REGISTRATION RIGHTS AGREEMENT by and among BPC Acquisition Corp. BPC Holding Corporation the subsidiaries of BPC Holding Corporation parties hereto and Deutsche Bank Securities Inc. Credit Suisse Securities (USA) LLC Citigroup Global Markets Inc. Banc...
by
and
among
BPC
Acquisition Corp.
BPC
Holding Corporation
the
subsidiaries of BPC Holding Corporation parties hereto
and
Deutsche
Bank Securities Inc.
Credit
Suisse Securities (USA) LLC
Citigroup
Global Markets Inc.
X.X.
Xxxxxx Securities Inc.
Banc
of America Securities LLC
Xxxxxx
Brothers Inc.
Bear,
Xxxxxxx & Co.
GE
Capital Markets, Inc.
Dated
as
of September 20, 2006
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This
Registration Rights Agreement (this “Agreement”) is made and entered into as of
September 20, 2006, by and among BPC Acquisition Corp., a Delaware
corporation (“Merger Sub”), BPC Holding Corporation, a Delaware corporation (the
“Company”), the subsidiaries of the Company listed on Schedule A hereto
(collectively, the “Guarantors”), Deutsche Bank Securities Inc., Credit Suisse
Securities (USA) LLC, Citigroup Global Markets Inc., X.X. Xxxxxx Securities
Inc., Banc of America Securities LLC, Xxxxxx Brothers Inc., Bear, Xxxxxxx &
Co. and GE Capital Markets, Inc. (collectively, the “Initial Purchasers”), each
of whom has agreed to purchase, pursuant to the Purchase Agreement (as defined
below), the 8⅞% Second Priority Senior Secured Fixed Rate Notes due 2014 (the
“Fixed
Rate Notes”)
and
the Second Priority Senior Secured Floating Rate Notes due 2014 (the
“Floating
Rate Notes”
and,
together with the Fixed Rate Notes, the “Initial Notes”) issued by Merger Sub.
Upon consummation of the Acquisition (as defined in the Purchase Agreement),
the
Company, the Guarantors and the Trustee will execute a supplemental indenture
to
the Indenture, pursuant to which the Company will assume, and the Guarantors
will fully and unconditionally guarantee on a senior secured basis (the “Initial
Guarantees”), Merger Sub’s obligations under the Initial Notes. The Initial
Notes and the Initial Guarantees are herein collectively referred to as the
“Initial Securities.”
This
Agreement is made pursuant to the Purchase Agreement, dated September 15,
2006 (the “Purchase Agreement”), among Merger Sub and the Initial Purchasers,
and the Joinder Agreement, dated September 20, 2006, among the Company and
the
subsidiaries of the Company parties thereto (i) for the benefit of the Initial
Purchasers and (ii) for the benefit of the holders from time to time of the
Initial Securities, including the Initial Purchasers. In order to induce the
Initial Purchasers to purchase the Initial Securities, the Company, Merger
Sub
and the Guarantors have agreed to provide the registration rights set forth
in
this Agreement. The execution and delivery of this Agreement is a condition
to
the obligations of the Initial Purchasers set forth in Section 6(g) of the
Purchase Agreement. This Agreement shall become effective automatically and
without further action with respect to the Company and the Guarantors only
immediately upon the completion of the Acquisition described in the Purchase
Agreement.
The
parties hereby agree as follows:
Section
1. Definitions.
As
used
in this Agreement, the following capitalized terms shall have the following
meanings:
Additional
Interest Payment Date: With
respect to the Initial Securities, each Interest Payment Date.
Broker-Dealer:
Any
broker or dealer registered under the Exchange Act.
Business
Day:
Any day
other than a Saturday, Sunday or U.S. federal holiday or a day on which banking
institutions or trust companies located in New York, New York are authorized
or
obligated to be closed.
Closing
Date: The
date
of this Agreement.
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Commission:
The
U.S.
Securities and Exchange Commission.
Consummate:
A
registered Exchange Offer shall be deemed “Consummated” for purposes of this
Agreement upon the occurrence of (i) the filing and effectiveness under the
Securities Act of the Exchange Offer Registration Statement relating to the
Exchange Securities to be issued in the Exchange Offer, (ii) the maintenance
of
such Registration Statement continuously effective and the keeping of the
Exchange Offer open for a period not less than the minimum period required
pursuant to Section 3(b) hereof, and (iii) the delivery by the Company to the
Registrar under the Indenture of Exchange Securities in the same aggregate
principal amount as the aggregate principal amount of Initial Securities that
were tendered by Holders thereof pursuant to the Exchange Offer.
Effectiveness
Target Date: As
defined in Section 5 hereof.
Exchange
Act: The
Securities Exchange Act of 1934, as amended.
Exchange
Offer: The
registration by the Company under the Securities Act of the Exchange Securities
pursuant to a Registration Statement pursuant to which the Company offers the
Holders of all outstanding Transfer Restricted Securities the opportunity to
exchange all such outstanding Transfer Restricted Securities held by such
Holders for Exchange Securities in an aggregate principal amount equal to the
aggregate principal amount of the Transfer Restricted Securities tendered in
such exchange offer by such Holders.
Exchange
Offer Effectiveness Target Date: As
defined in Section 5 hereof.
Exchange
Offer Registration Statement: The
Registration Statement relating to the Exchange Offer, including the related
Prospectus.
Exempt
Resales: The
transactions in which the Initial Purchasers propose to sell the Initial
Securities to certain “qualified institutional buyers,” as such term is defined
in Rule 144A under the Securities Act and to certain non-U.S. persons pursuant
to Regulation S under the Securities Act.
Exchange
Securities: The 8⅞%
Second Priority Senior Secured Fixed Rate Notes due 2014 and the Second Priority
Senior Secured Floating Rate Notes due 2014, in each case, of the same series
under the Indenture as the Initial Notes of such series and the guarantees
of
such notes, to be issued to Holders in exchange for Transfer Restricted
Securities pursuant to this Agreement.
Free
Writing Prospectus: Any
free
writing prospectus, as such term is defined in Rule 405 under the Securities
Act, relating to any portion of the Initial Securities and the Exchange
Securities.
Holders:
As
defined in Section 2(b) hereof.
Indemnified
Holder: As
defined in Section 8(a) hereof.
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Indenture:
The
Indenture dated as of September 20, 2006, by and between Merger Sub and
Xxxxx Fargo Bank, N.A., as trustee (the “Trustee”), pursuant to which the
Initial Notes and the Exchange Securities are to be issued, as supplemented
by
the supplemental indenture thereto, dated as of the date hereof, pursuant to
which the Company will assume and the Guarantors will guarantee on a senior
secured basis, all of Merger Sub’s obligations thereunder, as such Indenture may
be further amended or supplemented from time to time in accordance with the
terms thereof.
Initial
Guarantees: As
defined in the preamble hereto.
Initial
Notes: As
defined in the preamble hereto.
Initial
Placement: The
issuance and sale by the Company of the Initial Securities to the Initial
Purchasers pursuant to the Purchase Agreement.
Initial
Purchasers: As
defined in the preamble hereto.
Initial
Securities: As
defined in the preamble hereto.
Interest
Payment Date: As
defined in the Securities.
NASD:
NASD
Inc.
Person:
An
individual, partnership, corporation, trust or unincorporated organization,
or a
government or agency or political subdivision thereof.
Prospectus:
The
prospectus included in a Registration Statement, as amended or supplemented
by
any prospectus supplement and by all other amendments thereto, including
post-effective amendments, and all material incorporated by reference into
such
Prospectus.
Registration
Default: As
defined in Section 5 hereof.
Registration
Statement: Any
registration statement of the Company relating to (a) an offering of Exchange
Securities pursuant to an Exchange Offer or (b) the registration for resale
of
Transfer Restricted Securities pursuant to the Shelf Registration Statement,
which is filed pursuant to the provisions of this Agreement, in each case,
including the Prospectus included therein, all amendments and supplements
thereto (including post-effective amendments) and all exhibits and material
incorporated by reference therein.
Securities:
As
defined in the Indenture.
Securities
Act: The
Securities Act of 1933, as amended.
Shelf
Filing Deadline: As
defined in Section 4(a) hereof.
Shelf
Registration Effectiveness Date: As
defined in Section 5 hereof.
Shelf
Registration Statement: As
defined in Section 4(a) hereof.
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Transfer
Restricted Securities: Each
Initial Security, until the earliest to occur of (a) the date on which such
Initial Security is exchanged in the Exchange Offer for an Exchange Security
entitled to be resold to the public by the Holder thereof without complying
with
the prospectus delivery requirements of the Securities Act, (b) the date on
which such Initial Security has been effectively registered under the Securities
Act and disposed of in accordance with a Shelf Registration Statement and (c)
the date on which such Initial Security is distributed to the public pursuant
to
Rule 144 under the Securities Act or by a Broker-Dealer pursuant to the “Plan of
Distribution” contemplated by the Exchange Offer Registration Statement
(including delivery of the Prospectus contained therein).
Trust
Indenture Act: The
Trust
Indenture Act of 1939, as amended.
Underwritten
Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an underwriter
for
reoffering to the public.
Section
2. Securities
Subject to this Agreement.
(a)
Transfer
Restricted Securities. The
securities entitled to the benefits of this Agreement are the Transfer
Restricted Securities.
(b)
Holders
of Transfer Restricted Securities. A
Person
is deemed to be a holder of Transfer Restricted Securities (each, a “Holder”)
whenever such Person owns Transfer Restricted Securities.
Section
3. Registered
Exchange Offer.
(a)
Unless the Exchange Offer shall not be permissible under applicable law or
Commission policy, each of the Company and the Guarantors shall (i) use its
commercially reasonable efforts to cause to be filed with the Commission as
soon
as practicable after the Closing Date, the Exchange Offer Registration
Statement, (ii) use its commercially reasonable efforts to cause such
Registration Statement to become effective as promptly as possible (unless
it
becomes effective automatically upon filing), but in no event later than 365
days after the Closing Date (or if such 365th day is not a Business Day, the
next succeeding Business Day), (iii) in connection with the foregoing, file
(A)
all pre-effective amendments to such Registration Statement as may be necessary
in order to cause such Registration Statement to become effective, (B) if
applicable, a post-effective amendment to such Registration Statement pursuant
to Rule 430A under the Securities Act and (C) cause all necessary filings in
connection with the registration and qualification of the Exchange Securities
to
be made under the state securities or blue sky laws of such jurisdictions as
are
necessary to permit Consummation of the Exchange Offer, and (iv) upon the
effectiveness of such Registration Statement, commence the Exchange Offer.
The
Exchange Offer Registration Statement shall be on the appropriate form
permitting registration of the Exchange Securities to be offered in exchange
for
the Transfer Restricted Securities and to permit resales of Initial Securities
held by Broker-Dealers as contemplated by Section 3(c) hereof.
(b)
The
Company and the Guarantors shall cause the Exchange Offer Registration Statement
to be effective continuously and shall keep the Exchange Offer open for a period
of
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not
less
than the minimum period required under applicable federal and state securities
laws to Consummate the Exchange Offer; provided,
however,
that in
no event shall such period be less than 30 days after the date notice of the
Exchange Offer is mailed to the Holders. The Company shall cause the Exchange
Offer to comply with all applicable federal and state securities laws. No
securities other than the Exchange Securities shall be included in the Exchange
Offer Registration Statement. The Company shall use its commercially reasonable
efforts to cause the Exchange Offer to be Consummated on the earliest
practicable date after the Exchange Offer Registration Statement has become
effective, but in no event later than 30 days after the date notice of the
Exchange Offer is required to be mailed to the Holders (or if such 30th day
is
not a Business Day, the next succeeding Business Day).
(c)
The
Company shall indicate in a “Plan of Distribution” section contained in the
Prospectus forming a part of the Exchange Offer Registration Statement that
any
Broker-Dealer who holds Initial Securities that are Transfer Restricted
Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company) may exchange such
Initial Securities pursuant to the Exchange Offer; however, such Broker-Dealer
may be deemed to be an “underwriter” within the meaning of the Securities Act
and must, therefore, deliver a prospectus meeting the requirements of the
Securities Act in connection with any resales of the Exchange Securities
received by such Broker-Dealer in the Exchange Offer, which prospectus delivery
requirement may be satisfied by the delivery by such Broker-Dealer of the
Prospectus contained in the Exchange Offer Registration Statement. Such “Plan of
Distribution” section shall also contain all other information with respect to
such resales by Broker-Dealers that the Commission may require in order to
permit such resales pursuant thereto, but such “Plan of Distribution” shall not
name any such Broker-Dealer or disclose the amount of Initial Securities held
by
any such Broker-Dealer except to the extent required by the
Commission.
Each
of
the Company and the Guarantors shall use its commercially reasonable efforts
to
keep the Exchange Offer Registration Statement continuously effective,
supplemented and amended as required by the provisions of Section 6(c) hereof
to
the extent necessary to ensure that it is available for resales of Initial
Securities acquired by Broker-Dealers for their own accounts as a result of
market-making activities or other trading activities, and to ensure that it
conforms with the requirements of this Agreement, the Securities Act and the
policies, rules and regulations of the Commission as announced from time to
time, for a period ending on the earlier of (i) 180 days from the date on which
the Exchange Offer Registration Statement is declared effective and (ii) the
date on which a Broker-Dealer is no longer required to deliver a prospectus
in
connection with market-making or other trading activities.
The
Company shall provide sufficient copies of the latest version of such Prospectus
to Broker-Dealers promptly upon request at any time during such 180-day (or
shorter as provided in the foregoing sentence) period in order to facilitate
such resales.
Section
4. Shelf
Registration.
(a)
Shelf
Registration. If
with
respect to either or both of the Fixed Rate Notes or the Floating Rate Notes,
as
the case may be: (i) the Company and the Guarantors are not permitted
to
NY1:1660195.4
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consummate
the Exchange Offer because the Exchange Offer is not permitted by applicable
law
or Commission policy, (ii) for any reason the Exchange Offer is not Consummated
within 30 days after the date notice of the Exchange Offer is required to be
mailed to the Holders (or if such 30th day is not a Business Day, the next
succeeding Business Day), or (iii) with respect to any Holder of Transfer
Restricted Securities (A) such Holder is prohibited by applicable law or
Commission policy from participating in the Exchange Offer, or (B) such Holder
may not resell the Exchange Securities acquired by it in the Exchange Offer
to
the public without delivering a prospectus (other than by reason of such
Holder’s status as an affiliate of the Company) and the Prospectus contained in
the Exchange Offer Registration Statement is not appropriate or available for
such resales by such Holder, or (C) such Holder is a Broker-Dealer and
holds Initial Securities acquired directly from the Company or one of its
affiliates, then, upon such Holder’s request prior to the 20th
day
following consummation of the Exchange Offer, the Company and the Guarantors
shall, with respect to either or both of the Fixed Rate Notes or the Floating
Rate Notes, as the case may be:
(x)
cause
to be filed a shelf registration statement pursuant to Rule 415 under the
Securities Act, which may be an amendment to the Exchange Offer Registration
Statement (in either event, the “Shelf Registration Statement”) as soon as
practicable but in any event on or prior to 180 days after such filing
obligation arises (or if such 180th day is not a Business Day, the next
succeeding Business Day) (such date being the “Shelf Filing Deadline”), which
Shelf Registration Statement shall provide for resales of all Transfer
Restricted Securities the Holders of which shall have provided the information
required pursuant to Section 4(b) hereof; and
(y)
use
their commercially reasonable efforts to cause such Shelf Registration Statement
to be declared effective by the Commission as promptly as possible (unless
it
becomes effective automatically upon filing), and in any event on or before
the
365th day after the obligation to file such Shelf Registration Statement arises
(or if such 365th day is not a Business Day, the next succeeding Business
Day).
Each
of
the Company and the Guarantors shall use its commercially reasonable efforts
to
keep such Shelf Registration Statement continuously effective, supplemented
and
amended as required by the provisions of Sections 6(b) and (c) hereof to the
extent necessary to ensure that it is available for resales of Initial
Securities by the Holders of Transfer Restricted Securities entitled to the
benefit of this Section 4(a), and to ensure that it conforms with the
requirements of this Agreement, the Securities Act and the policies, rules
and
regulations of the Commission as announced from time to time, for a period
of at
least two years following the effective date of such Shelf Registration
Statement (or shorter period that will terminate when all the Initial Securities
covered by such Shelf Registration Statement have been sold pursuant to such
Shelf Registration Statement). During the period during which the Company is
required to maintain an effective Shelf Registration Statement pursuant to
this
Agreement, the Company will, prior to the expiration of that Shelf Registration
Statement, file, and use its commercially reasonable efforts to cause to be
declared effective (unless it becomes effective automatically upon filing)
within a period that avoids any interruption in the ability of Holders of
Securities covered by the expiring Shelf Registration Statement to make
registered dispositions, a new registration statement
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relating
to the Securities, which shall be deemed the “Shelf Registration Statement” for
purposes of this Agreement.
(b)
Provision
by Holders of Certain Information in Connection with the Shelf Registration
Statement. No
Holder
of Transfer Restricted Securities may include any of its Transfer Restricted
Securities in any Shelf Registration Statement pursuant to this Agreement unless
and until such Holder furnishes to the Company in writing, within 20 Business
Days after receipt of a request therefor, such information as the Company may
reasonably request for use in connection with any Shelf Registration Statement
or Prospectus or preliminary Prospectus included therein or amendment or
supplement thereto or Free Writing Prospectus. Each Holder as to which any
Shelf
Registration Statement is being effected agrees to furnish promptly to the
Company all information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not materially
misleading.
Section
5. Additional
Interest. If
(i)
unless the Exchange Offer shall not be permissible under applicable law or
Commission policy, the Exchange Offer Registration Statement has not been
declared effective by the Commission (or become automatically effective) on
or
prior to 365 days after the Closing Date (the “Exchange Offer Effectiveness
Target Date”), (ii) in the event the Company and the Guarantors are required to
file a Shelf Registration Statement pursuant to Section 4(a) hereof, the Shelf
Registration Statement has not been declared effective by the Commission (or
become automatically effective) on or prior to 365 days after the obligation
to
file a Shelf Registration Statement arises (the “Shelf Registration
Effectiveness Target Date” and, together with the Exchange Offer Effectiveness
Date, the “Effectiveness Target Date”), (iii) the Exchange Offer has not been
Consummated within 30 Business Days after the Exchange Offer Effectiveness
Target Date with respect to the Exchange Offer Registration Statement, or (iv)
any Registration Statement required by this Agreement is filed and declared
effective but shall thereafter cease to be effective or fail to be usable for
its intended purpose without being succeeded immediately by a post-effective
amendment to such Registration Statement that cures such failure and that is
itself immediately declared or automatically effective (except in the case
of a
Registration Statement that ceases to be effective or usable as specifically
permitted by the last paragraph of Section 6 hereof) (each such event referred
to in clauses (i) through (iv), a “Registration Default”), the Company and the
Guarantors hereby agree that the interest rate borne by the affected series
of
Transfer Restricted Securities shall be increased by 0.25% per annum during
the
90-day period immediately following the occurrence of any Registration Default
and shall increase by 0.25% per annum at the end of each subsequent 90-day
period, but in no event shall such increase exceed 1.00% per annum. Following
the earliest of (x) the cure of all Registration Defaults relating to any
particular Transfer Restricted Securities, (y) the date on which such Transfer
Restricted Security ceases to be a Transfer Restricted Security or otherwise
becomes freely transferable by Holders other than affiliates of the Company
without further registration under the Securities Act and (z) the date that
is
two years after the Closing Date, the interest rate borne by the relevant
Transfer Restricted Securities will be reduced to the original interest rate
borne by such Transfer Restricted Securities; provided,
however,
that, if
after any such reduction in interest rate, a different Registration Default
occurs, the interest rate borne by the relevant Transfer Restricted Securities
shall again be increased pursuant to the foregoing provisions.
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Notwithstanding
the foregoing, (i) the amount of Additional Interest payable shall not increase
because more than one Registration Default has occurred and is pending and
(ii)
a Holder of Transfer Restricted Securities that is not entitled to the benefits
of the Shelf Registration Statement (because, e.g., such Holder has not elected
to include information or has not timely delivered such information to the
Company pursuant to Section 4(b) hereof) shall not be entitled to Additional
Interest with respect to a Registration Default that pertains to the Shelf
Registration Statement.
All
obligations of the Company and the Guarantors set forth in the preceding
paragraph that are outstanding with respect to any Transfer Restricted Security
at the time such security ceases to be a Transfer Restricted Security shall
survive until such time as all such obligations with respect to such security
shall have been satisfied in full.
Section
6. Registration
Procedures.
(a)
Exchange
Offer Registration Statement. In
connection with the Exchange Offer, the Company and the Guarantors shall comply
with all of the provisions of Section 6(c) hereof, shall use their
commercially reasonable efforts to effect such exchange to permit the sale
of
Transfer Restricted Securities being sold in accordance with the intended method
or methods of distribution thereof, and shall comply with all of the following
provisions:
(i)
If in
the reasonable opinion of counsel to the Company there is a question as to
whether the Exchange Offer is permitted by applicable law, each of the Company
and the Guarantors hereby agrees to seek a favorable decision from the
Commission allowing the Company and the Guarantors to Consummate an Exchange
Offer for such Initial Securities. Each of the Company and the Guarantors hereby
agrees to pursue the issuance of such a decision to the Commission staff level
but shall not be required to take commercially unreasonable action to effect
a
change of Commission policy. Each of the Company and the Guarantors hereby
agrees, however, to (A) participate in telephonic conferences with the
Commission, (B) deliver to the Commission staff an analysis prepared by counsel
to the Company setting forth the legal bases, if any, upon which such counsel
has concluded that such an Exchange Offer should be permitted and (C) diligently
pursue a favorable resolution by the Commission staff of such
submission.
(ii)
As a
condition to its participation in the Exchange Offer pursuant to the terms
of
this Agreement, each Holder of Transfer Restricted Securities shall furnish,
upon the request of the Company, prior to the Consummation thereof, a written
representation to the Company (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement) to the
effect that (A) it is not an affiliate of the Company, (B) it is not engaged
in,
and does not intend to engage in, and has no arrangement or understanding with
any Person to participate in, a distribution of the Exchange Securities to
be
issued in the Exchange Offer and (C) it is acquiring the Exchange Securities
in
its ordinary course of business. In addition, all such Holders of Transfer
Restricted Securities shall otherwise cooperate in the Company’s preparations
for the Exchange Offer. Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Exchange Offer to participate in
a
distribution of
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the
securities to be acquired in the Exchange Offer (1) could not under Commission
policy as in effect on the date of this Agreement rely on the position of the
Commission enunciated in Xxxxxx
Xxxxxxx and Co., Inc.
(available June 5, 1991) and Exxon
Capital Holdings Corporation
(available May 13, 1988), as interpreted in the Commission’s letter to Shearman
& Sterling dated July 2, 1993, and similar no-action letters (which may
include any no-action letter obtained pursuant to clause (i) above), and (2)
must comply with the registration and prospectus delivery requirements of the
Securities Act in connection with a secondary resale transaction and that such
a
secondary resale transaction should be covered by an effective registration
statement containing the selling security holder information required by Item
507 or 508, as applicable, of Regulation S-K if the resales are of Exchange
Securities obtained by such Holder in exchange for Initial Securities acquired
by such Holder directly from the Company.
(b)
Shelf
Registration Statement. In
connection with the Shelf Registration Statement, each of the Company and the
Guarantors shall comply with all the provisions of Section 6(c) hereof and
shall
use its commercially reasonable efforts to effect such registration (unless
automatically declared effective) to permit the sale of the Transfer Restricted
Securities being sold in accordance with the intended method or methods of
distribution thereof, and pursuant thereto each of the Company and the
Guarantors will as expeditiously as is commercially reasonable prepare and
file
with the Commission a Registration Statement relating to the registration on
any
appropriate form under the Securities Act, which form shall be available for
the
sale of the Transfer Restricted Securities in accordance with the intended
method or methods of distribution thereof.
(c)
General
Provisions. In
connection with any Registration Statement and any Prospectus required by this
Agreement to permit the sale or resale of Transfer Restricted Securities and
any
Free Writing Prospectus (including, without limitation, any Registration
Statement and the related Prospectus required to permit resales of Initial
Securities by Broker-Dealers and any Free Writing Prospectus related thereto),
each of the Company and the Guarantors shall:
(i)
use
its commercially reasonable efforts to keep such Registration Statement
continuously effective during the period required by this Agreement and provide
all requisite financial statements (including, if required by the Securities
Act
or any regulation thereunder, financial statements of the Guarantors for the
period specified in Section 3 or 4 hereof, as applicable); upon the occurrence
of any event that would cause any such Registration Statement or the Prospectus
contained therein (A) to contain a material misstatement or omission or (B)
not
to be effective and usable for resale of Transfer Restricted Securities during
the period required by this Agreement, the Company shall file promptly an
appropriate amendment to such Registration Statement, in the case of clause
(A),
correcting any such misstatement or omission, and, in the case of either clause
(A) or (B), use its commercially reasonable efforts to cause such amendment
to
be declared effective (unless automatically declared effective) and such
Registration Statement and the related Prospectus to become usable for their
intended purpose(s) as soon as practicable thereafter;
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(ii)
prepare and file with the Commission such amendments and post-effective
amendments to the applicable Registration Statement as may be necessary to
keep
the Registration Statement effective for the applicable period set forth in
Section 3 or 4 hereof, as applicable, or such shorter period as will terminate
when all Transfer Restricted Securities covered by such Registration Statement
have been sold; cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule
424
under the Securities Act, and to comply fully with the applicable provisions
of
Rules 424 and 430A under the Securities Act in a timely manner; and comply
with
the provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable period
in accordance with the intended method or methods of distribution by the sellers
thereof set forth in such Registration Statement or supplement to the
Prospectus;
(iii)
advise the underwriter(s), if any, and selling Holders promptly and, if
requested by such Persons, to confirm such advice in writing, (A) when the
Prospectus, any Prospectus supplement, any post-effective amendment or any
Free
Writing Prospectus has been filed, and, with respect to any Registration
Statement or any post-effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information relating thereto, (C) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement
under the Securities Act, of the suspension by any state securities commission
of the qualification of the Transfer Restricted Securities for offering or
sale
in any jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, of the issuance by the Commission of a notification of
objection to the use of the form on which the Registration Statement has been
filed, or of the happening of any event that causes the Company to become an
“ineligible issuer,” as defined in Commission Rule 405, (D) of the
existence of any fact or the happening of any event that makes any statement
of
a material fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto or any document incorporated by reference
therein untrue, or that requires the making of any additions to or changes
in
the Registration Statement or the Prospectus in order to make the statements
therein not misleading. If at any time the Commission shall issue any stop
order
suspending the effectiveness of the Registration Statement or a notification
of
objection to the use of the form on which the Registration Statement has been
filed or if any state securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption from qualification
of
the Transfer Restricted Securities under state securities or blue sky laws,
each
of the Company and the Guarantors shall use its commercially reasonable efforts
to obtain the withdrawal or lifting of such order at the earliest practicable
time;
(iv)
(A)(1) furnish without charge to each of the Initial Purchasers, each selling
Holder named in any Registration Statement that has requested such copies,
if
any, and each of the underwriter(s), if any, before filing with the Commission,
copies of any Registration Statement or any Prospectus included therein or
any
amendments or supplements to any such Registration Statement or Prospectus
(including all documents incorporated by reference after the initial filing
of
such Registration Statement), which
NY1:1660195.4
-10-
documents
will be subject to the review and comment of such requesting Holders and
underwriter(s) in connection with such sale, if any, for a period of at least
five Business Days, and (2) not file any such Registration Statement or
Prospectus or any amendment or supplement to any such Registration Statement
or
Prospectus (including all such documents incorporated by reference) to which
an
Initial Purchaser of Transfer Restricted Securities covered by such Registration
Statement or the underwriter(s), if any, shall reasonably object in writing
within five Business Days after the receipt thereof (such objection to be deemed
timely made upon confirmation of telecopy transmission within such period).
The
objection of an Initial Purchaser or underwriter, if any, shall be deemed to
be
reasonable if such Registration Statement, amendment, Prospectus or supplement,
as applicable, as proposed to be filed, contains a material misstatement or
omission;
(B)
(1)
furnish without charge to each of the Initial Purchasers before filing with
the
Commission, a copy of any Free Writing Prospectus, which will be subject to
the
consent of the Initial Purchasers, and (2) not file any such Free Writing
Prospectus to which the Initial Purchasers of Transfer Restricted Securities
covered by such Registration Statement have not consented (such
consent not to be unreasonably withheld, conditioned or delayed);
(v)
promptly prior to the filing of any document that is to be incorporated by
reference into a Registration Statement or Prospectus, provide copies of such
document to the Initial Purchasers, each selling Holder named in any
Registration Statement that has requested such documents, if any, and to the
underwriter(s), if any, make the Company’s and the Guarantors’ representatives
available for discussion of such document and other customary due diligence
matters, subject to customary confidentiality agreements, and include such
information in such document prior to the filing thereof as such selling Holders
or underwriter(s), if any, reasonably may request;
(vi)
make
available, subject to customary confidentiality agreements, at reasonable times
for inspection by the Initial Purchasers, the managing underwriter(s), if any,
participating in any disposition pursuant to such Registration Statement and
any
attorney or accountant retained by such Initial Purchasers or any of the
underwriter(s), all financial and other records, pertinent corporate documents
and properties of each of the Company and the Guarantors, and cause the
Company’s and the Guarantors’ officers, directors and employees to supply all
information, in each case as shall be reasonably necessary to enable any such
Holder, underwriter, attorney or accountant to exercise any applicable
responsibilities in connection with such Registration Statement or any
post-effective amendment thereto subsequent to the filing thereof and prior
to
its effectiveness and to participate in meetings with investors to the extent
reasonably requested by the managing underwriter(s), if any;
(vii)
if
requested by any selling Holders or the underwriter(s), if any, promptly
incorporate in any Registration Statement or Prospectus, pursuant to a
supplement or post-effective amendment if necessary, such information as such
selling Holders and underwriter(s), if any, may reasonably request to have
included therein, including,
NY1:1660195.4
-11-
without
limitation, information relating to the “Plan of Distribution” of the Transfer
Restricted Securities, information with respect to the principal amount of
Transfer Restricted Securities being sold to such underwriter(s), the purchase
price being paid therefor and any other terms of the offering of the Transfer
Restricted Securities to be sold in such offering; and make all required filings
of such Prospectus supplement or post-effective amendment as soon as practicable
after the Company is notified of the matters to be incorporated in such
Prospectus supplement or post-effective amendment;
(viii)
cause the Transfer Restricted Securities covered by the Registration Statement
to be rated with the appropriate rating agencies, if so requested by the Holders
of a majority in aggregate principal amount of Securities covered thereby or
the
underwriter(s), if any;
(ix)
furnish to each Initial Purchaser, each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the Registration
Statement, as first filed with the Commission, and of each amendment thereto,
including financial statements and schedules, all documents incorporated by
reference therein and all exhibits (including exhibits incorporated therein
by
reference);
(x)
deliver to each selling Holder and each of the underwriter(s), if any, without
charge, as many copies of the Prospectus (including each preliminary prospectus)
and any amendment or supplement thereto as such Persons reasonably may request;
each of the Company and the Guarantors hereby consents to the use of the
Prospectus and any amendment or supplement thereto by each of the selling
Holders and each of the underwriter(s), if any, in connection with the offering
and the sale of the Transfer Restricted Securities covered by the Prospectus
or
any amendment or supplement thereto;
(xi)
enter into such agreements (including an underwriting agreement), and make
such
representations and warranties, and take all such other commercially reasonable
actions in connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant to any Registration
Statement contemplated by this Agreement, all to such extent as may be
reasonably requested by any Initial Purchaser or by any Holder of Transfer
Restricted Securities or underwriter in connection with any sale or resale
pursuant to any Registration Statement contemplated by this Agreement; and
whether or not an underwriting agreement is entered into and whether or not
the
registration is an Underwritten Registration, each of the Company and the
Guarantors shall:
(A)
furnish to each Initial Purchaser, each selling Holder and each underwriter,
if
any, in such substance and scope as they may reasonably request and as are
customarily made by issuers to underwriters in primary underwritten offerings,
upon the date of the effectiveness of the Shelf Registration
Statement:
(1)
a
certificate, dated the date of effectiveness of the Shelf Registration
Statement, as the case may be, signed by (y) the President or any Vice President
and (z) a principal financial or accounting officer of
NY1:0000000.4
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each
of
the Company and the Guarantors, confirming, as of the date thereof, the matters
set forth in Section 6(c) of the Purchase Agreement and such other matters
as
such parties may reasonably request;
(2)
if
requested by a majority of selling Holders, an opinion, dated the date of
effectiveness of the Shelf Registration Statement, as the case may be, of
counsel for the Company and the Guarantors, covering the matters set forth
in
the opinion delivered pursuant to Section 6(a)(i) of the Purchase Agreement
and
such other matter as such parties may reasonably request, and in any event
including a statement to the effect that such counsel has participated in
conferences with officers and other representatives of the Company and the
Guarantors, representatives of the independent public accountants for the
Company and the Guarantors, representatives of the underwriter(s), if any,
and
counsel to the underwriter(s), if any, in connection with the preparation of
such Registration Statement and the related Prospectus and have considered
the
matters required to be stated therein and the statements contained therein,
although such counsel has not independently verified the accuracy, completeness
or fairness of such statements; and that such counsel advises that, on the
basis
of the foregoing, no facts came to such counsel’s attention that caused such
counsel to believe that the applicable Registration Statement, (A) at the
date of the opinion and at the time such Registration Statement or any
post-effective amendment thereto became effective, (B) at the applicable
time identified by such Holders or managing underwriters, and (C) in the
case of the Exchange Offer Registration Statement, as of the date of
Consummation, in the case of (A), (B) and (C) contained an untrue statement
of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus contained in such Registration Statement as of its date and, in
the
case of the opinion dated the date of Consummation of the Exchange Offer, as
of
the date of Consummation, contained an untrue statement of a material fact
or
omitted to state a material fact necessary in order to make the statements
therein not misleading. Without limiting the foregoing, such counsel may state
further that such counsel assumes no responsibility for, and has not
independently verified, the accuracy, completeness or fairness of the financial
statements, notes and schedules and other financial data included in any
Registration Statement contemplated by this Agreement or the related Prospectus;
and
(3)
a
customary comfort letter, dated the date of effectiveness of the Shelf
Registration Statement, from the Company’s independent accountants, in the
customary form and covering matters of the type customarily requested to be
covered in comfort letters by underwriters in connection with primary
underwritten offerings, and covering or affirming
NY1:1660195.4
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the
matters set forth in the comfort letters delivered pursuant to Section 6(d)
of
the Purchase Agreement, without exception;
(B)
set
forth in full or incorporate by reference in the underwriting agreement, if
any,
the indemnification provisions and procedures of Section 8 hereof with respect
to all parties to be indemnified pursuant to said Section; and
(C)
deliver such other documents and certificates as may be reasonably requested
by
such parties to evidence compliance with Section 6(c)(xi)(A) hereof and with
any
customary conditions contained in the underwriting agreement or other agreement
entered into by the Company or any of the Guarantors pursuant to this Section
6(c)(xi), if any.
If
at any
time the representations and warranties of the Company and the Guarantors
contemplated in Section 6(c)(xi)(A)(1) hereof cease to be true and correct,
the
Company or the Guarantors shall so advise the Initial Purchasers and the
underwriter(s), if any, and each selling Holder promptly and, if requested
by
such Persons, shall confirm such advice in writing;
(xii)
prior to any public offering of Transfer Restricted Securities, cooperate with
the selling Holders, the underwriter(s), if any, and their respective counsel
in
connection with the registration and qualification of the Transfer Restricted
Securities under the state securities or blue sky laws of such jurisdictions
as
the selling Holders or underwriter(s), if any, may request and do any and all
other acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the Shelf
Registration Statement; provided,
however,
that
none of the Company or the Guarantors shall be required to register or qualify
as a foreign corporation where it is not then so qualified or to take any action
that would subject it to the service of process in suits or to taxation, other
than as to matters and transactions relating to the Registration Statement,
in
any jurisdiction where it is not then so subject;
(xiii)
issue, upon the request of any Holder of Initial Securities covered by the
Shelf
Registration Statement, Exchange Securities having an aggregate principal amount
equal to the aggregate principal amount of Initial Securities surrendered to
the
Company by such Holder in exchange therefor or being sold by such Holder; such
Exchange Securities to be registered in the name of such Holder or in the name
of the purchaser(s) of such Securities, as the case may be; in return, the
Initial Securities held by such Holder shall be surrendered to the Company
for
cancellation;
(xiv)
subject to the terms of the Indenture, cooperate with the selling Holders and
the underwriter(s), if any, to facilitate the timely preparation and delivery
of
certificates representing Transfer Restricted Securities to be sold and not
bearing any restrictive legends; and enable such Transfer Restricted Securities
to be in such denominations and registered in such names as the Holders or
the
underwriter(s), if any, may request at least two Business Days prior to any
sale
of Transfer Restricted Securities made by such Holders or
underwriter(s);
NY1:1660195.4
-14-
(xv)
use
its commercially reasonable efforts to cause the Transfer Restricted Securities
covered by the Registration Statement to be registered with or approved by
such
other governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof or the underwriter(s), if any, to consummate the
disposition of such Transfer Restricted Securities, subject to the proviso
contained in Section 6(c)(xii) hereof;
(xvi)
if
any fact or event contemplated by Section 6(c)(iii)(D) hereof shall exist or
have occurred, prepare a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the Prospectus
will not contain an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein not
misleading;
(xvii)
provide a CUSIP number for all Securities not later than the effective date
of
the Registration Statement covering such Securities and provide the Trustee
under the applicable Indenture with printed certificates for such Securities
which are in a form eligible for deposit with the Depository Trust Company
and
take all other action necessary to ensure that all such Securities are eligible
for deposit with the Depository Trust Company;
(xviii)
cooperate and assist in any filings required to be made with the NASD and in
the
performance of any due diligence investigation by any underwriter (including
any
“qualified independent underwriter”) that is required to be retained in
accordance with the rules and regulations of the NASD;
(xix)
otherwise use its commercially reasonable efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to its
security holders, as soon as practicable, a consolidated earning statement
meeting the requirements of Rule 158 (which need not be audited) for the
twelve-month period (A) commencing at the end of any fiscal quarter in
which Transfer Restricted Securities are sold to underwriters in a firm
commitment or best efforts Underwritten Offering or (B) if not sold to
underwriters in such an offering, beginning with the first month of the
Company’s first fiscal quarter commencing after the effective date of the
Registration Statement;
(xx)
cause the Indenture to be qualified under the Trust Indenture Act not later
than
the effective date of the first Registration Statement required by this
Agreement, and, in connection therewith, cooperate with the Trustee and the
Holders of Securities to effect such changes to the Indenture as may be required
for such Indenture to be so qualified in accordance with the terms of the Trust
Indenture Act; and to execute, and to use its commercially reasonable efforts
to
cause the Trustee to execute, all documents that may be required to effect
such
changes and all other forms and documents required to be filed with the
Commission to enable such Indenture to be so qualified in a timely manner;
NY1:1660195.4
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(xxi)
maintain the listing of all Securities covered by the Registration Statement
on
The PORTALSM
Market;
and
(xxii)
provide promptly to each Holder upon request each document filed with the
Commission pursuant to the requirements of Section 13 and Section 15 of the
Exchange Act.
Each
Holder agrees by acquisition of a Transfer Restricted Security that, upon
receipt of any notice from the Company of the existence of any fact of the
kind
described in Section 6(c)(iii)(D) hereof, such Holder will forthwith discontinue
disposition of Transfer Restricted Securities pursuant to the applicable
Registration Statement until such Holder’s receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof,
or
until it is advised in writing (the “Advice”) by the Company that the use of the
Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus.
If so
directed by the Company, each Holder will deliver to the Company (at the
Company’s expense) all copies, other than permanent file copies then in such
Holder’s possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice. In the event
the Company shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4 hereof,
as applicable, shall be extended by the number of days (a “Delay Period”) during
the period from and including the date of the giving of such notice pursuant
to
Section 6(c)(iii)(D) hereof to and including the date when each selling Holder
covered by such Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof
or
shall have received the Advice; provided
that
there shall not be more than 75 days of Delay Periods during any 12-month
period; provided
further, however,
that
(except as provided in Section 5(iv) hereof) no such extension shall be taken
into account in determining whether Additional Interest is due pursuant to
Section 5 hereof or the amount of such Additional Interest, it being agreed
that the Company’s option to suspend use of a Registration Statement pursuant to
this paragraph shall be treated as a Registration Default for purposes of
Section 5 hereof.
Section
7. Registration
Expenses.
(a)
All
expenses incident to the Company’s and the Guarantor’s performance of or
compliance with this Agreement will be borne by the Company and the Guarantors,
jointly and severally, regardless of whether a Registration Statement becomes
effective, including, without limitation: (i) all registration and filing fees
and expenses (including filings made by any Initial Purchaser or Holder with
the
NASD (and, if applicable, the fees and expenses of any “qualified independent
underwriter”, and one counsel to such person, that may be required by the rules
and regulations of the NASD)); (ii) all fees and expenses of compliance with
federal securities and state securities or blue sky laws (including the
reasonable fees and disbursements of one counsel to the Holder of Transfer
Restricted Securities); (iii) all expenses of printing (including printing
certificates for the Exchange Securities to be issued in the Exchange Offer
and
printing of Prospectuses), messenger and delivery services and telephone; (iv)
all fees and disbursements of counsel for the Company and the Guarantors and,
subject to Section 7(b) hereof, one counsel to the Holders of Transfer
Restricted Securities; (v) all application and filing fees in
connection
NY1:1660195.4
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with
listing the Exchange Securities on a securities exchange or automated quotation
system pursuant to the requirements thereof; and (vi) all fees and disbursements
of independent certified public accountants of the Company and the Guarantors
(including the expenses of any special audit and comfort letters required by
or
incident to such performance).
Each
of
the Company and the Guarantors will, in any event, 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 or the Guarantors.
(b)
In
connection with any Registration Statement required by this Agreement
(including, without limitation, the Exchange Offer Registration Statement and
the Shelf Registration Statement), the Company and the Guarantors, jointly
and
severally, will reimburse the Initial Purchasers and the Holders of Transfer
Restricted Securities being tendered in the Exchange Offer and/or resold
pursuant to the “Plan of Distribution” contained in the Exchange Offer
Registration Statement or registered pursuant to the Shelf Registration
Statement, as applicable, for the reasonable fees and disbursements of not
more
than one counsel, who shall be Xxxxxx Xxxxxx & Xxxxxxx llp
or such
other counsel as may be chosen by the Holders of a majority in principal amount
of the Transfer Restricted Securities for whose benefit such Registration
Statement is being prepared.
Section
8. Indemnification.
(a)
The
Company and the Guarantors, jointly and severally, agree to indemnify and hold
harmless (i) each Holder and (ii) each Person, if any, who controls (within
the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
any Holder (any of the Persons referred to in this clause (ii) being hereinafter
referred to as a “controlling person”) and (iii) the respective officers,
directors, partners, employees, representatives and agents of any Holder or
any
controlling person (any Person referred to in clause (i), (ii) or (iii) may
hereinafter be referred to as an “Indemnified Holder”), to the fullest extent
lawful, from and against any and all losses, claims, damages, liabilities,
judgments, actions and expenses (including, without limitation, and as incurred,
reimbursement of all reasonable costs of investigating, preparing, pursuing,
settling, compromising, paying or defending any claim or action, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, including the reasonable fees and expenses of counsel to any
Indemnified Holder), joint or several, directly or indirectly caused by, related
to, based upon, arising out of or in connection with any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement, Prospectus (or any amendment or supplement thereto) or Free Writing
Prospectus, or any omission or alleged omission to state therein a material
fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
expenses are caused by an untrue statement or omission or alleged untrue
statement or omission that is made in reliance upon and in conformity with
information relating to any of the Holders furnished in writing to the Company
by any of the Holders expressly for use therein. This indemnity agreement shall
be in addition to any liability that the Company or any of the Guarantors may
otherwise have.
NY1:1660195.4
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In
case
any action or proceeding (including any governmental or regulatory investigation
or proceeding) shall be brought or asserted against any of the Indemnified
Holders with respect to which indemnity may be sought against the Company or
the
Guarantors, such Indemnified Holder (or the Indemnified Holder controlled by
such controlling person) shall promptly notify the Company and the Guarantors
in
writing; provided,
however,
that the
failure to give such notice shall not relieve any of the Company or the
Guarantors of its obligations pursuant to this Agreement. Such Indemnified
Holder shall have the right to employ its own counsel in any such action and
the
fees and expenses of such counsel shall be paid, as incurred, by the Company
and
the Guarantors (regardless of whether it is ultimately determined that an
Indemnified Holder is not entitled to indemnification hereunder). The Company
and the Guarantors shall not, in connection with any one such action or
proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) at any time
for such Indemnified Holders, which firm shall be designated by the Holders.
The
Company and the Guarantors shall be liable for any settlement of any such action
or proceeding effected with the Company’s and the Guarantors’ prior written
consent, which consent shall not be withheld unreasonably, and each of the
Company and the Guarantors agrees to indemnify and hold harmless any Indemnified
Holder from and against any loss, claim, damage, liability or expense by reason
of any settlement of any action effected with the written consent of the Company
and the Guarantors. The Company and the Guarantors shall not, without the prior
written consent of each Indemnified Holder, settle or compromise or consent
to
the entry of judgment in or otherwise seek to terminate any pending or
threatened action, claim, litigation or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not any
Indemnified Holder is a party thereto), unless such settlement, compromise,
consent or termination includes an unconditional release of each Indemnified
Holder from all liability arising out of such action, claim, litigation or
proceeding.
(b)
Each
Holder of Transfer Restricted Securities agrees, severally and not jointly,
to
indemnify and hold harmless the Company, the Guarantors and their respective
directors, officers of the Company and the Guarantors who sign a Registration
Statement, and any Person controlling (within the meaning of Section 15 of
the
Securities Act or Section 20 of the Exchange Act) the Company or any of the
Guarantors, and the respective officers, directors, partners, employees,
representatives and agents of each such Person, to the same extent as the
foregoing indemnity from the Company and the Guarantors to each of the
Indemnified Holders, but only with respect to claims and actions based on
information relating to such Holder furnished in writing by such Holder
expressly for use in any Registration Statement. In case any action or
proceeding shall be brought against the Company, the Guarantors or their
respective directors or officers or any such controlling person in respect
of
which indemnity may be sought against a Holder of Transfer Restricted
Securities, such Holder shall have the rights and duties given the Company
and
the Guarantors, and the Company, the Guarantors, their respective directors
and
officers and such controlling person shall have the rights and duties given
to
each Holder by the preceding paragraph.
(c)
If
the indemnification provided for in this Section 8 is unavailable to an
indemnified party under Section 8(a) or (b) hereof (other than by reason of
exceptions provided in those
NY1:1660195.4
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Sections)
in respect of any losses, claims, damages, liabilities, judgments, actions
or
expenses referred to therein, then each applicable indemnifying party, in lieu
of indemnifying such indemnified party, shall contribute to the amount paid
or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Guarantors, on the one hand,
and the Holders, on the other hand, from the Initial Placement (which in the
case of the Company and the Guarantors shall be deemed to be equal to the total
gross proceeds to the Company and the Guarantors from the Initial Placement),
the amount of Additional Interest which did not become payable as a result
of
the filing of the Registration Statement resulting in such losses, claims,
damages, liabilities, judgments actions or expenses, and such Registration
Statement, or if such allocation is not permitted by applicable law, the
relative fault of the Company and the Guarantors, on the one hand, and the
Holders, on the other hand, in connection with the statements or omissions
which
resulted in such losses, claims, damages, liabilities or expenses, as well
as
any other relevant equitable considerations. The relative fault of the Company
and the Guarantors, on the one hand, and of the Indemnified Holder on the other
shall be determined by reference to, among other things, whether the untrue
or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or
any
of the Guarantors, on the one hand, or the Indemnified Holders, on the other
hand, and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid
or
payable by a party as a result of the losses, claims, damages, liabilities
and
expenses referred to above shall be deemed to include, subject to the
limitations set forth in the second paragraph of Section 8(a) hereof, any legal
or other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
The
Company, the Guarantors and each Holder of Transfer Restricted Securities agree
that it would not be just and equitable if contribution pursuant to this
Section 8(c) were determined by pro rata allocation (even if the Holders
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities or
expenses referred to in the immediately preceding paragraph shall be deemed
to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Xxxxxxx 0, xxxx of the Holders (and its related Indemnified Holders) shall
be
required to contribute, in the aggregate, any amount in excess of the amount
by
which the total discount received by such Holder with respect to the Initial
Securities exceeds the amount of any damages which such Holder has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. The Holders’ obligations to contribute pursuant to this
Section 8(c) are several in proportion to the respective principal amount of
Initial Securities held by each of the Holders hereunder and not
joint.
NY1:1660195.4
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Section
9. Rule
144A. Each
of
the Company and the Guarantors hereby agrees with each Holder, for so long
as
any Transfer Restricted Securities remain outstanding, to make available to
any
Holder or beneficial owner of Transfer Restricted Securities in connection
with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities from such Holder or beneficial owner, the information required by
Rule 144A(d)(4) under the Securities Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A under the Securities
Act.
Section
10. Participation
in Underwritten Registrations. No
Holder
may participate in any Underwritten Registration hereunder unless such Holder
(a) agrees to sell such Holder’s Transfer Restricted Securities on the basis
provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of
such
underwriting arrangements.
Section
11. Selection
of Underwriters. The
Holders of Transfer Restricted Securities covered by the Shelf Registration
Statement who desire to do so may sell such Transfer Restricted Securities
in an
Underwritten Offering. In any such Underwritten Offering, the investment
banker(s) and managing underwriter(s) that will administer such offering will
be
selected by the Holders of a majority in aggregate principal amount of the
Transfer Restricted Securities included in such offering; provided,
however,
that
such investment banker(s) and managing underwriter(s) must be reasonably
satisfactory to the Company.
Section
12. Miscellaneous.
(a)
Remedies.
Each
of
the Company and the Guarantors hereby agrees that monetary damages would not
be
adequate compensation for any loss incurred by reason of a breach by it of
the
provisions of this Agreement and hereby agree to waive the defense in any action
for specific performance that a remedy at law would be adequate.
(b)
No
Inconsistent Agreements. Each
of
the Company and the Guarantors will not on or after the date of this Agreement
enter into any agreement with respect to its securities that conflicts with
the
provisions hereof. The rights granted to the Holders hereunder do not in any
way
conflict with the rights granted to the holders of the Company’s or any of the
Guarantors’ securities under any agreement in effect on the date
hereof.
(c)
Adjustments
Affecting the Securities. The
Company will not effect any change, or permit any change to occur, in each
case,
with respect to the terms of the Securities that would materially and adversely
affect the ability of the Holders to Consummate any Exchange Offer.
(d)
Amendments
and Waivers. The
provisions of this Agreement may not be amended, modified or supplemented,
and
waivers or consents to or departures from the provisions hereof may not be
given
unless the Company has (i) in the case of Section 5 hereof and this Section
12(d)(i), obtained the written consent of Holders of all outstanding Transfer
Restricted Securities and (ii) in the case of all other provisions hereof,
obtained the written consent of Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities (excluding any Transfer
Restricted Securities held by the Company or their Affiliates). Notwithstanding
the
NY1:1660195.4
-20-
foregoing,
a waiver or consent to departure from the provisions hereof that relates
exclusively to the rights of Holders whose securities are being tendered
pursuant to the Exchange Offer and that does not affect directly or indirectly
the rights of other Holders whose securities are not being tendered pursuant
to
such Exchange Offer may be given by the Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities being tendered or registered;
provided,
however,
that,
with respect to any matter that directly or indirectly affects the rights of
any
Initial Purchaser hereunder, the Company shall obtain the written consent of
each such Initial Purchaser with respect to which such amendment, qualification,
supplement, waiver, consent or departure is to be effective.
(e)
Notices.
All
notices and other communications provided for or permitted hereunder shall
be
made in writing by hand-delivery, first-class mail (registered or certified,
return receipt requested), telex, telecopier, or air courier guaranteeing
overnight delivery:
(i)
if to
a Holder, at the address set forth on the records of the Registrar under the
Indenture, with a copy to the Registrar under the Indenture; and
(ii)
if
to the Company or the Guarantors:
Xxxxx
Plastics Holding Corporation
000
Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxx 00000
Telecopier
No.: (000) 000-0000
Attention:
General Counsel
With
a
copy to:
O’Melveny
& Xxxxx LLP
Times
Square Tower
0
Xxxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Telecopier
No.: (000) 000-0000
Attention:
Xxxxxxx Xxxxxx
All
such
notices and communications shall be deemed to have been duly given: at the
time
delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt acknowledged, if telecopied; and on the next Business
Day,
if timely delivered to an air courier guaranteeing overnight
delivery.
Copies
of
all such notices, demands or other communications shall be concurrently
delivered by the Person giving the same to the Trustee at the address specified
in the Indenture.
(f)
Successors
and Assigns. This
Agreement shall inure to the benefit of and be binding upon the successors
and
assigns of each of the parties, including, without limitation, and without
the
need for an express assignment, subsequent Holders of Transfer Restricted
Securities; provided,
however,
that
this Agreement shall not inure to the benefit of or be binding upon
a
NY1:1660195.4
-21-
successor
or assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities from such Holder.
(g)
Counterparts.
This
Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and
the
same agreement.
(h)
Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(i)
Governing
Law. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW RULES
THEREOF.
(j)
Severability.
In
the
event that 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.
(k)
Entire
Agreement. This
Agreement is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein with respect to the registration
rights granted by the Company and the Guarantors with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject
matter.
[[NYCORP:2621874v2:3642D:07/20/06--10:39
a]]
NY1:1660195.4
-22-
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
ISSUER
BPC
ACQUISITION CORP.
By:
________________________________
Name:
Title:
BPC
HOLDING CORPORATION
By:
________________________________
Name:
Xxxxx X.
Xxxxxxxxxx
Title: Executive
Vice President,
Chief
Financial
Officer, Treasurer and Secretary
NY1:1660195.4
GUARANTORS
XXXXX
PLASTICS CORPORATION
AEROCON,
INC.
XXXXX
IOWA CORPORATION
XXXXX
PLASTICS DESIGN CORPORATION
XXXXX
PLASTICS TECHNICAL SERVICES, INC.
XXXXX
XXXXXXXX CORPORATION
CPI
HOLDING CORPORATION
KNIGHT
PLASTICS, INC.
PACKERWARE
CORPORATION
PESCOR,
INC.
POLY-SEAL
CORPORATION
VENTURE
PACKAGING, INC.
VENTURE
PACKAGING MIDWEST, INC.
XXXXX
PLASTICS ACQUISITION CORPORATION III
XXXXX
PLASTICS ACQUISITION CORPORATION V
XXXXX
PLASTICS ACQUISITION CORPORATION VII
XXXXX
PLASTICS ACQUISITION CORPORATION VIII
XXXXX
PLASTICS ACQUISITION CORPORATION IX
XXXXX
PLASTICS ACQUISITION CORPORATION X
XXXXX
PLASTICS ACQUISITION CORPORATION XI
XXXXX
PLASTICS ACQUISITION CORPORATION XII
XXXXX
PLASTICS ACQUISITION CORPORATION XIII
XXXX
GROUP, INC.
SAFFRON
ACQUISITION CORP.
SETCO,
LLC
SUN
COAST
INDUSTRIES, INC.
TUBED
PRODUCTS, LLC
CARDINAL
PACKAGING, INC.
XXXXXX
PLASTICS, INC.
By:
________________________________
Name:
Xxxxx X.
Xxxxxxxxxx
Title: Executive
Vice
President, Chief
Financial Officer, Treasurer and Secretary of each
Guarantor
NY1:1660195.4
XXXXX
PLASTICS ACQUISITION CORPORATION XV, LLC
By:
________________________________
Name:
Xxxxx X. Xxxxxxxxxx
Title:
Manager
NY1:1660195.4
The
foregoing Registration Rights Agreement is hereby confirmed and accepted as
of
the date first above written:
DEUTSCHE
BANK SECURITIES INC.
CREDIT
SUISSE SECURITIES (USA) LLC
CITIGROUP
GLOBAL MARKETS INC.
X.X.
XXXXXX SECURITIES INC.
BANC
OF
AMERICA SECURITIES LLC
XXXXXX
BROTHERS INC.
BEAR,
XXXXXXX & CO.
GE
CAPITAL MARKETS, INC.
|
DEUTSCHE
BANK SECURITIES INC.,
acting
on behalf of itself and as a Representative of the several Initial
Purchasers,
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
NY1:1660195.4
Schedule
A
Guarantors
XXXXX
PLASTICS CORPORATION, a
Delaware corporation
AEROCON,
INC., a
Delaware corporation
XXXXX
IOWA CORPORATION, a
Delaware corporation
XXXXX
PLASTICS DESIGN CORPORATION, a
Delaware corporation
XXXXX
PLASTICS TECHNICAL SERVICES, INC., a
Delaware corporation
XXXXX
XXXXXXXX CORPORATION, a
Delaware corporation
CPI
HOLDING CORPORATION, a
Delaware corporation
KNIGHT
PLASTICS, INC., a
Delaware corporation
PACKERWARE
CORPORATION, a
Delaware corporation
PESCOR,
INC., a
Delaware corporation
POLY-SEAL
CORPORATION, a
Delaware corporation
VENTURE
PACKAGING, INC., a
Delaware corporation
VENTURE
PACKAGING MIDWEST, INC., a
Delaware corporation
XXXXX
PLASTICS ACQUISITION CORPORATION III, a
Delaware corporation
XXXXX
PLASTICS ACQUISITION CORPORATION V, a
Delaware corporation
XXXXX
PLASTICS ACQUISITION CORPORATION VII, a
Delaware corporation
XXXXX
PLASTICS ACQUISITION CORPORATION VIII, a
Delaware corporation
XXXXX
PLASTICS ACQUISITION CORPORATION IX, a
Delaware corporation
XXXXX
PLASTICS ACQUISITION CORPORATION X, a
Delaware corporation
XXXXX
PLASTICS ACQUISITION CORPORATION XI, a
Delaware corporation
XXXXX
PLASTICS ACQUISITION CORPORATION XII, a
Delaware corporation
XXXXX
PLASTICS ACQUISITION CORPORATION XIII, a
Delaware corporation
XXXXX
PLASTICS ACQUISITION CORPORATION XV, LLC, a
Delaware limited liability company
XXXX
GROUP, INC., a
Delaware corporation
SAFFRON
ACQUISITION CORP., a
Delaware corporation
SETCO,
LLC, a
Delaware limited liability company
SUN
COAST
INDUSTRIES, INC., a
Delaware corporation
NY1:1660195.4
TUBED
PRODUCTS, LLC, a
Delaware limited liability company
CARDINAL
PACKAGING, INC., an
Ohio
corporation
XXXXXX
PLASTICS, INC., an Illinois corporation
