EXHIBIT 4.3
PLASTIPAK HOLDINGS, INC.
10.75% SENIOR NOTES DUE 2011
UNCONDITIONALLY GUARANTEED AS TO THE
PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST BY THE GUARANTORS
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EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
August 20, 2001
Goldman, Sachs & Co.,
As representatives of the several Purchasers
named in Schedule I to the Purchase Agreement
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Plastipak Holdings, Inc., a Michigan corporation (the "Company"),
proposes to issue and sell to the Purchasers (as defined herein) upon the terms
set forth in the Purchase Agreement (as defined herein) its 10.75% Senior Notes
due 2011, which are unconditionally guaranteed by Clean Tech, Inc., a Michigan
corporation; Plastipak Packaging, Inc., a Delaware corporation; TABB Realty,
LLC, a Michigan limited liability company, and Whiteline Express, Ltd., a
Delaware corporation (the "Guarantors"). 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 Company and the Guarantors agree
with the Purchasers for the benefit of holders (as defined herein) from time to
time of the Transfer Restricted Securities (as defined herein) as follows:
1. Certain Definitions. For purposes of this Exchange and Registration
Rights 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.
The term "broker-dealer" shall mean any broker or dealer registered
with the Commission under the Exchange Act.
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"Closing Date" shall mean the date on which the Securities are
initially issued.
"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.
"Effective Time," in the case of (i) an Exchange Registration, shall
mean the time and date as of which the Commission declares the Exchange
Offer Registration Statement effective or as of which the Exchange Offer
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.
"Effectiveness Target Date" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Electing Holder" shall mean any holder of Transfer Restricted
Securities that has returned a completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(d)(ii) or
3(d)(iii) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any
successor thereto, as the same shall be amended from time to time.
"Exchange Notes" shall have the meaning assigned thereto in Section
2(a) hereof.
"Exchange Offer" shall have the meaning assigned thereto in Section
2(a) hereof.
"Exchange Offer Registration Statement" shall have the meaning assigned
thereto in Section 2(a) hereof.
"Exchange Registration" shall have the meaning assigned thereto in
Section 3(c) hereof.
The term "holder" shall mean the registered holders of the Transfer
Restricted Securities on the Closing Date and other persons who acquire
Transfer Restricted Securities from time to time (including any successors
or assigns), in each case for so long as such person owns any Transfer
Restricted Securities.
"Indenture" shall mean the Indenture, dated as of August 20, 2001,
among the Company, the Guarantors and Wells Fargo Bank Minnesota, National
Association, as Trustee, as the same shall be amended from time to time.
"Notice and Questionnaire" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
The term "person" shall mean a corporation, association, partnership,
organization, business, individual, government or political subdivision
thereof or governmental agency.
"Purchase Agreement" shall mean the Purchase Agreement, dated as of
August 15, 2001, among the Purchasers, the Guarantors and the Company
relating to the Securities.
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"Purchasers" shall mean the Purchasers named in Schedule I to the
Purchase Agreement.
"Registration Default" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in Section 2(a)
hereof.
"Restricted Holder" shall mean (i) a holder that is an affiliate of the
Company within the meaning of Rule 405, (ii) a holder who acquires Exchange
Notes 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 Notes and (iv)
a holder that is a broker-dealer, but only with respect to Exchange Notes
received by such broker-dealer pursuant to an Exchange Offer in exchange
for Transfer Restricted Securities acquired by the broker-dealer directly
from the Company.
"Rule 144," "Rule 405" and "Rule 415" shall mean, in each case, such
rule promulgated under the Securities Act (or any successor provision), as
the same shall be amended from time to time.
"Securities" shall mean, collectively, the 10.75% Senior Notes due 2011
of the Company to be issued and sold to the Purchasers on the Closing Date,
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 for in the Indenture (the "Guarantees") and, unless the context
otherwise requires, any reference herein to a "Security," an "Exchange
Note" or a "Transfer Restricted Security" shall include a reference to the
related Guarantee.
"Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, and the rules and regulations promulgated thereunder as
the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto in Section
2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned thereto
in Section 2(b) hereof.
"Special Interest" shall have the meaning assigned thereto in Section
2(c) hereof.
"Transfer Restricted Securities" shall mean the Securities; until:
(1) the date on which such Security has been exchanged by a
Person other than a broker-dealer for an Exchange Note in the Exchange
Offer;
(2) following the exchange by a broker-dealer in the Exchange
Offer of a Security for an Exchange Note, the date on which such Exchange
Note is sold to a purchaser who receives from such broker-dealer on or
prior to the date of such sale a copy of the prospectus contained in the
Exchange Offer Registration Statement;
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(3) the date on which such Security has been effectively
registered under the Securities Act and disposed of in accordance with the
Shelf Registration Statement;
(4) the date on which such Security is distributed to the
public pursuant to Rule 144 under the Securities Act; or
(5) such Security shall cease to be outstanding.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
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
Exchange and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights 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 Company and the
Guarantors agree to file under the Securities Act, on or prior to 90 days
after the Closing Date, a registration statement relating to an offer to
exchange (such registration statement, the "Exchange Offer Registration
Statement", and such offer, the "Exchange Offer") any and all of the
Securities for a like aggregate principal amount of debt securities issued
by the Company and guaranteed by the Guarantors, which debt securities and
guarantees are substantially identical to the Securities and the related
Guarantees, respectively (and are entitled to the benefits of a trust
indenture which is substantially identical to the Indenture or is the
Indenture and which has been qualified under the Trust Indenture Act),
except that they have been registered pursuant to an effective registration
statement under the Securities Act and do not contain provisions for the
additional interest contemplated in Section 2(c) below (such new debt
securities hereinafter called "Exchange Notes"). The Company and the
Guarantors agree to use all commercially reasonable efforts to cause the
Exchange Offer Registration Statement to become effective under the
Securities Act, on or prior to 180 days after the Closing Date. The
Exchange Offer will be registered under the Securities Act on the
appropriate form and will comply with all applicable tender offer rules and
regulations under the Exchange Act. The Company and the Guarantors further
agree to use all commercially reasonable efforts to commence and complete
the Exchange Offer, on or prior to 30 business days, or longer, if required
by the federal securities laws, after such registration statement has
become effective, and exchange Exchange Notes for all Transfer Restricted
Securities that have been properly tendered and not withdrawn on or prior
to the expiration of the Exchange Offer. The Exchange Offer will be deemed
to have been "completed" only if the debt securities and related guarantee
received by holders other than Restricted Holders in the Exchange Offer for
Transfer Restricted Securities are, upon receipt, transferable by each such
holder without material 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. The Exchange Offer shall be deemed to have been
completed upon the earlier to occur of (i) the Company having exchanged the
Exchange Notes for all outstanding Transfer Restricted Securities
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pursuant to the Exchange Offer and (ii) the Company having exchanged,
pursuant to the Exchange Offer, Exchange Notes for all Transfer Restricted
Securities that have been properly tendered and not withdrawn before the
expiration of the Exchange Offer. The Company agrees to include in the
Exchange Offer Registration Statement a prospectus for use in any resales
by any holder of Exchange Notes that is a broker-dealer. and (y) to keep
such Exchange Offer Registration Statement effective for a period (the
"Resale Period") beginning when Exchange Notes are first issued in the
Exchange Offer and ending upon the earlier of the expiration of the 180th
day after the Exchange Offer has been completed or such time as such
broker-dealers no longer own any Transfer Restricted Securities. With
respect to such Exchange Offer Registration Statement, such holders shall
have the benefit of the rights of indemnification and contribution set
forth in Sections 6(a), (c), (d) and (e) hereof.
(b) If (i) the Company and the Guarantors are not (A) required to file
the Exchange Offer Registration Statement; or (B) permitted to consummate
the Exchange Offer because the Exchange Offer is not permitted by
applicable law or Commission policy, (ii) any holder of Transfer Restricted
Securities notifies the Company prior to the 20th day following the
consummation of the Exchange Offer that (X) it is prohibited by applicable
law or Commission policy from participating in the Exchange Offer; or (Y)
that it may not resell the Exchange Notes acquired by it in the 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) that it is a broker-dealer and owns
Securities acquired directly from the Company or an affiliate of the
Company, or (iii) the Exchange Offer has not been completed within 225 days
following the Closing Date, the Company and the Guarantors will use all
commercially reasonable efforts to file under the Securities Act, on or
prior to 60 days after such obligation arises, 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 Transfer Restricted
Securities affected thereby, 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"). The
Company and the Guarantors agree to use all commercially reasonable efforts
(x) to cause the Shelf Registration Statement to become or be declared
effective no later than 120 days after such obligation arises and 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 Transfer Restricted Securities
outstanding, provided, however, that 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 Transfer
Restricted Securities unless such holder is an Electing Holder, and (y)
after the Effective Time of the Shelf Registration Statement, promptly upon
the request of any holder of Transfer Restricted Securities that is not
then an Electing Holder, to take any action reasonably necessary to enable
such holder to use the prospectus forming a part thereof for resales of
Transfer Restricted Securities, including, without limitation, any action
necessary to identify such holder as a selling securityholder in the Shelf
Registration Statement, provided, however, that nothing in this clause (y)
shall relieve any such holder of the obligation to return a completed and
signed Notice and Questionnaire to the Company in accordance with Section
3(d)(iii) hereof. The Company further agrees to supplement or make
amendments to the Shelf Registration Statement, as and when required by the
rules, regulations or instructions applicable to the registration form used
by the Company for such
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Shelf Registration Statement or by the Securities Act or rules and
regulations thereunder for shelf registration, and the Company agrees to
furnish to each Electing Holder copies of any such supplement or amendment
prior to its being used or promptly following its filing with the
Commission.
(c) In the event that (i) the Company and the Guarantors have not filed
the Exchange Offer Registration Statement or Shelf Registration Statement
on or before the date on which such registration statement is required to
be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such
Exchange Offer Registration Statement or Shelf Registration Statement has
not become effective or been declared effective by the Commission on or
before the date on which such registration statement is required to become
or be declared effective pursuant to Section 2(a) or 2(b), respectively
(the "Effectiveness Target Date") or (iii) the Exchange Offer has not been
completed within 30 business days after the Effectiveness Target Date or
(iv) any Exchange Offer Registration Statement or Shelf Registration
Statement required by Section 2(a) or 2(b) hereof is filed and declared
effective but thereafter ceases to be effective or usable in connection
with resales of Transfer Restricted Securities during the time period
specified herein (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, subject to the
provisions of Section 9(b), special interest ("Special Interest"), in
addition to the Base Interest, shall accrue, with respect to the first
90-day period immediately following the occurrence of the first
Registration Default, in an amount equal to $.05 per week per $1,000
principal amount of Securities held by the Holders. The amount of Special
Interest will increase by an additional $.05 per week per $1,000 principal
amount of 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 $.50 per week per $1,000
principal amount of Securities. Following the cure of all Registration
Defaults, the accrual of Special Interest will cease. All accrued Special
Interest through each record date with respect to the succeeding Interest
Payment Date will be paid by the Company and the Guarantors on each
Interest Payment Date (as defined in the Indenture) to the Global Note
Holder (as defined in the Indenture) by wire transfer of immediately
available funds or by federal funds check and to Holders of Certificated
Notes (as defined in the Indenture) by wire transfer to the accounts
specified by them or by mailing checks to their registered addresses if no
such accounts have been specified.
(d) The Company shall use all commecially reasonable efforts to take,
and shall cause the Guarantors to use all commercially reasonable efforts
to take, all actions necessary or advisable to be taken by it to ensure
that the transactions contemplated herein are effected as so contemplated,
including all actions necessary or desirable to register the Guarantees
under the registration statement contemplated in Section 2(a) or 2(b)
hereof, as applicable.
(e) Any reference herein to a registration statement 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 as of any time
shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time.
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3. Registration Procedures.
If the Company 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 Offer or the Shelf
Registration, as the case may be, the Company shall qualify the Indenture
under the Trust Indenture Act of 1939.
(b) In the event that such qualification would require the appointment
of a new trustee under the Indenture, the Company shall appoint a new
trustee thereunder pursuant to the applicable provisions of the Indenture.
(c) In connection with the Company's obligations with respect to the
registration of Exchange Notes as contemplated by Section 2(a) (the
"Exchange Registration"), if applicable, the Company and the Guarantors
shall, as soon as practicable (or as otherwise specified):
(i) prepare and file with the Commission, no later than 90
days after the Closing Date, an Exchange Offer Registration
Statement on any form which may be utilized by the Company and
which shall permit the Exchange Offer and resales of Exchange
Notes 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 Offer Registration Statement to
become effective no later than 180 days after the Closing Date;
(ii) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Exchange Offer
Registration Statement and the prospectus included therein as may
be necessary to effect and maintain the effectiveness of such
Exchange Offer Registration Statement for the periods and purposes
contemplated in Section 2(a) hereof and as may be required by the
applicable rules and regulations of the Commission and the
instructions applicable to the form of such Exchange Offer
Registration Statement, and promptly provide each broker-dealer
holding Exchange Notes 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 Notes;
(iii) promptly notify each broker-dealer that has requested
and received copies of the prospectus included in such
registration statement, and confirm such advice in writing, (A)
when such Exchange Offer 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 Offer Registration Statement or any post-effective
amendment, when the same has become effective, (B) of any request
by the Commission for amendments or supplements to such Exchange
Offer 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 Offer
Registration Statement or the initiation or
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threatening of any proceedings for that purpose, (D) if at any
time the representations and warranties of the Company
contemplated by Section 5 cease to be true and correct in all
material respects, (E) of the receipt by the Company of any
notification with respect to the suspension of the qualification
of the Exchange Notes for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, or
(F) at any time during the Resale Period when a prospectus is
required to be delivered under the Securities Act, that such
Exchange Offer 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 light of the circumstances
then existing;
(iv) in the event that the Company would be required, pursuant
to Section 3(e)(iii)(F) above, to notify any broker-dealers
holding Exchange Notes, without delay 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 Notes 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 not
misleading in light of the circumstances then existing;
(v) use all commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of such
Exchange Offer 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 Notes 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, (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 and (C) take any and all other actions as may be
reasonably necessary or advisable to enable each broker-dealer
holding Exchange Notes to consummate the disposition thereof in
such jurisdictions; provided, however, that neither the Company
nor 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 (3) make any
changes to its certificate of incorporation or by-laws or any
agreement between it and its stockholders;
(vii) use all commercially reasonable efforts to 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 Notes by broker-dealers during the Resale Period;
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(viii) provide a CUSIP number for all Exchange Notes, not
later than the applicable Effective Time; and
(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as
soon as practicable but no later than eighteen months after the
effective date of such Exchange Offer 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 Company, Rule 158 thereunder).
(d) In connection with the Company's and the Guarantors' obligations
with respect to the Shelf Registration, if applicable, the Company and the
Guarantors shall, as soon as practicable (or as otherwise specified):
(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 Company and which shall
register all of the Transfer Restricted Securities for resale by
the holders thereof in accordance with such method or methods of
disposition as may be specified by such of the holders 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) not less than 30 calendar days prior to the Effective
Time of the Shelf Registration Statement, mail the Notice and
Questionnaire to the holders of Transfer Restricted Securities;
provided, that no holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement as of
the Effective Time, and no holder shall be entitled to use the
prospectus forming a part thereof for resales of Transfer
Restricted Securities at any time, unless such holder has returned
a completed and signed Notice and Questionnaire to the Company by
the deadline for response set forth therein; and provided,
further, holders of Transfer Restricted Securities shall have at
least 24 calendar days from the date on which the Notice and
Questionnaire is first mailed to such holders to return a
completed and signed Notice and Questionnaire to the Company;
(iii) after the Effective Time of the Shelf Registration
Statement, upon the request of any holder of Transfer Restricted
Securities that is not then an Electing Holder, promptly send a
Notice and Questionnaire to such holder; provided that the Company
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 Transfer Restricted Securities until such holder
has returned a completed and signed Notice and Questionnaire to
the Company;
(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) hereof and as may be required by the applicable rules and
regulations
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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;
(v) comply with the provisions of the Securities Act with
respect to the disposition of all of the Transfer Restricted
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 (A) the Electing Holders, (B) the underwriters
(which term, for purposes of this Exchange and Registration Rights
Agreement, shall include a person deemed to be an underwriter
within the meaning of Section 2(a)(11) of the Securities Act), if
any, thereof, (C) any sales or placement agent therefor, (D)
counsel for any such underwriter or agent and (E) not more than
one counsel for all the Electing Holders the 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
Company's 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 Company that they have a current
intention to sell the Transfer Restricted Securities pursuant to
the Shelf Registration such financial and other information and
books and records of the Company, and cause the officers,
employees, counsel and independent certified public accountants of
the Company to respond to such inquiries, as shall be reasonably
necessary, in the judgment of the respective counsel referred to
in such Section, to conduct a reasonable investigation within the
meaning of Section 11 of the Securities Act; provided, however,
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 Company as being confidential, until
such time as (A) such information becomes a matter of public
record (whether by virtue of its inclusion in such 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 Company 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 federal securities laws and
the rules and regulations of the Commission 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 light of the
circumstances then existing;
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(viii) promptly notify each of the Electing Holders, any sales
or placement agent therefor and any underwriter thereof (which
notification may be made through any managing underwriter that is
a representative of such underwriter for such purpose) 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
Statement or the initiation or threatening of any proceedings for
that purpose, (D) if at any time the representations and
warranties of the Company contemplated by Section 3(d)(xvii) or
Section 5 cease to be true and correct in all material respects,
(E) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Transfer Restricted
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, or (F) 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
light of the circumstances then existing;
(ix) use all commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of such
registration statement or any post-effective amendment thereto at
the earliest practicable date;
(x) if requested by any managing underwriter or underwriters,
any placement or sales agent or 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 managing underwriter or
underwriters, such agent or such Electing Holder specifies should
be included therein relating to the terms of the sale of such
Transfer Restricted Securities, including information with respect
to the principal amount of Transfer Restricted Securities being
sold by such Electing Holder or agent or to any underwriters, the
name and description of such Electing Holder, agent or
underwriter, the offering price of such Transfer Restricted
Securities and any discount, commission or other compensation
payable in respect thereof, the purchase price being paid therefor
by such underwriters and with respect to any other terms of the
offering of the Transfer Restricted Securities to be sold by such
Electing Holder or agent or to such underwriters; 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, each placement or sales
agent, if any, therefor, each underwriter, if any, thereof and the
respective counsel referred to in
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Section 3(d)(vi) an executed copy (or, in the case of an Electing
Holder, 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
Transfer Restricted 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, agent or underwriter, as the
case may be) 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, and such other documents, as such Electing
Holder, agent, if any, and underwriter, if any, may reasonably
request in order to facilitate the offering and disposition of the
Transfer Restricted Securities owned by such Electing Holder,
offered or sold by such agent or underwritten by such underwriter
and to permit such Electing Holder, agent and underwriter to
satisfy the prospectus delivery requirements of the Securities
Act; and the Company hereby consents to the use of such prospectus
(including such preliminary and summary prospectus) and any
amendment or supplement thereto by each such Electing Holder and
by any such agent and underwriter, in each case in the form most
recently provided to such person by the Company, in connection
with the offering and sale of the Transfer Restricted 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 Transfer Restricted Securities to be included in
such Shelf Registration Statement under such securities laws or
blue sky laws of such jurisdictions as any Electing Holder and
each placement or sales agent, if any, therefor and underwriter,
if any, thereof 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 is required to remain effective under Section 2(b)
above and for so long as may be necessary to enable any such
Electing Holder, agent or underwriter to complete its distribution
of Securities pursuant to such Shelf Registration Statement and
(C) take any and all other actions as may be reasonably necessary
or advisable to enable each such Electing Holder, agent, if any,
and underwriter, if any, to consummate the disposition in such
jurisdictions of such Transfer Restricted Securities; provided,
however, that neither the Company nor 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 (3) make any changes to its certificate of
incorporation or by-laws or any agreement between it and its
stockholders;
(xiii) use all commercially reasonable efforts to 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 Transfer Restricted
Securities;
12
(xiv) unless any Transfer Restricted Securities shall be in
book-entry only form, cooperate with the Electing Holders and the
managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Transfer
Restricted Securities to be sold, which certificates, if so
required by any securities exchange upon which any Transfer
Restricted Securities are listed, shall be penned, lithographed or
engraved, or produced by any combination of such methods, on steel
engraved borders, and which certificates shall not bear any
restrictive legends; and, in the case of an underwritten offering,
enable such Transfer Restricted Securities to be in such
denominations and registered in such names as the managing
underwriters may request at least two business days prior to any
sale of the Transfer Restricted Securities;
(xv) provide a CUSIP number for all Transfer Restricted
Securities, not later than the applicable Effective Time;
(xvi) enter into one or more underwriting agreements,
engagement letters, agency agreements, "best efforts" underwriting
agreements or similar agreements, as appropriate, including
customary provisions relating to indemnification and contribution,
and take such other actions in connection therewith as any
Electing Holders aggregating at least 20% in aggregate principal
amount of the Transfer Restricted Securities at the time
outstanding shall request in order to expedite or facilitate the
disposition of such Transfer Restricted Securities;
(xvii) whether or not an agreement of the type referred to in
Section 3(d)(xvi) hereof is entered into and whether or not any
portion of the offering contemplated by the Shelf Registration is
an underwritten offering or is made through a placement or sales
agent or any other entity, (A) make such representations and
warranties to the Electing Holders and the placement or sales
agent, if any, therefor and the underwriters, if any, thereof in
form, substance and scope as are customarily made in connection
with an offering of debt securities pursuant to any appropriate
agreement or to a registration statement filed on the form
applicable to the Shelf Registration; (B) obtain an opinion of
counsel to the Company in customary form and covering such
matters, of the type customarily covered by such an opinion, as
the managing underwriters, if any, or as any Electing Holders of
at least 20% in aggregate principal amount of the Transfer
Restricted Securities at the time outstanding may reasonably
request, addressed to such Electing Holder or Electing Holders and
the placement or sales agent, if any, therefor and the
underwriters, if any, thereof and dated the effective date of such
Shelf Registration Statement (and if such Shelf Registration
Statement contemplates an underwritten offering of a part or all
of the Transfer Restricted Securities, dated the date of the
closing under the underwriting agreement relating thereto) (it
being agreed that the matters to be covered by such opinion shall
include the due incorporation and good standing of the Company and
its subsidiaries; the qualification of the Company and its
subsidiaries to transact business as foreign corporations; the due
authorization, execution and delivery of the relevant agreement of
the type referred to in Section 3(d)(xvi) hereof; the due
authorization, execution, authentication and issuance, and the
validity and enforceability, of the Securities; the absence of
material legal or governmental proceedings involving the Company;
the absence of a breach by the Company or any of its subsidiaries
of, or a default under, material agreements binding upon the
13
Company or any subsidiary of the Company; the absence of
governmental approvals required to be obtained in connection with
the Shelf Registration, the offering and sale of the Transfer
Restricted Securities, this Exchange and Registration Rights
Agreement or any agreement of the type referred to in Section
3(d)(xvi) hereof, except such approvals as may be required under
state securities or blue sky laws; the material compliance as to
form of such Shelf Registration Statement and any documents
incorporated by reference therein and of the Indenture with the
requirements of the Securities Act and the Trust Indenture Act,
respectively; and, as of the date of the opinion and of the Shelf
Registration Statement or most recent post-effective amendment
thereto, as the case may be, the absence from such Shelf
Registration Statement and the prospectus included therein, as
then amended or supplemented, and from the documents incorporated
by reference therein (in each case other than the financial
statements and other financial information contained therein) of
an untrue statement of a material fact or the omission to state
therein a material fact necessary to make the statements therein
not misleading (in the case of such documents, in the light of the
circumstances existing at the time that such documents were filed
with the Commission under the Exchange Act)); (C) obtain a "cold
comfort" letter or letters from the independent certified public
accountants of the Company addressed to the selling Electing
Holders, the placement or sales agent, if any, therefor or the
underwriters, if any, thereof, dated (i) the effective date of
such Shelf Registration Statement and (ii) the effective date of
any prospectus supplement to the prospectus included in such Shelf
Registration Statement or post-effective amendment to such Shelf
Registration Statement which includes unaudited or audited
financial statements as of a date or for a period subsequent to
that of the latest such statements included in such prospectus
(and, if such Shelf Registration Statement contemplates an
underwritten offering pursuant to any prospectus supplement to the
prospectus included in such Shelf Registration Statement or
post-effective amendment to such Shelf Registration Statement
which includes unaudited or audited financial statements as of a
date or for a period subsequent to that of the latest such
statements included in such prospectus, dated the date of the
closing under the underwriting agreement relating thereto), such
letter or letters to be in customary form and covering such
matters of the type customarily covered by letters of such type;
(D) deliver such documents and certificates, including officers'
certificates, as may be reasonably requested by any Electing
Holders of at least 20% in aggregate principal amount of the
Transfer Restricted Securities at the time outstanding or the
placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof to evidence the accuracy of the
representations and warranties made pursuant to clause (A) above
or those contained in Section 5(a) hereof and the compliance with
or satisfaction of any agreements or conditions contained in the
underwriting agreement or other agreement entered into by the
Company or the Guarantors; and (E) undertake such obligations
relating to expense reimbursement, indemnification and
contribution as are provided in Section 6 hereof;
(xviii) notify in writing each holder of Transfer Restricted
Securities of any proposal by the Company to amend or waive any
provision of this Exchange and Registration Rights Agreement
pursuant to Section 9(h) hereof and of any
14
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;
(xix) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Transfer Restricted Securities
or participate as a member of an underwriting syndicate or selling
group or "assist in the distribution" (within the meaning of the
Conduct Rules (the "Conduct Rules) of the National Association of
Securities Dealers, Inc. ("NASD") or any successor thereto, as
amended from time to time) thereof, whether as a holder of such
Transfer Restricted Securities or as an underwriter, a placement
or sales agent or a broker or dealer in respect thereof, or
otherwise, assist such broker-dealer in complying with the
requirements of such Conduct Rules, including by (A) if such
Conduct Rules shall so require, engaging a "qualified independent
underwriter" (as defined in such Conduct Rules) to participate in
the preparation of the Shelf Registration Statement relating to
such Transfer Restricted Securities, to exercise usual standards
of due diligence in respect thereto and, if any portion of the
offering contemplated by such Shelf Registration Statement is an
underwritten offering or is made through a placement or sales
agent, to recommend the yield of such Transfer Restricted
Securities, (B) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters
provided in Section 6 hereof (or to such other customary extent as
may be requested by such underwriter), and (C) providing such
information to such broker-dealer as may be required in order for
such broker-dealer to comply with the requirements of the Conduct
Rules; and
(xx) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as
soon as practicable but in any event not later than eighteen
months after the effective date 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 Company, Rule 158 thereunder).
(e) In the event that the Company would be required, pursuant to
Section 3(d)(viii)(F) above, to notify the Electing Holders, the placement
or sales agent, if any, therefor and the managing underwriters, if any,
thereof, the Company shall without delay prepare and furnish to each of the
Electing Holders, to each placement or sales agent, if any, and to each
such underwriter, if any, a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to purchasers of
Transfer Restricted 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 not misleading in light
of the circumstances then existing. Each Electing Holder agrees that upon
receipt of any notice from the Company pursuant to Section 3(d)(viii)(F)
hereof, such Electing Holder shall forthwith discontinue the disposition of
Transfer Restricted Securities pursuant to the Shelf Registration Statement
applicable to such Transfer Restricted Securities until such Electing
Holder shall have received copies of such amended or supplemented
prospectus, and if so directed by the Company, such Electing Holder shall
deliver to the Company (at the Company's expense) all copies, other
15
than permanent file copies, then in such Electing Holder's possession of
the prospectus covering such Transfer Restricted Securities 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
Questionnaire, the Company may require such Electing Holder to furnish to
the Company such additional information regarding such Electing Holder and
such Electing Holder's intended method of distribution of Transfer
Restricted Securities as may be required in order to comply with the
Securities Act. Each such Electing Holder agrees to notify the Company as
promptly as practicable of any inaccuracy or change in information
previously furnished by such Electing Holder to the Company 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 Transfer
Restricted Securities or omits to state any material fact regarding such
Electing Holder or such Electing Holder's intended method of disposition of
such Transfer Restricted 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 Company 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
Transfer Restricted 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 two years after the Closing Date, the
Company will not, and will not permit any of its "affiliates" (as defined
in Rule 144) to, resell any of the Securities that have been reacquired by
any of them except pursuant to an effective registration statement under
the Securities Act.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid
promptly all expenses incident to the Company's performance of or compliance
with this Exchange and Registration Rights Agreement, including (a) all
Commission and any NASD registration, filing and review fees and expenses
including fees and disbursements of counsel for the placement or sales agent or
underwriters in connection with such registration, filing and review, (b) all
fees and expenses in connection with the qualification of the Securities for
offering and sale under the State securities and blue sky laws referred to in
Section 3(d)(xii) hereof and determination of their eligibility for investment
under the laws of such jurisdictions as any managing underwriters or the
Electing Holders may designate, including any fees and disbursements of counsel
for the Electing Holders or underwriters in connection with such qualification
and determination, (c) all expenses relating to the preparation, printing,
production, distribution and reproduction of each registration statement
required to be filed hereunder, each prospectus included therein or prepared for
distribution pursuant hereto, each amendment or supplement to the foregoing, the
expenses of preparing the Securities for delivery and the expenses of printing
or producing any underwriting agreements, agreements among underwriters, selling
agreements and blue sky or legal investment memoranda and all other documents in
connection with the offering, sale or delivery of Securities to be disposed of
(including certificates representing the Securities), (d) messenger, telephone
and delivery expenses relating to the offering, sale or delivery of
16
Securities and the preparation of documents referred in clause (c) above, (e)
fees and expenses of the Trustee under the Indenture, any agent of the Trustee
and any counsel for the Trustee and of any collateral agent or custodian, (f)
internal expenses (including all salaries and expenses of the Company's officers
and employees performing legal or accounting duties), (g) fees, disbursements
and expenses of counsel and independent certified public accountants of the
Company (including the expenses of any opinions or "cold comfort" letters
required by or incident to such performance and compliance), (h) fees,
disbursements and expenses of any "qualified independent underwriter" engaged
pursuant to Section 3(d)(xix) hereof, (i) fees, disbursements and expenses of
one counsel for the Electing Holders retained in connection with a Shelf
Registration, as selected by the Electing Holders of at least a majority in
aggregate principal amount of the Transfer Restricted Securities held by
Electing Holders (which counsel shall be reasonably satisfactory to the
Company), (j) any fees charged by securities rating services for rating the
Securities, and (k) fees, expenses and disbursements of any other persons,
including special experts, retained by the Company in connection with such
registration (collectively, the "Registration Expenses"). To the extent that any
Registration Expenses are incurred, assumed or paid by any holder of Transfer
Restricted Securities or any placement or sales agent therefor or underwriter
thereof, the Company shall reimburse such person for the full amount of the
Registration Expenses so incurred, assumed or paid promptly after receipt of a
request therefor. Notwithstanding the foregoing, the holders of the Transfer
Restricted Securities being registered shall pay all agency fees and commissions
and underwriting discounts and commissions attributable to the sale of such
Transfer Restricted Securities and the fees and disbursements of any counsel or
other advisors or experts retained by such holders (severally or jointly), other
than the counsel and experts specifically referred to above.
5. Representations and Warranties.
The Company represents and warrants to, and agrees with, each
Purchaser and each of the holders from time to time of Transfer Restricted
Securities that:
(a) Each registration statement covering Transfer Restricted Securities
and each prospectus (including any preliminary or summary prospectus)
contained therein or furnished pursuant to Section 3(d) or Section 3(c)
hereof and any further amendments or supplements to any such registration
statement or prospectus, when it becomes effective or is filed with the
Commission, as the case may be, and, in the case of an underwritten
offering of Transfer Restricted Securities, at the time of the closing
under the underwriting agreement relating thereto, will conform in all
material respects to the requirements of the Securities Act and the Trust
Indenture Act and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; and at all times subsequent
to the Effective Time when a prospectus would be required to be delivered
under the Securities Act, other than from (i) such time as a notice has
been given to holders of Transfer Restricted Securities pursuant to Section
3(d)(viii)(F) or Section 3(c)(iii)(F) hereof until (ii) such time as the
Company furnishes an amended or supplemented prospectus pursuant to Section
3(e) or Section 3(c)(iv) hereof, each such registration statement, and each
prospectus (including any summary prospectus) contained therein or
furnished pursuant to Section 3(d) or Section 3(c) hereof, as then amended
or supplemented, will conform in all material respects to the requirements
of the Securities Act and the Trust Indenture Act and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated
17
therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by a holder of Transfer Restricted Securities
expressly for use therein.
(b) Any documents incorporated by reference in any prospectus referred
to in Section 5(a) hereof, when they become or became effective or are or
were filed with the Commission, as the case may be, will conform or
conformed in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and none of such documents will
contain or contained an untrue statement of a material fact or will omit or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by a holder of Transfer Restricted Securities
expressly for use therein.
(c) The compliance by the Company with all of the provisions of this
Exchange and Registration Rights Agreement and the consummation of the
transactions herein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any subsidiary of the Company is a
party or by which the Company or any subsidiary of the Company is bound or
to which any of the property or assets of the Company or any subsidiary of
the Company is subject, nor will such action result in any violation of the
provisions Certificate of Incorporation, Certificate of Formation,
partnership agreement or By-laws or other organizational documents, as
applicable of the Company or the Guarantors or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any subsidiary of the Company or any of
their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the consummation by the Company and the
Guarantors of the transactions contemplated by this Exchange and
Registration Rights Agreement, except the registration under the Securities
Act of the Securities, qualification of the Indenture under the Trust
Indenture Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under State securities or blue sky
laws in connection with the offering and distribution of the Securities.
(d) This Exchange and Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and each of the
Guarantors.
6. Indemnification.
(a) Indemnification by the Company and the Guarantors. The Company and
the Guarantors, jointly and severally, will indemnify and hold harmless
each of the holders of Transfer Restricted Securities included in an
Exchange Offer Registration Statement, each of the Electing Holders of
Transfer Restricted Securities included in a Shelf Registration Statement
and each person who participates as a placement or sales agent or as an
underwriter in any offering or sale of such Transfer Restricted Securities
against any losses, claims, damages or liabilities, joint or several, to
which such holder, agent or underwriter
18
may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Exchange Offer Registration
Statement or Shelf Registration Statement, as the case may be, under which
such Transfer Restricted Securities were registered under the Securities
Act, or any preliminary, final or summary prospectus contained therein or
furnished by the Company to any such holder, Electing Holder, agent or
underwriter, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse such holder, such Electing
Holder, such agent and such underwriter for any legal or other expenses
reasonably incurred by them in connection with investigating or defending
any such action or claim as such expenses are incurred; provided, however,
that neither the Company nor the Guarantors shall be liable to any such
person in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in such registration
statement, or preliminary, final or summary prospectus, or amendment or
supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by such person expressly for use
therein.
(b) Indemnification by the Holders and any Agents and Underwriters. The
Company may require, as a condition to including any Transfer Restricted
Securities in any registration statement filed pursuant to Section 2(b)
hereof and to entering into any underwriting agreement with respect
thereto, that the Company shall have received an undertaking reasonably
satisfactory to it from the Electing Holder of such Transfer Restricted
Securities and from each underwriter named in any such underwriting
agreement, severally and not jointly, to (i) indemnify and hold harmless
the Company, the Guarantors, and all other holders of Transfer Restricted
Securities, against any losses, claims, damages or liabilities to which the
Company, the Guarantors or such other holders of Transfer Restricted
Securities may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in such registration
statement, or any preliminary, final or summary prospectus contained
therein or furnished by the Company to any such Electing Holder, agent or
underwriter, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Electing Holder or underwriter
expressly for use therein, and (ii) reimburse the Company and the
Guarantors for any legal or other expenses reasonably incurred by the
Company and the Guarantors in connection with investigating or defending
any such action or claim as such expenses are incurred; provided, however,
that no such Electing Holder shall be required to undertake liability to
any person under this Section 6(b) for any amounts in excess of the dollar
amount of the proceeds to be received by such Electing Holder from the sale
of such Electing Holder's Transfer Restricted Securities pursuant to such
registration.
19
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of written notice of the
commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against an indemnifying party pursuant to the
indemnification provisions of or contemplated by this Section 6, notify
such indemnifying party in writing of the commencement of such action; but
the omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under the indemnification provisions of or contemplated by Section 6(a) or
6(b) hereof. In case any such action shall be brought against any
indemnified party and it shall notify an indemnifying party of the
commencement thereof, such indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, such
indemnifying party shall not be liable to such indemnified party for any
legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of
any judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to
such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act
by or on behalf of any indemnified party.
(d) Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) are unavailable to or
insufficient to hold harmless an indemnified party in respect of any
losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions in respect thereof) in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified party in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or by such indemnified
party, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 6(d) were determined by pro rata
allocation (even if the holders or any agents or underwriters or all of
them were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to in this Section 6(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, or
liabilities (or actions in respect thereof) referred to above shall be
deemed to include any legal or other
20
fees or expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6(d), no holder shall be
required to contribute any amount in excess of the amount by which the
dollar amount of the proceeds received by such holder from the sale of any
Transfer Restricted Securities (after deducting any fees, discounts and
commissions applicable thereto) exceeds the amount of any damages which
such holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and no
underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Transfer Restricted Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The holders' and any underwriters'
obligations in this Section 6(d) to contribute shall be several in
proportion to the principal amount of Transfer Restricted Securities
registered or underwritten, as the case may be, by them and not joint.
(e) The obligations of the Company and the Guarantors under this
Section 6 shall be in addition to any liability which the Company or any of
the Guarantors may otherwise have and shall extend, upon the same terms and
conditions, to each officer, director and partner of each holder, agent and
underwriter and each person, if any, who controls any holder, agent or
underwriter within the meaning of the Securities Act; and the obligations
of the holders and any agents or underwriters contemplated by this Section
6 shall be in addition to any liability which the respective holder, agent
or underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company or the Guarantors
(including any person who, with his consent, is named in any registration
statement as about to become a director of the Company or the Guarantors)
and to each person, if any, who controls the Company within the meaning of
the Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Transfer Restricted
Securities covered by the Shelf Registration are to be sold pursuant to an
underwritten offering, the managing underwriter or underwriters thereof
shall be designated by Electing Holders holding at least a majority in
aggregate principal amount of the Transfer Restricted Securities to be
included in such offering, provided that such designated managing
underwriter or underwriters is or are reasonably acceptable to the Company.
(b) Participation by Holders. Each holder of Transfer Restricted
Securities hereby agrees with each other such holder that no such holder
may participate in any underwritten offering hereunder unless such holder
(i) agrees to sell such holder's Transfer Restricted Securities on the
basis provided in any underwriting arrangements approved by the persons
entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
21
8. Rule 144.
The Company covenants to the holders of Transfer Restricted
Securities that to the extent it shall be required to do so under the Exchange
Act, the Company shall timely file the reports required to be filed by it under
the Exchange Act or the Securities Act (including the reports under Section 13
and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144
adopted by the Commission under the Securities Act) and the rules and
regulations adopted by the Commission thereunder, and shall take such further
action as any holder of Transfer Restricted Securities may reasonably request,
all to the extent required from time to time to enable such holder to sell
Transfer Restricted Securities without registration under the Securities Act
within the limitations of the exemption provided by Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or any similar or
successor rule or regulation hereafter adopted by the Commission. Upon the
request of any holder of Transfer Restricted Securities in connection with that
holder's sale pursuant to Rule 144, the Company shall deliver to such holder a
written statement as to whether it has complied with such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant,
registration rights with respect to Transfer Restricted Securities or any
other securities which would be inconsistent with the terms contained in
this Exchange and Registration Rights Agreement.
(b) Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if the Company fails to perform any of
its obligations hereunder and that the Purchasers and the holders from time
to time of the Transfer Restricted Securities may be irreparably harmed by
any such failure, and accordingly agree that the Purchasers and such
holders, in addition to any other remedy to which they may be entitled at
law or in equity, shall be entitled to compel specific performance of the
obligations of the Company under this Exchange and Registration Rights
Agreement in accordance with the terms and conditions of this Exchange and
Registration Rights Agreement, in any court of the United States or any
State thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand, if delivered personally or by
courier, or three days after being deposited in the mail (registered or
certified mail, postage prepaid, return receipt requested) as follows: If
to the Company, to it at 9135 General Court, Plymouth, Michigan 48170, and
if to a holder, to the address of such holder set forth in the security
register or other records of the Company, or to such other address as the
Company or any such holder may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be
effective only upon receipt.
(d) Parties in Interest. All the terms and provisions of this Exchange
and Registration Rights Agreement shall be binding upon, shall inure to the
benefit of and shall be enforceable by the parties hereto and the holders
from time to time of the Transfer Restricted Securities and the respective
successors and assigns of the parties hereto and such holders. In the event
that any transferee of any holder of Transfer Restricted Securities
22
shall acquire Transfer Restricted Securities, in any manner, whether by
gift, bequest, purchase, operation of law or otherwise, such transferee
shall, without any further writing or action of any kind, be deemed a
beneficiary hereof for all purposes and such Transfer Restricted Securities
shall be held subject to all of the terms of this Exchange and Registration
Rights Agreement, and by taking and holding such Transfer Restricted
Securities such transferee shall be entitled to receive the benefits of,
and be conclusively deemed to have agreed to be bound by all of the
applicable terms and provisions of this Exchange and Registration Rights
Agreement. If the Company shall so request, any such successor, assign or
transferee shall agree in writing to acquire and hold the Transfer
Restricted Securities subject to all of the applicable terms hereof.
(e) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Exchange and
Registration Rights Agreement or made pursuant hereto shall remain in full
force and effect regardless of any investigation (or statement as to the
results thereof) made by or on behalf of any holder of Transfer Restricted
Securities, any director, officer or partner of such holder, any agent or
underwriter or any director, officer or partner thereof, or any controlling
person of any of the foregoing, and shall survive delivery of and payment
for the Transfer Restricted Securities pursuant to the Purchase Agreement
and the transfer and registration of Transfer Restricted Securities by such
holder and the consummation of an Exchange Offer.
(f) GOVERNING LAW. THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement are inserted
for convenience only, do not constitute a part of this Exchange and
Registration Rights Agreement and shall not affect in any way the meaning
or interpretation of this Exchange and Registration Rights Agreement.
(h) Entire Agreement; Amendments. This Exchange and Registration Rights
Agreement and the other writings referred to herein (including the
Indenture and the form of Securities) or delivered pursuant hereto which
form a part hereof contain the entire understanding of the parties with
respect to its subject matter. This Exchange and Registration Rights
Agreement supersedes all prior agreements and understandings between the
parties with respect to its subject matter. This Exchange and Registration
Rights Agreement may be amended and the observance of any term of this
Exchange and Registration Rights Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively) only
by a written instrument duly executed by the Company and the holders of at
least a majority in aggregate principal amount of the Transfer Restricted
Securities at the time outstanding. Each holder of any Transfer Restricted
Securities at the time or thereafter outstanding shall be bound by any
amendment or waiver effected pursuant to this Section 9(h), whether or not
any notice, writing or marking indicating such amendment or waiver appears
on such Transfer Restricted Securities or is delivered to such holder.
(i) Inspection. For so long as this Exchange and Registration Rights
Agreement shall be in effect, this Exchange and Registration Rights
Agreement and a complete list of the names and addresses of all the holders
of Transfer Restricted Securities shall be made available for inspection
and copying on any business day by any holder of Transfer
23
Restricted Securities for proper purposes only (which shall include any
purpose related to the rights of the holders of Transfer Restricted
Securities under the Securities, the Indenture and this Agreement) at the
offices of the Company at the address thereof set forth in Section 9(c)
above and at the office of the Trustee under the Indenture.
(j) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
24
If the foregoing is in accordance with your understanding, please sign
and return to us one for the Company, the Guarantors and each of the
Representatives plus one for each counsel counterparts hereof, and upon the
acceptance hereof by you, on behalf of each of the Purchasers, this letter and
such acceptance hereof shall constitute a binding agreement between each of the
Purchasers, the Guarantors and the Company. It is understood that your
acceptance of this letter on behalf of each of the Purchasers is pursuant to the
authority set forth in a form of Agreement among Purchasers, the form of which
shall be submitted to the Company for examination upon request, but without
warranty on your part as to the authority of the signers thereof.
Very truly yours,
PLASTIPAK HOLDINGS, INC.
By: /S/ William C. Young
------------------------------------
Name: William C. Young
Title: President
CLEAN TECH, INC.
By: /S/ William C. Young
------------------------------------
Name: William C. Young
Title: President
PLASTIPAK PACKAGING, INC.
By: /S/ William C. Young
------------------------------------
Name: William C. Young
Title: President
TABB REALTY, LLC
By: Plastipak Holdings, Inc.
By: /S/ William C. Young
------------------------------------
Name: William C. Young
Title: Manager
WHITELINE EXPRESS, LTD.
By: /S/ William C. Young
------------------------------------
Name: William C. Young
Title: President
25
Accepted as of the date hereof:
GOLDMAN, SACHS & CO.
AND THE INITIAL PURCHASERS NAMED ON SCHEDULE I TO THE PURCHASE AGREEMENT.
By: /S/ Goldman, Sachs & Co.
----------------------------------------
(Goldman, Sachs & Co.)
26
EXHIBIT A
PLASTIPAK HOLDINGS, INC.
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: *
The Depository Trust Company ("DTC") has identified you as a DTC Participant
through which beneficial interests in the Plastipak Holdings, Inc. (the
"Company") 10.75% Senior Notes due 2011 (the "Securities") are held.
The Company is in the process of registering the Securities under the Securities
Act of 1933 for resale by the beneficial owners thereof. In order to have their
Securities included in the registration statement, beneficial owners must
complete and return the enclosed Notice of Registration Statement and Selling
Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy of the
enclosed materials as soon as possible as their rights to have the Securities
included in the registration statement depend upon their returning the Notice
and Questionnaire by . Please forward a copy of the enclosed
documents to each beneficial owner that holds interests in the Securities
through you. If you require more copies of the enclosed materials or have any
questions pertaining to this matter, please contact Plastipak Holdings, Inc.,
9135 General Court, Plymouth, MI 48170.
- ----------
*Not less than 28 calendar days from date of mailing.
A-1
PLASTIPAK HOLDINGS, INC.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Exchange and Registration Rights Agreement (the
"Exchange and Registration Rights Agreement") between Plastipak Holdings, Inc.
(the "Company") and the Purchasers named therein. Pursuant to the Exchange and
Registration Rights Agreement, the Company has filed with the United States
Securities and Exchange Commission (the "Commission") a registration statement
on Form (the "Shelf Registration Statement") for the registration and resale
under Rule 415 of the Securities Act of 1933, as amended (the "Securities Act"),
of the Company's 10.75% Senior Notes due 2011 (the "Securities"). A copy of the
Exchange and Registration Rights Agreement is attached hereto. All capitalized
terms not otherwise defined herein shall have the meanings ascribed thereto in
the Exchange and Registration Rights Agreement.
Each beneficial owner of Transfer Restricted Securities (as defined below) is
entitled to have the Transfer Restricted Securities beneficially owned by it
included in the Shelf Registration Statement. In order to have Transfer
Restricted Securities included in the Shelf Registration Statement, this Notice
of Registration Statement and Selling Securityholder Questionnaire ("Notice and
Questionnaire") must be completed, executed and delivered to the Company's
counsel at the address set forth herein for receipt ON OR BEFORE .
Beneficial owners of Transfer Restricted Securities who do not complete, execute
and return this Notice and Questionnaire by such date (i) will not be named as
selling securityholders in the Shelf Registration Statement and (ii) may not use
the Prospectus forming a part thereof for resales of Transfer Restricted
Securities.
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and related Prospectus. Accordingly, holders
and beneficial owners of Transfer Restricted Securities are advised to consult
their own securities law counsel regarding the consequences of being named or
not being named as a selling securityholder in the Shelf Registration Statement
and related Prospectus.
The term "Transfer Restricted Securities" is defined in the Exchange and
Registration Rights Agreement.
A-2
ELECTION
The undersigned holder (the "Selling Securityholder") of Transfer Restricted
Securities hereby elects to include in the Shelf Registration Statement the
Transfer Restricted Securities beneficially owned by it and listed below in Item
(3). The undersigned, by signing and returning this Notice and Questionnaire,
agrees to be bound with respect to such Transfer Restricted Securities by the
terms and conditions of this Notice and Questionnaire and the Exchange and
Registration Rights Agreement, including, without limitation, Section 6 of the
Exchange and Registration Rights Agreement, as if the undersigned Selling
Securityholder were an original party thereto.
Upon any sale of Transfer Restricted Securities pursuant to the Shelf
Registration Statement, the Selling Securityholder will be required to deliver
to the Company and Trustee the Notice of Transfer set forth in Appendix A to the
Prospectus and as Exhibit B to the Exchange and Registration Rights Agreement.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
A-3
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
--------------------------------------------------------------------
(b) Full Legal Name of Registered Holder (if not the same as in (a)
above) of Transfer Restricted Securities Listed in Item (3) below:
--------------------------------------------------------------------
(c) Full Legal Name of DTC Participant (if applicable and if not the
same as (b) above) Through Which Transfer Restricted Securities
Listed in Item (3) below are Held:
--------------------------------------------------------------------
(2) Address for Notices to Selling Securityholder:
-----------------------------------------
-----------------------------------------
-----------------------------------------
Telephone:
-----------------------------------------
Fax:
-----------------------------------------
Contact Person:
-----------------------------------------
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Principal amount of Transfer Restricted Securities beneficially
owned:
--------------------------------
CUSIP No(s). of such Transfer Restricted Securities:
-----------------
(b) Principal amount of Securities other than Transfer Restricted
Securities beneficially owned:
---------------------------------------
CUSIP No(s). of such other Securities:
-------------------------------
(c) Principal amount of Transfer Restricted Securities which the
undersigned wishes to be included in the Shelf Registration
Statement:
-----------------------------------------------------------
CUSIP No(s). of such Transfer Restricted Securities to be included in
the Shelf Registration Statement:
------------------------------------
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any
other securities of the Company, other than the Securities listed
above in Item (3).
State any exceptions here:
A-4
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any
of its affiliates, officers, directors or principal equity holders
(5% or more) has held any position or office or has had any other
material relationship with the Company (or its predecessors or
affiliates) during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in Item
(3) only as follows (if at all): Such Registrable Securities may be
sold from time to time directly by the undersigned Selling
Securityholder or, alternatively, through underwriters,
broker-dealers or agents. Such Registrable Securities may be sold in
one or more transactions at fixed prices, at prevailing market prices
at the time of sale, at varying prices determined at the time of
sale, or at negotiated prices. Such sales may be effected in
transactions (which may involve crosses or block transactions) (i) on
any national securities exchange or quotation service on which the
Registered Securities may be listed or quoted at the time of sale,
(ii) in the over-the-counter market, (iii) in transactions otherwise
than on such exchanges or services or in the over-the-counter market,
or (iv) through the writing of options. In connection with sales of
the Registrable Securities or otherwise, the Selling Securityholder
may enter into hedging transactions with broker-dealers, which may in
turn engage in short sales of the Registrable Securities in the
course of hedging the positions they assume. The Selling
Securityholder may also sell Registrable Securities short and deliver
Registrable Securities to close out such short positions, or loan or
pledge Registrable Securities to broker-dealers that in turn may sell
such securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
In the event that the Selling Securityholder transfers all or any portion of the
Transfer Restricted Securities listed in Item (3) above after the date on which
such information is provided to the Company, the Selling Securityholder agrees
to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling
A-5
Securityholder understands that such information will be relied upon by the
Company in connection with the preparation of the Shelf Registration Statement
and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section 3(d) of
the Exchange and Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Securityholder agrees to promptly notify the Company of any inaccuracies
or changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Exchange and Registration
Rights Agreement shall be made in writing, by hand-delivery, first-class mail,
or air courier guaranteeing overnight delivery as follows:
(i) To the Company:
Plastipak Holdings, Inc.
9135 General Court
P.O. Box 2500C
Plymouth, Michigan 48170-0907
Attention: Leann M. Underhill
(ii) With a copy to:
Seyburn, Kahn, Ginn, Bess & Serlin, P.C.
2000 Town Center
Suite 1500
Southfield, Michigan 48075-1195
Attention: Bruce S. Kahn
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Company and the
Selling Securityholder (with respect to the Transfer Restricted Securities
beneficially owned by such Selling Securityholder and listed in Item (3) above.
This Agreement shall be governed in all respects by the laws of the State of New
York.
A-6
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated:
----------------------------
--------------------------------------------------------------
Selling Securityholder
(Print/type full legal name of beneficial owner of Transfer
Restricted Securities)
By:
---------------------------------------------------------
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE TO THE COMPANY'S COUNSEL AT:
Seyburn, Kahn, Ginn, Bess & Serlin, P.C.
2000 Town Center
Suite 1500
Southfield, Michigan 48075-1195
Attention: Bruce S. Kahn
A-7
EXHIBIT B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
Wells Fargo Bank Minnesota, National Association
Plastipak Holdings, Inc.
c/o Wells Fargo Bank Minnesota, National Association
213 Court Street, Suite 902
Middletown, Connecticut 06457
Attention: Trust Officer
Re: Plastipak Holdings, Inc. (the "Company")
10.75% Senior Notes due 2011
Dear Sirs:
Please be advised that has transferred $
aggregate principal amount of the above-referenced Notes pursuant to an
effective Registration Statement on Form (File No. 333- ) filed by the
Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Notes is named as a "Selling Holder" in the Prospectus
dated or in supplements thereto, and that the aggregate principal
amount of the Notes transferred are the Notes listed in such Prospectus opposite
such owner's name.
Dated:
Very truly yours,
----------------------------
(Name)
By:
----------------------------
(Authorized Signature)
B-1