1
EXHIBIT 10.9
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is dated as of June 10,
1997 by and among Plainwell Holding Company, a Delaware corporation (the
"Company"), Citicorp Venture Capital, Ltd., a New York corporation ("CVC"), CCT
II Partners, L.P., a Delaware limited partnership ("CCT"), Xxxxxxx Xxxxxx (the
"Investor"), Larkspur Capital Corporation ("Larkspur"), Xxxxxxx X. New and each
other executive of the Company or its subsidiaries who acquires Common Stock (as
defined below) from the Company after the date hereof and executes a joinder
hereto (collectively, the "Executives", and individually as an "Executive"), and
the Persons set forth on the Individual Purchaser Signature Page attached hereto
(collectively referred to herein as the "Individual Purchasers", and
individually as an "Individual Purchaser").
The Executives (other than Xxxxxxx X. New) will purchase
shares of the Company's Class B Common Stock, par value $.01 per share (the
"Class B Common"), pursuant to certain purchase agreements with the Company.
Xxxxxxx X. New has purchased, or will have purchased, shares
of the Company's Class A Common Stock, par value $.01 per share (the "Class A
Common") and shares of the Company's Class B Common, pursuant to a certain
purchase agreement with the Company.
CVC has purchased shares of the Company's Class A Common and
of the Company's Class B Common (together with all warrants issued in
substitution or replacement therefor, the "CVC Warrants"), pursuant to a CVC
Securities Purchase Agreement, dated as of the date hereof, between the Company
and CVC.
The Individual Purchasers have purchased shares of Class A
Common and of Class B Common pursuant to the Securities Purchase Agreement,
dated as of the date hereof, by and among the Company and the Individual
Purchasers.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Agreement
hereby agree as follows:
1. Definitions. As used herein, the following terms shall have
the following meanings.
"Common Stock" means, collectively, (i) the Class A Common and
the Class B Common, (ii) any other class of Common Stock, and (iii) any capital
stock of the Company issued or issuable with respect to the securities referred
to in clauses (i) or (ii) by way of stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization.
"CVC Registrable Securities" means (i) any shares of Common
Stock issued or issuable to CVC or its affiliates upon exercise of the CVC
Warrants or acquired by, or issued or issuable to, CVC or its affiliates on or
after the date hereof, (ii) any capital stock of the Company
2
acquired by CVC or its affiliates on or after the date hereof, and (iii) any
shares of capital stock of the Company issued or issuable with respect to the
securities referred to in clauses (i) or (ii) above by way of a stock dividend
or stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization. For purposes of this Agreement, a
Person will be deemed to be a holder of CVC Registrable Securities whenever such
Person has the right to acquire directly or indirectly such CVC Registrable
Securities (upon conversion or exercise in connection with a transfer of
securities or otherwise, but disregarding any restrictions or limitations upon
the exercise of such right), whether or not such acquisition has actually been
effected.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Executive Registrable Securities" means (i) any shares of
Common Stock issued or issuable to the Executives on the date hereof or acquired
by, or issued or issuable to, the Executives after the date hereof and (ii) any
shares of capital stock of the Company issued or issuable with respect to the
securities referred to in clause (i) above by way of a stock dividend or stock
split or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization, if and to the extent, in each case, such
shares of Common Stock referred to in clauses (i) and (ii) above have vested
pursuant to the terms of the Executive Stock Purchase Agreements executed by
such Executives and the Company. For purposes of this Agreement, a Person will
be deemed to be a holder of Executive Registrable Securities whenever such
Person has the right to acquire directly or indirectly such Executive
Registrable Securities (upon conversion or exercise in connection with a
transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected.
"Holders Securities" means any securities of CVC or any of its
affiliates which are exchangeable, convertible, or otherwise similarly
exercisable into Registrable Securities.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a limited liability company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Purchaser Registrable Securities" means (i) any shares of
Common Stock acquired by, or issued or issuable to, CCT, the Individual
Purchasers, the Investor, or Larkspur on or after the date hereof, (ii) any
shares of capital stock of the Company acquired by CCT or the Individual
Purchasers on or after the date hereof, and (iii) any shares of capital stock of
the Company issued or issuable with respect to the securities referred to in
clauses (i) or (ii) above by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization. For purposes of this Agreement, a Person will be deemed
to be a holder of Purchaser Registrable Securities whenever such Person has the
right to acquire directly or indirectly such Purchaser Registrable Securities
(upon conversion or exercise in connection with a transfer of securities or
otherwise, but disregarding any restrictions or limitations upon the exercise of
such right), whether or not such acquisition has actually been effected.
- 2 -
3
"Qualified Public Offering" means the sale, in an underwritten
public offering registered under the Securities Act, of shares of the Company's
Common Stock having an aggregate value of at least $30 million.
"Registrable Securities" means, collectively, the CVC
Registrable Securities, the Purchaser Registrable Securities, and the Executive
Registrable Securities.
"Registration Expenses" means all expenses incident to the
Company's performance of or compliance with this Agreement, including without
limitation all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws, printing expenses, messenger and delivery
expenses, and fees and disbursements of counsel for the Company and all
independent certified public accountants, underwriters (excluding discounts and
commissions) and other Persons retained by the Company.
"Rule 144" means Rule 144 under the Securities Act (or any
similar rule then in force).
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
2. Demand Registrations.
(a) Requests for Registration. Subject to Section 2(b) below,
at any time and from time to time, the holders of a majority of the CVC
Registrable Securities may request registration, whether underwritten or
otherwise, under the Securities Act of all or part of their Registrable
Securities on Form S-1 or any similar long-form registration ("Long-Form
Registrations") or on Form S-2 or S-3 or any similar short-form registration
("Short-Form Registrations") if available. In addition, subject to Section 2(g)
below, the holders of a majority of the CVC Registrable Securities may request
that the Company file with the SEC a registration statement under the Securities
Act on any applicable form pursuant to Rule 415 under the Securities Act (a "415
Registration"). Each request for a Long-Form Registration or Short-Form
Registration shall specify the approximate number of Registrable Securities
requested to be registered and the anticipated per share price range for such
offering. Within ten days after receipt of any such request for a Long-Form
Registration or Short-Form Registration, the Company will give written notice of
such requested registration to all other holders of Registrable Securities and
will include (subject to the provisions of this Agreement) in such registration,
all Registrable Securities with respect to which the Company has received
written requests for inclusion therein within 20 days after the receipt of the
Company's notice. All registrations requested pursuant to in this Section 2(a)
are referred to herein as "Demand Registrations". The Company acknowledges that
the holders of the CVC Registrable Securities may request a Demand Registration
in connection with a public offering of Holders Securities.
(b) Long-Form Registrations. The holders of a majority of the
CVC Registrable Securities will be entitled to request up to five (5) Long-Form
Registrations in which the Company will pay all Registration Expenses. A
registration will not count as the permitted Long-Form
- 3 -
4
Registration until it has become effective and unless the holders of Registrable
Securities are able to register and sell at least 90% of the Registrable
Securities requested to be included in such registration.
(c) Short-Form Registrations. In addition to the Long-Form
Registrations provided pursuant to Section 2(b), the holders of the CVC
Registrable Securities will be entitled to request an unlimited number of
Short-Form Registrations in which the Company will pay all Registration
Expenses. Demand Registrations (other than 415 Registrations) will be Short-Form
Registrations whenever the Company is permitted to use any applicable short
form. After the Company has become subject to the reporting requirements of the
Exchange Act, the Company will use its best efforts to make Short-Form
Registrations available for the sale of Registrable Securities.
(d) Priority on Demand Registrations. The Company will not
include in any Long-Form Registration or Short-Form Registration any securities
which are not Registrable Securities without the prior written consent of the
holders of at least a majority of the Registrable Securities included in such
registration. If a Long-Form Registration or a Short-Form Registration is an
underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities and, if
permitted hereunder, other securities requested to be included in such offering
exceeds the number of Registrable Securities and other securities, if any, which
can be sold therein without adversely affecting the marketability of the
offering, the Company will include in such registration (i) first, the number of
Registrable Securities requested to be included in such registration pro rata,
if necessary, among the holders of Registrable Securities based on the number of
shares of Registrable Securities owned by each such holder and (ii) second, any
other securities of the Company requested to be included in such registration
pro rata, if necessary, on the basis of the number of shares of such other
securities owned by each such holder, and (iii) third, if Company Registrable
Securities are to be included in such registration, the number of Company
Registrable Securities to be included in such registration is that number of
Company Registrable Securities which is, after giving effect to the foregoing
clauses (i) and (ii), required to attain the $20 million threshold offering
amount set forth in Section 5(c).
(e) Restrictions on Demand Registrations. The Company will not
be obligated to effect any Demand Registration within six months after the
effective date of a previous Demand Registration.
(f) Selection of Underwriters. In the case of a Demand
Registration for an underwritten offering, the holders of a majority of the
Registrable Securities to be included in such Demand Registration will have the
right to select the investment banker(s) and manager(s) to administer the
offering, which investment banker(s) and manager(s) will be nationally
recognized, subject to the Company's approval which will not be unreasonably
withheld.
(g) 415 Registrations.
(i) The holders of a majority of the CVC Registrable
Securities will be entitled to request one (1) 415 Registration. Subject to the
availability of required financial information, within 45 days after the Company
receives written notice of a request for a 415 Registration, the Company shall
file with the SEC a registration statement under the Securities Act
-4-
5
for the 415 Registration. The Company shall use its best efforts to cause the
415 Registration to be declared effective under the Securities Act as soon as
practical after filing, and once effective, the Company shall (subject to the
provisions of clause (ii) below) cause such 415 Registration to remain effective
for such time period as is specified in such request, but for no time period
longer than the period ending on the earlier of (i) the third anniversary of the
date of filing of the 415 Registration or (ii) the date on which all CVC
Registrable Securities have been sold pursuant to the 415 Registration or (iii)
the date as of which there are no longer any CVC Registrable Securities in
existence.
(ii) If the holders of a majority of the CVC Registrable
Securities notify the Company in writing that they intend to effect the sale of
all or substantially all of the CVC Registrable Securities held by such holders
pursuant to a single integrated offering pursuant to a then effective
registration statement for a 415 Registration (a "Takedown"), the Company and
each holder of Registrable Securities (other than the Individual Purchasers)
shall not effect any public sale or distribution of its equity securities, or
any securities convertible into or exchangeable or exercisable for its equity
securities, during the 90-day period beginning on the date such notice of a
Takedown is received.
(iii) If in connection with any Takedown the managing
underwriters (selected in accordance with clause (iv) below) advise the Company
that, in its opinion, the inclusion of any other securities other than CVC
Registrable Securities would adversely affect the marketability of the offering,
then no such securities shall be permitted to be included. Additionally, if in
connection with such an offering, the number of CVC Registrable Securities and
other securities (if any) requested to be included in such Takedown exceeds the
number of CVC Registrable Securities and other securities which can be sold in
such offering without adversely affecting the marketability of the offering, the
company shall include in such Takedown (i) first, the CVC Registrable Securities
requested to be included in such Takedown, pro rata among the holders of such
Registrable Securities on the basis of the number of CVC Registrable Securities
owned by each such holder, and (ii) second, other securities requested to be
included in such Takedown to the extent permitted hereunder.
(iv) The holders of a majority of the CVC Registrable
Securities shall have the right to retain and select an investment banker and
manager to administer the 415 Registration and any Takedown pursuant thereto,
subject to the Company's approval which will not be unreasonably withheld.
(v) In addition to the provisions in Section 6 below,
all expenses incurred in connection with the management of the 415 Registration
(whether incurred by the Company or the holders of the CVC Registrable
Securities) shall be borne by the Company (including, without limitation, all
fees and expenses of the investment banker and manager) (excluding discounts and
commissions).
(h) Other Registration Rights. Except as provided in this
Agreement, the Company will not grant to any Persons the right to request the
Company to register any equity securities of the Company, or any securities
convertible or exchangeable into or exercisable for such
-5-
6
securities, without the prior written consent of the holders of a majority of
the CVC Registrable Securities.
3. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to
register any of its Common Stock under the Securities Act (other than pursuant
to a Demand Registration, and other than pursuant to a registration statement on
Form S-8 or S-4 or any similar form or in connection with a registration the
primary purpose of which is to register debt securities (i.e., in connection
with a so-called "equity kicker") and a registration form to be used may be used
for the registration of Registrable Securities (a "Piggyback Registration"), the
Company will give prompt written notice to all holders of Registrable Securities
of its intention to effect such a registration and will include in such
registration all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 20 days after the receipt
of the Company's notice. Notwithstanding the foregoing, in connection only with
the initial registered public offering of the Company's securities which
offering is a primary offering, no Registrable Securities shall be included in
such registration without the prior written consent of the holders of a majority
of CVC Registrable Securities.
(b) Priority on Primary Registrations. If a Piggyback
Registration is an underwritten primary registration on behalf of the Company,
the Company will include in such registration all securities requested to be
included in such registration; provided, that if the managing underwriters
advise the Company in writing that in their opinion the number of securities
requested to be included in such registration exceeds the number which can be
sold in such offering without adversely affecting the marketability of the
offering, the Company will include in such registration (i) first, the
securities the Company proposes to sell, (ii) second, the Registrable Securities
requested to be included in such registration, pro rata among the holders of
such Registrable Securities on the basis of the number of shares of Registrable
Securities owned by each such holder, and (iii) third, other securities, if any,
requested to be included in such registration.
(c) Priority on Secondary Registrations. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the Company's securities (which registration was consented to pursuant to
Section 2(h) above), and the managing underwriters advise the Company in writing
that in their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company will include
in such registration (i) first, the securities requested to be included therein
by the holders requesting such registration, (ii) second, the Registrable
Securities requested to be included in such registration, pro rata among the
holders of such Registrable Securities on the basis of the number of shares of
Registrable Securities owned by each such holder, and (iii) third, other
securities requested to be included in such registration not covered by clause
(i) above.
(d) Selection of Underwriters. If any Piggyback Registration
is an underwritten offering, the investment banker(s) and manager(s) for the
offering will be selected by the Company.
-6-
7
(e) Other Registrations. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to this
Section 3, and if such previous registration has not been withdrawn or
abandoned, the Company will not file or cause to be effected any other
registration of any of its equity securities or securities convertible or
exchangeable into or exercisable for its equity securities under the Securities
Act (except on Forms S-4 or S-8 or any successor forms), whether on its own
behalf or at the request of any holder or holders of such securities, until a
period of at least six months has elapsed from the effective date of such
previous registration.
4. Holdback Agreements.
(a) Each holder of Registrable Securities (other than the
Individual Purchasers) hereby agrees not to effect any public sale or
distribution (including sales pursuant to Rule 144) of equity securities of the
Company, or any securities convertible into or exchangeable or exercisable for
such securities, during the seven days prior to and the 180-day period beginning
on the effective date of any Demand Registration (other than a 415 Registration)
or Piggyback Registration for a public offering to be underwritten on a firm
commitment basis in which Registrable Securities are included (except as part of
such underwritten registration), unless the underwriters managing the registered
public offering otherwise agree.
(b) The Company agrees (i) not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and during the 180-day period beginning on the effective date of any
underwritten Demand Registration (other than a 415 Registration) or Piggyback
Registration (except as part of such underwritten registration or pursuant to
registrations on Forms S-4 or S-8 or any successor forms), unless the
underwriters managing the registered public offering otherwise agree, and (ii)
to cause each holder of Registrable Securities (other than the Individual
Purchaser) and each other holder of at least 5% (on a fully diluted basis) of
Common Stock, or any securities convertible into or exchangeable or exercisable
for Common Stock, purchased from the Company at any time after the date of this
Agreement (other than in a registered public offering) to agree not to effect
any public sale or distribution (including sales pursuant to Rule 144) of any
such securities during such period (except as part of such underwritten
registration, if otherwise permitted), unless the underwriters managing the
registered public offering otherwise agree.
5. Registration Procedures. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company will use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof, and pursuant thereto the Company will as
expeditiously as possible:
(a) prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective (provided that before filing a
registration statement or prospectus or any amendments or supplements thereto,
the Company will furnish to the counsel selected by the holders of a majority of
the Registrable Securities covered by such registration statement copies of all
such documents proposed to be filed);
-7-
8
(b) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
a period of not less than six months and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement during such period in accordance with the intended
methods of disposition by the sellers thereof set forth in such registration
statement;
(c) if requested by the holders of a majority of the CVC
Registrable Securities in connection with any Demand Registration requested by
such holders, use its best efforts to cause to be included in such registration
shares of the Company's Common Stock having an aggregate value (based on the
midpoint of the proposed offering price range specified in the registration
statement used to offer such securities) of up to $20 million ("Company
Registrable Securities"), to be offered in a primary offering of the Company's
securities contemporaneously with such offering of Registrable Securities;
(d) furnish to each seller of Registrable Securities such
number of copies of such registration statement, each amendment and supplement
thereto, the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(e) use its best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller (provided that the Company will not be required
to (i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subsection, (ii) subject itself to
taxation in any such jurisdiction or (iii) consent to general service of process
(i.e., service of process which is not limited solely to securities law
violations) in any such jurisdiction);
(f) notify each seller of such Registrable Securities, at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, the Company will
promptly prepare a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an untrue statement of a material fact or omit to
state any fact necessary to make the statements therein not misleading;
(g) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the Nasdaq National Market
("Nasdaq Market") and, if listed on the Nasdaq Market, use its best efforts to
secure designation of all such Registrable Securities covered by such
registration statement as a Nasdaq "National Market System security" within the
meaning of Rule 11Aa2-1 of the SEC or, failing that, to secure Nasdaq Market
authorization for such Registrable Securities and, without
-8-
9
limiting the generality of the foregoing, to arrange for at least two market
makers to register as such with respect to such Registrable Securities with the
National Association of Securities Dealers;
(h) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
(i) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other actions as
the holders of a majority of the Registrable Securities being sold or the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities (including, without limitation,
effecting a stock split or a combination of shares);
(j) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(k) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its security
holders, as soon as reasonably practicable, an earning statement covering the
period of at least twelve months beginning with the first day of the Company's
first full calendar quarter after the effective date of the registration
statement, which earning statement shall satisfy the provisions of Section 11(a)
of the Securities Act and Rule 158 promulgated thereunder;
(l) permit any holder of Registrable Securities which holder,
in its sole and exclusive judgment, might be deemed to be an underwriter or a
controlling person of the Company, to participate in the preparation of such
registration or comparable statement and to require the insertion therein of
material, furnished to the Company in writing, which in the reasonable judgment
of such holder and its counsel should be included;
(m) in the event of the issuance of any stop order suspending
the effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, the Company will use its reasonable best efforts promptly to
obtain the withdrawal of such order;
(n) use its best efforts to cause such Registrable Securities
covered by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the
sellers thereof to consummate the disposition of such Registrable Securities;
and
(o) obtain a "cold comfort" letter from the Company's
independent public accountants in customary form and covering such matters of
the type customarily covered by "cold
-9-
10
comfort" letters as the holders of a majority of the Registrable Securities
being sold reasonably request.
If any such registration or comparable statement refers to any holder by name or
otherwise as the holder of any securities of the Company and if, in its sole and
exclusive judgment, such holder is or might be deemed to be a controlling person
of the Company, such holder shall have the right to require (i) the insertion
therein of language, in form and substance satisfactory to such holder and
presented to the Company in writing, to the effect that the holding by such
holder of such securities is not to be construed as a recommendation by such
holder of the investment quality of the Company's securities covered thereby and
that such holding does not imply that such holder will assist in meeting any
future financial requirements of the Company, or (ii) in the event that such
reference to such holder by name or otherwise is not required by the Securities
Act or any similar Federal statute then in force, the deletion of the reference
to such holder; provided that with respect to this clause (ii) such holder shall
furnish to the Company an opinion of counsel to such effect, which opinion and
counsel shall be reasonably satisfactory to the Company.
6. Registration Expenses.
(a) All Registration Expenses will be borne by the Company.
(b) In connection with each Demand Registration, each
Piggyback Registration and each 415 Registration, the Company will reimburse the
holders of Registrable Securities covered by such registration for the
reasonable fees and disbursements of one counsel chosen by the holders of a
majority of the Registrable Securities initially requesting such registration.
7. Indemnification.
(a) The Company agrees to indemnify, to the extent permitted
by law, each holder of Registrable Securities, its officers and directors and
each Person who controls such holder (within the meaning of the Securities Act)
against all losses, claims, damages, liabilities and expenses arising out of or
based upon any untrue or alleged untrue statement of material fact contained in
any registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse such holder, director, officer or
controlling person for any legal or other expenses reasonably incurred by such
holder, director, officer or controlling person in connection with the
investigation or defense of such loss, claim, damage, liability or expense,
except insofar as the same are caused by or contained in any information
furnished in writing to the Company by such holder expressly for use therein or
by such holder's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after the Company has
furnished such holder with a sufficient number of copies of the same. In
connection with an underwritten offering, the Company will indemnify such
underwriters, their officers and directors and each Person who controls such
underwriters (within the meaning of the Securities Act) to the same extent as
provided above with respect to the indemnification of the holders of Registrable
Securities.
-10-
11
(b) In connection with any registration statement in which a
holder of Registrable Securities is participating, each such holder will furnish
to the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any such registration statement
or prospectus and, to the extent permitted by law, will indemnify the Company,
its directors and officers and each Person who controls the Company (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses resulting from any untrue or alleged untrue statement of material
fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is contained in any information or affidavit so
furnished in writing by such holder; provided, that the obligation to indemnify
will be individual to each holder and will be limited to the net amount of
proceeds received by such holder from the sale of Registrable Securities
pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder will (i)
give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party will not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling Person
of such indemnified party and will survive the transfer of securities. The
Company also agrees to make such provisions, as are reasonably requested by any
indemnified party, for contribution to such party in the event the Company's
indemnification is unavailable for any reason.
8. Participation in Underwritten Registrations. No Person may
participate in any registration hereunder which is underwritten unless such
Person (a) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (b) completes and executes all customary
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements; provided, that no holder of Registrable Securities included in any
underwritten registration shall be required to make any representations or
warranties to the Company or the underwriters other than representations and
warranties regarding such holder and such holder's intended method of
distribution.
-11-
12
9. Rule 144 Reporting. With a view to making available to the holders
of Registrable Securities the benefits of certain rules and regulations of the
SEC which may permit the sale of the Registrable Securities to the public
without registration, the Company agrees to use its best efforts to:
(a) make and keep current public information available, within the
meaning of Rule 144 or any similar or analogous rule promulgated under the
Securities Act, at all times after it has become subject to the reporting
requirements of the Exchange Act;
(b) file with the SEC, in a timely manner, all reports and other
documents required of the Company under the Securities Act and Exchange Act
(after it has become subject to such reporting requirements); and
(c) so long as any party hereto owns any Registrable Securities,
furnish to such Person forthwith upon request, a written statement by the
Company as to its compliance with the reporting requirements of said Rule 144
(at any time commencing 90 days after the effective date of the first
registration filed by the Company for an offering of its securities to the
general public), the Securities Act and the Exchange Act (at any time after it
has become subject to such reporting requirements); a copy of the most recent
annual or quarterly report of the Company; and such other reports and documents
as such Person may reasonably request in availing itself of any rule or
regulation of the SEC allowing it to sell any such securities without
registration.
10. Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when delivered personally, mailed
by certified or registered mail, return receipt requested and postage prepaid,
or sent via a nationally recognized overnight courier, or sent via facsimile to
the recipient. Such notices, demands and other communications will be sent to
the address indicated below:
To the Company:
Plainwell Holding Company
c/x Xxxxxxx Plainwell Paper Company
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Telecopy No.: (000) 000-0000
With copies (which shall not constitute notice) to:
Citicorp Venture Capital, Ltd.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx
Telecopy No.: (000) 000-0000
-12-
13
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
Xxxxxxx & Xxxx, S.C.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
To CVC, any Individual Purchaser, or the Investor:
Citicorp Venture Capital, Ltd.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
Telecopy No.: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
To CCT:
CCT II Partners, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx
Telecopy No.: (000) 000-0000
-13-
14
With a copy (which shall not constitute notice) to:
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
To the Investor:
Xxxxxxx Xxxxxx
c/o Xxxxx River Corp.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
To Larkspur:
Larkspur Capital Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
To any of the Executives:
c/x Xxxxxxx Plainwell Paper Company
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: [EXECUTIVE'S NAME]
Telecopy No.: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxxx & Xxxx, S.C.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party.
-14-
15
11. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not enter
into any agreement which is inconsistent with or violates the rights granted to
the holders of Registrable Securities in this Agreement.
(b) Remedies. Any Person having rights under any provision of
this Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(c) Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may be amended or waived only upon the
prior written consent of the Company and holders of a majority of the
Registrable Securities.
(d) Waiver of Jury Trial. The parties to this Agreement each
hereby waives, to the fullest extent permitted by law, any right to trial by
jury of any claim, demand, action, or cause of action (i) arising under this
Agreement or (ii) in any way connected with or related or incidental to the
dealings of the parties hereto in respect of this Agreement or any of the
transactions related hereto, in each case whether now existing or hereafter
arising, and whether in contract, tort, equity, or otherwise. Each of the
parties to this Agreement hereby agrees and consents that any claim, demand,
action, or cause of action shall be decided by court trial without a jury and
that the parties to this Agreement may file an original counterpart of a copy of
this Agreement with any court as written evidence of the consent of the parties
hereto to the waiver of their right to trial by jury.
(e) Time is of the Essence. Each of the parties to this
Agreement hereby agrees that time is of the essence in the performance of this
Agreement and with respect to all duties and periods specified herein.
(f) Successors and Assigns. All covenants and agreements in
this Agreement by or on behalf of any of the parties hereto will bind and inure
to the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
(g) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
-15-
16
(h) Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, any one of which need not contain
the signatures of more than one party, but all such counterparts taken together
will constitute one and the same Agreement.
(i) Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
(j) GOVERNING LAW. THE CORPORATE LAWS OF THE STATE OF DELAWARE
WILL GOVERN ALL QUESTIONS CONCERNING THE RELATIVE RIGHTS OF THE COMPANY AND ITS
STOCKHOLDERS. ALL OTHER QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY AND
INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE
STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF
THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
* * * * *
- 16 -
17
IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement as of the date first above written.
PLAINWELL HOLDING COMPANY
By:____________________________________
Name:
Title:
CITICORP VENTURE CAPITAL, LTD.
By:____________________________________
Name:
Title:
CCT II PARTNERS, L.P.
By: CCT I Corporation
Its: General Partner
By:____________________________________
Name:
Title:
XXXXXXX X. NEW
_______________________________________
XXXXXXX XXXXXX
_______________________________________
18
INDIVIDUAL PURCHASERS
SIGNATURE PAGE FOR
REGISTRATION RIGHTS AGREEMENT
XXXXXXX XXXXXX ALCHEMY, L.P.
_________________________________
By:___________________________________
Name:
Title:
XXXXX X. XXXXXX XXXX X. XXXXX
_________________________________ ______________________________________
NATASHA PARTNERSHIP XXXXX XXXX
______________________________________
By:______________________________
Name:
Title:
XXXXXX XXXXXXXXX
_________________________________
19
SIGNATURE PAGE FOR
REGISTRATION RIGHTS AGREEMENT
LARKSPUR CAPITAL CORPORATION
By:________________________________
Name:_____________________________
Title:______________________________
20
EXHIBIT A
FORM OF JOINDER TO
REGISTRATION RIGHTS AGREEMENT
This JOINDER to the Registration Rights Agreement, dated as of June
__, 1997 by and among Plainwell Holding Company, a Delaware corporation (the
"Company"), and certain securityholders of the Company (the "Agreement"), is
made and entered into as of _________ by and between the Company and
_________________ ("Holder"). Capitalized terms used herein but not otherwise
defined shall have the meanings set forth in the Agreement.
WHEREAS, Holder has acquired certain shares of Common Stock, and the
Agreement and the Company contemplates that Holder, as a holder of Common Stock,
may be entitled to become a party to the Agreement, and Holder agrees to do so
in accordance with the terms hereof.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Joinder hereby agree as
follows:
Agreement to be Bound. Holder hereby agrees that upon
execution of this Joinder, it shall become a party to the Agreement and shall be
fully bound by, and subject to, all of the covenants, terms and conditions of
the Agreement as though an original party thereto and shall be deemed a holder
of Executive Registrable Securities for all purposes thereof. In addition,
Holder hereby agrees that all Common Stock held by Holder shall be deemed
Executive Registrable Securities for all purposes of the Agreement.
1. Successors and Assigns. Except as otherwise provided herein,
this Joinder shall bind and inure to the benefit of and be enforceable by the
Company and its successors and assigns and Holder and any subsequent holders of
Common Stock and the respective successors and assigns of each of them, so long
as they hold any shares of Common Stock.
2. Counterparts. This Joinder may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
3. Notices. For purposes of Section 10 of the Agreement, all
notices, demands or other communications to the Holder shall be directed to:
[Name]
[Address]
[Facsimile Number]
4. GOVERNING LAW. THE CORPORATE LAWS OF THE STATE OF DELAWARE
WILL GOVERN ALL QUESTIONS CONCERNING THE RELATIVE RIGHTS OF THE COMPANY AND ITS
STOCKHOLDERS. ALL OTHER QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY AND
INTERPRETATION OF THIS JOINDER SHALL BE
21
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF
NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW
PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION)
THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE
STATE OF NEW YORK.
5. DESCRIPTIVE HEADINGS. The descriptive headings of this
Joinder are inserted for convenience only and do not constitute a part of this
Joinder.
* * * * *
22
IN WITNESS WHEREOF, the parties hereto have executed this
Joinder as of the date first above written.
PLAINWELL HOLDING COMPANY
By:________________________________
Name:
Title:
[HOLDER]
By:_________________________________
