Exhibit 4.7
EXECUTION
VERSION
SOLO CUP COMPANY
SOLO CUP OPERATING
CORPORATION
10.5% Senior Secured Notes due
2013
fully and unconditionally
guaranteed as to the
payment of principal,
premium,
if any, interest and special
interest, if any, by
the Guarantors listed on the
signature pages hereto
Exchange and Registration
Rights Agreement
July 2, 2009
Goldman, Sachs &
Co.
Banc of America Securities LLC
Wachovia Capital Markets, LLC,
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Solo Cup Company, a Delaware
corporation (the “ Company ”), and Solo
Cup Operating Corporation, a Delaware corporation (together with
the Company, the “ Issuers ”), propose to
issue and sell to the Purchasers (as defined herein) upon the terms
set forth in the Purchase Agreement (as defined herein)
$300,000,000 in aggregate principal amount of the Issuers’
10.5% Senior Secured Notes due 2013, which are fully and
unconditionally guaranteed by the Guarantors (as defined herein).
As an inducement to the Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to the obligations of
the Purchasers thereunder, the Issuers and the Guarantors agree
with the Purchasers for the benefit of holders (as defined herein)
from time to time of the Registrable Securities (as defined herein)
as follows:
1. Certain Definitions . For
purposes of this Exchange and Registration Rights Agreement (this
“ Agreement ”), the following terms shall
have the following respective meanings:
“ Base Interest
” shall mean the interest that would otherwise accrue on the
Securities under the terms thereof and the Indenture, without
giving effect to the provisions of this Agreement.
“ Broker-Dealer
” shall mean any broker or dealer registered with the
Commission under the Exchange Act.
“ Business Day
” shall have the meaning set forth in Rule 13e-4(a)(3)
promulgated by the Commission under the Exchange Act, as the same
may be amended or succeeded from time to time.
“ Certificated
Note ” shall have the meaning assigned thereto in the
Indenture.
“ Closing Date
” shall mean the date on which the Securities are initially
issued.
“ Collateral
Trustee ” shall have the meaning assigned thereto in
the Indenture.
“ Commission
” shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering
the Exchange Act or the Securities Act, whichever is the relevant
statute for the particular purpose.
“ EDGAR System
” means the EDGAR filing system of the Commission and the
rules and regulations pertaining thereto promulgated by the
Commission in Regulation S-T under the Securities Act and the
Exchange Act, in each case as the same may be amended or succeeded
from time to time (and without regard to format).
“ Effective Time
,” in the case of (i) an Exchange Registration, shall
mean the time and date as of which the Commission declares the
Exchange Registration Statement effective or as of which the
Exchange Registration Statement otherwise becomes effective and
(ii) a Shelf Registration, shall mean the time and date as of
which the Commission declares the Shelf Registration Statement
effective or as of which the Shelf Registration Statement otherwise
becomes effective.
“ Electing
Holder ” shall mean any holder of Registrable
Securities that has returned a completed and signed Notice and
Questionnaire to the Issuers in accordance with
Section 3(d)(ii) or Section 3(d)(iii) and
the instructions set forth in the Notice and
Questionnaire.
“ Exchange Act
” shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the Commission
thereunder, as the same may be amended or succeeded from time to
time.
“ Exchange Offer
” shall have the meaning assigned thereto in
Section 2(a) .
“ Exchange
Registration ” shall have the meaning assigned
thereto in Section 3(c) .
“ Exchange Registration
Statement ” shall have the meaning assigned thereto
in Section 2(a) .
“ Exchange
Securities ” shall have the meaning assigned thereto
in Section 2(a) .
“ FINRA ”
shall mean the Financial Industry Regulatory Authority,
Inc.
“ Global Note
” shall have the meaning assigned thereto in the
Indenture.
“ Guarantor
” shall have the meaning assigned thereto in the
Indenture.
“ holder ”
shall mean each of the Purchasers and other persons who acquire
Registrable Securities from time to time (including any successors
or assigns), in each case for so long as such person owns any
Registrable Securities.
“ Indenture
” shall mean the Indenture, dated as of July 2, 2009,
among the Issuers, the Guarantors and U.S. Bank National
Association, as trustee, as the same may be amended from time to
time.
2
“ Notice and
Questionnaire ” means a Notice of Registration
Statement and Selling Securityholder Questionnaire substantially in
the form of Exhibit A hereto.
“ Note Guarantee
” shall have the meaning assigned thereto in the
definition of “Securities .”
“ person ”
shall mean a corporation, limited liability company, association,
partnership, organization, business, individual, government or
political subdivision thereof or governmental agency.
“ Purchase
Agreement ” shall mean the Purchase Agreement, dated
as of June 24, 2009, between Goldman, Sachs & Co., as
representative of the several Purchasers named therein, the Issuers
and the Guarantors relating to the Securities.
“ Purchasers
” shall mean the Purchasers named in Schedule I to the
Purchase Agreement.
“ Registrable
Securities ” shall mean the Securities; provided,
however, that a Security shall cease to be a Registrable
Security upon the earliest to occur of the following: (i) in
the circumstances contemplated by Section 2(a) , the
Security has been exchanged for an Exchange Security in an Exchange
Offer as contemplated in Section 2(a) , (ii) in
the circumstances contemplated by Section 2(b) , a
Shelf Registration Statement registering such Security under the
Securities Act has been declared or becomes effective and such
Security has been sold or otherwise transferred by the holder
thereof pursuant to and in a manner contemplated by such effective
Shelf Registration Statement, or (iii) such Security shall
cease to be outstanding.
“ Registration
Default ” shall have the meaning assigned thereto in
Section 2(c) .
“ Registration Default
Period ” shall have the meaning assigned thereto in
Section 2(c) .
“ Registration
Expenses ” shall have the meaning assigned thereto in
Section 4 .
“ Resale Period
” shall have the meaning assigned thereto in
Section 2(a) .
“ Restricted
Holder ” shall mean (i) a holder that is an
affiliate of either of the Issuers within the meaning of
Rule 405, (ii) a holder who acquires Exchange Securities
outside the ordinary course of such holder’s business,
(iii) a holder who has arrangements or understandings with any
person to participate in the Exchange Offer for the purpose of
distributing Exchange Securities and (iv) a holder that is a
Broker-Dealer, but only with respect to Exchange Securities
received by such Broker-Dealer pursuant to an Exchange Offer in
exchange for Registrable Securities acquired by the Broker-Dealer
directly from the Issuers.
“ Rule 144
,” “ Rule 405 ”, “
Rule 415 ”, “
Rule 424 ”, “
Rule 430B ” and “
Rule 433 ” shall mean, in each case, such
rule promulgated by the Commission under the Securities Act (or any
successor provision), as the same may be amended or succeeded from
time to time.
“ Securities
” shall mean, collectively, the $300,000,000 in aggregate
principal amount of the Issuers’ 10.5% Senior Secured Notes
due 2013 to be issued and sold to the Purchasers pursuant to the
Purchase Agreement, and securities issued in exchange therefor or
in lieu thereof pursuant to the Indenture. Each Security is
entitled to the benefit of the guarantees provided by the
Guarantors in the Indenture (the “ Note
Guarantees ”) and, unless the context otherwise
requires, any reference herein to a “Security,” an
“Exchange Security” or a “Registrable
Security” shall include a reference to the related Note
Guarantees.
3
“ Securities Act
” shall mean the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the Commission thereunder, as
the same may be amended or succeeded from time to time.
“ Shelf
Registration ” shall have the meaning assigned
thereto in Section 2(b) .
“ Shelf Registration
Statement ” shall have the meaning assigned thereto
in Section 2(b) .
“ Special
Interest ” shall have the meaning assigned thereto in
Section 2(c) .
“ Suspension
Period ” shall have the meaning assigned thereto in
Section 2(b) .
“ Trust Indenture
Act ” shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations promulgated by the
Commission thereunder, as the same may be amended or succeeded from
time to time.
“ Trustee
” shall mean U.S. Bank National Association, as trustee under
the Indenture, together with any successors thereto in such
capacity.
Unless the context otherwise
requires, any reference herein to a “Section” or
“clause” refers to a Section or clause, as the case may
be, of this Agreement, and the words “herein,”
“hereof” and “hereunder” and other words of
similar import refer to this Agreement as a whole and not to any
particular Section or other subdivision.
2. Registration Under the
Securities Act .
(a) Except as set forth in
Section 2(b) below, the Issuers and the Guarantors
agree to file with the Commission, on or prior to 180 days after
the Closing Date, an exchange offer registration statement (such
registration statement, the “ Exchange Registration
Statement ”) on the appropriate form under the
Securities Act with respect to an offer to exchange (the “
Exchange Offer ”) any and all of the Securities
for a like aggregate principal amount of debt securities issued by
the Issuers and guaranteed by the Guarantors, which debt securities
will be substantially identical in all respects to the Securities,
except that they will not contain specified transfer restrictions
and will not contain provisions for Special Interest contemplated
by Section 2(c) below and will be registered under the
Securities Act (such new debt securities, “ Exchange
Securities ”). The Issuers and the Guarantors agree
to use their commercially reasonable efforts to have the Exchange
Registration Statement declared effective by the Commission on or
prior to 270 days after the Closing Date. Unless the Exchange
Offer would not be permitted by applicable law or Commission
policy, the Issuers and the Guarantors will (i) commence the
Exchange Offer promptly following the Effective Time of such
Exchange Registration Statement, (ii) hold the Exchange Offer
open for at least 20 Business Days in accordance with Regulation
14E promulgated by the Commission under the Exchange Act and
(iii) issue Exchange Securities in exchange for all
Registrable Securities that have been properly tendered and not
validly withdrawn prior thereto in the Exchange Offer. The Exchange
Offer will be deemed to have been “completed” only
(i) if the Exchange Securities and related Note Guarantees
received by holders other than Restricted Holders in the Exchange
Offer for Registrable Securities are, upon receipt, transferable by
each such holder without restriction under the Securities Act and
the Exchange Act and without material restrictions under the blue
sky or securities laws of a substantial majority of the States of
the United States of America and
4
(ii) upon the Issuers having
exchanged, pursuant to the Exchange Offer, Exchange Securities for
all Registrable Securities that have been properly tendered and not
validly withdrawn before the expiration of the Exchange Offer,
which shall be on a date that is at least 20 and not more than 30
Business Days following the commencement of the Exchange Offer. The
Issuers and the Guarantors agree (x) to include in the
Exchange Registration Statement a prospectus for use in any resales
by any holder of Exchange Securities that is a Broker-Dealer and
(y) to keep such Exchange Registration Statement effective for
a period (the “ Resale Period ”)
beginning when Exchange Securities are first issued in the Exchange
Offer and ending upon the earlier of the expiration of the
180 th
day after the Exchange Offer has
been completed or such time as such Broker-Dealers no longer own
any Registrable Securities. With respect to such Exchange
Registration Statement, such holders shall have the benefit of the
rights of indemnification and contribution set forth in
subsections 6(a) , (c) , (d) and
(e) .
(b) If (i) the Issuers and the
Guarantors are not permitted to consummate the Exchange Offer
because the Exchange Offer is not permitted by applicable law or
Commission policy, or (ii) any holder of Securities notifies
the Issuers prior to the 20th day following consummation of
the Exchange Offer that (A) it is prohibited by applicable law
or Commission policy from participating in the Exchange Offer, or
(B) it may not resell the Exchange Securities acquired by it
in the Exchange Offer to the public without delivering a prospectus
and the prospectus contained in the Exchange Registration Statement
is not appropriate or available for such resales, or (C) it is
a Broker-Dealer and owns Securities acquired directly from either
of the Issuers or an affiliate thereof, the Issuers and the
Guarantors will file with the Commission a “shelf”
registration statement providing for the registration of, and the
sale on a continuous or delayed basis by the holders of, all of the
Registrable Securities, pursuant to Rule 415 or any similar
rule that may be adopted by the Commission (such filing, the
“ Shelf Registration ” and such
registration statement, the “ Shelf Registration
Statement ”) to cover resales of the Securities by
the Electing Holders who satisfy certain conditions relating to the
provision of information in connection with the Shelf Registration
Statement. If obligated to file the Shelf Registration Statement,
the Issuers and the Guarantors will file such Shelf Registration
Statement with the Commission on or prior to 180 days after
such filing obligation arises and use their commercially reasonable
efforts to cause the Shelf Registration Statement to be declared
effective by the Commission on or prior to 270 days after such
obligation arises (but in no event earlier than the Issuers’
and the Guarantors’ obligation with respect to the Exchange
Registration Statement). The Issuers and the Guarantors agree to
use all commercially reasonable efforts to keep such Shelf
Registration Statement continuously effective for a period ending
on the earlier of the second anniversary of the Effective Time or
such time as there are no longer any Registrable Securities
outstanding. No holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement or to use the
prospectus forming a part thereof for resales of Registrable
Securities unless such holder is an Electing Holder. The Issuers
and the Guarantors agree, after the Effective Time of the Shelf
Registration Statement and promptly upon the request of any holder
of Registrable Securities that is not then an Electing Holder, to
use all commercially reasonable efforts to enable such holder to
use the prospectus forming a part thereof for resales of
Registrable Securities, including, without limitation, any action
necessary to identify such holder as a selling securityholder in
the Shelf Registration Statement (whether by post-effective
amendment thereto or by filing a prospectus pursuant to Rules 430B
and 424(b) under the Securities Act identifying such holder),
provided, however, that nothing in this sentence shall
relieve any such holder of the obligation to return a completed and
signed Notice and Questionnaire to the Issuers in accordance with
Section 3(d)(iii) . Notwithstanding anything to the
contrary in this Section 2(b) , upon notice to the
Electing Holders, the Issuers may suspend the
5
use or the effectiveness of such
Shelf Registration Statement, or extend the time period in which
they are required to file the Shelf Registration Statement, for up
to 30 consecutive days and up to 60 days in the aggregate, in each
case in any 12-month period (a “ Suspension
Period ”) if the Board of Directors of the Issuers
determines that there is a valid business purpose for suspension of
the Shelf Registration Statement; provided that the Issuers
shall promptly notify the Electing Holders in writing when the
Shelf Registration Statement has been suspended and when such Shelf
Registration Statement may once again be used or is effective, and
the Electing Holders agree not to offer or sell any Registrable
Securities pursuant to such Shelf Registration Statement during the
Suspension Period.
(c) If (i) the Issuers and the
Guarantors fail to file any of the registration statements required
by this Agreement on or before the date specified for such filing
in Section 2(a) or Section 2(b) , or
(ii) any such registration statement is not declared effective
by the Commission on or prior to the date specified for such
effectiveness (the “ Effectiveness Target Date
”), or (iii) the Issuers and the Guarantors fail to
consummate the Exchange Offer within 30 Business Days of the
Effectiveness Target Date with respect to the Exchange Registration
Statement, or (iv) the Exchange Registration Statement or the
Shelf Registration Statement required by Section 2(a)
or Section 2(b) is declared effective but thereafter
ceases to be effective or usable in connection with resales or
exchanges of Securities either because it is withdrawn by the
Issuers or it becomes subject to an effective stop order issued
pursuant to Section 8(d) of the Securities Act suspending the
effectiveness of such registration statement (except as
specifically permitted herein, including, with respect to any Shelf
Registration Statement, during any applicable Suspension Period in
accordance with the last sentence of Section 2(b) )
without being succeeded immediately by an additional registration
statement filed and declared effective (each such event referred to
in clauses (i) through (iv) , a “
Registration Default ” and each period during
which a Registration Default has occurred and is continuing, a
“ Registration Default Period ”), then,
as liquidated damages for such Registration Default, the Issuers
and the Guarantors will pay special interest (“ Special
Interest ”), in addition to the Base Interest, to
each holder of Registrable Securities, with respect to the first
90-day period immediately following the occurrence of the first
Registration Default in an amount equal to one-quarter of one
percent (0.25%) per annum on the principal amount of
Registrable Securities held by such holder. The amount of Special
Interest will increase by an additional one-quarter of one percent
(0.25%) per annum on the principal amount of Registrable
Securities with respect to each subsequent 90-day period until all
Registration Defaults have been cured, up to a maximum amount of
Special Interest for all Registration Defaults of 1.0% per
annum .
All accrued Special Interest will be
paid by the Issuers and the Guarantors on each interest payment
date to the Global Note holder by wire transfer of immediately
available funds or by federal funds check and to holders of
Certificated Notes by wire transfer to the accounts specified by
them or by mailing checks to their registered addresses if no such
accounts have been specified. Following the cure of all
Registration Defaults, the accrual of Special Interest will
cease.
(d) The Issuers shall take, and
shall cause the Guarantors to take, all actions necessary or
advisable to be taken by them to ensure that the transactions
contemplated herein are effected as so contemplated, including all
actions necessary or desirable to register the Note Guarantees
under any Exchange Registration Statement or Shelf Registration
Statement, as applicable.
6
(e) Any reference herein to a
registration statement or prospectus as of any time shall be deemed
to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time; and any reference herein to
any post-effective amendment to a registration statement or to any
prospectus supplement as of any time shall be deemed to include any
document incorporated, or deemed to be incorporated, therein by
reference as of such time.
3. Registration Procedures
.
If the Issuers and the Guarantors
file a registration statement pursuant to Section 2(a)
or Section 2(b) , the following provisions shall
apply:
(a) At or before the Effective Time
of the Exchange Registration or any Shelf Registration, whichever
may occur first, the Issuers shall qualify the Indenture under the
Trust Indenture Act.
(b) In the event that such
qualification would require the appointment of a new trustee under
the Indenture, the Issuers shall appoint a new trustee thereunder
pursuant to the applicable provisions of the Indenture.
(c) In connection with the
Issuers’ and the Guarantors’ obligations with respect
to the registration of Exchange Securities as contemplated by
Section 2(a) (the “ Exchange
Registration ”), if applicable, the Issuers and the
Guarantors shall:
(i) prepare and file with the
Commission, on or prior to 180 days after the Closing Date, an
Exchange Registration Statement on any form which may be utilized
by the Issuers and the Guarantors and which shall permit the
Exchange Offer and resales of Exchange Securities by Broker-Dealers
during the Resale Period to be effected as contemplated by
Section 2(a) , and use all commercially reasonable
efforts to cause such Exchange Registration Statement to become
effective on or prior to 270 days after the Closing
Date;
(ii) as soon as practicable prepare
and file with the Commission such amendments and supplements to
such Exchange Registration Statement and the prospectus included
therein as may be necessary to effect and maintain the
effectiveness of such Exchange Registration Statement for the
periods and purposes contemplated in Section 2(a) and
as may be required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such
Exchange Registration Statement, and promptly provide each
Broker-Dealer holding Exchange Securities with such number of
copies of the prospectus included therein (as then amended or
supplemented), in conformity in all material respects with the
requirements of the Securities Act and the Trust Indenture Act, as
such Broker-Dealer reasonably may request prior to the expiration
of the Resale Period, for use in connection with resales of
Exchange Securities;
(iii) promptly notify each
Broker-Dealer that has requested or received copies of the
prospectus included in such Exchange Registration Statement, and
confirm such advice in writing, (A) when such Exchange
Registration Statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has
been filed, and, with respect to such Exchange Registration
Statement or any post-effective amendment, when the same has become
effective, (B) of any comments by the Commission and by the
blue sky or securities commissioner or regulator of any state with
respect thereto or any request by the Commission for
7
amendments or supplements to such
Exchange Registration Statement or prospectus or for additional
information, (C) of the issuance by the Commission of any stop
order suspending the effectiveness of such Exchange Registration
Statement or the initiation or threatening of any proceedings for
that purpose, (D) if at any time the representations and
warranties of the Issuers contemplated by Section 5
cease to be true and correct in all material respects, (E) of
the receipt by the Issuers of any notification with respect to the
suspension of the qualification of the Exchange Securities for sale
in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (F) the occurrence of any event
that causes either of the Issuers to become an “ineligible
issuer” as defined in Rule 405, or (G) if at any
time during the Resale Period when a prospectus is required to be
delivered under the Securities Act, that such Exchange Registration
Statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material respects
to the applicable requirements of the Securities Act and the Trust
Indenture Act or contains an untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading (in the
case of any prospectus, in the light of the circumstances under
which such statements were made);
(iv) in the event that the Issuers
and the Guarantors would be required, pursuant to
Section 3(c)(iii)(G) , to notify any Broker-Dealers
holding Exchange Securities (except as otherwise permitted during
any Suspension Period), promptly prepare and furnish to each such
holder a reasonable number of copies of a prospectus supplemented
or amended so that, as thereafter delivered to purchasers of such
Exchange Securities during the Resale Period, such prospectus shall
conform in all material respects to the applicable requirements of
the Securities Act and the Trust Indenture Act and shall 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, in the light of the circumstances under
which such statements were made, not misleading;
(v) use all commercially reasonable
efforts to obtain the withdrawal of any order suspending the
effectiveness of such Exchange Registration Statement or any
post-effective amendment thereto at the earliest practicable
date;
(vi) use all commercially reasonable
efforts to (A) register or qualify the Exchange Securities
under the securities laws or blue sky laws of such jurisdictions as
are contemplated by Section 2(a) no later than the
commencement of the Exchange Offer, to the extent required by such
laws, (B) keep such registrations or qualifications in effect
and comply with such laws so as to permit the continuance of
offers, sales and dealings therein in such jurisdictions until the
expiration of the Resale Period, (C) take any and all other
actions as may be reasonably necessary or advisable to enable each
Broker-Dealer holding Exchange Securities to consummate the
disposition thereof in such jurisdictions and (D) obtain the
consent or approval of each governmental agency or authority,
whether federal, state or local, which may be required to effect
the Exchange Registration, the Exchange Offer and the offering and
sale of Exchange Securities by Broker-Dealers during the Resale
Period; provided, however, that none of the Issuers or the
Guarantors shall be required for any such purpose to
(1) qualify as a foreign corporation in any jurisdiction
wherein it would not otherwise be required to qualify but for the
requirements of this Section 3(c)(vi) ,
(2) consent to general service of process in any such
jurisdiction or become subject to taxation in any such jurisdiction
or (3) make any changes to its certificate of incorporation or
by-laws or other governing documents or any agreement between it
and its stockholders;
8
(vii) obtain a CUSIP number for all
Exchange Securities, not later than the applicable Effective Time;
and
(viii) comply with all applicable
rules and regulations of the Commission, and make generally
available to its securityholders no later than 18 months after the
Effective Time of such Exchange Registration Statement, an
“earning statement” of the Company and its subsidiaries
complying with Section 11(a) of the Securities Act (including,
at the option of the Issuers, Rule 158 thereunder).
(d) In connection with the
Issuers’ and the Guarantors’ obligations with respect
to the Shelf Registration, if applicable, the Issuers and the
Guarantors shall:
(i) prepare and file with the
Commission, within the time periods specified in
Section 2(b) , a Shelf Registration Statement on any
form which may be utilized by the Issuers and which shall register
all of the Registrable Securities for resale by the holders thereof
in accordance with such method or methods of disposition as may be
specified by the holders of Registrable Securities as, from time to
time, may be Electing Holders and use all commercially reasonable
efforts to cause such Shelf Registration Statement to become
effective within the time periods specified in
Section 2(b) ;
(ii) mail the Notice and
Questionnaire to the holders of Registrable Securities not less
than 30 days prior to the anticipated Effective Time of the Shelf
Registration Statement, and in any such case no holder shall be
entitled to be named as a selling securityholder in the Shelf
Registration Statement, and no holder shall be entitled to use the
prospectus forming a part thereof for resales of Registrable
Securities at any time, unless and until such holder has returned a
completed and signed Notice and Questionnaire to the
Issuers;
(iii) after the Effective Time of
the Shelf Registration Statement, upon the request of any holder of
Registrable Securities that is not then an Electing Holder,
promptly send a Notice and Questionnaire to such holder;
provided that the Issuers shall not be required to take any
action to name such holder as a selling securityholder in the Shelf
Registration Statement or to enable such holder to use the
prospectus forming a part thereof for resales of Registrable
Securities until such holder has returned a completed and signed
Notice and Questionnaire to the Issuers;
(iv) as soon as practicable prepare
and file with the Commission such amendments and supplements to
such Shelf Registration Statement and the prospectus included
therein as may be necessary to effect and maintain the
effectiveness of such Shelf Registration Statement for the period
specified in Section 2(b) and as may be required by the
applicable rules and regulations of the Commission and the
instructions applicable to the form of such Shelf Registration
Statement, and furnish to the Electing Holders copies of any such
supplement or amendment simultaneously with or prior to its being
used or filed with the Commission to the extent such documents are
not publicly available on the Commission’s EDGAR
System;
9
(v) comply with the provisions of
the Securities Act with respect to the disposition of all of the
Registrable Securities covered by such Shelf Registration Statement
in accordance with the intended methods of disposition by the
Electing Holders provided for in such Shelf Registration
Statement;
(vi) provide the Electing Holders
and not more than one counsel for all the Electing Holders the
reasonable opportunity to participate in the preparation of such
Shelf Registration Statement, each prospectus included therein or
filed with the Commission and each amendment or supplement
thereto;
(vii) for a reasonable period prior
to the filing of such Shelf Registration Statement, and throughout
the period specified in Section 2(b) , make available
at reasonable times at the Issuers’ principal place of
business or such other reasonable place for inspection by the
persons referred to in Section 3(d)(vi) who shall
certify to the Issuers that they have a current intention to sell
the Registrable Securities pursuant to the Shelf Registration such
financial and other information and books and records of the
Issuers, and cause the officers, employees, counsel and independent
certified public accountants of the Issuers to respond to such
inquiries, as shall be reasonably necessary, in the judgment of the
respective counsel referred to in Section 3(d)(vi) , to
conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act; provided, however,
that the foregoing inspection and information gathering on behalf
of the Electing Holders shall be conducted by one counsel
designated by the holders of at least a majority in aggregate
principal amount of the Registrable Securities held by the Electing
Holders at the time outstanding; provided further that each
such party shall be required to maintain in confidence and not to
disclose to any other person any information or records reasonably
designated by the Issuers as being confidential, until such time as
(A) such information becomes a matter of public record
(whether by virtue of its inclusion in such Shelf Registration
Statement or otherwise), or (B) such person shall be required
so to disclose such information pursuant to a subpoena or order of
any court or other governmental agency or body having jurisdiction
over the matter (subject to the requirements of such order, and
only after such person shall have given the Issuers prompt prior
written notice of such requirement), or (C) such information
is required to be set forth in such Shelf Registration Statement or
the prospectus included therein or in an amendment to such Shelf
Registration Statement or an amendment or supplement to such
prospectus in order that such Shelf Registration Statement,
prospectus, amendment or supplement, as the case may be, complies
with applicable requirements of the Securities Act and does not
contain an untrue statement of a material fact or omit to state
therein a material fact required to be stated therein or necessary
to make the statements therein not misleading (in the case of any
prospectus, in the light of the circumstances under which such
statements were made);
(viii) promptly notify each of the
Electing Holders and confirm such advice in writing, (A) when
such Shelf Registration Statement or the prospectus included
therein or any prospectus amendment or supplement or post-effective
amendment has been filed, and, with respect to such Shelf
Registration Statement or any post-effective amendment, when the
same has become effective, (B) of any comments by the
Commission and by the blue sky or securities commissioner or
regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such Shelf Registration
Statement or prospectus or for additional information, (C) of
the issuance by the Commission of any stop order suspending the
effectiveness of such Shelf Registration
10
Statement or the initiation or
threatening of any proceedings for that purpose, (D) if at any
time the representations and warranties of the Issuers set forth in
Section 5 cease to be true and correct in all material
respects, (E) of the receipt by the Issuers of any
notification with respect to the suspension of the qualification of
the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose,
(F) the occurrence of any event that causes either of the
Issuers to become an “ineligible issuer” as defined in
Rule 405, or (G) if at any time when a prospectus is
required to be delivered under the Securities Act, that such Shelf
Registration Statement, prospectus, prospectus amendment or
supplement or post-effective amendment does not conform in all
material respects to the applicable requirements of the Securities
Act and the Trust Indenture Act or contains an untrue statement of
a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading (in the case of any prospectus, in the light of the
circumstances under which such statements were made);
(ix) use all commercially reasonable
efforts to obtain the withdrawal of any order suspending the
effectiveness of such Shelf Registration Statement or any
post-effective amendment thereto at the earliest practicable
date;
(x) if requested by any Electing
Holder, promptly incorporate in a prospectus supplement or
post-effective amendment such information as is required by the
applicable rules and regulations of the Commission and as such
Electing Holder reasonably specifies should be included therein
relating to the terms of the sale of such Registrable Securities,
including information with respect to the principal amount of
Registrable Securities being sold by such Electing Holder, the name
and description of such Electing Holder, the offering price of such
Registrable Securities and any discount, commission or other
compensation payable in respect thereof and with respect to any
other material terms of the offering of the Registrable Securities
to be sold by such Electing Holder; and make all required filings
of such prospectus supplement or post-effective amendment promptly
after notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment;
(xi) furnish to each Electing Holder
and the counsel referred to in Section 3(d)(vi) an
executed copy (or a conformed copy) of such Shelf Registration
Statement, each such amendment and supplement thereto (in each case
including all exhibits thereto (in the case of an Electing Holder
of Registrable Securities, upon request) and documents incorporated
by reference therein) and such number of copies of such Shelf
Registration Statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically so requested
by such Electing Holder) and of the prospectus included in such
Shelf Registration Statement (including each preliminary prospectus
and any summary prospectus), in conformity in all material respects
with the applicable requirements of the Securities Act and the
Trust Indenture Act to the extent such documents are not available
through the Commission’s EDGAR System, and such other
documents, as such Electing Holder may reasonably request in order
to facilitate the offering and disposition of the Registrable
Securities owned by such Electing Holder and to permit such
Electing Holder to satisfy the prospectus delivery
requirements of the Securities Act; and subject to
Section 3(e) , the Issuers hereby consent to the
use of such prospectus (including such preliminary and summary
prospectus) and any amendment or supplement thereto by each such
Electing Holder (subject to any applicable Suspension Period), in
each case in the form most recently provided to such person by the
Issuers, in connection
11
with the offering and sale of the
Registrable Securities covered by the prospectus (including such
preliminary and summary prospectus) or any supplement or amendment
thereto;
(xii) use all commercially
reasonable efforts to (A) register or qualify the Registrable
Securities to be included in such Shelf Registration Statement
under such securities laws or blue sky laws of such jurisdictions
as any Electing Holder shall reasonably request, (B) keep such
registrations or qualifications in effect and comply with such laws
so as to permit the continuance of offers, sales and dealings
therein in such jurisdictions during the period the Shelf
Registration Statement is required to remain effective under
Section 2(b) and for so long as may be necessary to
enable any such Electing Holder to complete its distribution of
Registrable Securities pursuant to such Shelf Registration
Statement, (C) take any and all other actions as may be
reasonably necessary or advisable to enable each such Electing
Holder to consummate the disposition in such jurisdictions of such
Registrable Securities and (D) obtain the consent or approval
of each governmental agency or authority, whether federal, state or
local, which may be required to effect the Shelf Registration or
the offering or sale in connection therewith or to enable the
selling holder or holders to offer, or to consummate the
disposition of, their Registrable Securities; provided,
however, that none of the Issuers or the Guarantors shall be
required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be
required to qualify but for the requirements of this
Section 3(d)(xii) , (2) consent to general service
of process in any such jurisdiction or become subject to taxation
in any such jurisdiction or (3) make any changes to its
certificate of incorporation or by-laws or other governing
documents or any agreement between it and its
stockholders;
(xiii) unless any Registrable
Securities shall be in book-entry only form, cooperate with the
Electing Holders to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold,
which certificates, if so required by any securities exchange upon
which any Registrable Securities are listed, shall be printed,
penned, lithographed, engraved or otherwise produced by any
combination of such methods, on steel engraved borders, and which
certificates shall not bear any restrictive legends;
(xiv) obtain a CUSIP number for all
Registrable Securities that have been registered under the
Securities Act, not later than the applicable Effective
Time;
(xv) notify in writing each holder
of Registrable Securities of any proposal by the Issuers to amend
or waive any provision of this Agreement pursuant to
Section 9(h) and of any amendment or waiver effected
pursuant thereto, each of which notices shall contain the text of
the amendment or waiver proposed or effected, as the case may be;
and
(xvi) comply with all applicable
rules and regulations of the Commission, and make generally
available to its securityholders no later than 18 months after the
Effective Time of such Shelf Registration Statement an
“earning statement” of the Company and its subsidiaries
complying with Section 11(a) of the Securities Act (including,
at the option of the Issuers, Rule 158 thereunder).
12
(e) In the event that the Issuers
would be required, pursuant to Section 3(d)(viii)(G) ,
to notify the Electing Holders, the Issuers shall promptly prepare
and furnish to each of the Electing Holders a reasonable number of
copies of a prospectus supplemented or amended so that, as
thereafter delivered to purchasers of Registrable Securities, such
prospectus shall conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and
shall 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, in the light of the circumstances
under which such statements were made, not misleading. Each
Electing Holder agrees that upon receipt of any notice from the
Issuers pursuant to Section 3(d)(viii)(G) , such
Electing Holder shall forthwith discontinue the disposition of
Registrable Securities pursuant to the Shelf Registration Statement
applicable to such Registrable Securities until such Electing
Holder shall have received copies of such amended or supplemented
prospectus, and if so directed by the Issuers, such Electing Holder
shall deliver to the Issuers (at the Issuers’ expense) all
copies, other than permanent file copies, of the prospectus
covering such Registrable Securities in such Electing
Holder’s possession at the time of receipt of such
notice.
(f) In the event of a Shelf
Registration, in addition to the information required to be
provided by each Electing Holder in its Notice and Questionnaire,
the Issuers may require such Electing Holder to furnish to the
Issuers such additional information regarding such Electing Holder
and such Electing Holder’s intended method of distribution of
Registrable Securities as may be required in order to comply with
the Securities Act. Each such Electing Holder agrees to promptly
notify the Issuers of any inaccuracy or change in information
previously furnished by such Electing Holder to the Issuers or of
the occurrence of any event in either case as a result of which any
prospectus relating to such Shelf Registration contains or would
contain an untrue statement of a material fact regarding such
Electing Holder or such Electing Holder’s intended method of
disposition of such Registrable Securities or omits to state any
material fact regarding such Electing Holder or such Electing
Holder’s intended method of disposition of such Registrable
Securities required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances
then existing, and promptly to furnish to the Issuers any
additional information required to correct and update any
previously furnished information or required so that such
prospectus shall not contain, with respect to such Electing Holder
or the disposition of such Registrable Securities, 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 in light of the circumstances then
existing.
(g) Until the expiration of one year
after the Closing Date, the Issuers will not, and will not permit
any of their “affiliates” (as defined in Rule 144)
who are controlled by the Issuers to, resell any of the Securities
that have been reacquired by any of them except pursuant to an
effective registration statement, or a valid exemption from the
registration requirements, under the Securities Act.
(h) As a condition to its
partic
