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
-------------------------------------
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
September 25, 2002
Goldman, Sachs & Co.
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 Purchaser (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 Purchaser to
enter into the Purchase Agreement and in satisfaction of a condition to the
obligations of the Purchaser thereunder, the Company and the Guarantors agree
with the Purchaser 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.
"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
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EXHIBIT 4.3
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
September 18, 2002, among the Purchaser, the Guarantors and the Company
relating to the Securities.
"Purchaser" shall mean Goldman, Sachs & Co.
"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
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EXHIBIT 4.3
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 Purchaser 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;
(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.
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EXHIBIT 4.3
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 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 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
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EXHIBIT 4.3
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 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
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EXHIBIT 4.3
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 succeding 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.
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
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EXHIBIT 4.3
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 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
7
EXHIBIT 4.3
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;
(viii) 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
8
EXHIBIT 4.3
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 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
9
EXHIBIT 4.3
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;
(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;
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EXHIBIT 4.3
(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 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;
11
EXHIBIT 4.3
(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 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
12
EXHIBIT 4.3
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
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
13
EXHIBIT 4.3
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 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
14
EXHIBIT 4.3
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 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
15
EXHIBIT 4.3
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, 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 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,
16
EXHIBIT 4.3
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 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
17
EXHIBIT 4.3
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.
(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.
18
EXHIBIT 4.3
(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 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.
19
EXHIBIT 4.3
(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.
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 Purchaser 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 Purchaser 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
20
EXHIBIT 4.3
(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 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
21
EXHIBIT 4.3
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 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.
22
EXHIBIT 4.3
If the foregoing is in accordance with your understanding, please sign
and return to us one for the Company, the Guarantors and one for each counsel
counterparts hereof, and upon the acceptance hereof by you, this letter and such
acceptance hereof shall constitute a binding agreement among the Purchaser, the
Guarantors and the Company.
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: /S/ William C. Young
------------------------------------
Name: William C. Young
Title: Manager
Whiteline Express, Ltd.
By: /S/ William C. Young
------------------------------------
Name: William C. Young
Title: President
23
EXHIBIT 4.3
Accepted as of the date hereof:
Goldman, Sachs & Co.
By: /S/ Goldman, Sachs & Co.
------------------------------------------
(Goldman, Sachs & Co.)
24
EXHIBIT 4.3
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
EXHIBIT 4.3
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 Purchaser 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
EXHIBIT 4.3
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
EXHIBIT 4.3
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
EXHIBIT 4.3
(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 Transfer Restricted Securities listed
above in Item (3) only as follows (if at all): Such Transfer
Restricted Securities may be sold from time to time directly by the
undersigned Selling Securityholder or, alternatively, through
underwriters, broker-dealers or agents. Such Transfer Restricted
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 Transfer Restricted Securities or
otherwise, the Selling Securityholder may enter into hedging
transactions with broker-dealers, which may in turn engage in short
sales of the Transfer Restricted Securities in the course of hedging
the positions they assume. The Selling Securityholder may also sell
Transfer Restricted Securities short and deliver Transfer Restricted
Securities to close out such short positions, or loan or pledge
Transfer Restricted 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
EXHIBIT 4.3
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: Marguerite M. Donahue
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
EXHIBIT 4.3
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: Marguerite M. Donahue
A-7
EXHIBIT 4.3
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