Exhibit 4.4
EXECUTION COPY
$2,105,000,000
INTERNATIONAL PAPER COMPANY
Zero Coupon Convertible Debentures due June 20, 2021
REGISTRATION RIGHTS AGREEMENT
June 20, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX, XXXXX & CO.
c/o Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
International Paper Company, a corporation duly organized and existing
under the laws of the State of New York (the "Company"), proposes to issue and
sell to Credit Suisse First Boston Corporation ("CSFBC") and Xxxxxxx Sachs &
Co. (the initial "Purchasers"), upon the terms set forth in a purchase
agreement dated June 13, 2001 (the "Purchase Agreement"), $2,105,000,000
aggregate principal amount at maturity of its Zero Coupon Convertible
Debentures due June 20, 2021 (the "Firm Debentures"), and also proposes to
grant the Purchasers an option, exercisable from time to time by CSFBC to
purchase an aggregate of up to an additional $315,750,000 aggregate principal
amount at maturity of its Zero Coupon Convertible Debentures due June 20, 2021
(the "Optional Debentures" and, with the Firm Debentures, the "Debentures").
The Debentures will be issued pursuant to an Indenture, dated as of April 12,
1999 (the "Indenture"), between the Company and The Bank of New York, as
trustee (the "Trustee"), as supplemented by the Zero Coupon Convertible
Debentures Supplemental Indenture, dated as of June 20, 2001 (the "Supplemental
Indenture" and, together with the Base Indenture, the "Indenture"). Under the
terms of the Indenture, the Debentures are convertible, in whole or in part,
into shares of the Company's common stock, par value $1.00 (the "Underlying
Shares", and together with the Debentures, the "Securities"). As an inducement,
the Company agrees with the Purchasers, for the benefit of the holders of the
Debentures (including, without limitation, the Purchasers) and Underlying
Shares (collectively the "Holders"), as follows:
1. Shelf Registration. (a) The Company shall promptly (but in no
event more than 90 days of the First Closing Date (as defined in the
Purchase Agreement), such 90th day being a "Filing Deadline") use its
reasonable best efforts to file with the Securities and Exchange
Commission (the "Commission") and thereafter use its reasonable best
efforts to cause to be declared effective no later than 210 days after the
First Closing Date (such 210th day being an "Effectiveness Deadline") a
registration statement (the "Registration Statement") on an appropriate
form under the Securities Act of 1933, as amended (the "Securities Act"),
relating to the offer and sale of the Registrable Securities (as defined
in Section 5 hereof) by the Holders thereof from time to time in
accordance with the methods of distribution set forth in the Registration
Statement and Rule 415 under the Securities Act (hereinafter, the "Shelf
Registration"); provided, however, that no Holder (other than a Purchaser)
shall be entitled to have the Securities held by it covered by such
Registration Statement unless such Holder agrees in writing to be bound by
all the provisions of this Agreement applicable to such Holder.
(b) The Company shall use its reasonable best efforts to keep the
Registration Statement continuously effective in order to permit the
prospectus included therein to be lawfully delivered by the Holders of the
relevant Securities, for a period of two years (or for such longer period
if extended pursuant
to Section 2(h) below) from the date of its effectiveness or such shorter
period that will terminate when all the Securities covered by the
Registration Statement (i) have been sold pursuant thereto, (ii) are no
longer restricted securities (as defined in Rule 144 under the Securities
Act) (in any such case, such period being called the "Shelf Registration
Period") or (iii) such time as, in the opinion of counsel to the Company,
all the Registrable Securities held by the Company's non-affiliates (from
the time of issuance) are eligible for sale pursuant to Rule 144(k) under
the Securities Act. The Company shall be deemed not to have used its best
efforts to keep the Registration Statement effective during the requisite
period if it voluntarily takes any action that would result in Holders of
Securities covered thereby not being able to offer and sell such
Securities during that period, unless such action is required by
applicable law.
(c) Notwithstanding subsections (a) and (b) of this Section 1, the
Company may delay preparation of any post-effective amendment to the
Registration Statement or suspend the use of the prospectus that is part
of the Registration Statement in connection with an acquisition or
financing if the Company's board of directors determines, in good faith,
that such post-effective amendment or suspension (i) would require
disclosure with respect to such acquisition or financing that is not in
the Company's best interest or (ii) would interfere with or affect the
negotiation or completion of such acquisition or financing, provided that:
(i) the Company has provided to each Holder, in advance of such
delay or suspension, written notice of such delay or suspension;
(ii) any such delay or suspension shall not exceed 45
consecutive days at any one time;
(iii) the aggregate number of days during which such delay or
suspension is in effect during any three-month period shall not
exceed 75 days; and
(iv) the aggregate number of days during which such delay or
suspension is in effect during any twelve-month period shall not
exceed 120 days.
(d) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause the Registration Statement and the
related prospectus and any amendment or supplement thereto, as of the
effective date of the Registration Statement, amendment or supplement, (i)
to comply in all material respects with the applicable requirements of the
Securities Act and the rules and regulations of the Commission and (ii)
not to contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
2. Registration Procedures. In connection with the Shelf Registration
contemplated by Section 1 hereof the following provisions shall apply:
(a) The Company shall (i) furnish to each Purchaser, prior to the
filing thereof with the Commission, a copy of the Registration Statement
and each amendment thereof and each supplement, if any, to the prospectus
included therein and, in the event that a Purchaser (with respect to any
portion of an unsold allotment from the original offering) is
participating in the Registration Statement, the Company shall use its
reasonable best efforts to reflect in each such document, when so filed
with the Commission, such comments as such Purchaser reasonably may
propose; and (ii) subject to paragraph (l) of this Section 2, include the
names of the Holders who propose to sell Securities pursuant to the
Registration Statement as selling securityholders.
(b) The Company shall give written notice to the Purchasers and the
Holders of the Securities (which notice pursuant to clauses (ii)-(vi)
hereof shall be accompanied by an instruction, subject to the provisions
of Section 1(c), to suspend the use of the prospectus until the requisite
changes have been made):
(i) when a Registration Statement has become effective and when
any post-effective amendment thereto has been filed and becomes
effective;
(ii) of any request by the SEC or any state securities authority
for amendments and supplements to a Registration Statement and
Prospectus or for additional information after the Registration
Statement and Prospectus or for additional information after the
Registration Statement has become effective;
2
(iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that
purpose;
(iv) if, after the effective date of a Registration Statement,
the Company receives any notification with respect to the suspension
of the qualification of the Registrable Securities for sale in any
jurisdiction or the initiation of any proceeding fur such purpose,
(v) of the happening of any event during the period a
Registration Statement is effective which makes any statement made in
such Registration Statement or the related Prospectus untrue in any
material respect or which requires the making of any changes in such
registration Statement or Prospectus in order to make the statements
therein not misleading and
(vi) of any determination by the Company that a post-effective
amendment to a Registration Statement would be appropriate.
(c) The Company shall use its best efforts to obtain the withdrawal
of any order suspending the effectiveness of the Registration Statement at
the earliest possible moment and provide prompt notice to each Holder of
the withdrawal of any such order.
(d) The Company shall furnish to each Holder of Securities included
within the coverage of the Shelf Registration, without charge, at least
one conformed copy of the Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, and, if
the Holder so requests in writing, all exhibits thereto (including those,
if any, incorporated by reference).
(e) The Company shall, during the Shelf Registration Period, deliver
to each Holder of Securities included within the coverage of the Shelf
Registration, without charge, as many copies of the prospectus (including
each preliminary prospectus) included in the Registration Statement and
any amendment or supplement thereto as such person may reasonably request.
The Company consents, subject to the provisions of this Agreement, to the
use of the prospectus or any amendment or supplement thereto by each of
the selling Holders of the Securities in connection with the offering and
sale of the Securities covered by the prospectus, or any amendment or
supplement thereto, included in the Registration Statement.
(f) Prior to any public offering of the Securities pursuant to any
Registration Statement the Company shall register or qualify or cooperate
with the Holders of the Securities included therein and their respective
counsel in connection with the registration or qualification of the
Securities for offer and sale under the securities or "blue sky" laws of
such states of the United States as any Holder of the Securities
reasonably requests in writing and do any and all other acts or things
necessary or advisable to enable the offer and sale in such jurisdictions
of the Securities covered by such Registration Statement; provided,
however, that the Company shall not be required to (i) qualify generally
to do business in any jurisdiction where it is not then so qualified or
(ii) take any action which would subject it to general service of process
or to taxation in any jurisdiction where it is not then so subject.
(g) The Company shall cooperate with the Holders of the Securities to
facilitate the timely preparation and delivery of certificates
representing the Securities to be sold pursuant to any Registration
Statement free of any restrictive legends (unless required by applicable
securities laws) and in such denominations and registered in such names as
the Holders may request at least two business days prior to sales of the
Securities pursuant to such Registration Statement.
(h) Upon the occurrence of any event contemplated by paragraphs (ii),
(v) and (vi) of Section 2(b) above, the Company shall use its best efforts
to prepare a supplement or post-effective amendment to a Registration
Statement or the related Prospectus or any document incorporated therein
by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities, such Prospectus
will not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements therein in the light of
the circumstances under which they were made, not misleading. The Company
agrees to notify the Holders to suspend use of the Prospectus as promptly
as practicable after the occurrence of such an event
3
and the Holders hereby agree to suspend use of the Prospectus until the
Company has amended or supplemented the Prospectus to correct such
misstatement or omission.
(i) Not later than the effective date of the applicable Registration
Statement, the Company will provide a CUSIP number for the Debentures and
the Underlying Shares registered under the Registration Statement and
provide the Trustee with printed certificates for the Debentures in a form
eligible for deposit with The Depository Trust Company.
(j) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the Shelf
Registration and will make generally available to its security holders (or
otherwise provide in accordance with Section 11(a) of the Securities Act)
an earnings statement satisfying the provisions of Section 11(a) of the
Securities Act, no later than 45 days after the end of a 12-month period
(or 90 days, if such period is a fiscal year) beginning with the first
month of the Company's first fiscal quarter commencing after the effective
date of the Registration Statement, which statement shall cover such
12-month period.
(k) The Company shall cause the Indenture to be qualified under the
Trust Indenture Act of 1939 as amended (the "Trust Indenture Act"), in a
timely manner and containing such changes, if any, as shall be necessary
for such qualification. In the event that such qualification would require
the appointment of a new trustee under the Indenture, the Company shall
appoint a new trustee thereunder pursuant to the applicable provisions of
the Indenture.
(l) The Company may require each Holder of Securities to be sold
pursuant to the Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of the Securities as
the Company may from time to time reasonably require for inclusion in the
Registration Statement, and the Company may exclude from such registration
the Securities of any Holder that unreasonably fails to furnish such
information within 30 days after written request.
(m) The Company shall enter into such customary agreements and take
all such other action, if any, as any Holder of the Securities shall
reasonably request in order to facilitate the disposition of the
Securities pursuant to any Shelf Registration.
(o) The Company shall (i) make reasonably available for inspection by
the Holders of the Securities and any attorney, accountant or other agent
retained by the Holders of the Securities all relevant financial and other
records, pertinent corporate documents and properties of the Company and
(ii) cause the Company's officers, directors, employees, accountants and
auditors to supply all relevant information reasonably requested by the
Holders of the Securities or any such attorney, accountant or agent in
connection with the Registration Statement, in each case, as shall be
reasonably necessary to enable such persons, to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act;
provided, however, that the foregoing inspection and information gathering
shall be coordinated on behalf of the Purchasers by you and on behalf of
the other parties, by one counsel designated by and on behalf of such
other parties as described in Section 3 hereof.
(p) The Company will use its reasonable best efforts to (a) if the
Debentures have been rated prior to the initial sale of such Debentures,
confirm such ratings will apply to the Securities covered by a
Registration Statement, or (b) if the Debentures were not previously
rated, cause the Securities covered by a Registration Statement to be
rated with the appropriate rating agencies, if so requested by Holders of
a majority in aggregate principal amount of Securities covered by such
Registration Statement.
(q) In the event that any broker-dealer registered under the Exchange
Act shall underwrite any Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the distribution"
(within the meaning of the Conduct Rules (the "Rules") of the National
Association of Securities Dealers, Inc. ("NASD")) thereof, whether as a
Holder of such Securities or as an underwriter, a placement or sales agent
or a broker or dealer in respect thereof, or otherwise, the Company will
assist such broker-dealer in complying with the requirements of such
Rules, including, without limitation, by (i) if such Rules, including Rule
2720, shall so require, engaging a "qualified independent underwriter" (as
defined in Rule 2720) to participate in the preparation of the
Registration Statement relating to such Securities, to exercise usual
standards of due diligence in respect thereto and, if any portion of the
offering contemplated by such Registration Statement is made through a
placement or sales agent, to recommend the yield of such Securities, (ii)
indemnifying any such qualified independent underwriter to the extent of
the indemnification of underwriters provided in Section 4 hereof with
respect to the indemnification of the
4
Holders of the Securities if requested by such Holders, and (iii)
providing such information to such broker-dealer as may be required in
order for such broker-dealer to comply with the requirements of the Rules.
(r) The Company shall use its reasonable best efforts to take all
other steps necessary to effect the registration of the Securities covered
by the Registration Statement contemplated hereby.
3. Registration Expenses. (a) All expenses incident to the Company's
performance of and compliance with this Agreement will be borne by the
Company, regardless of whether a Registration Statement is ever filed or
becomes effective, including without limitation;
(i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal securities
and state "blue sky" or securities laws;
(iii) all expenses of printing, messenger and delivery services
and telephone;
(iv) all fees and disbursements of counsel for the Company;
(v) all application and filing fees in connection with listing
the Securities on a national securities exchange; and
(vi) all fees and disbursements of independent certified public
accountants of the Company (including the expenses of any special
audit and comfort letters required by or incident to such
performance).
The Company will bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit
and the fees and expenses of any person, including special experts,
retained by the Company.
(b) In connection with any Registration Statement required by this
Agreement, the Company will reimburse the Purchasers and the Holders of
Registrable Securities who are selling or reselling Securities pursuant to
the "Plan of Distribution" contained in the Registration Statement for the
reasonable fees and disbursements of not more than one counsel, who shall
be Milbank, Tweed, Xxxxxx & XxXxxx LLP unless another firm shall be chosen
by the Holders of a majority in principal amount of the Registrible
Securities for whose benefit such Registration Statement is being
prepared.
4. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Holder of the Securities and each person, if any, who
controls such Holder within the meaning of the Securities Act or the
Exchange Act (each Holder and such controlling persons are referred to
collectively as the "Indemnified Parties") from and against any losses,
claims, damages or liabilities, joint or several, or any actions in
respect thereof (including, but not limited to, any losses, claims,
damages, liabilities or actions relating to purchases and sales of the
Securities) to which each Indemnified Party may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages, liabilities or actions arise out of, or are based upon,
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or prospectus or in any amendment
or supplement thereto or in any preliminary prospectus relating to a Shelf
Registration, or arise out of, or are based upon, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall
reimburse, as incurred, the Indemnified Parties for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action in respect
thereof; provided, however, that (i) the Company shall not be liable in
any such case to the extent that such loss, claim, damage or liability
arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in a Registration Statement
or prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to a Shelf Registration in reliance upon
and in conformity with written information pertaining to such Holder and
furnished to the Company by or on behalf of such Holder specifically for
inclusion therein and (ii) with respect to any untrue statement or
omission or alleged untrue statement or omission made in any preliminary
prospectus relating to a Registration Statement, the indemnity
5
agreement contained in this subsection (a) shall not inure to the benefit
of any Holder from whom the person asserting any such losses, claims,
damages or liabilities purchased the Securities concerned, to the extent
that a prospectus relating to such Securities was required to be delivered
by such Holder under the Securities Act in connection with such purchase
and any such loss, claim, damage or liability of such Holder results from
the fact that there was not sent or given to such person, at or prior to
the written confirmation of the sale of such Securities to such person, a
copy of the final prospectus if the Company had previously furnished
copies thereof to such Holder; provided further, however, that this
indemnity agreement will be in addition to any liability which the Company
may otherwise have to such Indemnified Party.
(b) Each Holder of the Securities, severally and not jointly, will
indemnify and hold harmless the Company and each person, if any, who
controls the Company within the meaning of the Securities Act or the
Exchange Act from and against any losses, claims, damages or liabilities
or any actions in respect thereof, to which the Company or any such
controlling person may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in a Registration
Statement or prospectus or in any amendment or supplement thereto or in
any preliminary prospectus relating to a Shelf Registration, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein not misleading, but
in each case only to the extent that the untrue statement or omission or
alleged untrue statement or omission was made in reliance upon and in
conformity with written information pertaining to such Holder and
furnished to the Company by or on behalf of such Holder specifically for
inclusion therein; and, subject to the limitation set forth immediately
preceding this clause, shall reimburse, as incurred, the Company for any
legal or other expenses reasonably incurred by the Company or any such
controlling person in connection with investigating or defending any loss,
claim, damage, liability or action in respect thereof. This indemnity
agreement will be in addition to any liability which such Holder may
otherwise have to the Company or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this Section
4 of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under this
Section 4, notify the indemnifying party of the commencement thereof; but
the omission so to notify the indemnifying party will not, in any event,
relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a)
or (b) above. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof,
the indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party),
and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof the indemnifying party will
not be liable to such indemnified party under this Section 4 for any legal
or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the
defense thereof. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release
of such indemnified party from all liability on any claims that are the
subject matter of such action, and does not include a statement as to or
an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 4 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to in subsection (a) or (b) above (i) in such
proportion as is appropriate to reflect the relative benefits received by
the indemnifying party or parties on the one hand and the indemnified
party on the other from the sale of the Securities, pursuant to the Shelf
Registration, or (ii) if allocation provided by the foregoing clause (i)
is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the indemnifying party or parties on the
one hand and the indemnified party on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or
alleged
6
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company on
the one hand or such Holder or such other indemnified party, as the case
may be, on the other, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence
of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of
this subsection (d). Notwithstanding any other provision of this Section
4(d), the Holders of the Securities shall not be required to contribute
any amount in excess of the amount by which the net proceeds received by
such Holders from the sale of the Securities pursuant to a Registration
Statement exceeds the amount of damages which such Holders have otherwise
been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this paragraph (d),
each person, if any, who controls such indemnified party within the
meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as such indemnified party and each person, if any,
who controls the Company within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as the Company.
(e) The agreements contained in this Section 4 shall survive the sale
of the Securities pursuant to the Registration Statement and shall remain
in full force and effect, regardless of any termination or cancellation of
this Agreement or any investigation made by or on behalf of any
indemnified party.
5. Additional Interest Under Certain Circumstances. (a) Additional
interest (the "Additional Interest") with respect to the Debentures shall
be assessed as follows if any of the following events occur (each such
event in clauses (i) through (iii) below being herein called a
"Registration Default"):
(i) If the Registration Statement required by this Agreement is not
filed with the Commission on or prior to the Filing Deadline;
(ii) If the Registration Statement has not been declared effective by
the Commission on or before the Effectiveness Deadline; or
(iii) If the Registration Statement has been declared effective by
the Commission but (A) such Registration Statement thereafter
ceases to be effective or (B) such Registration Statement or the
related prospectus ceases to be usable in connection with
resales of Registrable Securities during the periods specified
herein because either (1) any event occurs as a result of which
the related prospectus forming part of such Registration
Statement would include any untrue statement of a material fact
or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading, or (2) it shall be
necessary to amend such Registration Statement or supplement the
related prospectus, to comply with the Securities Act or the
Exchange Act or the respective rules thereunder.
Each of the foregoing will constitute a Registration Default whatever the
reason for any such event and whether it is voluntary or involuntary or is
beyond the control of the Company or pursuant to operation of law or as a
result of any action or inaction by the Commission .
Additional Interest shall accrue on the Debentures and any Underlying
Shares into which any Debentures had been converted previously over and
above the interest set forth in the title of the Securities from and
including the date on which any such Registration Default shall occur to
but excluding the date on which all such Registration Defaults have been
cured, (A) at a rate of 0.25% per annum in the case of clause (i) above
and (B) at a rate of 0.50% per annum in the case of clause (ii) and clause
(iii) above (the "Additional Interest Rate").
(b) A Registration Default referred to in Section 5(a)(iii) hereof
shall be deemed not to have occurred and be continuing in relation to a
Registration Statement or the related prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a
post-effective amendment to the Registration Statement to incorporate
annual audited financial information with respect to the Company where
such post-effective amendment is not yet effective and needs to be
declared effective to permit Holders to use the related prospectus or (y)
other
7
material events, with respect to the Company that would need to be
described in the Registration Statement or the related prospectus and (ii)
in the case of clause (y), the Company is proceeding promptly and in good
faith to amend or supplement the Registration Statement and related
prospectus to describe such events; provided, however, that in any case if
such Registration Default occurs for a continuous period in excess of 30
days, Additional Interest shall be payable in accordance with the above
paragraph from the day such Registration Default occurs until such
Registration Default is cured.
(c) Any amounts of Additional Interest due pursuant to Section 5(a)
will be payable in cash on the regular interest payment dates with respect
to the Debentures. The amount of Additional Interest will be determined by
multiplying the applicable Additional Interest Rate by the aggregate issue
price plus accrued original issue discount of the outstanding Registrable
Securities and, if applicable, the aggregate Applicable Conversion Price
of any issued Underlying Shares into which any Debentures have been
converted previously and further 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 the denominator of which is 360.
The term "Applicable Conversion Price" means the original issue discount
to the date of calculation divided by the conversion rate as then in
effect.
(d) "Registrable Securities" means each Security until (i) the date
on which such Security has been effectively registered under the
Securities Act and disposed of in accordance with the Registration
Statement or (ii) the date on which such Security is distributed to the
public pursuant to Rule 144 under the Securities Act or is saleable
pursuant to Rule 144(k) under the Securities Act.
6. Rules 144 and 144A. The Company shall use its reasonable best
efforts to file the reports required to be filed by it under the
Securities Act and the Exchange Act in a timely manner and, if at any time
the Company is not required to file such reports, it will, upon the
request of any Holder of Securities, make publicly available other
information so long as necessary to permit sales of their securities
pursuant to Rules 144 and 144A. The Company covenants that it will take
such further action as any Holder of Debentures may reasonably request,
all to the extent required from time to time to enable such Holder to sell
Debentures without registration under the Securities Act within the
limitation of the exemptions provided by Rules 144 and 144A (including the
requirements of Rule 144A(d)(4)). The Company will provide a copy of this
Agreement to prospective purchasers of Debentures identified to the
Company by the Purchasers upon request. Upon the request of any Holder of
Debentures, the Company shall deliver to such Holder a written statement
as to whether it has complied with such requirements. Notwithstanding the
foregoing, nothing in this Section 6 shall be deemed to require the
Company to register any of its securities pursuant to the Exchange Act.
7. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not on or after the
date of this Agreement enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in
this Agreement or otherwise conflicts with the provisions hereof. The
rights granted to the Holders hereunder do not in any way conflict with
and are not inconsistent with the rights granted to the holders of the
Company's securities under any agreement in effect on the date hereof.
(b) 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, except by the
Company and the written consent of the Holders of a majority in principal
amount of the Securities affected by such amendment, modification,
supplement, waiver or consents.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class
mail, facsimile transmission, or air courier which guarantees overnight
delivery:
(1) if to a Holder of the Securities, at the most current
address given by such Holder to the Company.
(2) if to the Purchasers;
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
8
Fax No.: (000) 000-0000
Attention: Transactions Advisory Group
(3) if to the Company, at its address as follows:
International Paper Company
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Fax No.: (000) 000-0000
Attention: The Secretary
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three
business days after being deposited in the mail, postage prepaid, if
mailed; when receipt is acknowledged by recipient's facsimile machine
operator, if sent by facsimile transmission; and on the day delivered, if
sent by overnight air courier guaranteeing next day delivery.
(d) Third Party Beneficiaries. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the
one hand, and the Purchasers, on the other hand, and shall have the right
to enforce such agreements directly to the extent they may deem such
enforcement necessary or advisable to protect their rights or the rights
of Holders hereunder.
(e) Successors and Assigns. This Agreement shall be binding upon the
Company and its successors and assigns.
(f) 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.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
(i) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid,
illegal or unenforceable, the validity, legality and enforceability of any
such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(j) Securities Held by the Company. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Securities is
required hereunder, Securities held by the Company or its affiliates
(other than subsequent Holders of Securities if such subsequent Holders
are deemed to be affiliates solely by reason of their holdings of such
Securities) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
9
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the several Purchasers and the Company in accordance with its
terms.
INTERNATIONAL PAPER COMPANY
By:______________________________
Name:
Title:
Theforegoing Registration Rights Agreement
is hereby confirmed and accepted as
of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX, XXXXX & CO.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By:______________________________
Name:
Title:
