Exhibit 4.27
EXECUTION COPY
PLIANT CORPORATION
11 5/8% SENIOR SECURED NOTES DUE 2009
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
May 6, 2005
X.X. XXXXXX SECURITIES INC.
000 Xxxx Xxxxxx, 0xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Pliant Corporation, a Utah corporation (the "COMPANY"), has solicited
consents (the "CONSENTS") from holders of its outstanding 11 1/8% Senior Secured
Discount Notes due 2009 (the "NOTES") to certain amendments to the Notes and the
Indenture (as defined below) upon the terms and subject to the conditions set
forth in the solicitation agent agreement dated April 8, 2005, among the
Company, certain of the Note Guarantors (as defined below) and the Solicitation
Agent (the "SOLICITATION AGENT AGREEMENT") and the Confidential Consent
Solicitation Statement dated April 8, 2005 (as amended, the "Consent
Solicitation"). Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Solicitation Agent Agreement.
The Notes were issued pursuant to an indenture (the "INDENTURE") dated
as of February 17, 2004, by and among the Company, Pliant Corporation
International, Pliant Film Products of Mexico, Inc., Pliant Solutions
Corporation ("PLIANT SOLUTIONS"), Pliant Packaging of Canada, LLC, Uniplast
Holdings, Inc., Uniplast U.S., Inc., Turex, Inc. ("TUREX"), Xxxxxxx Industries,
Inc. ("XXXXXXX"), Uniplast Midwest, Inc. ("UNIPLAST MIDWEST") and Uniplast
Industries Co. (collectively, but excluding the Company, Pliant Solutions,
Turex, Xxxxxxx and Uniplast Midwest, the "NOTE GUARANTORS") and Wilmington Trust
Company, as trustee (the "TRUSTEE"). If Consents are received from the holders
of at least 66 2/3% in principal amount at maturity of the Notes and are
accepted by the Company, the Indenture will be amended and restated (the
"AMENDED AND RESTATED INDENTURE"). Notes whose holders deliver Consents that are
accepted by the Company are referred to herein as "Consenting Notes". Notes
whose holders do not deliver Consents are referred to herein as "Non-Consenting
Notes". The date on which the Amended and Restated Indenture goes into effect is
referred to herein as the "Closing Date".
As an inducement to the Solicitation Agent to enter into the
Solicitation Agent Agreement and in satisfaction of a condition to the
obligations of the Solicitation Agent thereunder, the Company and the Note
Guarantors agree with the Solicitation Agent, for the benefit of the holders
(and the Market-Maker (as defined herein)) of the Consenting Notes, the Exchange
Notes (as defined herein) and the Private Exchange Notes (as defined herein)
(collectively, the "HOLDERS"), as follows:
1. REGISTERED EXCHANGE OFFER. Unless, because of any change in law or
applicable interpretations thereof by the Commission's staff, the Company and
the Note Guarantors determine in good faith after consultation with counsel that
they are not permitted to effect the Registered Exchange Offer (as defined
herein), the Company and the Note Guarantors shall (i) prepare and, not later
than 75 days following the Closing Date, file with the Commission a registration
statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form
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under the Securities Act with respect to a proposed offer to the Holders of the
Consenting Notes (the "REGISTERED EXCHANGE OFFER") to issue and deliver to such
Holders, in exchange for the Consenting Notes, a like aggregate principal amount
of debt securities of the Company (the "EXCHANGE NOTES") that are identical in
all material respects to the Consenting Notes, except for the transfer
restrictions relating to the Consenting Notes and provisions relating to
liquidated damages or additional interest, (ii) use commercially reasonable
efforts to cause the Exchange Offer Registration Statement to become effective
under the Securities Act no later than 150 days after the Closing Date and the
Registered Exchange Offer to be consummated no later than 190 days after the
Closing Date and (iii) keep the Registered Exchange Offer open for not less than
20 business days (or longer, if required by applicable law) after the date on
which notice of the Registered Exchange Offer is mailed to the Holders (such
period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). The Exchange
Notes will be issued under the Amended and Restated Indenture or an indenture
(the "EXCHANGE NOTES INDENTURE") among the Company, the Note Guarantors and the
Trustee or such other bank or trust company that is reasonably satisfactory to
the Solicitation Agent, as trustee (the "EXCHANGE NOTES TRUSTEE"), such
indenture to be identical in all material respects to the Amended and Restated
Indenture, except for the transfer restrictions relating to the Consenting Notes
and provisions relating to liquidated damages or additional interest (as
described above). All references in this Agreement to "prospectus" shall, except
where the context otherwise requires, include any prospectus (or amendment or
supplement thereto) filed with the Commission pursuant to Section 6 of this
Agreement.
Upon the effectiveness of the Exchange Offer Registration Statement,
the Company shall promptly commence the Registered Exchange Offer, it being the
objective of such Registered Exchange Offer to enable each Holder electing to
exchange Consenting Notes for Exchange Notes (assuming that such Holder (a) is
not an affiliate (within the meaning of Rule 405 under the Securities Act) of
the Company or an Exchanging Dealer (as defined herein) not complying with the
requirements of the next sentence, (b) acquires the Exchange Notes in the
ordinary course of such Holder's business, (c) has no arrangements or
understandings with any person to participate in the distribution of the
Exchange Notes and (d) if such Holder is not an Exchanging Dealer (as defined
below), it is not engaged in, and does not intend to engage in, a distribution
of the Exchange Notes) and to trade such Exchange Notes from and after their
receipt without any limitations or restrictions under the Securities Act and
without material restrictions under the securities laws of the several states of
the United States. The Company, the Note Guarantors, the Solicitation Agent and
each Exchanging Dealer acknowledge that, pursuant to current interpretations by
the Commission's staff of Section 5 of the Securities Act, each Holder that is a
broker-dealer electing to exchange Consenting Notes, acquired for its own
account as a result of market-making activities or other trading activities, for
Exchange Notes (an "EXCHANGING DEALER"), is required to deliver a prospectus
containing substantially the information set forth in Annex A hereto on the
cover, in Annex B hereto in the "Exchange Offer Procedures" section and the
"Purpose of the Exchange Offer" section (if any) and in Annex C hereto in the
"Plan of Distribution" section of such prospectus in connection with a sale of
any such Exchange Notes received by such Exchanging Dealer pursuant to the
Registered Exchange Offer.
If, prior to the consummation of the Registered Exchange Offer, any
Holder shall notify the Company in writing that it holds any Consenting Notes
acquired by it that have, or that are reasonably likely to be determined to
have, the status of an unsold allotment in an initial distribution, or any
Holder notifies the Company in writing that it believes that it is not entitled
to participate in the Registered Exchange Offer (other than because it has an
understanding or
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arrangement with any person to participate in the distribution of the Exchange
Notes) and such Holder has not received a written opinion from counsel to the
Company, reasonably acceptable to such Holder to the effect that such Holder is
legally permitted to participate in the Registered Exchange Offer, the Company
shall, upon the request of any such Holder, simultaneously with the delivery of
the Exchange Notes in the Registered Exchange Offer, issue and deliver to any
such Holder, in exchange for the Consenting Notes held by such Holder (the
"PRIVATE EXCHANGE"), a like aggregate principal amount of debt securities of the
Company (the "PRIVATE EXCHANGE NOTES") that are identical in all material
respects to the Exchange Notes, except for the transfer restrictions relating to
such Private Exchange Notes and provisions relating to liquidated damages and
additional interest. The Private Exchange Notes will be issued under the same
indenture as the Exchange Notes, and, if permitted under the policies
established at such time by the CUSIP Service Bureau of Standard & Poor's
Corporation, the Company shall use commercially reasonable efforts to cause the
Private Exchange Notes to bear the same CUSIP number as the Exchange Notes.
In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 20
business days (or longer, if required by applicable law) after the date on
which notice of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York;
(d) permit Holders to withdraw tendered Consenting Notes at any time
prior to the close of business, New York City time, on the last business
day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable
to the Registered Exchange Offer.
As soon as practicable after the close of the Registered Exchange
Offer and any Private Exchange, as the case may be, the Company shall:
(a) accept for exchange all Consenting Notes tendered and not validly
withdrawn pursuant to the Registered Exchange Offer and the Private
Exchange;
(b) deliver to the Trustee for cancelation all Consenting Notes so
accepted for exchange; and
(c) cause the Trustee or the Exchange Notes Trustee, as the case may
be, promptly to authenticate and deliver to each Holder, Exchange Notes or
Private Exchange Notes, as the case may be, equal in principal amount at
maturity to the Consenting Notes of such Holder so accepted for exchange.
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The Company and the Note Guarantors shall use commercially reasonable
efforts to keep the Exchange Offer Registration Statement effective and to amend
and supplement the prospectus contained therein in order to permit such
prospectus to be used by all persons (including Exchanging Dealers) subject to
the prospectus delivery requirements of the Securities Act for 180 days after
the consummation of the Registered Exchange Offer (such 180 days, the
"APPLICABLE PERIOD").
Subject to limited exceptions, the Amended and Restated Indenture or
the Exchange Notes Indenture, as the case may be, shall provide that the
Consenting Notes, the Exchange Notes, the Non-Consenting Notes and the Private
Exchange Notes shall vote and consent together on all matters as one class and
that none of the Consenting Notes, the Exchange Notes, the Non-Consenting Notes
or the Private Exchange Notes will have the right to vote or consent as a
separate class on any matter.
Interest on each Exchange Note and Private Exchange Note issued
pursuant to the Registered Exchange Offer and in the Private Exchange will
accrue from the last interest payment date on which interest was paid on the
Consenting Notes surrendered in exchange therefor or, if no interest has been
paid on the Consenting Notes, from the Closing Date.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company and the Note Guarantors in writing (which
may be contained in the applicable letter of transmittal) that at the time of
the consummation of the Registered Exchange Offer (i) any Exchange Notes
received by such Holder will be acquired in the ordinary course of business,
(ii) such Holder will have no arrangements or understanding with any person to
participate in the distribution of the Consenting Notes or the Exchange Notes
within the meaning of the Securities Act, (iii) such Holder is not an affiliate
(within the meaning of Rule 405 under the Securities Act) of the Company or, if
it is such an affiliate, such Holder will comply with the registration and
prospectus delivery requirements of the Securities Act to the extent applicable
and (iv) if such Holder is a broker-dealer, that it will deliver a prospectus in
connection with any resale of such Exchange Notes during the Applicable Period.
Notwithstanding any other provisions hereof, the Company and the Note
Guarantors will ensure that (i) any Exchange Offer Registration Statement and
any amendment thereto and any prospectus forming part thereof and any supplement
thereto complies in all material respects with the Securities Act and the rules
and regulations of the Commission thereunder, (ii) any Exchange Offer
Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) any prospectus forming part of any Exchange
Offer Registration Statement, and any supplement to such prospectus, does not,
as of the consummation of the Registered Exchange Offer, include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
2. SHELF REGISTRATION. If (i) because of any change in law or
applicable interpretations thereof by the Commission's staff the Company and the
Note Guarantors determine in good faith after consultation with counsel that
they are not permitted to effect the Registered Exchange Offer as contemplated
by Section 1 hereof, or (ii) any Consenting Notes validly tendered pursuant to
the Registered Exchange Offer are not exchanged for Exchange
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Notes within 190 days after the Closing Date, or (iii) the Solicitation Agent so
requests with respect to Consenting Notes or Private Exchange Notes not eligible
to be exchanged for Exchange Notes in the Registered Exchange Offer, or (iv) any
applicable law or interpretations do not permit any Holder to participate in the
Registered Exchange Offer (other than because such Holder has an understanding
or arrangement with any person to participate in the distribution of the
Exchange Notes), or (v) any Holder that participates in the Registered Exchange
Offer notifies the Company in writing within 30 days following the consummation
of the Registered Exchange Offer that such Holder may not resell the Exchange
Notes acquired by it in the Registered Exchange Offer to the public without
delivering a prospectus and the prospectus contained in the Exchange Offer
Registration Statement is not legally available for such resales by such Holder,
or (vi) the Company so elects, then the following provisions shall apply:
(a) The Company and the Note Guarantors shall use commercially
reasonable efforts to file as promptly as practicable (but in no event more
than 60 days after so required or requested pursuant to this Section 2;
PROVIDED that in the case of any filing in response to clause (i) or (iii)
or (iv) of the preceding paragraph, the Company and the Note Guarantors
shall not be required to make any such filing earlier than 75 days
following the Closing Date (the date of such filing, the "SHELF FILING
DATE")) with the Commission, and thereafter shall use commercially
reasonable efforts to cause to be declared effective on or prior to 115
days after the Shelf Filing Date (but, in the case of any filing in
response to clause (i), (iii), (iv) or (vi) of the preceding paragraph, in
no event earlier than the 190th day after the Closing Date), a shelf
registration statement on an appropriate form under the Securities Act
relating to the offer and sale of the Transfer Restricted Notes (as defined
below) by the Holders thereof from time to time in accordance with the
methods of distribution set forth in such registration statement
(hereafter, a "SHELF REGISTRATION STATEMENT" and, together with any
Exchange Offer Registration Statement, a "REGISTRATION STATEMENT").
(b) The Company and the Note Guarantors shall use commercially
reasonable efforts to keep the Shelf Registration Statement continuously
effective in order to permit the prospectus forming part thereof to be used
by Holders of Transfer Restricted Notes for a period ending on the earlier
of (i) two years from the Closing Date or such shorter period that will
terminate when all the Transfer Restricted Notes covered by the Shelf
Registration Statement have been sold pursuant thereto and (ii) the date on
which the Consenting Notes become eligible for resale without volume
restrictions pursuant to Rule 144 under the Securities Act (in any such
case, such period being called the "SHELF REGISTRATION PERIOD"). The
Company and the Note Guarantors shall be deemed not to have used
commercially reasonable efforts to keep the Shelf Registration Statement
effective during the requisite period if any of them voluntarily take any
action that would result in Holders of Transfer Restricted Notes covered
thereby not being able to offer and sell such Transfer Restricted Notes
during that period, unless (A) such action is required by applicable law or
(B) such action was permitted by Section 2(c).
(c) Notwithstanding the provisions of Section 2(b) (but subject to the
provisions of Section 3(b)), the Company and the Note Guarantors may for
valid business reasons, including without limitation, a potential
acquisition, divestiture of assets or other material corporate transaction,
issue a notice that the Shelf Registration Statement is no longer effective
or the prospectus included therein is no longer usable for offers and sales
of Transfer Restricted Notes and may issue any notice suspending use of the
Shelf
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Registration Statement required under applicable securities laws to be
issued. The provisions of this Section 2(c) shall also be applicable to the
Exchange Offer Registration Statement during the Applicable Period;
PROVIDED that the Applicable Period shall be extended for the number of
days (which shall not exceed 60) that the use of the Exchange Offer
Registration Statement is suspended.
(d) Notwithstanding any other provisions hereof, the Company and the
Note Guarantors shall ensure that (i) any Shelf Registration Statement and
any amendment thereto and any prospectus forming part thereof and any
supplement thereto complies in all material respects with the Securities
Act and the rules and regulations of the Commission thereunder, (ii) any
Shelf Registration Statement and any amendment thereto (in either case,
other than with respect to information included therein in reliance upon or
in conformity with written information furnished to the Company by or on
behalf of any Holder specifically for use therein (the "HOLDERS'
INFORMATION")) does not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) any prospectus forming
part of any Shelf Registration Statement, and any supplement to such
prospectus (in either case, other than with respect to Holders'
Information), does not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
3. LIQUIDATED DAMAGES. (a) The parties hereto agree that the Holders
of Transfer Restricted Notes will suffer damages if the Company and the Note
Guarantors fail to fulfill their obligations under Section 1 or Section 2, as
applicable, and that it would not be feasible to ascertain the extent of such
damages. Accordingly, if (i) the applicable Registration Statement is not filed
with the Commission on or prior to the date specified in this Agreement, (ii)
the Exchange Offer Registration Statement or the Shelf Registration Statement,
as the case may be, is not declared effective on or prior to the date specified
in this Agreement, (iii) the Registered Exchange Offer is not consummated on or
prior to 190 days after the Closing Date (other than in the event the Company is
requested or required or elected to file a Shelf Registration Statement), or
(iv) the Shelf Registration Statement is filed and declared effective on or
prior to the date specified in this Agreement but shall thereafter cease to be
effective (at any time that the Company and the Note Guarantors are obligated to
maintain the effectiveness thereof) without being succeeded within 60 days by an
additional Registration Statement or a post-effective amendment to the Shelf
Registration Statement filed and declared effective (each such event referred to
in clauses (i) through (iv), a "REGISTRATION DEFAULT"), the interest rate on the
Transfer Restricted Notes will be increased by 1.00% per annum (the amount paid
as a result of such increase being herein referred to as "liquidated damages")
until (i) the applicable Registration Statement is filed, (ii) the Exchange
Offer Registration Statement is declared effective and the Registered Exchange
Offer is consummated, (iii) the Shelf Registration Statement is declared
effective or (iv) the Shelf Registration Statement again becomes effective, an
additional Registration Statement becomes effective or a post-effective
amendment to the Shelf Registration Statement becomes effective, as the case may
be. Following the cure of all Registration Defaults, the accrual of liquidated
damages will cease. As used herein, the term "TRANSFER RESTRICTED NOTES" means
(i) each Consenting Note until the date on which such Consenting Note has been
exchanged for a freely transferable Exchange Note in the Registered Exchange
Offer (it being understood that the requirement that an Exchanging Dealer
deliver a prospectus in connection with sales of Exchange Notes acquired in the
Registered Exchange
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Offer shall not mean that the Exchange Note is not freely transferable for
purposes of this Section 3), (ii) each Consenting Note or Private Exchange Note
until the date on which it has been effectively registered under the Securities
Act and disposed of in accordance with the Shelf Registration Statement or (iii)
each Consenting Note or Private Exchange Note until the date on which it 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. Notwithstanding
anything to the contrary in this Section 3(a), the Company shall not be required
to pay liquidated damages to a Holder of Transfer Restricted Notes if such
Holder failed to comply with its obligations to make the representations set
forth in the second to last paragraph of Section 1 or failed to provide the
information required to be provided by it, if any, pursuant to Section 4(o).
(b) Notwithstanding the foregoing provisions of Section 3(a), the
Company and the Note Guarantors may for valid business reasons, including
without limitation, a potential acquisition, divestiture of assets or other
material corporate transaction, issue a notice that the Shelf Registration
Statement is no longer effective or the prospectus included therein is no longer
usable for offers and sales of Transfer Restricted Notes and may issue any
notice suspending use of the Shelf Registration Statement required under
applicable securities laws to be issued and, in the event that the aggregate
number of days in any consecutive twelve-month period for which all such notices
are issued and effective exceeds 60 days in the aggregate, then the interest
rate on the Transfer Restricted Notes covered by the Shelf Registration
Statement will be increased by 1.00% per annum (the amount paid as a result of
such increase being herein referred to as "liquidated damages"). Upon the
Company and the Note Guarantors declaring that the Shelf Registration Statement
is useable after the period of time described in the preceding sentence, accrual
of liquidated damages shall cease; PROVIDED, HOWEVER, that if after any such
cessation of the accrual of liquidated damages the Shelf Registration Statement
again ceases to be useable beyond the period permitted above, liquidated damages
will again accrue pursuant to the foregoing provisions.
(c) The Company shall notify the Trustee and the Paying Agent under
the Indenture immediately upon the happening of each and every Registration
Default. Each obligation to pay liquidated damages shall be deemed to accrue
from and including the date of the applicable Registration Default. The
liquidated damages due shall be payable on each interest payment date and in the
form specified by the Amended and Restated Indenture and the Consenting Notes to
the record holder entitled to receive the interest payment to be made on such
date.
(d) The parties hereto agree that the liquidated damages provided for
in this Section 3 constitute a reasonable estimate of and are intended to
constitute the sole damages that will be suffered by Holders of Transfer
Restricted Notes by reason of the failure of (i) the Shelf Registration
Statement or the Exchange Offer Registration Statement to be filed, (ii) the
Shelf Registration Statement to remain effective or (iii) the Exchange Offer
Registration Statement to be declared effective and the Registered Exchange
Offer to be consummated, in each case to the extent required by this Agreement.
4. REGISTRATION PROCEDURES. In connection with any Registration
Statement, the following provisions shall apply:
(a) The Company shall (i) furnish to the Solicitation Agent, prior to
the filing thereof with the Commission, a copy of the Exchange Offer
Registration Statement and
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each amendment thereof and each supplement, if any, to the prospectus
included therein and shall use commercially reasonable efforts to reflect
in each such document, when so filed with the Commission, such comments as
the Solicitation Agent may reasonably propose; (ii) include information
substantially as set forth in Annex A hereto on the cover, in Annex B
hereto in the "Exchange Offer Procedures" section and the "Purpose of the
Exchange Offer" section (if any) and in Annex C hereto in the "Plan of
Distribution" section of the prospectus forming a part of the Exchange
Offer Registration Statement, and include information substantially as set
forth in Annex D hereto in the Letter of Transmittal delivered pursuant to
the Registered Exchange Offer; and (iii) if requested in writing by the
Solicitation Agent, include the information required by Items 507 or 508 of
Regulation S-K, as applicable, in the prospectus forming a part of the
Exchange Offer Registration Statement.
(b) The Company shall advise the Solicitation Agent, each Exchanging
Dealer and the Holders (if applicable) and, if requested by any such
person, confirm such advice in writing (which advice pursuant to clauses
(ii)-(v) hereof shall be accompanied by an instruction to suspend the use
of the prospectus until the requisite changes have been made):
(i) when any Registration Statement and any amendment thereto has
been filed with the Commission and when such Registration Statement or
any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or
supplements to any Registration Statement or the prospectus included
therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of any Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Consenting
Notes, the Exchange Notes or the Private Exchange Notes for sale in
any jurisdiction or the initiation or threatening of any proceeding
for such purpose; and
(v) of the happening of any event that requires the making of any
changes in any Registration Statement or the prospectus included
therein in order that the statements therein are not misleading and do
not omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(c) The Company and the Note Guarantors will make every reasonable
effort to obtain the withdrawal at the earliest possible time of any order
suspending the effectiveness of any Registration Statement.
(d) The Company will furnish to each Holder of Transfer Restricted
Notes included within the coverage of any Shelf Registration Statement,
without charge, at least one conformed copy of such Shelf Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules and, if any such Holder
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so requests in writing, all exhibits thereto (including those, if any,
incorporated by reference).
(e) The Company will, during the Shelf Registration Period, promptly
deliver to each Holder of Transfer Restricted Notes included within the
coverage of any Shelf Registration Statement, without charge, as many
copies of the prospectus (including each preliminary prospectus) included
in such Shelf Registration Statement and any amendment or supplement
thereto as such Holder may reasonably request; and the Company consents to
the use of such prospectus or any amendment or supplement thereto by each
of the selling Holders of Transfer Restricted Notes in connection with the
offer and sale of the Transfer Restricted Notes covered by such prospectus
or any amendment or supplement thereto.
(f) The Company will furnish to the Solicitation Agent, each
Exchanging Dealer who so requests in writing, and to any other Holder who
so requests in writing, without charge, at least one conformed copy of the
Exchange Offer Registration Statement and any post-effective amendment
thereto, including financial statements and schedules and, if the
Solicitation Agent or Exchanging Dealer or any such Holder so requests in
writing, all exhibits thereto (including those, if any, incorporated by
reference).
(g) The Company will, during the Exchange Offer Registration Period or
the Shelf Registration Period, as applicable, promptly deliver to the
Solicitation Agent, each Exchanging Dealer and such other persons that are
required to deliver a prospectus following the Registered Exchange Offer,
without charge, as many copies of the final prospectus included in the
Exchange Offer Registration Statement or the Shelf Registration Statement
and any amendment or supplement thereto as the Solicitation Agent, such
Exchanging Dealer or other persons may reasonably request in writing; and
the Company and the Note Guarantors consent to the use of such prospectus
or any amendment or supplement thereto by the Solicitation Agent, such
Exchanging Dealer or other persons, as applicable, as aforesaid.
(h) Prior to the effective date of any Registration Statement, the
Company and the Note Guarantors will use commercially reasonable efforts to
register or qualify, or cooperate with the Holders of Consenting Notes,
Exchange Notes or Private Exchange Notes included therein and their
respective counsel in connection with the registration or qualification of,
such Consenting Notes, Exchange Notes or Private Exchange Notes for offer
and sale under the securities or blue sky laws of such jurisdictions as any
such Holder 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 Consenting Notes, Exchange Notes or Private Exchange
Notes covered by such Registration Statement; PROVIDED that the Company and
the Note Guarantors will not be required to qualify generally to do
business in any jurisdiction where they are not then so qualified or to
take any action which would subject them to general service of process or
to taxation in any such jurisdiction where they are not then so subject.
(i) The Company and the Note Guarantors will cooperate with the
Holders of Consenting Notes, Exchange Notes or Private Exchange Notes to
facilitate the timely preparation and delivery of certificates representing
Consenting Notes, Exchange Notes or Private Exchange Notes to be sold
pursuant to any Registration Statement free of any restrictive legends and
in such denominations and registered in such names as the
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Holders thereof may request in writing prior to sales of Consenting Notes,
Exchange Notes or Private Exchange Notes pursuant to such Registration
Statement.
(j) If any event contemplated by Section 4(b)(ii) through (v) occurs
during the period for which the Company and the Note Guarantors are
required to maintain an effective Registration Statement, the Company and
the Note Guarantors will promptly prepare and file with the Commission a
post-effective amendment to the Registration Statement or a supplement to
the related prospectus or file any other required document so that, as
thereafter delivered to purchasers of the Consenting Notes, Exchange Notes
or Private Exchange Notes from a Holder, the prospectus will not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(k) If any event contemplated by Section 2(c) or 3(b) occurs during
the period for which the Company and the Note Guarantors are required to
maintain an effective Registration Statement, the Company and the Note
Guarantors will, to the extent required after the end of the applicable
periods referred to in Sections 2(c) and 3(b), promptly prepare and file
with the Commission a post-effective amendment to the Registration
Statement or a supplement to the related prospectus or file any other
required document so that, as thereafter delivered to purchasers of the
Consenting Notes, Exchange Notes or Private Exchange Notes from a Holder,
the prospectus will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(l) Not later than the effective date of the applicable Registration
Statement, the Company will provide a CUSIP number for the Consenting
Notes, the Exchange Notes and the Private Exchange Notes, as the case may
be, and provide the applicable trustee with certificates for the Consenting
Notes, the Exchange Notes or the Private Exchange Notes, as the case may
be, in a form eligible for deposit with The Depository Trust Company.
(m) The Company and the Note Guarantors will comply with all
applicable rules and regulations of the Commission and the Company and the
Note Guarantors will make generally available to their security holders as
soon as practicable after the effective date of the applicable Registration
Statement an earnings statement of the Company satisfying the provisions of
Section 11(a) of the Securities Act; PROVIDED that in no event shall such
earning statement be delivered 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 applicable Registration Statement, which
statement shall cover such 12-month period.
(n) The Company and the Note Guarantors will cause the Amended and
Restated Indenture or the Exchange Notes Indenture, as the case may be, to
be qualified under the Trust Indenture Act as required by applicable law in
a timely manner.
(o) The Company may require each Holder of Transfer Restricted Notes
to be registered pursuant to any Shelf Registration Statement to furnish to
the Company such information concerning the Holder and the distribution of
such Transfer Restricted Notes
11
as the Company may from time to time reasonably require for inclusion in
such Shelf Registration Statement, and the Company may exclude from such
registration the Transfer Restricted Notes of any Holder that fails to
furnish such information within a reasonable time after receiving such
request. Each Holder of Transfer Restricted Notes as to which a Shelf
Registration Statement is being effected, by its participation in the Shelf
Registration Statement, shall be deemed to agree to furnish the Company and
the Note Guarantors all information concerning such Holder required to be
described in order to make the information previously furnished by such
Holder to the Company and the Note Guarantors not materially misleading.
(p) In the case of (A) a Shelf Registration Statement, each Holder of
Transfer Restricted Notes to be registered pursuant thereto agrees by
acquisition of such Transfer Restricted Notes that, and (B) the Exchange
Offer Registration Statement during the Applicable Period only, each Holder
of Exchange Notes subject to the prospectus delivery requirements of the
Securities Act agrees that, upon receipt of any notice from the Company
pursuant to Sections 2(c), 3(b) or 4(b)(ii) through (v), such Holder will
discontinue disposition of such Transfer Restricted Notes or Exchange
Notes, as applicable, until such Holder's receipt of copies of the
supplemental or amended prospectus contemplated by Section 4(j) or 4(k), as
the case may be, or until advised in writing by the Company that the use of
the applicable prospectus may be resumed (the "Advice"). If the Company
shall give any notice under Sections 2(c), 3(b) or 4(b)(ii) through (v)
during the period that the Company is required to maintain an effective
Registration Statement (the "EFFECTIVENESS PERIOD"), such Effectiveness
Period shall be extended by the number of days during such period from and
including the date of the giving of such notice to and including the date
when each seller of Transfer Restricted Notes or Exchange Notes, as
applicable, covered by such Registration Statement shall have received (x)
the copies of the supplemental or amended prospectus contemplated by
Section 4(j) or 4(k), as the case may be, (if an amended or supplemental
prospectus is required) or (y) the Advice (if no amended or supplemental
prospectus is required).
(q) In the case of a Shelf Registration Statement, the Company and the
Note Guarantors shall enter into such customary agreements (including, if
requested by Holders of a majority in aggregate principal amount of the
Consenting Notes, an underwriting agreement in customary form) and take all
such other action, if any, as Holders of a majority in aggregate principal
amount of the Consenting Notes, Exchange Notes and Private Exchange Notes
covered by the Shelf Registration Statement or the managing underwriters
(if any) shall reasonably request in order to facilitate any disposition of
Consenting Notes, Exchange Notes or Private Exchange Notes pursuant to such
Shelf Registration Statement. Notwithstanding anything to the contrary
contained in this Agreement, the Company and the Note Guarantors shall not
be required to engage in more than one underwritten offering pursuant to
this Agreement.
(r) In the case of a Shelf Registration Statement, the Company shall
(i) make reasonably available for inspection by a representative of, and
Special Counsel (as defined below) acting for, Holders of a majority in
aggregate principal amount of the Consenting Notes, Exchange Notes and
Private Exchange Notes covered by the Shelf Registration Statement and any
underwriter participating in any disposition of Consenting Notes, Exchange
Notes or Private Exchange Notes pursuant to such Shelf Registration
Statement, all relevant financial and other records, pertinent corporate
documents and
12
properties of the Company and its subsidiaries and (ii) use commercially
reasonable efforts to have its officers, directors, employees, accountants
and counsel supply all relevant information reasonably requested by such
representative, Special Counsel or any such underwriter (an "INSPECTOR") in
connection with such Shelf Registration Statement.
(s) In the case of a Shelf Registration Statement, the Company shall,
if requested by Holders of a majority in aggregate principal amount of the
Consenting Notes, Exchange Notes and Private Exchange Notes covered by the
Shelf Registration Statement, their Special Counsel or the managing
underwriters (if any) in connection with such Shelf Registration Statement,
use commercially reasonable efforts to cause (i) its counsel to deliver an
opinion relating to the Shelf Registration Statement and the Consenting
Notes, Exchange Notes or Private Exchange Notes, as applicable, in
customary form, (ii) its officers to execute and deliver all customary
documents and certificates requested by Holders of a majority in aggregate
principal amount of the Consenting Notes, Exchange Notes and Private
Exchange Notes being sold, its Special Counsel or the managing underwriters
(if any) and (iii) its independent public accountants to provide a comfort
letter or letters in customary form, subject to receipt of appropriate
documentation as contemplated, and only if permitted, by Statement of
Auditing Standards No. 72.
5. REGISTRATION EXPENSES. The Company and the Note Guarantors will
jointly and severally bear all expenses incurred in connection with the
performance of their obligations under Sections 1, 2, 3 and 4 and the Company
will reimburse the Solicitation Agent or the Holders, as applicable, for the
reasonable fees and disbursements of one firm of attorneys (in addition to any
local counsel) chosen by the Holders of a majority in aggregate principal amount
of the Consenting Notes, the Exchange Notes and the Private Exchange Notes
covered by each Registration Statement (the "SPECIAL COUNSEL") acting for the
Solicitation Agent or Holders in connection therewith. The Company and the Note
Guarantors are not required to pay any commissions or concessions of any
broker-dealers.
6. MARKET-MAKING. (a) For so long as any of the Consenting Notes,
Exchange Notes or Private Exchange Notes are outstanding and JPMorgan (in such
capacity, the "Market-Maker") or any of its affiliates (as defined in the rules
and regulations of the Commission) owns any equity securities of the Company,
the Note Guarantors or any of their affiliates and proposes to make a market in
the Consenting Notes, Exchange Notes or Private Exchange Notes as part of its
business in the ordinary course, the following provisions shall apply for the
sole benefit of the Market-Maker:
(i) The Company and the Note Guarantors shall (A) on the date that the
Exchange Offer Registration Statement or, if required hereby, the Shelf
Registration Statement, is filed with the Commission, file a registration
statement (the "Market-Making Registration Statement") (which may be the
Exchange Offer Registration Statement or the Shelf Registration Statement
if permitted by the rules and regulations of the Commission) and use
commercially reasonable efforts to cause such Market-Making Registration
Statement to be declared effective by the Commission on or prior to the
consummation of the Exchange Offer or the effective date of the Shelf
Registration Statement, as applicable; (B) periodically amend such
Market-Making Registration Statement so that the information contained
therein complies with the requirements of Section 10(a) under the
Securities Act; (C) if reasonably requested in writing by the
13
Market-Maker, within 45 days following the end of each of the Company's
fiscal quarters (other than the fourth quarter), file a supplement to the
prospectus contained in the Market-Making Registration Statement that sets
forth the financial results of the Company for such quarter; (D) amend the
Market-Making Registration Statement or amend or supplement the related
prospectus when necessary to reflect any material changes in the
information provided therein; and (E) amend the Market-Making Registration
Statement when required to do so in order to comply with Section 10(a)(3)
of the Securities Act; PROVIDED, HOWEVER, that (1) prior to filing the
Market-Making Registration Statement, any amendment thereto or any
amendment or supplement to the related prospectus (other than a supplement
filed pursuant to clause (C) of this paragraph unless the Market-Maker
reasonably requests), the Company will furnish to the Market-Maker copies
of all such documents proposed to be filed, which documents will be subject
to the review of the Market-Maker and its counsel and (2) the Company and
the Note Guarantors will not file the Market-Making Registration Statement,
any amendment thereto or any supplement to the related prospectus (other
than a supplement filed pursuant to clause (C) of this paragraph unless the
Market-Maker reasonably requests) to which the Market-Maker and its counsel
shall reasonably object unless the Company and the Note Guarantors are
advised by counsel that such Market-Making Registration Statement,
amendment or supplement is required to be filed under applicable securities
laws and the Company will provide the Market-Maker and its counsel with
copies of the Market-Making Registration Statement and each amendment and
supplement filed.
(ii) The Company shall notify the Market-Maker and, if requested by
the Market-Maker, confirm such advice in writing, (A) when any
Market-Making Registration Statement, any post-effective amendment to the
Market-Making Registration Statement or any amendment or supplement to the
related prospectus has been filed, and, with respect to any post-effective
amendment, when the same has become effective; (B) of any request by the
Commission for any post-effective amendment to the Market-Making
Registration Statement, any supplement or amendment to the related
prospectus or for additional information; (C) the issuance by the
Commission of any stop order suspending the effectiveness of the
Market-Making Registration Statement or the initiation of any proceedings
for that purpose; (D) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Consenting Notes
or Exchange Notes for sale in any jurisdiction or the initiation or
threatening of any proceedings for such purpose; (E) of the happening of
any event that makes any statement made in the Market-Making Registration
Statement, the related prospectus or any amendment or supplement thereto
untrue or that requires the making of any changes in the Market-Making
Registration Statement, such prospectus or any amendment or supplement
thereto, in order to make the statements therein not misleading; and (F) of
any advice from a nationally recognized statistical rating organization
that such organization has placed the Company under surveillance or review
with negative implications or has determined to downgrade the rating of the
Consenting Notes, Exchange Notes or Private Exchange Notes or any other
debt obligation of the Company whether or not such downgrade shall have
been publicly announced.
(iii) If any event contemplated by Section 6(a)(ii)(B) through (E)
occurs during the period for which the Company and the Note Guarantors are
required to maintain an effective Market-Making Registration Statement, the
Company and the Note Guarantors shall promptly prepare and file with the
Commission a post-effective amendment to the
14
Market-Making Registration Statement or an amendment or supplement to the
related prospectus or file any other required document so that the
prospectus will not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(iv) In the event of the issuance of any stop order suspending the
effectiveness of the Market-Making Registration Statement or of any order
suspending the qualification of the Consenting Notes, Exchange Notes or
Private Exchange Notes for sale in any jurisdiction, the Company and the
Note Guarantors shall use promptly commercially reasonable efforts to
obtain its withdrawal.
(v) The Company shall furnish to the Market-Maker, without charge, (i)
at least one conformed copy of the Market-Making Registration Statement and
any post-effective amendment thereto; and (ii) as many copies of the
related prospectus and any amendment or supplement thereto as the
Market-Maker may reasonably request.
(vi) The Company and the Note Guarantors shall consent to the use of
the prospectus contained in the Market-Making Registration Statement or any
amendment or supplement thereto by the Market-Maker in connection with its
market making activities.
(vii) For so long as the Consenting Notes, Exchange Notes or Private
Exchange Notes shall be outstanding, the Company shall furnish to the
Market-Maker (A) as soon as practicable after the end of each of the
Company's fiscal years, the number of copies reasonably requested by the
Market-Maker of the Company's annual report for such year, (B) as soon as
available, the number of copies reasonably requested by the Market-Maker of
each report (including, without limitation, reports on Forms 10-K, 10-Q and
8-K) or definitive proxy statements of the Company filed under the Exchange
Act or mailed to stockholders and (C) all public reports and all reports
and financial statements furnished by the Company to the Nasdaq National
Market System or any U.S. national securities exchange or quotation service
upon which the Consenting Notes or Exchange Notes may be listed pursuant to
requirements of or agreements with such exchange or quotation service or to
the Commission pursuant to the Exchange Act or any rule or regulation of
the Commission thereunder.
(viii) Notwithstanding the foregoing provisions of Section 6, the
Company and the Note Guarantors may for valid business reasons, including
without limitation, a potential material acquisition, divestiture of assets
or other material corporate transaction, notify the Market-Maker in writing
that the Market-Making Registration Statement is no longer effective or the
prospectus included therein is no longer usable for offers and sales of
Consenting Notes, Exchange Notes or Private Exchange Notes; PROVIDED that
the use of the Market-Making Registration Statement or the prospectus
contained therein shall not be suspended for more than 60 days in the
aggregate in any consecutive 12 month period. The Market-Maker agrees that
upon receipt of any notice from the Company pursuant to Section 6(a)(ii)(B)
through (E) or this Section 6(a)(viii), it will discontinue use of the
prospectus contained in the Market-Making Registration Statement until
receipt of copies of the supplemented or amended prospectus relating
thereto or until advised in writing by the Company that the use of the
prospectus contained in the Market-Making Registration Statement may be
resumed.
15
(b) In connection with the Market-Making Registration Statement, the
Company shall (i) make reasonably available for inspection by a representative
of, and counsel acting for, the Market-Maker all relevant financial and other
records, pertinent corporate documents and properties of the Company and its
subsidiaries and (ii) use its commercially reasonable efforts to have its
officers, directors, employees, accountants and counsel supply all relevant
information reasonably requested by such representative or counsel or the
Market-Maker.
(c) Prior to the effective date of the Market-Making Registration
Statement, the Company and the Note Guarantors will use commercially reasonable
efforts to register or qualify, or cooperate with the Market-Maker and its
counsel in connection with the registration or qualification of, the Consenting
Notes, Exchange Notes or Private Exchange Notes for offer and sale under the
securities or blue sky laws of such jurisdictions as the Market-Maker 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 Consenting
Notes, Exchange Notes or Private Exchange Notes covered by the Market-Making
Registration Statement; PROVIDED that the Company and the Note Guarantors will
not be required to qualify generally to do business in any jurisdiction where
they are not then so qualified or to take any action which would subject them to
general service of process or to taxation in any such jurisdiction where they
are not then so subject.
(d) The Company and the Note Guarantors represent and agree that the
Market-Making Registration Statement, any post-effective amendments thereto, any
amendments or supplements to the related prospectus and any documents filed by
them under the Exchange Act will, when they become effective or are filed with
the Commission, as the case may be, conform in all respects to the requirements
of the Securities Act and the Exchange Act and the rules and regulations of the
Commission thereunder and will not, as of the effective date of such
Market-Making Registration Statement or post-effective amendments and as of the
filing date of amendments or supplements to such prospectus or filings under the
Exchange Act, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; PROVIDED that no representation or warranty is made as to
information contained in or omitted from the Market-Making Registration
Statement or the related prospectus in reliance upon and in conformity with
written information furnished to the Company by the Market-Maker specifically
for inclusion therein, which information the parties hereto agree will be
limited to the statements concerning the market-making activities of the
Market-Maker to be set forth on the cover page and in the "Plan of distribution"
section of the prospectus (the "Market-Maker's Information").
(e) At the time of effectiveness of the Market-Making Registration
Statement and concurrently with each time the Market-Making Registration
Statement or the related prospectus shall be amended or such prospectus shall be
supplemented, the Company shall (if requested by the Market-Maker) furnish the
Market-Maker and its counsel with a certificate of its Chairman of the Board of
Directors or its President and Chief Financial Officer to the effect that:
(i) the Market-Making Registration Statement has been declared
effective; (ii) in the case of an amendment to the Market-Making
Registration Statement, such amendment has become effective under the
Securities Act as of the date and time specified in such certificate, if
applicable; and in the case of an amendment or supplement to the related
prospectus, such amendment or supplement to the prospectus was filed with
the Commission pursuant to the subparagraph of Rule 424(b) under the
Securities Act specified in such certificate on the date specified therein;
(iii) to the
16
knowledge of such officers, no stop order suspending the effectiveness of
the Market-Making Registration Statement has been issued and no proceeding
for that purpose is pending or threatened by the Commission; (iv) such
officers have carefully examined the Market-Making Registration Statement
and the prospectus (and, in the case of an amendment or supplement, such
amendment or supplement) and as of the date of such Market-Making
Registration Statement, amendment or supplement, as applicable, the
Market-Making Registration Statement and the prospectus, as amended or
supplemented, if applicable, did not include any untrue statement of a
material fact and did not omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
(f) At the time of effectiveness of the Market-Making Registration
Statement and concurrently with each time the Market-Making Registration
Statement or the related prospectus shall be amended or such prospectus shall be
supplemented, the Company shall (if requested by the Market-Maker) furnish the
Market-Maker and its counsel with the written opinion of counsel for the Company
satisfactory to the Market-Maker to the effect that:
(i) the Market-Making Registration Statement has been declared
effective; (ii) in the case of an amendment to the Market-Making
Registration Statement, such amendment has become effective under the
Securities Act as of the date and time specified in such opinion, if
applicable; and in the case of an amendment or supplement to the related
prospectus, such amendment or supplement to the prospectus was filed with
the Commission pursuant to the subparagraph of Rule 424(b) under the
Securities Act specified in such opinion on the date specified therein;
(iii) to the knowledge of such counsel, no stop order suspending the
effectiveness of the Market-Making Registration Statement has been issued
and no proceeding for that purpose is pending or threatened by the
Commission; and (iv) such counsel has reviewed the Market-Making
Registration Statement and the prospectus (and, in the case of an amendment
or supplement, such amendment or supplement) and participated with officers
of the Company and independent public accountants for the Company in the
preparation of such Market-Making Registration Statement and prospectus
(and, in the case of an amendment or supplement, such amendment or
supplement) and has no reason to believe that (except for the financial
statements and other financial and statistical data contained therein as to
which such counsel need express no belief) as of the date of such
Market-Making Registration Statement, amendment or supplement, as
applicable, the Market-Making Registration Statement and the prospectus, as
amended or supplemented, if applicable, contained any 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.
(g) At the time of effectiveness of the Market-Making Registration
Statement and concurrently with each time the Market-Making Registration
Statement or the related prospectus shall be amended or such prospectus shall be
supplemented to include audited annual financial information, the Company shall
(if requested by the Market-Maker) furnish the Market-Maker and its counsel with
a letter of Ernst & Young LLP (or other independent public accountants for the
Company or the Note Guarantors of nationally recognized standing) in form
satisfactory to the Market-Maker, addressed to the Market-Maker and dated the
date of delivery of such letter, (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance with
the applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission and, (ii) in all
17
other respects, substantially in the form of the letter delivered to the
Solicitation Agent pursuant to Section 5(g) of the Solicitation Agent Agreement,
with, in the case of an amendment or supplement that includes audited financial
information, such changes as may be necessary to reflect the amended or
supplemented financial information.
(h) The Company and the Note Guarantors, on the one hand, and the
Market-Maker, on the other hand, hereby agree to indemnify each other, and, if
applicable, contribute to the other, in accordance with Sections 7 and 8 of this
Agreement.
(i) The Company will comply with the provisions of this Section 6 at
its own expense and will reimburse the Market-Maker for its expenses associated
with this Section 6 (including reasonable fees of counsel for the Market-Maker).
(j) The agreements contained in this Section 6 and the
representations, warranties and agreements contained in this Agreement shall
survive all offers and sales of the Consenting Notes and Exchange Notes and
shall remain in full force and effect, regardless of any termination or
cancelation of this Agreement or any investigation made by or on behalf of any
indemnified party.
(k) For purposes of this Section 6, (i) any reference to the terms
"amend", "amendment" or "supplement" with respect to the Market-Making
Registration Statement or the prospectus contained therein shall be deemed to
refer to and include the filing under the Exchange Act of any document deemed to
be incorporated therein by reference and (ii) any reference to the terms
"Consenting Notes", "Exchange Notes" or "Private Exchange Notes" shall be deemed
to refer to and include any securities issued in exchange for or with respect to
such Consenting Notes, Exchange Notes or Private Exchange Notes.
7. INDEMNIFICATION. (a) In the event of a Shelf Registration Statement
or in connection with any prospectus delivery pursuant to an Exchange Offer
Registration Statement by an Exchanging Dealer, or in connection with the
Market-Making Registration Statement, the Company and the Note Guarantors shall
jointly and severally indemnify and hold harmless each Holder (including,
without limitation, the Solicitation Agent, the Market-Maker or such Exchanging
Dealer), its affiliates, its respective officers, directors, employees,
representatives and agents, and each person, if any, who controls such Holder
within the meaning of the Securities Act or the Exchange Act (collectively
referred to for purposes of this Section 7 and Section 8 as a Holder) from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, without limitation, any loss, claim, damage,
liability or action relating to purchases and sales of Consenting Notes,
Exchange Notes or Private Exchange Notes), to which that Holder may become
subject, whether commenced or threatened, under the Securities Act, the Exchange
Act, any other federal or state statutory law or regulation, at common law or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in any such Registration Statement or Market-Making
Registration Statement or any prospectus forming part thereof or in any
amendment or supplement thereto, (ii) the omission or alleged omission to state
therein 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 or (iii) in the case of the Market-Maker, any material
breach by the Company of the representations, warranties and agreements
contained in Section 6, and shall reimburse each Holder promptly upon demand for
any legal or other expenses reasonably incurred by that Holder in connection
18
with investigating or defending or preparing to defend against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action as such expenses are incurred; PROVIDED, HOWEVER, that the Company and
the Note Guarantors shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of, or is based upon,
an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with any
Holders' Information or Market-Maker's Information, respectively; and PROVIDED,
FURTHER, that with respect to any such untrue statement in or omission from any
related preliminary prospectus, the indemnity agreement contained in this
Section 7(a) shall not inure to the benefit of any Holder from whom the person
asserting any such loss, claim, damage, liability or action received Consenting
Notes, Exchange Notes or Private Exchange Notes to the extent that such loss,
claim, damage, liability or action of or with respect to such Holder results
from the fact that both (A) a copy of the final prospectus was not sent or given
to such person at or prior to the written confirmation of the sale of such
Consenting Notes, Exchange Notes or Private Exchange Notes to such person and
(B) the untrue statement in or omission from the related preliminary prospectus
was corrected in the final prospectus unless, in either case, such failure to
deliver the final prospectus was a result of non-compliance by the Company with
Section 4(d), 4(e), 4(f), 4(g) or 6(a)(v), as applicable.
(b) In (i) the event of a Shelf Registration Statement, each Holder or
(ii) connection with the Market-Making Registration Statement, the Market-Maker,
as applicable, shall indemnify and hold harmless the Company, its affiliates,
its respective officers, directors, employees, representatives and agents, and
each person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act (collectively referred to for purposes of
this Section 7(b) and Section 8 as the Company), from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Company may become subject, whether commenced or threatened, under
the Securities Act, the Exchange Act, any other federal or state statutory law
or regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any such Registration
Statement or Market-Making Registration Statement, respectively, or any
prospectus forming part thereof or in any amendment or supplement thereto or
(ii) the omission or alleged omission to state therein 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, but
in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with any Holders' Information or Market-Maker's Information,
respectively, furnished to the Company by such Holder and shall reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending or preparing to defend against or
appearing as a third party witness in connection with any such loss, claim,
damage, liability or action as such expenses are incurred; PROVIDED, HOWEVER,
that no such Holder shall be liable for any indemnity claims hereunder in excess
of the amount of net proceeds received by such Holder from the sale of
Consenting Notes, Exchange Notes or Private Exchange Notes pursuant to such
Shelf Registration Statement, Market-Making Registration Statement or
prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 7(a) or 7(b), notify the indemnifying
party in writing of the claim or the commencement of that action; PROVIDED,
HOWEVER, that the failure to notify the indemnifying party shall not relieve it
from any liability
19
which it may have under this Section 7 except to the extent that it has been
materially prejudiced (through the forfeiture of substantive rights or defenses)
by such failure; and PROVIDED, FURTHER, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 7. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than the reasonable costs of investigation; PROVIDED, HOWEVER,
that an indemnified party shall have the right to employ its own counsel in any
such action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (1)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based upon advice of counsel to the indemnified party) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party, (3)
a conflict or potential conflict exists (based upon advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm of attorneys (in
addition to any local counsel) at any one time for all such indemnified party or
parties. Each indemnified party, as a condition of the indemnity agreements
contained in Sections 7(a) and 7(b), shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified party (which
consent shall not be unreasonably withheld), effect any settlement of any
pending or threatened proceeding 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 claims that are the subject matter
of such proceeding.
8. CONTRIBUTION. If the indemnification provided for in Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
Section 7(a) or 7(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (a) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company from the Consent
Solicitation and the issuance of the
20
Consenting Notes, on the one hand, and by a Holder from receiving Consenting
Notes, Exchange Notes or Private Exchange Notes, as applicable, registered under
the Securities Act or, if applicable, by the Market Maker from the filing and
effectiveness of a Market Making Registration Statement on the other, or (b) if
the allocation provided by clause (a) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (a) above but also the relative fault of the Company and
the Note Guarantors, on the one hand, and such Holder, on the other, with
respect to the statements or omissions that resulted in such loss, claim, damage
or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative fault 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 the Company and the Note Guarantors or information supplied by the
Company and the Note Guarantors, on the one hand, or to any Holders' Information
or Market-Maker's Information, respectively, supplied by such Holder, on the
other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 8 were to be determined by PRO RATA
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 8 shall be deemed
to include, for purposes of this Section 8, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending or preparing to defend any such action or claim. Notwithstanding
the provisions of this Section 8, an indemnifying party that is a Holder of
Consenting Notes, Exchange Notes or Private Exchange Notes or the Market-Maker
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Consenting Notes, Exchange Notes or Private
Exchange Notes sold by such indemnifying party to any purchaser exceeds the
amount of any damages which such indemnifying party has otherwise paid or become
liable to pay by reason of any 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.
9. RULES 144 AND 144A. The Company and the Note Guarantors shall use
commercially reasonable efforts to file the reports required to be filed by them
under the Securities Act and the Exchange Act in a timely manner and, if at any
time the Company and the Note Guarantors are not required to file such reports,
they will, upon the written request of any Holder of Transfer Restricted Notes
or the Market-Maker, make publicly available other information so long as
necessary to permit sales of such Holder's or the Market-Maker's securities
pursuant to Rules 144 and 144A. The Company and the Note Guarantors covenant
that they will take such further action as any Holder of Transfer Restricted
Notes or the Market-Maker may reasonably request, all to the extent required
from time to time to enable such Holder or the Market-Maker to sell Transfer
Restricted Notes without registration under the Securities Act within the
limitation of the exemptions provided by Rules 144 and 144A (including, without
limitation, the requirements of Rule 144A(d)(4)). Upon the written request of
any Holder of Transfer Restricted Notes, the Company and the Note Guarantors
shall deliver to such Holder or the Market-Maker a written statement as to
whether they have complied with such requirements. Notwithstanding the
foregoing, nothing in this Section 9 shall be deemed to require the Company to
register any of its securities pursuant to the Exchange Act.
21
10. UNDERWRITTEN REGISTRATIONS. If any of the Transfer Restricted
Notes covered by any Shelf Registration Statement are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering will be selected by the Holders of
a majority in aggregate principal amount at maturity of such Transfer Restricted
Notes included in such offering, subject to the consent of the Company and the
Note Guarantors (which shall not be unreasonably withheld or delayed), and such
Holders shall be responsible for all underwriting commissions and discounts in
connection therewith.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted Notes on
the basis reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
11. MISCELLANEOUS. (a) 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, unless the Company
has obtained the written consent of Holders of a majority in aggregate principal
amount of the Consenting Notes, the Exchange Notes and the Private Exchange
Notes, taken as a single class (and, with respect to the provisions of
Section 6, the written consent of the Market-Maker). Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders whose Consenting
Notes, Exchange Notes or Private Exchange Notes are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of a majority in aggregate
principal amount of the Consenting Notes, the Exchange Notes and the Private
Exchange Notes being sold by such Holders pursuant to such Registration
Statement whose rights are so affected.
(b) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telecopier or air courier guaranteeing next-day delivery:
(1) if to a Holder, at the most current address given by such Holder
to the Company in accordance with the provisions of this Section 11(b),
which address initially is, with respect to each Holder, the address of
such Holder maintained by the registrar under the Indenture, with a copy in
like manner to JPMorgan;
(2) if to the Solicitation Agent or the Market-Maker, initially
pursuant to Section 9 of the Solicitation Agent Agreement; and
(3) if to the Company or the Note Guarantors, initially at the address
of the Company set forth in the Solicitation Agent Agreement.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one business day after
being delivered to a next-day air courier; five business days after being
deposited in the mail; and when receipt is acknowledged by the recipient's
telecopier machine, if sent by telecopier.
22
The Company and the Note Guarantors or the Solicitation Agent may, by
written notice to the other, designate additional or different addresses for
subsequent notices or communications.
(c) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Company and its successors and assigns.
(d) COUNTERPARTS. This Agreement may be executed in any number of
counterparts (which may be delivered in original form or by telecopier) 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.
(e) DEFINITION OF TERMS. For purposes of this Agreement, (a) the term
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading, (b) the term "subsidiary" has the meaning set forth in Rule 405
under the Securities Act and (c) except where otherwise expressly provided, the
term "affiliate" has the meaning set forth in Rule 405 under the Securities Act.
(f) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(h) REMEDIES. In the event of a breach by the Company, the Note
Guarantors or by any Holder of any of their obligations under this Agreement,
each Holder, the Company or the Note Guarantors, as the case may be, in addition
to being entitled to exercise all rights granted by law, including recovery of
damages (other than the recovery of damages for a breach by the Company or the
Note Guarantors of their obligations under Sections 1 or 2 hereof for which
liquidated damages have been paid pursuant to Section 3 hereof), will be
entitled to specific performance of its rights under this Agreement. The
Company, the Note Guarantors and each Holder agree that monetary damages would
not be adequate compensation for any loss incurred by reason of a breach by each
such person of any of the provisions of this Agreement and hereby further agree
that, in the event of any action for specific performance in respect of such
breach, each such person shall waive the defense that a remedy at law would be
adequate.
(i) NO INCONSISTENT AGREEMENTS. Each of the Company and the Note
Guarantors represents, warrants and agrees with the Solicitation Agent that (i)
it has not entered into, and shall not, on or after the date of this Agreement,
enter into any agreement that is inconsistent with the rights granted to the
Holders in this Agreement or otherwise conflicts with the provisions hereof,
(ii) it has not previously entered into any agreement which remains in effect
granting any registration rights with respect to any of its debt securities to
any person and (iii) (with respect to the Company) without limiting the
generality of the foregoing, without the written consent of the Holders of a
majority in aggregate principal amount at maturity of the then outstanding
Transfer Restricted Notes and the Market-Maker, it shall not grant to any person
the right to request the Company to register any debt securities of the Company
under the Securities Act unless the rights so granted are not in conflict or
inconsistent with the provisions of this Agreement.
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(j) NO PIGGYBACK ON REGISTRATIONS. Neither the Company nor any of its
security holders (other than the Holders of Transfer Restricted Notes in such
capacity) shall have the right to include any securities of the Company in any
Shelf Registration or Registered Exchange Offer other than Transfer Restricted
Notes.
(k) SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use commercially reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
24
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Note Guarantors and the Solicitation Agent.
Very truly yours,
PLIANT CORPORATION,
by
-------------------------------------
Name:
Title:
PLIANT CORPORATION INTERNATIONAL,
PLIANT FILM PRODUCTS OF MEXICO, INC.,
PLIANT PACKAGING OF CANADA, LLC,
UNIPLAST HOLDINGS INC.,
UNIPLAST U.S., INC.,
UNIPLAST INDUSTRIES CO.,
by
-------------------------------------
Name:
Title:
25
Confirmed and accepted as of the date first written above.
X.X. XXXXXX SECURITIES INC.,
by
-------------------------------------
Name:
Title:
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Notes received in exchange for Consenting Notes where
such Consenting Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Company has agreed
that, for a period of 180 days after the Expiration Date (as defined herein), it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution".
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Consenting Notes, where such Consenting Notes were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Notes. See "Plan of distribution".
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Consenting Notes where such Consenting Notes were acquired as a
result of market-making activities or other trading activities. The Company has
agreed that, for a period of 180 days after the Expiration Date, it will make
this prospectus, as amended or supplemented, available to any broker-dealer for
use in connection with any such resale.
The Company will not receive any proceeds from any sale of Exchange
Notes by broker-dealers. Exchange Notes received by broker-dealers for their own
account pursuant to the Registered Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Notes or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or at negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer or the purchasers of any such Exchange
Notes. Any broker-dealer that resells Exchange Notes that were received by it
for its own account pursuant to the Registered Exchange Offer and any broker or
dealer that participates in a distribution of such Exchange Notes may be deemed
to be an "underwriter" within the meaning of the Securities Act and any profit
on any such resale of Exchange Notes and any commission or concessions received
by any such persons may be deemed to be underwriting compensation under the
Securities Act. The Letter of Transmittal states that, by acknowledging that it
will deliver and by delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Registered Exchange Offer (including the expenses of one counsel
for the Holders of the Consenting Notes) other than commissions or concessions
of any broker-dealers and will indemnify the Holders of the Consenting Notes
(including any broker-dealers) against certain liabilities, including
liabilities under the Securities Act.
ANNEX D
/ / CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
Address:
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Notes. If the undersigned is a broker-dealer that will receive Exchange Notes
for its own account in exchange for Consenting Notes that were acquired as a
result of market-making activities or other trading activities, it acknowledges
that it will deliver a prospectus in connection with any resale of such Exchange
Notes; however, by so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
