€
125,000,000 Second Priority
Senior Secured Floating Rate Notes due 2013
REGISTRATION RIGHTS
AGREEMENT
CREDIT SUISSE
SECURITIES (EUROPE) LIMITED
BARCLAYS BANK PLC
GOLDMAN SACHS INTERNATIONAL
c/o Credit Suisse Securities (Europe) Limited,
One Cabot
Square
London E14 4QJ
United Kingdom
Pregis
Corporation, a Delaware corporation (the “ Issuer
”), proposes to issue and sell, upon the terms set forth in a
purchase agreement dated September 24, 2009 (the “
Purchase Agreement ”), to Credit Suisse Securities
(Europe) Limited, Barclays Bank PLC and Goldman Sachs International
(collectively, the “ Initial Purchasers
”) €
125,000,000 aggregate principal
amount of its Second Priority Senior Secured Floating Rate Notes
due 2013 (the “ Initial Securities ”), to be
unconditionally guaranteed (the “ Guarantees ”)
by Pregis Holding II Corporation and the subsidiaries of the Issuer
named in Schedule B to the Purchase Agreement (the “
Guarantors ” and, together with the Issuer, the
“ Company ”). The Initial Securities will be
issued pursuant to an Indenture, dated as of October 12, 2005
(the “ Base Indenture ”), among the Issuer, the
guarantors named therein, The Bank of New York Trust Company, N.A.,
as successor registrar and paying agent to The Bank of New York
(the “ Trustee ”), and Grant Thornton (as
successor to RSM Robson Rhodes LLP) as Irish Paying Agent, as
supplemented by a supplemental indenture, dated as of
October 5, 2009 (the “ Supplemental Indenture
”, and, together with the Base Indenture, the “
Indenture ”). As an inducement to the Initial
Purchasers, the Company agrees with the Initial Purchasers, for the
benefit of the holders of the Initial Securities (including,
without limitation, the Initial Purchasers), the Exchange
Securities (as defined below) and the Private Exchange Securities
(as defined below) (collectively, the “ Holders
”), as follows:
1
. Registered Exchange Offer . The Company shall, at its
own cost, prepare and file with the Securities and Exchange
Commission (the “ Commission ”) one or more
registration statements (the “ Exchange Offer Registration
Statement ”) on an appropriate form under the Securities
Act of 1933, as amended (the “ Securities Act ”)
with respect to a proposed offer (the “ Registered
Exchange Offer ”) to the Holders of Transfer Restricted
Securities (as defined in Section 6(d) hereof), who are not
prohibited by any law or policy of the Commission from
participating in the Registered Exchange Offer, to issue and
deliver to such Holders, in exchange for the Initial Securities, a
like aggregate principal amount of debt securities (the “
Exchange Securities ”) of the Company issued under the
Indenture and identical in all material respects to the Initial
Securities (except for the transfer restrictions relating to the
Initial
Securities and
the provisions relating to the matters described in Section 6
hereof) that would be registered under the Securities Act. The
Company shall use commercially reasonable efforts to cause such
Exchange Offer Registration Statement to become effective under the
Securities Act as promptly as possible.
Following the
declaration of the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Registered
Exchange Offer, it being the objective of the Registered Exchange
Offer to enable each Holder of Transfer Restricted Securities
electing to exchange the Initial Securities for Exchange Securities
(assuming that such Holder is not an affiliate of the Company
within the meaning of the Securities Act, acquires the Exchange
Securities in the ordinary course of such Holder’s business
and has no arrangements with any person to participate in the
distribution of the Exchange Securities and is not prohibited by
any law or policy of the Commission from participating in the
Registered Exchange Offer) to trade such Exchange Securities 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
acknowledges that, pursuant to current interpretations by the
Commission’s staff of Section 5 of the Securities Act,
in the absence of an applicable exemption therefrom, (i) each
Holder which is a broker-dealer electing to exchange Securities,
acquired for its own account as a result of market making
activities or other trading activities, for Exchange Securities (an
“ Exchanging Dealer ”), is required to deliver a
prospectus containing the information set forth in (a) Annex A
hereto on the cover, (b) Annex B hereto in the “
Exchange Offer Procedures ” section and the “
Purpose of the Exchange Offer ” section, and
(c) Annex C hereto in the “ Plan of Distribution
” section of such prospectus in connection with a sale of any
such Exchange Securities received by such Exchanging Dealer
pursuant to the Registered Exchange Offer and (ii) an Initial
Purchaser that elects to sell Exchange Securities acquired in
exchange for Securities constituting any portion of an unsold
allotment is required to deliver a prospectus containing the
information required by Items 507 or 508 of Regulation S-K
under the Securities Act, as applicable, in connection with such
sale.
The Company shall
use its reasonable best efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement the
prospectus contained therein, in order to permit such prospectus to
be lawfully delivered by all persons subject to the prospectus
delivery requirements of the Securities Act for such period of time
as such persons must comply with such requirements in order to
resell the Exchange Securities; provided , however ,
that in the case where such prospectus and any amendment or
supplement thereto must be delivered by an Exchanging Dealer or an
Initial Purchaser, such period shall be the lesser of 180 days
and the date on which all Exchanging Dealers and the Initial
Purchasers have sold all Exchange Securities held by them (unless
such period is extended pursuant to Section 3(j) below).
If, upon
consummation of any Registered Exchange Offer, any Initial
Purchaser holds Initial Securities acquired by it as part of its
initial distribution, the Company, simultaneously with the delivery
of the Exchange Securities pursuant to such Registered Exchange
Offer, shall issue and deliver to such Initial Purchaser upon the
written request of such Initial Purchaser, in exchange (the “
Private Exchange ”) for the Initial Securities held by
such Initial Purchaser, a like principal amount of debt securities
of the Company issued under the Indenture and identical in all
material respects (including the existence of restrictions on
transfer under the Securities Act and the securities laws of the
several states of the United States, but excluding provisions
relating to the matters described in Section 6 hereof) to the
Initial Securities (the “ Private Exchange Securities
”). The Initial Securities, the Exchange Securities and the
Private Exchange Securities are herein collectively called the
“ Securities ”.
In connection with
any Registered Exchange Offer, the Company shall:
2
(a) mail or
deliver to each registered 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) with respect
to the Registered Exchange Offer, utilize the services of The Bank
of New York Depository (Nominees) Limited as Nominee for The Bank
of New York Trust Company, N.A., London Branch for the Registered
Exchange Offer, which may be the Trustee or an affiliate of the
Trustee;
(c) permit Holders
to withdraw tendered Securities at any time prior to the close of
business, New York time, on the last business day on which the
Registered Exchange Offer shall remain open; and
(d) otherwise
comply with all applicable laws.
As soon as
reasonably practicable after the close of each Registered Exchange
Offer or the related Private Exchange, as the case may be, the
Company shall:
(x) accept for
exchange all the Securities validly tendered and not withdrawn
pursuant to such Registered Exchange Offer and the Private
Exchange;
(y) deliver to the
Trustee for cancellation all the relevant Initial Securities so
accepted for exchange; and
(z) cause the
Trustee to authenticate and deliver promptly to each Holder of the
relevant Initial Securities, the relevant Exchange Securities or
Private Exchange Securities, as the case may be, equal in principal
amount to the Initial Securities of such Holder so accepted for
exchange.
The Indenture
provides that the relevant Exchange Securities will not be subject
to the transfer restrictions set forth in such Indenture and that
all the relevant Securities will vote and consent together on all
matters as one class and that none of the relevant Securities will
have the right to vote or consent as a class separate from one
another on any matter.
Interest on each
Exchange Security and Private Exchange Security 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 Initial Securities surrendered in exchange therefor or,
if no interest has been paid on the Initial Securities, from the
date of original issue of the Initial Securities.
Each Holder
participating in a Registered Exchange Offer shall be required to
represent to the Company that at the time of the consummation of
such Registered Exchange Offer (i) any Exchange Securities
received by such Holder pursuant to such Registered Exchange Offer
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 relevant Securities or
such Exchange Securities within the meaning of the Securities Act,
(iii) such Holder is not an “affiliate,” as
defined in Rule 405 of the Securities Act, of the Company or
if it is an affiliate, such Holder will comply with the
registration and prospectus delivery requirements of the Securities
Act to the extent applicable, (iv) if such Holder is not a
broker-dealer, such Holder is not engaged in, and does not intend
to engage in, the distribution of the Exchange Securities and
(v) if such Holder is a broker-dealer, such Holder will
receive such Exchange Securities for its own account in exchange
for the relevant Initial Securities that were acquired as a result
of market-making
3
activities or
other trading activities and will be required to acknowledge that
it will deliver a prospectus in connection with any resale of such
Exchange Securities.
Notwithstanding
any other provisions hereof, the Company 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 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 include an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
2 . Shelf
Registration . If (i) the Company is not permitted to
consummate a Registered Exchange Offer with respect to a series of
Initial Securities because such Registered Exchange Offer is not
permitted by applicable law or Commission policy or (ii) any
Holder notifies the Company that (x) it is prohibited by law
or Commission policy from participating in a Registered Exchange
Offer, (y) it may not resell the Exchange Securities acquired
by it in a Registered Exchange Offer to the public without
delivering a prospectus and the prospectus contained in the
Exchange Offer Registration Statement is not appropriate or
available for such resales, or (z) it is a broker-dealer and
owns Securities acquired directly from the Company or one of its
affiliates, the Company shall take the following
actions:
(a) The Company
shall, at its cost, as promptly as practicable (but in no event
more than 30 days after so required or requested pursuant to
this Section 2) file with the Commission and thereafter shall
use commercially reasonable efforts to cause to be declared
effective as promptly as possible (and in no case later than
120 days after so required or requested pursuant to this
Section 2) a registration statement (the “ Shelf
Registration Statement ” and, together with the Exchange
Offer Registration Statement, a “ Registration
Statement ”) with respect to such Initial Securities on
an appropriate form under the Securities Act relating to the offer
and sale of the Transfer Restricted Securities (as defined in
Section 6 hereof) by the Holders thereof from time to time in
accordance with the methods of distribution set forth in the Shelf
Registration Statement and Rule 415 under the Securities Act
(hereinafter, the “ Shelf Registration ”);
provided , however , that no Holder (other than an
Initial Purchaser) shall be entitled to have the Securities held by
it covered by such Shelf Registration Statement unless such Holder
agrees in writing to be bound by all the provisions of this
Agreement applicable to such Holder.
(b) The Company
shall use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective in order to permit
the prospectus included therein to be lawfully delivered by the
Holders of the relevant Securities, for a period (the “
Shelf Registration Period ”) of two years (or for such
longer period if extended pursuant to Section 3(j) below) from the
Issue Date or such shorter period that will terminate when all the
Securities covered by the Shelf Registration Statement
(i) have been sold pursuant thereto or (ii) are no longer
restricted securities (as defined in Rule 144 under the
Securities Act, or any successor rule thereof). Notwithstanding the
foregoing, the Company may suspend the use of the Shelf
Registration Statement for a period not to exceed 30 days in
any six-month period or an aggregate of 60 days in any
twelve-month period for valid business reasons (not including
avoidance of its obligations hereunder) to avoid premature public
disclosure of a pending corporate transaction, including pending
acquisitions or divestitures of assets, mergers and combinations
and similar events; provided that (i) the period during
which the Registration Statement is required to be effective and
usable shall be extended by the number of days during which such
Registration Statement
4
was not
effective or usable pursuant to the foregoing provisions and
(ii) the Additional Interest (as defined below) shall accrue
on the Securities as provided in Section 6 hereof.
(c)
Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause the Shelf Registration Statement
and the related prospectus and any amendment or supplement thereto,
as of the effective date of the Shelf Registration Statement,
amendment or supplement, (i) to comply in all material
respects with the applicable requirements of the Securities Act and
the rules and regulations of the Commission and (ii) not to
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under
which they were made, not misleading.
3
. Registration Procedures . In connection with any
Shelf Registration contemplated by Section 2 hereof and, to the
extent applicable, any Registered Exchange Offer contemplated by
Section 1 hereof, the following provisions shall
apply:
(a) The Company
shall (i) include 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 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 the information
set forth in Annex D hereto in the Letter of Transmittal delivered
pursuant to the Registered Exchange Offer; (ii) if requested
by an Initial Purchaser, include the information required by Items
507 or 508 of Regulation S-K under the Securities Act, as
applicable, in the prospectus forming a part of the Exchange Offer
Registration Statement; and (iii) in the case of a Shelf
Registration Statement, include in the prospectus included in the
Shelf Registration Statement (or if permitted by Commission
Rule 430B(b), in a prospectus supplement that becomes part
thereof pursuant to Commission Rule 430B(f) that is delivered
to any Holder pursuant to Section 3(d) and (f)) the names of the
Holders, who propose to sell Securities pursuant to the Shelf
Registration Statement, as selling securityholders.
(b) The Company
shall give written notice to the Initial Purchasers, the Holders of
the Securities and any Participating Broker-Dealer from whom the
Company has received prior written notice that it will be a
Participating Broker-Dealer in the Registered Exchange Offer (which
notice pursuant to clauses (ii)-(v) of this clause (b) shall
be accompanied by an instruction to suspend the use of the
prospectus until the requisite changes have been made):
(i) when the
Registration Statement or any amendment thereto has been filed with
the Commission and when the Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any
request by the Commission for amendments or supplements to the
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 the Registration Statement or the initiation of
any proceedings for that purpose, or the issuance by the Commission
of a notification of objection to the use of the form on which the
Registration Statement has been filed and of the happening of any
event that causes the Company to become an “ineligible
issuer” as defined in Commission Rule 405;
5
(iv) of the
receipt by the Company or its legal counsel of any notification
with respect to the suspension of the qualification of the
Securities 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 Company to make changes in
the Registration Statement or the prospectus in order that the
Registration Statement or the prospectus do not contain an untrue
statement of a material fact nor omit to state a material fact
required to be stated therein or necessary to make the statements
therein (in the case of the prospectus, in light of the
circumstances under which they were made) not
misleading.
(c) The Company
shall make every reasonable effort to obtain the withdrawal, at the
earliest possible time, of any order suspending the effectiveness
of the Registration Statement.
(d) In the case of
any Shelf Registration Statement, the Company shall furnish to each
Holder of Securities included within the coverage of the Shelf
Registration, without charge, at least one copy of the Shelf
Registration Statement and any post-effective amendment or
supplement thereto, including financial statements and schedules,
and, if the Holder so requests in writing, all exhibits thereto
(including those, if any, incorporated by reference). If the
Initial Purchasers are Holders of Securities registered on the
Shelf Registration Statement, the Company shall not, without the
prior written consent of the Initial Purchasers make any offer
relating to the Securities that would constitute a “free
writing prospectus” as defined in Commission
Rule 405.
(e) The Company
shall deliver to each Exchanging Dealer and each Initial Purchaser,
and to any other Holder who so requests, without charge, to the
extent not available on the Commission’s Electronic Data
Gathering Analysis and Retrieval (“ EDGAR ”) or
any equivalent thereof, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if any Initial
Purchaser or any such Holder requests, all exhibits thereto
(including those incorporated by reference).
(f) In the case of
any Shelf Registration Statement, the Company shall, during the
Shelf Registration Period, deliver to each Holder of Securities
included within the coverage of the Shelf Registration, without
charge, as many copies of the prospectus (including each
preliminary prospectus) included in the Shelf Registration
Statement and any amendment or supplement thereto as such person
may reasonably request. The Company consents, subject to the
provisions of this Agreement, to the use of the prospectus or any
amendment or supplement thereto by each of the selling Holders of
the Securities in connection with the offering and sale of the
Securities covered by the prospectus, or any amendment or
supplement thereto, included in the Shelf Registration
Statement.
(g) The Company
shall deliver to each Initial Purchaser, any Exchanging Dealer, any
Participating Broker-Dealer and such other persons 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 and any amendment or
supplement thereto as such persons may reasonably request. The
Company consents, subject to the provisions of this Agreement, to
the use of the prospectus or any amendment or supplement thereto by
any Initial Purchaser, if necessary, any Participating
Broker-Dealer and such other persons required to deliver a
prospectus following the Registered Exchange Offer in connection
with the offering and sale of the Exchange Securities covered by
the prospectus, or any amendment or supplement thereto, included in
such Exchange Offer Registration Statement.
6
(h) Prior to any
public offering of the Securities, pursuant to any Registration
Statement, the Company shall register or qualify or cooperate with
the Holders of the Securities included therein and their respective
counsel in connection with the registration or qualification of the
Securities for offer and sale under the securities or “blue
sky” laws of such states of the United States as any Holder
of the Securities reasonably requests in writing and do any and all
other acts or things necessary or advisable to enable the offer and
sale in such jurisdictions of the Securities covered by such
Registration Statement; provided , however , that the
Company shall not be required to (i) qualify generally to do
business in any jurisdiction where it is not then so qualified or
(ii) take any action which would subject it to general service
of process or to taxation in any jurisdiction where it is not then
so subject.
(i) The Company
shall cooperate with the Holders of the Securities to facilitate
the timely preparation and delivery of certificates representing
the Securities to be sold pursuant to any Registration Statement
free of any restrictive legends and in such denominations and
registered in such names as the Holders may request a reasonable
period of time prior to sales of the Securities pursuant to such
Registration Statement.
(j) Upon the
occurrence of any event contemplated by paragraphs
(ii) through (v) of Section 3(b) above during the period
for which the Company is required to maintain an effective
Registration Statement, the Company shall promptly prepare and file
a post-effective amendment to the Registration Statement or a
supplement to the related prospectus and any other required
document so that, as thereafter delivered to Holders of the
Securities or purchasers of Securities, the prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading. If the Company notifies the Initial
Purchasers, the Holders of the Securities and any known
Participating Broker
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