasonable costs and expenses incurred in connection with
investigating, preparing, pursuing or defending against any of the foregoing)
(collectively, “Losses”),
insofar as such Losses arise out of or are based upon any violation of the
Securities Act or Exchange Act by the Company, or any untrue statement or
alleged untrue statement of a material fact in any Registration Statement,
Prospectus or form of prospectus, or in any amendment or supplement thereto,
or
in any preliminary prospectus, or
any
free writing prospectus prepared by the Company or used with the Company’s prior
written consent in connection therewith,
or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however,
that
(i) such Losses must arise out of or be based upon the offering or resale of
Exchange Notes by a Participating Broker-Dealer following the completion of
the
Exchange Offer pursuant to any offering contemplated by the Exchange Offer
Registration Statement or the offering or sale of Registrable Notes by any
Holder pursuant to any offering contemplated by the Shelf Registration
Statement, (ii) such Losses must not result from information relating to such
Holder or Participating Broker-Dealer and furnished in writing to the Company
(or reviewed and approved in writing) by such Holder or Participating
Broker-Dealer or their counsel expressly for use therein, and (iii) the
foregoing indemnity shall not inure to the benefit of any Participant in
connection with any Person asserting Losses against such Participant in respect
of any untrue statement or omission or alleged untrue statement or omission
contained in any offering document if the Company had made available an offering
document which corrected such untrue statement or omission or alleged untrue
statement or omission prior to any delivery of the confirmation of sale to
such
Person and a copy of such corrected offering document was not provided to or
for
such Person. The Company also agrees to indemnify selling brokers, dealer
managers and similar securities industry professionals participating in the
distribution, their officers, directors, agents and employees and each Person
who controls such Persons (within the meaning of Section 15 of the Securities
Act or Section 20(a) of the Exchange Act) to the same extent as provided above
with respect to the indemnification of the Holders or the Participating
Broker-Dealer, and each such person shall be a “Participant” for purposes of
this Section 6.
(b) Indemnification
by Holder.
Each
Holder shall indemnify and hold harmless the Company, its directors, officers
and each Person, if any, who controls the Company (within the meaning of Section
15 of the Securities Act and Section 20(a) of the Exchange Act), and the
directors, officers, employees and partners of such controlling persons, from
and against all Losses insofar as such Losses arise out of or are based upon
any
untrue statement or alleged untrue statement of a material fact in any
Registration Statement, Prospectus or form of prospectus or in any amendment
or
supplement thereto or in any preliminary prospectus or any free writing
prospectus prepared by the Company or used with the Company’s prior written
consent in connection therewith, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the
statements therein, in the light of the circumstances under which they were
made, not misleading to the extent, but only to the extent, that such losses
arise out of or result from an untrue statement or alleged untrue statement
of a
material fact or omission or alleged omission of a material fact contained
in or
omitted from any information so furnished in writing by such Holder to the
Company (or reviewed and approved in writing) expressly for use therein.
Notwithstanding the
15
(c) Conduct
of Indemnification Proceedings.
If any
proceeding shall be brought or asserted against any Person entitled to indemnity
hereunder (an “Indemnified
Party”),
such
Indemnified Party shall promptly notify the party or parties from which such
indemnity is sought in writing; provided,
that
the
failure to so notify the Indemnifying Parties shall not relieve the Indemnifying
Parties from any obligation or liability except to the extent (but only to
the
extent) that the Indemnifying Parties have been prejudiced materially by such
failure.
The
Indemnifying Party shall have the right, exercisable by giving written notice
to
an Indemnified Party, to assume, at its expense, the defense of any such
proceeding, provided,
that
an
Indemnified Party shall have the right to employ separate counsel in any such
proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party or parties
unless: (1) the Indemnifying Party has agreed to pay such fees and expenses;
or
(2) the Indemnifying Party shall have failed promptly to assume the defense
of
such proceeding or shall have failed to employ counsel reasonably satisfactory
to such Indemnified Party; or (3) the named parties to any such proceeding
(including any impleaded parties) include both such Indemnified Party and the
Indemnifying Party or any of its affiliates or controlling persons, and such
Indemnified Party shall have been advised by counsel that there may be one
or
more defenses available to such Indemnified Party that are in addition to,
or in
conflict with, those defenses available to the Indemnifying Party or such
affiliate or controlling person (in which case, if such Indemnified Party
notifies the Indemnifying Parties in writing that it elects to employ separate
counsel at the expense of the Indemnifying Parties, the Indemnifying Parties
shall not have the right to assume the defense and the reasonable fees and
expenses of such counsel shall be at the expense of the Indemnifying Party;
it
being understood, however, that the Indemnifying Party shall not, in connection
with any one such proceeding or separate but substantially similar or related
proceedings, arising out of the same general allegations or circumstances,
be
liable for the fees and expenses of more than one separate firm of attorneys
(in
addition to one appropriate local counsel in each required jurisdiction) at
any
time for such Indemnified Party).
No
Indemnifying Party shall be liable for any settlement of any such proceeding
effected without its written consent (which consent shall not be unreasonably
withheld, delayed, or conditioned), but if settled with its written consent,
or
if there be a final judgment for the plaintiff in any such proceeding, each
Indemnifying Party jointly and severally agrees, subject to the exceptions
and
limitations set forth above, to indemnify and hold harmless each Indemnified
Party from and against any and all Losses by reason of such settlement or
judgment. Without the prior written consent of the applicable Indemnified Party
(which consent shall not be unreasonably withheld, delayed, or conditioned),
the
Indemnifying Party shall not consent to the entry of any judgment or enter
into
any settlement that does not include as an unconditional term thereof the giving
by the claimant or plaintiff to each Indemnified Party of a release, in form
and
substance reasonably satisfactory to the Indemnified Party, from all liability
in respect of such proceeding for which such Indemnified Party would be entitled
to indemnification hereunder (whether or not any Indemnified Party is a party
thereto), which release does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of the Indemnified
Party.
(d) Contribution.
If the
indemnification provided for in this Section 6 is unavailable to an Indemnified
Party or is insufficient to hold such Indemnified Party harmless for any Losses
in respect of which this Section 6 would otherwise apply by its terms (other
than by reason of exceptions provided in this Section 6), then each applicable
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall have
a
joint and several obligation to contribute to the amount paid or payable by
such
Indemnified Party as a result of such Losses, in such
16
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 6(d) were determined by pro rata allocation or by
another method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 6(d), in the case of any
liability arising in connection with any offering contemplated by a Shelf
Registration Statement, a selling Holder shall not be required to contribute,
in
the aggregate, any amount in excess of such Holder’s Maximum Contribution
Amount. A selling Holder’s “Maximum
Contribution Amount”
shall
equal the excess of (i) the aggregate gross proceeds received by such Holder
pursuant to the sale of such Registrable Notes over (ii) the aggregate amount
of
damages that such Holder 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
indemnity and contribution agreements contained in this Section 6 are in
addition to any liability that the Indemnifying Parties may have to the
Indemnified Parties.
|
7.
|
Rule
144A
|
For
so
long as any Registrable Notes remain outstanding, the Company will make
available at its expense, upon request to any Holder and any prospective
purchasers thereof, the information specified in Rule 144A(d)(4) under the
Securities Act, unless the Company is then subject to Section 13 or 15(d) of
the
Exchange Act.
|
8.
|
[Intentionally
Omitted]
|
|
9.
|
Miscellaneous
|
(a) No
Inconsistent Agreements.
The
Company has not entered, as of the date hereof, and the Company shall not enter,
after the date of this Agreement, into any agreement with respect to any of
its
securities that conflicts with the rights granted to the Holders of Notes in
this Agreement. The Company has not entered and will not enter into any
agreement with respect to any of its securities that will grant to any Person
piggy-back rights with respect to a Registration Statement
hereunder.
(b) Specific
Performance.
The
parties hereto acknowledge that there would be no adequate remedy at law if
any
party fails to perform any of its obligations hereunder and that each party
may
be irreparably harmed by any such failure, and accordingly agree that each
party, in addition to any other remedy to which it may be entitled at law or
in
equity, shall be entitled to compel specific performance of the
17
(c) Amendments
and Waivers.
The
provisions of this Agreement may not be amended, modified or supplemented,
and
waivers or consents to departures from the provisions hereof may not be given,
otherwise than with the prior written consent of the Company and, in
circumstances that would adversely affect any Holders of Registrable Notes,
the
Required Holders; provided,
however,
that
Section 6 and this Section 9(c) may not be amended, modified or supplemented
without the prior written consent of the Company and each Holder; provided,
further,
that no
such amendment or waiver may treat (on the face of such amendment or waiver
and
without regard to the status or individual character of such Holder or other
facts and circumstances affecting Holder) any Holder in a disproportionate
adverse manner as compared to the treatment of any other Holder, without the
prior written consent of such Holder; provided,
however,
that
this clause (c) shall not apply to any amendment or waiver of any provision
in
this Agreement on the date hereof that is not generally applicable to the
Purchasers or is only for the benefit or to the detriment of a particular subset
of the Purchasers.
(d) Notwithstanding
the foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders of
Registrable Notes whose securities are being tendered pursuant to the Exchange
Offer or sold pursuant to a Registration Statement and that does not directly
or
indirectly affect, impair, limit or compromise the rights of other Holders
of
Registrable Notes may be given by the Company and Holders of at least a majority
in aggregate principal amount of the Registrable Notes being so tendered or
being sold by such Holders pursuant to such Registration Statement.
(e) Notices.
All
notices and other communications provided for or permitted hereunder shall
be
made in writing by hand delivery, registered first-class mail, next-day air
courier or telecopier:
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(i)
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if
to a Holder of Notes or to any Participating Broker-Dealer, at the
most
current address of such Holder or Participating Broker-Dealer, as
the case
may be, set forth on the records of the registrar of the
Notes.
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(ii)
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if
to the Purchasers, as follows: Xxxxxxx Xxxxx & Co., GS Mezzanine
Partners 2006 Onshore US, Ltd., GS Mezzanine Partners 2006 Offshore
US,
Ltd., GS Mezzanine Partners Institutional US, Ltd., 00 Xxxxx Xxxxxx,
Xxx
Xxxx, XX 00000, fax: 000-000-0000, Attention: Xxxx Xxxxxxxxx with
a copy
to: Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP, Xxx Xxx Xxxx Xxxxx,
Xxx Xxxx, XX 00000, fax: 000-000-0000, Attention: F. Xxxxxxx Xxxxxxx,
Esq.
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(iii)
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if
to the Company, as follows: Xxxxx Plastics Holding Corporation (f/k/a
BPC
Holding Corporation), 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000,
fax:
000-000-0000, Attention:
General
Counsel with
a copy to: O’Melveny
& Xxxxx LLP, Times Square Tower, 0 Xxxxx Xxxxxx,
Xxx Xxxx, XX 00000, fax: 000-000-0000, Attention: Xxxxxxx Xxxxxx,
Esq.
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All
such
notices and communications shall be deemed to have been duly given: when
delivered by hand, if personally delivered; three business days after being
deposited in the United States mail, postage prepaid, if mailed; one business
day after being timely delivered to a next-day air courier guaranteeing
overnight delivery; and when receipt is acknowledged by the addressee, if
telecopied. Copies of all such notices, demands or other communications shall
be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in the Indenture.
18
(f) Parties
in Interest.
All of
the terms and provisions of this Agreement shall be binding upon, shall inure
to
the benefit of and shall be enforceable by the respective successors and assigns
of the parties hereto. In the event that any transferee of any Holder of
Registrable Notes shall acquire Registrable Notes in any manner permitted under
the Purchase Agreement or the Indenture, as applicable, 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 party hereto for all
purposes and such Registrable Notes shall be held subject to all of the terms
of
this Agreement, and by taking and holding such Registrable Notes such transferee
shall be entitled to receive the benefits of and be conclusively deemed to
have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement.
(g) Survival.
The
respective indemnities, agreements, representations, warranties and each other
provision set forth in this 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 Notes, any
director, officer or partner of such Holder, 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 Notes pursuant to the Purchase
Agreement and the transfer and registration of Registrable Notes by such Holder
and the consummation of an Exchange Offer.
(h) Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors
and
assigns of each of the parties hereto, including, without limitation and without
the need for an express assignment, subsequent Holders of Notes.
(i) Counterparts.
This
Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and
the
same agreement.
(j) Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(k) Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION
OF
ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF
NEW
YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF
NEW
YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO
THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITS AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. EACH PARTY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN
ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN
ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH PARTY IRREVOCABLY
CONSENTS, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW,
TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION
OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO SUCH PARTY AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME
EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT
OF
ANY PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY OTHER PARTY IN ANY OTHER
JURISDICTION.
19
(l) Severability.
If any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use commercially reasonable efforts
to find and employ an alternative means to achieve the same or substantially
the
same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms, provisions, covenants
and restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
(m) Notes
Held by the Company or Its Affiliates.
Whenever the consent or approval of Holders of a specified percentage of Notes
is required hereunder, Notes held by the Company or its controlled affiliates
(as such term is defined in Rule 405 under the Securities Act) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
(n) Third
Party Beneficiaries.
Holders
and Participating Broker-Dealers are intended third party beneficiaries of
this
Agreement and this Agreement may be enforced by such Persons.
(o) Entire
Agreement.
This
Agreement, together with the Purchase Agreement and the Indenture, is intended
by the parties as a final and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein and any and all prior oral or written agreements,
representations, or warranties, contracts, understanding, correspondence,
conversations and memoranda between the Purchasers on the one hand and the
Company on the other, or between or among any agents, representatives, parents,
subsidiaries, affiliates, predecessors in interest or successors in interest
with respect to the subject matter hereof and thereof are merged herein and
replaced hereby.
[Remainder
of page intentionally left blank.]
20
IN
WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this
Agreement to be duly executed and delivered as of the date first above
written.
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BPC
ACQUISITION CORP.
By: _________________________
Name:
Title:
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IN
WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this
Agreement to be duly executed and delivered as of the date first above
written.
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XXXXXXX,
SACHS & CO.
By: _________________________
Name:
Title:
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IN
WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this
Agreement to be duly executed and delivered as of the date first above
written.
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GSMP
2006 ONSHORE US, LTD.
By: _________________________
Name:
Title:
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GSMP
2006 OFFSHORE US, LTD.
By: _________________________
Name:
Title:
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GSMP
2006 INSTITUTIONAL US, LTD.
By: _________________________
Name:
Title:
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