REGISTRATION RIGHTS AGREEMENT
by
and among
Berry Plastics Corporation
(formerly Berry Plastics Holding Corporation),
the subsidiaries of Berry Plastics Corporation parties
hereto
and
Banc of America Securities LLC
Goldman, Sachs & Co.
Lehman Brothers Inc.
Dated
as of April 21, 2008
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REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement (this “ Agreement
”) is made and entered into as of April 21, 2008, by and
among Berry Plastics Corporation (formerly Berry Plastics
Holding Corporation), a Delaware corporation (the “
Company
”), the subsidiaries of the Company listed on
Schedule A hereto (collectively, the “ Guarantors
”) and Banc of America Securities LLC,
Goldman, Sachs & Co. and Lehman Brothers Inc.
(collectively, the “ Initial
Purchasers ”), each of whom has agreed to
purchase, pursuant to the Purchase Agreement (as defined
below), the First Priority Senior Secured Floating Rate Notes
due 2015 (the “ Initial
Notes ”) issued by the Company. The
Guarantors will fully and unconditionally guarantee (the
“ Initial
Guarantees ”), on a senior secured basis, the
Company’s obligations under the Initial
Notes. The Initial Notes and the Initial Guarantees
are herein collectively referred to as the “ Initial
Securities .”
This
Agreement is made pursuant to the Purchase Agreement, dated as
of April 16, 2008 (the “ Purchase
Agreement ”), among the Company, the Guarantors
and the Initial Purchasers, for (i) the benefit of the Initial
Purchasers and (ii) the benefit of the holders from time to
time of the Initial Securities, including the Initial
Purchasers. In order to induce the Initial
Purchasers to purchase the Initial Securities, the Company and
the Guarantors have agreed to provide the registration rights
set forth in this Agreement. The execution and
delivery of this Agreement is a condition to the obligations
of the Initial Purchasers set forth in Section 6(g) of the
Purchase Agreement.
The
parties hereby agree as follows:
SECTION
1.
Definitions. As used in this Agreement, the
following capitalized terms shall have the following
meanings:
Additional Interest Payment Date: With respect
to the Initial Securities, each Interest Payment Date.
Broker-Dealer: Any broker or dealer registered
under the Exchange Act.
Business Day: Any day other than a Saturday,
Sunday or U.S. federal holiday or a day on which banking
institutions or trust companies located in New York, New York are
authorized or obligated to be closed.
Closing Date: The date of this
Agreement.
Commission: The U.S. Securities and Exchange
Commission.
Consummate: A registered Exchange Offer shall be
deemed “Consummated” for purposes of this Agreement
upon the occurrence of (i) the filing and effectiveness under the
Securities Act of the Exchange Offer Registration Statement
relating to the Exchange Securities to be issued in the Exchange
Offer, (ii) the maintenance of such Registration Statement
continuously effective and the keeping of the Exchange Offer open
for a period not less than the minimum period required pursuant to
Section 3(b) hereof, and (iii) the delivery by the Company to the
Registrar under the Indenture of Exchange Securities in the same
aggregate principal amount as the aggregate principal amount of
Initial Securities that were tendered by Holders thereof pursuant
to the Exchange Offer.
Effectiveness Target Date: As defined in Section
5 hereof.
Exchange Act: The Securities Exchange Act of
1934, as amended.
Exchange Offer: The registration by the Company
under the Securities Act of the Exchange Securities pursuant to a
Registration Statement pursuant to which the Company offers the
Holders of all outstanding Transfer Restricted Securities the
opportunity to exchange all such outstanding Transfer Restricted
Securities held by such Holders for Exchange Securities in an
aggregate principal amount equal to the aggregate principal amount
of the Transfer Restricted Securities tendered in such exchange
offer by such Holders.
Exchange Offer Effectiveness Target Date: As defined in
Section 5 hereof.
Exchange Offer Registration Statement: The
Registration Statement relating to the Exchange Offer, including
the related Prospectus.
Exchange Securities: The First Priority
Senior Secured Floating Rate Notes due 2015 of the same series
under the Indenture as the Initial Notes of such series and the
guarantees of such notes, to be issued to Holders in exchange for
Transfer Restricted Securities pursuant to this
Agreement.
Free Writing Prospectus: Any free writing
prospectus, as such term is defined in Rule 405 under the
Securities Act, relating to any portion of the Initial Securities
and the Exchange Securities.
Holders: As defined in Section 2(b)
hereof.
Indemnified Holder: As defined in Section 8(a)
hereof.
Indenture: The Indenture dated as of April 21,
2008, by and among the Company, the Guarantors and Wells Fargo
Bank, N.A., as trustee (the “ Trustee
”), pursuant to which the Initial Notes and the Exchange
Securities are to be issued, as such Indenture may be further
amended or supplemented from time to time in accordance with the
terms thereof.
Initial Guarantees: As defined in the preamble
hereto.
Initial Notes: As defined in the preamble
hereto.
Initial Placement: The issuance and sale by the
Company of the Initial Securities to the Initial Purchasers
pursuant to the Purchase Agreement.
Initial Purchasers : As defined in the preamble
hereto.
Initial Securities: As defined in the
preamble hereto.
Interest Payment Date: As defined in the
Securities.
NASD: NASD Inc.
Person: An individual, partnership, corporation,
trust or unincorporated organization, or a government or agency or
political subdivision thereof.
Prospectus: The prospectus included in a
Registration Statement, as amended or supplemented by any
prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated
by reference into such Prospectus.
Registration Default: As defined in Section 5
hereof.
Registration Statement: Any registration
statement of the Company relating to (a) an offering of Exchange
Securities pursuant to an Exchange Offer or (b) the registration
for resale of Transfer Restricted Securities pursuant to the Shelf
Registration Statement, which is filed pursuant to the provisions
of this Agreement, in each case, including the Prospectus included
therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material
incorporated by reference therein.
Securities: As defined in the
Indenture.
Securities Act: The Securities Act of 1933, as
amended.
Shelf Filing Deadline: As defined in Section
4(a) hereof.
Shelf Registration Effectiveness Date: As
defined in Section 5 hereof.
Shelf Registration Statement: As defined in
Section 4(a) hereof.
Transfer Restricted Securities: Each Initial
Security, until the earliest to occur of (a) the date on which such
Initial Security is exchanged in the Exchange Offer for an Exchange
Security entitled to be resold to the public by the Holder thereof
without complying with the prospectus delivery requirements of the
Securities Act, (b) the date on which such Initial Security has
been effectively registered under the Securities Act and disposed
of in accordance with a Shelf Registration Statement and (c) the
date on which such Initial Security is distributed to the public
pursuant to Rule 144 under the Securities Act or by a Broker-Dealer
pursuant to the “Plan of Distribution” contemplated by
the Exchange Offer Registration Statement (including delivery of
the Prospectus contained therein).
Trust Indenture Act: The Trust Indenture Act of
1939, as amended.
Underwritten Registration or Underwritten
Offering: A registration in which securities of
the Company are sold to an underwriter for reoffering to the
public.
SECTION
2.
Securities Subject to this Agreement .
(a)
Transfer Restricted Securities. The securities
entitled to the benefits of this Agreement are the Transfer
Restricted Securities.
(b)
Holders of Transfer Restricted Securities. A
Person is deemed to be a holder of Transfer Restricted Securities
(each, a “ Holder
”) whenever such Person owns Transfer Restricted
Securities.
SECTION
3.
Registered Exchange Offer .
(a)
Unless
the Exchange Offer shall not be permissible under applicable law or
Commission policy, each of the Company and the Guarantors shall (i)
use its commercially reasonable efforts to cause to be filed with
the Commission as soon as practicable after the Closing Date, the
Exchange Offer Registration Statement, (ii) use its commercially
reasonable efforts to cause such Registration Statement to become
effective as promptly as possible (unless it becomes effective
automatically upon filing), but in no event later than 270 days
after the Closing Date (or if such 270th day is not a Business Day,
the next succeeding Business Day), (iii) in connection with the
foregoing, file (A) all pre-effective amendments to such
Registration Statement as may be necessary in order to cause such
Registration Statement to become effective, (B) if applicable, a
post-effective amendment to such Registration Statement pursuant to
Rule 430A under the Securities Act and (C) cause all necessary
filings in connection with the registration and qualification of
the Exchange Securities to be made under the state securities or
blue sky laws of such jurisdictions as are necessary to permit
Consummation of the Exchange Offer, and (iv) upon the effectiveness
of such Registration Statement, commence the Exchange
Offer. The Exchange Offer Registration Statement shall
be on the appropriate form permitting registration of the Exchange
Securities to be offered in exchange for the Transfer Restricted
Securities and to permit resales of Initial Securities held by
Broker-Dealers as contemplated by Section 3(c) hereof.
(b)
The
Company and the Guarantors shall cause the Exchange Offer
Registration Statement to be effective continuously and shall keep
the Exchange Offer open for a period of not less than the minimum
period required under applicable federal and state securities laws
to Consummate the Exchange Offer; provided, however ,
that in no event shall such period be less than 30 days after the
date notice of the Exchange Offer is mailed to the
Holders. The Company shall cause the Exchange Offer to
comply with all applicable federal and state securities
laws. No securities other than the Exchange Securities
shall be included in the Exchange Offer Registration
Statement. The Company shall use its commercially
reasonable efforts to cause the Exchange Offer to be Consummated on
the earliest practicable date after the Exchange Offer Registration
Statement has become effective, but in no event later than 30 days
after the date notice of the Exchange Offer is required to be
mailed to the Holders (or if such 30th day is not a Business Day,
the next succeeding Business Day).
(c)
The
Company shall indicate in a “Plan of Distribution”
section contained in the Prospectus forming a part of the Exchange
Offer Registration Statement that any Broker-Dealer who holds
Initial Securities that are Transfer Restricted Securities and that
were acquired for its own account as a result of market-making
activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company) may
exchange such Initial Securities pursuant to the Exchange Offer;
however, such Broker-Dealer may be deemed to be an
“underwriter” within the meaning of the Securities Act
and must, therefore, deliver a prospectus meeting the requirements
of the Securities Act in connection with any resales of the
Exchange Securities received by such Broker-Dealer in the Exchange
Offer, which prospectus delivery requirement may be satisfied by
the delivery by such Broker-Dealer of the Prospectus contained in
the Exchange Offer Registration Statement. Such
“Plan of Distribution” section shall also contain all
other information with respect to such resales by Broker-Dealers
that the Commission may require in order to permit such resales
pursuant thereto, but such “Plan of Distribution” shall
not name any such Broker-Dealer or disclose the amount of Initial
Securities held by any such Broker-Dealer except to the extent
required by the Commission.
Each
of the Company and the Guarantors shall use its commercially
reasonable efforts to keep the Exchange Offer Registration
Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c) hereof to the
extent necessary to ensure that it is available for resales of
Initial Securities acquired by Broker-Dealers for their own
accounts as a result of market-making activities or other
trading activities, and to ensure that it conforms with the
requirements of this Agreement, the Securities Act and the
policies, rules and regulations of the Commission as announced
from time to time, for a period ending on the earlier of (i)
180 days from the date on which the Exchange Offer
Registration Statement is declared effective and (ii) the date
on which a Broker-Dealer is no longer required to deliver a
prospectus in connection with market-making or other trading
activities.
The
Company shall provide sufficient copies of the latest version
of such Prospectus to Broker-Dealers promptly upon request at
any time during such 180-day (or shorter as provided in the
foregoing sentence) period in order to facilitate such
resales.
SECTION
4.
Shelf Registration .
(a)
Shelf Registration. If with respect to the
Initial Notes: (i) the Company and the Guarantors are not permitted
to consummate the Exchange Offer because the Exchange Offer is not
permitted by applicable law or Commission policy, (ii) for any
reason the Exchange Offer is not Consummated within 30 days after
the date notice of the Exchange Offer is required to be mailed to
the Holders (or if such 30th day is not a Business Day, the next
succeeding Business Day), or (iii) with respect to any Holder of
Transfer Restricted Securities (A) such Holder is prohibited by
applicable law or Commission policy from participating in the
Exchange Offer, or (B) such Holder may not resell the Exchange
Securities acquired by it in the Exchange Offer to the public
without delivering a prospectus (other than by reason of such
Holder’s status as an affiliate of the Company) and the
Prospectus contained in the Exchange Offer Registration Statement
is not appropriate or available for such resales by such Holder, or
(C) such Holder is a Broker-Dealer and holds Initial
Securities acquired directly from the Company or one of its
affiliates, then, upon such Holder’s request prior to the
20th day following consummation of the Exchange Offer, the Company
and the Guarantors shall, with respect to the Initial
Notes:
(x) cause
to be filed a shelf registration statement pursuant to Rule
415 under the Securities Act, which may be an amendment to the
Exchange Offer Registration Statement (in either event, the
“ Shelf
Registration Statement ”) as soon as practicable
but in any event on or prior to 90 days after such filing
obligation arises (or if such 90th day is not a Business Day,
the next succeeding Business Day) (such date being the “
Shelf Filing
Deadline ”), which Shelf Registration Statement
shall provide for resales of all Transfer Restricted
Securities the Holders of which shall have provided the
information required pursuant to Section 4(b) hereof;
and
(y) use
their commercially reasonable efforts to cause such Shelf
Registration Statement to be declared effective by the
Commission as promptly as possible (unless it becomes
effective automatically upon filing), and in any event on or
before the 270th day after the obligation to file such Shelf
Registration Statement arises (or if such 270th day is not a
Business Day, the next succeeding Business Day).
Each
of the Company and the Guarantors shall use its commercially
reasonable efforts to keep such Shelf Registration Statement
continuously effective, supplemented and amended as required
by the provisions of Sections 6(b) and (c) hereof to the
extent necessary to ensure that it is available for resales of
Initial Securities by the Holders of Transfer Restricted
Securities entitled to the benefit of this Section 4(a), and
to ensure that it conforms with the requirements of this
Agreement, the Securities Act and the policies, rules and
regulations of the Commission as announced from time to time,
for a period of at least two years following the effective
date of such Shelf Registration Statement (or shorter period
that will terminate when all the Initial Securities covered by
such Shelf Registration Statement have been sold pursuant to
such Shelf Registration Statement). During the
period during which the Company is required to maintain an
effective Shelf Registration Statement pursuant to this
Agreement, the Company will, prior to the expiration of that
Shelf Registration Statement, file, and use its commercially
reasonable efforts to cause to be declared effective (unless
it becomes effective automatically upon filing) within a
period that avoids any interruption in the ability of Holders
of Securities covered by the expiring Shelf Registration
Statement to make registered dispositions, a new registration
statement relating to the Securities, which shall be deemed
the “Shelf Registration Statement” for purposes of
this Agreement.
(b)
Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of
Transfer Restricted Securities may include any of its Transfer
Restricted Securities in any Shelf Registration Statement pursuant
to this Agreement unless and until such Holder furnishes to the
Company in writing, within 20 Business Days after receipt of a
request therefor, such information as the Company may reasonably
request for use in connection with any Shelf Registration Statement
or Prospectus or preliminary Prospectus included therein or
amendment or supplement thereto or Free Writing
Prospectus. Each Holder as to which any Shelf
Registration Statement is being effected agrees to furnish promptly
to the Company all information required to be disclosed in order to
make the information previously furnished to the Company by such
Holder not materially misleading.
SECTION
5.
Additional Interest. If (i) unless the Exchange
Offer shall not be permissible under applicable law or Commission
policy, the Exchange Offer Registration Statement has not been
declared effective by the Commission (or become automatically
effective) on or prior to 270 days after the Closing Date (the
“ Exchange Offer
Effectiveness Target Date ”), (ii) in the event the
Company and the Guarantors are required to file a Shelf
Registration Statement pursuant to Section 4(a) hereof, the Shelf
Registration Statement has not been declared effective by the
Commission (or become automatically effective) on or prior to 270
days after the obligation to file a Shelf Registration Statement
arises (the “ Shelf Registration
Effectiveness Target Date ” and, together with the
Exchange Offer Effectiveness Date, the “ Effectiveness Target
Date ”), (iii) the Exchange Offer has not been
Consummated within 30 Business Days after the Exchange Offer
Effectiveness Target Date with respect to the Exchange Offer
Registration Statement, or (iv) any Registration Statement required
by this Agreement is filed and declared effective but shall
thereafter cease to be effective or fail to be usable for its
intended purpose without being succeeded immediately by a
post-effective amendment to such Registration Statement that cures
such failure and that is itself immediately declared or
automatically effective (except in the case of a Registration
Statement that ceases to be effective or usable as specifically
permitted by the last paragraph of Section 6 hereof) (each such
event referred to in clauses (i) through (iv), a “
Registration
Default ”), the Company and the Guarantors hereby
agree that the interest rate borne by the affected series of
Transfer Restricted Securities shall be increased by 0.25% per
annum during the 90-day period immediately following the occurrence
of any Registration Default and shall increase by 0.25% per annum
at the end of each subsequent 90-day period, but in no event shall
such increase exceed 1.00% per annum. Following the
earliest of (x) the cure of all Registration Defaults relating to
any particular Transfer Restricted Securities, (y) the date on
which such Transfer Restricted Security ceases to be a Transfer
Restricted Security or otherwise becomes freely transferable by
Holders other than affiliates of the Company without further
registration under the Securities Act and (z) the date that is two
years after the Closing Date, the interest rate borne by the
relevant Transfer Restricted Securities will be reduced to the
original interest rate borne by such Transfer Restricted
Securities; provided ,
however ,
that, if after any such reduction in interest rate, a different
Registration Default occurs, the interest rate borne by the
relevant Transfer Restricted Securities shall again be increased
pursuant to the foregoing provisions.
Notwithstanding
the foregoing, (i) the amount of Additional Interest payable
shall not increase because more than one Registration Default
has occurred and is pending and (ii) a Holder of Transfer
Restricted Securities that is not entitled to the benefits of
the Shelf Registration Statement (because, e.g., such Holder
has not elected to include information or has not timely
delivered such information to the Company pursuant to Section
4(b) hereof) shall not be entitled to Additional Interest with
respect to a Registration Default that pertains to the Shelf
Registration Statement.
All
obligations of the Company and the Guarantors set forth in the
preceding paragraph that are outstanding with respect to any
Transfer Restricted Security at the time such security ceases
to be a Transfer Restricted Security shall survive until such
time as all such obligations with respect to such security
shall have been satisfied in full.
SECTION
6.
Registration Procedures .
(a)
Exchange Offer Registration Statement. In
connection with the Exchange Offer, the Company and the Guarantors
shall comply with all of the provisions of Section 6(c)
hereof, shall use their commercially reasonable efforts to effect
such exchange to permit the sale of Transfer Restricted Securities
being sold in accordance with the intended method or methods of
distribution thereof, and shall comply with all of the following
provisions:
(i)
If
in the reasonable opinion of counsel to the Company there is a
question as to whether the Exchange Offer is permitted by
applicable law, each of the Company and the Guarantors hereby
agrees to seek a favorable decision from the Commission allowing
the Company and the Guarantors to Consummate an Exchange Offer for
such Initial Securities. Each of the Company and the
Guarantors hereby agrees to pursue the issuance of such a decision
to the Commission staff level but shall not be required to take
commercially unreasonable action to effect a change of Commission
policy. Each of the Company and the Guarantors hereby
agrees, however, to (A) participate in telephonic conferences with
the Commission, (B) deliver to the Commission staff an analysis
prepared by counsel to the Company setting forth the legal bases,
if any, upon which such counsel has concluded that such an Exchange
Offer should be permitted and (C) diligently pursue a favorable
resolution by the Commission staff of such submission.
(ii)
As
a condition to its participation in the Exchange Offer pursuant to
the terms of this Agreement, each Holder of Transfer Restricted
Securities shall furnish, upon the request of the Company, prior to
the Consummation thereof, a written representation to the Company
(which may be contained in the letter of transmittal contemplated
by the Exchange Offer Registration Statement) to the effect that
(A) it is not an affiliate of the Company, (B) it is not engaged
in, and does not intend to engage in, and has no arrangement or
understanding with any Person to participate in, a distribution of
the Exchange Securities to be issued in the Exchange Offer and (C)
it is acquiring the Exchange Securities in its ordinary course of
business. In addition, all such Holders of Transfer
Restricted Securities shall otherwise cooperate in the
Company’s preparations for the Exchange
Offer. Each Holder hereby acknowledges and agrees that
any Broker-Dealer and any such Holder using the Exchange Offer to
participate in a distribution of the securities to be acquired in
the Exchange Offer (1) could not under Commission policy as in
effect on the date of this Agreement rely on the position of the
Commission enunciated in Morgan Stanley and
Co., Inc. (available June 5, 1991) and Exxon Capital
Holdings Corporation (available May 13, 1988), as
interpreted in the Commission’s letter to Shearman &
Sterling dated July 2, 1993, and similar no-action letters (which
may include any no-action letter obtained pursuant to clause (i)
above), and (2) must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with a
secondary resale transaction and that such a secondary resale
transaction should be covered by an effective registration
statement containing the selling security holder information
required by Item 507 or 508, as applicable, of Regulation S-K if
the resales are of Exchange Securities obtained by such Holder in
exchange for Initial Securities acquired by such Holder directly
from the Company.
(b)
Shelf Registration Statement. In connection with
the Shelf Registration Statement, each of the Company and the
Guarantors shall comply with all the provisions of Section 6(c)
hereof and shall use its commercially reasonable efforts to effect
such registration (unless automatically declared effective) to
permit the sale of the Transfer Restricted Securities being sold in
accordance with the intended method or methods of distribution
thereof, and pursuant thereto each of the Company and the
Guarantors will as expeditiously as is commercially reasonable
prepare and file with the Commission a Registration Statement
relating to the registration on any appropriate form under the
Securities Act, which form shall be available for the sale of the
Transfer Restricted Securities in accordance with the intended
method or methods of distribution thereof.
(c)
General Provisions. In connection with any
Registration Statement and any Prospectus required by this
Agreement to permit the sale or resale of Transfer Restricted
Securities and any Free Writing Prospectus (including, without
limitation, any Registration Statement and the related Prospectus
required to permit resales of Initial Securities by Broker-Dealers
and any Free Writing Prospectus related thereto), each of the
Company and the Guarantors shall:
(i)
use
its commercially reasonable efforts to keep such Registration
Statement continuously effective during the period required by this
Agreement and provide all requisite financial statements
(including, if required by the Securities Act or any regulation
thereunder, financial statements of the Guarantors for the period
specified in Section 3 or 4 hereof, as applicable); upon the
occurrence of any event that would cause any such Registration
Statement or the Prospectus contained therein (A) to contain a
material misstatement or omission or (B) not to be effective and
usable for resale of Transfer Restricted Securities during the
period required by this Agreement, the Company shall file promptly
an appropriate amendment to such Registration Statement, in the
case of clause (A), correcting any such misstatement or omission,
and, in the case of either clause (A) or (B), use its commercially
reasonable efforts to cause such amendment to be declared effective
(unless automatically declared effective) and such Registration
Statement and the related Prospectus to become usable for their
intended purpose(s) as soon as practicable thereafter;
(ii)
prepare
and file with the Commission such amendments and post-effective
amendments to the applicable Registration Statement as may be
necessary to keep the Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, as
applicable, or such shorter period as will terminate when all
Transfer Restricted Securities covered by such Registration
Statement have been sold; cause the Prospectus to be supplemented
by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the Securities Act, and to comply
fully with the applicable provisions of Rules 424 and 430A under
the Securities Act in a timely manner; and comply with the
provisions of the Securities Act with respect to the disposition of
all securities covered by such Registration Statement during the
applicable period in accordance with the intended method or methods
of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the
Prospectus;
(iii)
advise
the underwriter(s), if any, and selling Holders promptly and, if
requested by such Persons, to confirm such advice in writing, (A)
when the Prospectus, any Prospectus supplement, any post-effective
amendment or any Free Writing Prospectus has been filed, and, with
respect to any Registration Statement or any post-effective
amendment thereto, when the same has become effective, (B) of any
request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for
additional information relating thereto, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement under the Securities Act, of the suspension
by any state securities commission of the qualification of the
Transfer Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, of the issuance by the Commission of a
notification of objection to the use of the form on which the
Registration Statement has been filed, or of the happening of any
event that causes the Company to become an “ineligible
issuer,” as defined in Commission Rule 405, (D) of the
existence of any fact or the happening of any event that makes any
statement of a material fact made in the Registration Statement,
the Prospectus, any amendment or supplement thereto or any document
incorporated by reference therein untrue, or that requires the
making of any additions to or
