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EXHIBIT 10.33
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("AGREEMENT") is made as of
this 12th day of April, 1999 by and among Tenneco Packaging Inc., a Delaware
corporation ("TPI"), PCA Holdings LLC, a Delaware limited liability company
("PCA"), and Packaging Corporation of America, a Delaware corporation ("NEWCO").
PRELIMINARY RECITALS
1. TPI, PCA and Newco are parties to that certain
Contribution Agreement, dated as of January 25, 1999, as amended (the
"CONTRIBUTION AGREEMENT"), relating to the organization, ownership and
management of Newco and certain other matters.
2. As an inducement to TPI and PCA to enter into and
consummate the transactions contemplated by the Contribution Agreement, Newco
has agreed to provide certain registration rights to TPI and PCA and transferees
(to the extent provided herein) of their equity securities of Newco as provided
herein.
NOW, THEREFORE, the parties hereto AGREE as follows:
1. CERTAIN DEFINITIONS.
"COMMON STOCK" means the common stock, par value $.01 per
share, of Newco.
"PERSON" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, a limited
liability company or other unincorporated organization, and a governmental
entity or any department, agency or political subdivision thereof.
"PIK SECURITIES" means the preferred stock of Newco with a
pay-in-kind feature, as described in the Commitment Letters (as such term is
defined in the Contribution Agreement).
"REGISTRABLE SECURITIES" means, as of any date: (i) Common
Stock and PIK Securities issued pursuant to the Contribution Agreement to TPI,
PCA or any of their respective Affiliates on the date hereof; and (ii) any
Common Stock or PIK Securities issued or issuable with respect to the Common
Stock or PIK Securities in the preceding clause (i) by way of or in connection
with a stock dividend, stock split, combination of shares, share subdivision,
share exchange, recapitalization, merger, consolidation or other reorganization
or transaction (including without limitation any PIK Securities issued pursuant
to the terms of PIK Securities). As of any date, Registrable Securities owned by
TPI or any of its Affiliates are sometimes referred to herein as "TPI
REGISTRABLE SECURITIES." As of any date, Registrable Securities owned by PCA, by
its members which are members of PCA as of the date hereof or by any of their
Affiliates are sometimes referred to herein as "PCA REGISTRABLE SECURITIES." As
of any date, Registrable Securities owned by any direct or indirect transferee
of TPI (other than an Affiliate of TPI) or by any direct or indirect transferee
of PCA (other than an Affiliate of PCA or member of PCA as of the date hereof)
are sometimes referred to herein as "TRANSFEREE REGISTRABLE SECURITIES." As to
any particular
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Registrable Securities, such securities will cease to be Registrable Securities
when they have been distributed to the public pursuant to a offering registered
under the Securities Act of 1933, as amended from time to time (the "SECURITIES
ACT"), or distributed to the public in compliance with Rule 144 under the
Securities Act. For purposes of this Agreement, a Person will be deemed to be a
holder of Registrable Securities whenever such Person has the right to acquire
directly or indirectly such Registrable Securities (upon conversion or exercise
in connection with a transfer of securities or otherwise, but disregarding any
restrictions or limitations upon the exercise of such right), whether or not
such acquisition has actually been effected.
"REGISTRATION EXPENSES" means any and all expenses incident to
performance of, or compliance with any registration of securities pursuant to,
this Agreement, including, without limitation: (i) the fees, disbursements and
expenses of Newco's counsel and accountants; (ii) the fees, disbursements and
expenses of one or more firms, as applicable pursuant to the terms of this
Agreement, selected as counsel for the holders of the Registrable Securities in
connection with the registration of the securities to be disposed of; (iii) all
expenses, including registration and filing fees, in connection with the
preparation, printing, filing and distribution of the registration statement,
any preliminary prospectus or final prospectus, term sheets and any other
offering documents, and amendments and supplements thereto, and the mailing and
delivering of copies thereof to any underwriters and dealers; (iv) the cost of
printing or producing any underwriting agreements and blue sky or legal
investment memoranda, and any other documents in connection with the offering,
sale or delivery of the securities to be disposed of; (v) all expenses in
connection with the qualification of the securities to be disposed of for
offering and sale under state securities laws, including the fees, disbursements
and expenses of counsel for the underwriters or the holders of the Registrable
Securities in connection with such qualification and in connection with any blue
sky and legal investment surveys; (vi) the filing fees incident to securing any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the securities to be disposed of; (vii) transfer agents'
and registrars' fees and expenses and the fees and expenses of any other agent
or trustee appointed in connection with such offering; (viii) all security
engraving and security printing expenses; (ix) all fees, disbursements and
expenses payable in connection with the listing of the securities on any
securities exchange or automated interdealer quotation system and the rating of
such securities; (x) any other fees, disbursements and expenses of underwriters
customarily paid by the sellers of securities (excluding underwriting discounts
and commissions); (xi) all liability insurance expense; and (xii) other
out-of-pocket expenses of the holders of the Registrable Securities
participating in such registration. Notwithstanding the foregoing, each holder
of the Registrable Securities and Newco shall be responsible for its own
internal administrative and similar costs.
2. DEMAND REGISTRATIONS.
(a) GENERAL. At any time and from time to time, upon
written notice from either the holders of at least 75% of the TPI Registrable
Securities or the holders of at least 75% of the PCA Registrable Securities
requesting that Newco effect the registration under the Securities Act of any or
all the TPI Registrable Securities or the PCA Registrable Securities,
respectively, Newco shall effect the registration (under the Securities Act and
applicable state securities laws) of such securities (and other Registrable
Securities subject to Sections 2(c) and 2(d) below) in accordance with such
notice, Section 5 below and the other provisions of this Agreement. The notice
shall
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specify the approximate number of Registrable Securities to be registered and
the expected per share price range for the offering. A registration pursuant to
this Section 2 is sometimes referred to herein as a "DEMAND REGISTRATION."
(b) LIMITATIONS ON DEMAND REGISTRATIONS; DEMAND
REGISTRATION FORMS AND EXPENSES. The holders of the TPI Registrable Securities,
on the one hand, and the holders of the PCA Registrable Securities, on the other
hand, each shall be entitled to separately request pursuant to this Section 2:
(i) three (3) effected registrations on Form S-1
or any similar or successor long form
registration including, without limitation,
Form A contemplated by the Securities and
Exchange Commission ("SEC") in Release No.
33-7606 dated October 15, 1998 (the
"AIRCRAFT CARRIER RELEASE") ("LONG-FORM
REGISTRATIONS") in which Newco shall pay all
Registration Expenses;
(ii) an unlimited number of registrations on Form
S-2 or S-3 or any similar or successor short
form registration including, without
limitation, Form B contemplated by the SEC
in the Aircraft Carrier Release ("SHORT-FORM
REGISTRATIONS") in which Newco shall pay all
Registration Expenses; and
(iii) an unlimited number of Long-Form
Registrations in which the holders of the
Registrable Securities participating in such
registration shall pay all Registration
Expenses.
For purposes of clause (iii) above, each holder of securities included in
accordance with this Agreement in any registration pursuant to clause (iii)
shall pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration Expenses not so allocable
will be borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of the securities to be so registered.
Newco shall pay and be solely responsible for Registration Expenses with respect
to registrations effected under clause (i) and (ii) above.
After Newco has become subject to the Securities Exchange Act
of 1934, as amended from time to time ("EXCHANGE ACT"), Newco will use its
reasonable best efforts to make Short-Form Registrations available for the sale
of Registrable Securities. Demand Registrations will be Short-Form Registrations
whenever Newco is permitted to use any applicable short form; provided, however,
that Newco shall nevertheless use a Long-Form Registration Statement in the
event that both: (i) the use of a Short-Form Registration Statement would limit
the offering to existing security holders, qualified institutional buyers or
other classes of offerees or would otherwise, in the opinion of the managing
underwriters, have an adverse effect on the offering under the Securities Act
and regulations thereunder as then in effect; and (ii) the holders of 90% of the
TPI Registrable Securities or PCA Registrable Securities, as the case may be,
initially requesting the Demand Registration direct in such request that Newco
utilize a Long-Form Registration Statement.
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Notwithstanding any other provision of this Agreement to the
contrary, a registration requested hereunder shall not be deemed to have been
effected: (i) unless it has become and remains effective for the period
specified in Section 5(b); (ii) if after it has become effective such
registration is interfered with by any stop order, injunction or other order or
requirement of the Securities and Exchange Commission ("SEC") or other
governmental agency or court for any reason other than due solely to the fault
of the holders of the Registrable Securities participating therein and, as a
result thereof, the Registrable Securities requested to be registered cannot be
completely distributed in accordance with the plan of distribution set forth in
the registration statement; or (iii) if the conditions to closing specified in
any purchase agreement or underwriting agreement entered into in connection with
any such registration are not satisfied or waived other than due solely to the
fault of the holders of the Registrable Securities participating therein. In
addition, a Demand Registration initially requested by the holders of the TPI
Registrable Securities shall not be deemed to have been effected if the holders
of the TPI Registrable Securities are unable, as a result of the priority
provisions in Section 2(d) below, to sell at least 90% of the TPI Registrable
Securities initially requested to be included in such registration. Similarly, a
Demand Registration initially requested by the holders of the PCA Registrable
Securities shall not be deemed to have been effected if the holders of the PCA
Registrable Securities are unable, as a result of the priority provisions in
Section 2(d) below, to sell at least 90% of the PCA Registrable Securities
initially requested to be included in such registration.
(c) NOTICE TO OTHER HOLDERS; SELECTION OF UNDERWRITER
AND HOLDER'S COUNSEL. Within five (5) days after receipt of a request for a
Demand Registration, Newco will give prompt written notice (in any event within
five (5) days after its receipt of notice of any exercise of Demand Registration
rights under this Agreement) of such request to all other holders of Registrable
Securities, and subject to Section 2(d) below, will include within such
registration all Registrable Securities with respect to which Newco has received
written requests for inclusion therein within fifteen (15) days after receipt of
Newco's notice. The holders of a majority of the TPI Registrable Securities or
PCA Registrable Securities, as applicable, submitting the initial request (i.e.
excluding the holders submitting requests after Newco's notice) shall have the
right to select the investment bankers and managers for the offering, subject to
the approval of the other holders of the TPI Registrable Securities and PCA
Registerable Securities, if any, participating in such registration pursuant to
this Agreement, which approval shall not be unreasonably withheld.
Counsel for all holders of Registrable Securities in
connection with such registration shall be selected: (i) by the holders of a
majority of the TPI Registrable Securities, if holders of the TPI Registrable
Securities make the initial registration request; or (ii) by the holders of a
majority of the PCA Registrable Securities, if the holders of the PCA
Registrable Securities make the initial registration request; provided, however,
if the holders of a majority of the PCA Registrable Securities, on the one hand,
and a majority of the TPI Registrable Securities, on the other hand, reasonably
conclude, after consultation with the other, that such representation is likely
to result in a conflict of interest or materially adversely affect either
group's rights in connection with such registration, then the holders of a
majority of the PCA Registrable Securities and the holders of a majority of the
TPI Registrable Securities, respectively, shall each be entitled to select a
separate firm to represent them as counsel in connection with such registration.
The fees and expenses of such firm or firms acting as counsel for the holders of
the Registrable Securities shall be paid by
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Newco.
(d) PRIORITY ON DEMAND REGISTRATIONS. Newco shall not
include in any Demand Registration any securities which are not Registrable
Securities without the prior written consent of the holders of at least 90% of
the Registrable Securities included in such registration. If a Demand
Registration is an underwritten offering and the managing underwriters advise
Newco in writing that in their opinion the number of Registrable Securities and,
if permitted hereunder, other securities requested to be included in such
offering exceeds the number of Registrable Securities and other securities, if
any, which can be sold in an orderly manner in such offering within a price
range acceptable to the holders of a majority of the TPI Registrable Securities
or PCA Registrable Securities, as applicable, initially requesting registration,
Newco will include in such registration:
(A) if requested by the holders of the TPI
Registrable Securities or by the holders of the PCA
Registrable Securities at any time during the 14-month period
commencing on the date hereof (the "SPECIAL PRIORITY PERIOD"),
only the number of Registrable Securities which such
underwriters advise in writing can be sold in such manner and
within such price range in the following order of priority:
(i) first, the TPI Registrable Securities, if
any, requested to be included therein,
pro-rata among the holders of such TPI
Registrable Securities on the basis of the
number of shares requested to be included by
each such holder;
(ii) second, the PCA Registrable Securities, if
any, requested to be included therein,
pro-rata among the holders of such PCA
Registrable Securities on the basis of the
number of shares requested to be included by
each such holder;
(iii) third, the Transferee Registrable
Securities, if any, requested to be included
therein, pro-rata among the holders of such
Transferee Registrable Securities on the
basis of the number of shares requested to
be included by each such holder; and
(iv) fourth, any other securities requested to be
included in such registration; and
(B) if requested by the holders of the TPI
Registrable Securities or by the holders of the PCA
Registrable Securities at any time after the Special Priority
Period, only the number of Registrable Securities which such
underwriters advise in writing can be sold in such manner and
within such price range in the following order of priority:
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(i) first, the TPI Registrable Securities and
the PCA Registrable Securities requested to
be included therein, pro-rata among the
holders of such Registrable Securities on
the basis of the number of shares requested
to be included by each such holder;
(ii) second, the Transferee Registrable
Securities, if any, requested to be included
therein, pro-rata among the holders of such
Transferee Registrable Securities on the
basis of the number of shares requested to
be included by each such holder; and
(iii) third, any other securities requested to be
included in such registration.
(e) RESTRICTIONS ON DEMAND REGISTRATIONS. Newco will not
be obligated to effect any Demand Registration within 90 days after the
effective date of a previous Demand Registration or previous registration in
which holders of Registrable Securities were given piggyback rights pursuant to
Section 3 at an offering price acceptable to the holders of the Registrable
Securities and in which there was no reduction in the number of Registrable
Securities requested to be included. Additionally, Newco may postpone for up to
90 days (on not more than one occasion during any 12-month period) the filing or
the effectiveness of a registration statement for a Demand Registration if,
based on the advice of counsel, Newco reasonably determines that such Demand
Registration would likely have an adverse effect on any proposal or plan by
Newco to engage in any acquisition of assets (other than in the ordinary course
of business) or any merger, consolidation, tender offer or similar transaction;
provided, however, that in such event, the holders of Registrable Securities
initially requesting such Demand Registration will be entitled to withdraw such
request and, if such request is withdrawn, such Demand Registration will not
count as one of the permitted Demand Registrations hereunder and Newco will pay
all Registration Expenses in connection with such registration.
(f) OTHER REGISTRATION RIGHTS. Newco will not register
for the benefit of any Person other than TPI, PCA or their respective direct or
indirect transferees, or grant to any such other Person the right to request
Newco to register or to participate in Piggyback Registrations with respect to,
any equity securities of Newco, or any securities convertible or exchangeable
into or exercisable for such securities, without the prior written consent of
both (i) TPI, as long as it or any of its Affiliates owns any TPI Registrable
Securities and (ii) PCA, as long as it or any of its Affiliates owns any PCA
Registrable Securities.
3. PIGGYBACK REGISTRATIONS.
(a) GENERAL; NOTICE TO HOLDERS. In addition to the
registration rights in Section 2 above, whenever Newco proposes to register any
of its securities under the Securities Act (other than pursuant to a Demand
Registration hereunder) and the registration form to be used may be used for the
registration of Registrable Securities, Newco will give prompt written notice
(in any event within five (5) days after its receipt of notice of any exercise
of demand registration rights other than under this Agreement) to all holders of
Registrable Securities of its intention to effect such a registra-
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tion. Subject to Sections 3(c) and 3(d) below, Newco shall include in such
registration all Registrable Securities with respect to which Newco has received
written requests for inclusion therein within fifteen (15) days after the
receipt of Newco's notice. Registrations under this Section 3 are sometimes
referred to herein as "PIGGYBACK REGISTRATIONS."
(b) NUMBER OF PIGGYBACK REGISTRATIONS; PIGGYBACK
REGISTRATION EXPENSES. The holders of the Registrable Securities shall be
entitled to participate in an unlimited number of Piggyback Registrations. The
Registration Expenses of the holders of Registrable Securities will be paid by
Newco in all Piggyback Registrations.
(c) PRIORITY ON PRIMARY PIGGYBACK REGISTRATIONS. SUBJECT
To Section 3(f) below, if a Piggyback Registration is an underwritten primary
registration on behalf of Newco, and the managing underwriters advise Newco in
writing that in their opinion the number of securities requested to be included
in such registration exceeds the number which can be sold in an orderly manner
in such offering within a price range acceptable to Newco, Newco will include in
such registration:
(A) in the case of a registration with respect to
which Newco has provided notice under Section 3(a) above at
any time during the Special Priority Period, only the number
of securities (including Registrable Securities) which such
underwriters advise in writing can be sold in such manner and
within such price range in the following order of priority:
(i) first, the securities Newco proposes to sell;
(ii) second, the TPI Registrable Securities, if
any, requested to be included therein,
pro-rata among the holders of such TPI
Registrable Securities on the basis of the
number of shares requested to be included by
each such holder;
(iii) third, the PCA Registrable Securities, if
any, requested to be included therein,
pro-rata among the holders of such PCA
Registrable Securities on the basis of the
number of shares requested to be included by
each such holder;
(iv) fourth, the Transferee Registrable
Securities, if any, requested to be included
therein, pro-rata among the holders of such
Transferee Registrable Securities on the
basis of the number of shares requested to be
included by each such holder; and
(v) fifth, any other securities requested to be
included in such registration; and
(B) in the case of a registration with respect to
which Newco has provided notice under Section 3(a) above at
any time after the Special Priority Period, only the
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number of securities (including Registrable Securities) which
such underwriters advise in writing can be sold in such manner
and within such price range in the following order of
priority:
(i) first, the securities Newco proposes to sell;
(ii) second, the TPI Registrable Securities and
the PCA Registrable Securities, if any,
requested to be included therein, pro-rata
among the holders of such Registrable
Securities on the basis of the number of
shares requested to be included by each such
holder;
(iii) third, the Transferee Registrable Securities,
if any, requested to be included therein,
pro-rata among the holders of such Transferee
Registrable Securities on the basis of the
number of shares requested to be included by
each such holder; and
(iv) fourth, any other securities requested to be
included in such registration.
(d) PRIORITY ON SECONDARY PIGGYBACK REGISTRATIONS.
Subject to Section 3(f) below, if a Piggyback Registration is an underwritten
secondary registration on behalf of holders of Newco's securities, and the
managing underwriters advise Newco in writing that in their opinion the number
of securities requested to be included in such registration exceeds the number
which can be sold in an orderly manner in such offering within a price range
acceptable to the holders initially requesting such registration, Newco will
include in such registration:
(A) in the case of a registration with respect to
which Newco has provided notice under Section 3(a) above at
any time during the Special Priority Period, only the number
of securities (including Registrable Securities) which can be
sold in such manner and within such price range in the
following order of priority:
(i) first, the securities requested to be
included therein by the holders requesting
such registration and the TPI Registrable
Securities, if any, requested to be included
therein, pro-rata among the holders of such
securities (including Registrable Securities)
on the basis of the number of shares
requested to be included by each such holder;
(ii) second, the PCA Registrable Securities, if
any, requested to be included therein,
pro-rata among the holders of such PCA
Registrable Securities on the basis of the
number of shares requested to be included by
each such holder;
(iii) third, the Transferee Registrable Securities,
if any, requested to be included therein,
pro-rata among the holders of such Transferee
Registrable Securities on the basis of the
number of shares requested
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to be included by each such holder; and
(iv) fourth, any other securities requested to be
included in such registration; and
(B) in the case of a registration with respect to
which Newco has provided notice under Section 3(a) above at
any time after the Special Priority Period, only the number of
securities (including Registrable Securities) which can be
sold in such manner and within such price range in the
following order of priority:
(i) first, the securities requested to be
included therein by the holders requesting
such registration, the TPI Registrable
Securities, if any, requested to be included
therein, and the PCA Registrable Securities,
if any, requested to be included therein,
pro-rata among the holders of such securities
(including Registrable Securities) on the
basis of the number of shares requested to be
included by each such holder;
(ii) second, the Transferee Registrable
Securities, if any, requested to be included
therein, pro-rata among the holders of such
Transferee Registrable Securities on the
basis of the number of shares requested
to be included by each such holder; and
(iii) third, any other securities requested to be
included in such registration.
(e) SELECTION OF UNDERWRITER AND HOLDER'S COUNSEL. If any
Piggyback Registration is an underwritten offering, the selection of investment
bankers and managers for the offering must be approved by the holders of a
majority of the Registrable Securities included in such Piggyback Registration.
Such approval will not be unreasonably withheld. The holders of the TPI
Registrable Securities and the PCA Registrable Securities shall have the right
to select one or two firms as counsel as provided in Section 2(c) above, the
fees and expenses of which shall be paid by Newco.
(f) OTHER REGISTRATIONS. If Newco has been requested by
the holders of Registrable Securities to file a registration statement pursuant
to Section 2 above or if it has filed a Registration Statement pursuant to this
Section 3, and if such previous request or registration has not been withdrawn
or abandoned, Newco will not file or cause to be effected any other registration
of any of its equity securities or securities convertible or exchangeable into
or exercisable for its equity securities under the Securities Act (except on
Form S-8 or any successor form), whether on its own behalf or at the request of
any holder or holders of such securities, until the expiration of the
effectiveness period required under Section 5(b) below.
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4. HOLDBACK AGREEMENTS.
(a) AGREEMENT BY HOLDERS. Each holder of Registrable
Securities agrees not to effect any public sale or distribution (including sales
pursuant to Rule 144 under the Securities Act) of equity securities of Newco, or
any securities convertible into or exchangeable or exercisable for such
securities, during the seven days prior to and the 180-day period beginning on
the effective date of any underwritten Demand Registration or any underwritten
Piggyback Registration in which Registrable Securities are included (except as
part of such underwritten registration), unless the underwriters managing the
registered public offering otherwise agree.
(b) AGREEMENTS BY NEWCO. Newco agrees: (i) not to effect
or facilitate any public sale or distribution of its equity securities, or any
securities convertible into or exchangeable or exercisable for such securities,
during the thirty days prior to and during the 180-day period beginning on the
effective date of any underwritten Demand Registration or Piggyback Registration
(except as part of such underwritten Piggyback Registration or pursuant to
registrations on Form S-8 or any successor form), unless the underwriters
managing the registered public offering (and in the case of a Demand
Registration, the holders of a majority of the Registrable Securities included
therein) otherwise agree; and (ii) to cause Newco's directors, officers and
affiliates not to effect or facilitate any public sale or distribution
(including sales pursuant to Rule 144 under the Securities Act) of any equity
securities, or any securities convertible into or exchangeable or exercisable
for such securities during such period (except as part of such underwritten
registration, if otherwise permitted), unless the underwriters managing the
registered public offering, the holders of a majority of the TPI Registrable
Securities participating in such registration and the holders of a majority of
the PCA Registrable Securities participating in such registration otherwise
agree.
5. REGISTRATION AND QUALIFICATION. If and whenever
Newco is required to effect the registration of any Registrable Securities,
Newco shall as promptly as possible:
(a) prepare, file and use its reasonable best efforts to
cause to become effective a registration statement under the Securities Act
relating to the Registrable Securities to be offered and effect the sale of such
Registrable Securities, in each case in accordance with the intended method of
disposition thereof (Newco shall cause such registration statement to be
effective as promptly as possible but in any event within 120 days of the
request);
(b) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
to comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities included therein until the earlier of:
(i) such time as all of such Registrable Securities included therein have been
disposed of in accordance with the intended methods of disposition; and (ii) the
expiration of 180 days after such registration statement becomes effective;
provided, that such 180-day period shall be extended for such number of days
that equals the number of days elapsing from (x) the date the written notice
contemplated by paragraph 5(g) below is given by Newco to (y) the date on which
Newco delivers to the holders of the Registrable Securities included in such
registration statement the supplement or amendment contemplated by paragraph
5(g) below;
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(c) provide copies of all registration statements,
prospectus and amendments and supplements to each firm selected by the holders
of the Registrable Securities in accordance with this Agreement at least ten
days prior to the filing thereof (if practicable, at least one day in the case
of an amendment or supplement prepared pursuant to Section 5(g) below), with
such counsel being provided with the opportunity (but not the obligation) to
review and comment on such documents;
(d) furnish to the holders of the Registrable Securities
included in such registration statement and to any underwriter of such
Registrable Securities such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus included in
such registration statement (including each preliminary prospectus and any
summary prospectus) in conformity with the requirements of the Securities Act,
such documents incorporated by reference in such registration statement or
prospectus, such number of other offering documents, copies of any and all
transmittal letters or other correspondence to or received from, the SEC or any
other governmental agency or self-regulatory body or other body having
jurisdiction (including any domestic or foreign securities exchange) relating to
such offering, and such other documents, as the holders of such Registrable
Securities or such underwriter may reasonably request;
(e) use its reasonable best efforts to register or
qualify all Registrable Securities covered by such registration statement under
the securities or blue sky laws of such jurisdictions as the holders of the
Registrable Securities included in such registration statement or any
underwriter of such Registrable Securities shall request, and use its reasonable
best efforts to obtain all appropriate registrations, permits and consents in
connection therewith, and do any and all other acts and things which may be
necessary or advisable to enable such holders of such Registrable Securities or
any such underwriter to consummate the disposition in such jurisdictions of its
Registrable Securities covered by such registration statement;
(f) furnish to the holders of the Registrable Securities
included in such registration statement and to any underwriter of such
Registrable Securities: (i) an opinion of counsel for Newco addressed to the
holders of such Registrable Securities and dated the date of the closing under
the underwriting agreement (if any) (or if such offering is not underwritten,
dated the effective date of the registration statement); and (ii) a "cold
comfort" letter addressed to the holders of such Registrable Securities and
signed by the independent public accountants who have audited the financial
statements of Newco included in such registration statement, in each such case
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) as are customarily covered in
opinions of issuer's counsel and in accountants' letters delivered to
underwriters in underwritten public offerings of securities and such other
matters as the holders of such Securities may reasonably request and, in the
case of such accountants' letter, with respect to events subsequent to the date
of such financial statements;
(g) as promptly as practicable, notify the holders of the
Registrable Securities included in such registration statement in writing: (i)
at any time when a prospectus relating to a registration statement hereunder is
required to be delivered under the Securities Act, of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state any material fact
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required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; and (ii)
of any request by the SEC or any other regulatory body or other body having
jurisdiction for any amendment of or supplement to any registration statement or
other document relating to such offering, and in either such case, prepare and
furnish to the holders of such Registrable Securities a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be necessary
so that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
are made, not misleading;
(h) cause all such Registrable Securities included in
such registration statement to be listed on each securities exchange on which
similar securities issued by Newco are then listed and, if not so listed, to be
listed on the New York Stock Exchange;
(i) furnish for delivery in connection with the closing
of any offering of Registrable Securities pursuant to a registration hereunder
unlegended certificates representing ownership of the Registrable Securities
being sold in such denominations as shall be requested by the holders of the
Registrable Securities or the underwriters;
(j) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
(k) enter into such customary agreements and take all
such other actions as the holders of a majority of the Registrable Securities
being sold or the underwriters, if any, reasonably request in order to expedite
or facilitate the disposition of such Registrable Securities (including
effecting a stock split or a combination of shares);
(l) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering the
period of at least twelve months beginning with the first day of Newco's first
full calendar quarter after the effective date of the registration statement,
which earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder;
(m) permit any holder of Registrable Securities which
holder, in its sole and exclusive judgment, might be deemed to be an underwriter
or a controlling person of Newco, to participate in the preparation of such
registration statement and to require the insertion therein of material,
furnished to Newco in writing, which in the reasonable judgment of such holder
and its counsel should be included; and
(n) in the event of the issuance of any stop order
suspending the effectiveness of a registration statement, or of any order
suspending or preventing the use of any related prospectus or suspending the
qualification of any Common Stock included in such registration statement for
sale in any jurisdiction, Newco will use its reasonable best efforts promptly to
obtain the withdrawal of
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such order.
If any such registration or comparable statement refers to any
holder of Registrable Securities by name or otherwise as the holder of any
securities of Newco and if in its sole and exclusive judgment, such holder is or
might be deemed to be a controlling person of Newco, such holder will have the
right to require: (i) the insertion therein of language, in form and substance
satisfactory to such holder and presented to Newco in writing, to the effect
that the holding by such holder of such securities is not to be construed as a
recommendation by such holder of the investment quality of Newco's securities
covered thereby and that such holding does not imply that such holder will
assist in meeting any future financial requirements of Newco; or (ii) in the
event that such reference to such holder by name or otherwise is not required by
the Securities Act or any similar federal statute then in force, the deletion of
the reference to such holder; provided that with respect to this clause (ii)
such holder will furnish to Newco an opinion of counsel to such effect.
6. RECAPITALIZATION; UNDERWRITING; DUE DILIGENCE.
(a) For any Piggyback Registration or Demand Registration
prior to the time Newco becomes subject to the Exchange Act with respect to
Registrable Securities, Newco shall effect a stock split, stock dividend or
stock combination which in the opinion of the underwriters is desirable for the
sale and marketing of the Registrable Securities to the public.
(b) If requested by the underwriters for any underwritten
offering of Registrable Securities pursuant to a registration requested under
this Agreement, Newco shall enter into an underwriting agreement with such
underwriters for such offering, which agreement will contain such
representations and warranties by Newco and such other terms and provisions as
are customarily contained in underwriting agreements of Newco to the extent
relevant and as are customarily contained in underwriting agreements generally
with respect to secondary distributions to the extent relevant, including,
without limitation, indemnification and contribution provisions substantially to
the effect and to the extent provided in Section 7(a), and agreements as to the
provision of opinions of counsel and accountants' letters to the effect and to
the extent provided in Section 5(f). Subject to Section 9 below, the holders of
the Registrable Securities included in such registration shall be parties to any
such underwriting agreement and the representations and warranties by, and the
other agreements on the part of, Newco to and for the benefit of such
underwriters, shall also be made to and for the benefit of the holders of such
Registrable Securities.
(c) In connection with the preparation and filing of each
registration statement registering Registrable Securities under the Securities
Act pursuant to this Agreement, Newco shall give the holders of the Registrable
Securities included in such registration and the underwriters, if any, and their
respective counsel, accountants and agents, the opportunity (but such persons
shall not have the obligation) to review the books and records of Newco and to
discuss the business of Newco with its officers and the independent public
accountants who have certified the financial statements of Newco as shall be
necessary, in the opinion of the holders of such Registrable Securities and such
underwriters or their respective counsel, to conduct a reasonable investigation
within the meaning of the Securities Act.
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7. INDEMNIFICATION.
(a) NEWCO INDEMNIFICATION. Newco agrees to indemnify, to
the extent permitted by law, each holder of Registrable Securities, its officers
and directors and each Person who controls such holder (within the meaning of
the Securities Act) and the officers, directors, affiliates, employees and
agents of each of the foregoing (whether or not any litigation is commenced or
threatened and whether or not such indemnified Persons are parties to any
litigation commenced or threatened), against all losses, claims, damages,
liabilities and expenses including, without limitation, attorneys' fees, expert
fees and amounts paid in settlement, resulting from or arising out of any untrue
or alleged untrue statement of material fact contained in any registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same are caused by or contained in any
information furnished in writing to Newco by such holder expressly for use
therein or by such holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after Newco has
furnished such holder with a sufficient number of copies of the same. In
connection with an underwritten offering, Newco will indemnify such
underwriters, their officers and directors and each Person who controls such
underwriters (within the meaning of the Securities Act) to the same extent as
provided above with respect to the indemnification of the holders of Registrable
Securities. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of the holders of the Registrable
Securities or any underwriter and shall survive the transfer of such securities.
The foregoing indemnity agreement is in addition to any liability that Newco may
otherwise have to the holders of the Registrable Securities or any underwriter
of the Registrable Securities or any controlling Person of the foregoing and the
officers, directors, affiliates, employees and agents of each of the foregoing.
(b) HOLDER INDEMNIFICATION. In connection with any
registration statement in which a holder of Registrable Securities is
participating, each such holder agrees to indemnify, to the extent permitted by
law, Newco, its directors and officers and each Person who controls Newco
(within the meaning of the Securities Act) and the officers, directors,
affiliates, employees and agents of each of the foregoing (whether or not any
litigation is commenced or threatened and whether or not such indemnified
Persons are parties to any litigation commenced or threatened), against any
losses, claims, damages, liabilities and expenses including, without limitation,
attorneys' fees, expert fees and amounts paid in settlement, resulting from or
arising out of any untrue or alleged untrue statement of material fact contained
in the registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only to the extent that such untrue statement or
omission is contained in any information furnished in writing to Newco by such
holder expressly for use in such registration statement; provided, however, that
the obligation to indemnify will be individual to each such holder and will be
limited to the net amount of proceeds received by such holder from the sale of
Registrable Securities pursuant to such registration statement.
(c) RESOLUTION OF CLAIMS. Any Person entitled to
indemnification hereunder will: (i) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks
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indemnification hereunder; and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party will not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) CONTRIBUTION. If the indemnification provided for in
this Section 7 shall for any reason be unavailable (other than in accordance
with its terms) to an indemnified party in respect of any loss, claim, damage,
liability or expense referred to therein, then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage,
liability or expense in such proportion as shall be appropriate to reflect the
relative fault of the indemnifying party on the one hand and the indemnified
party on the other with respect to the statements or omissions which resulted in
such loss, claim, damage, liability or expense as well as any other relevant
equitable considerations. The relative fault shall be determined by reference to
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 the
indemnifying party on the one hand or the indemnified party on the other. The
amount paid or payable by an indemnified party as a result of the loss, cost,
claim, damage, liability or expense, or action in respect thereof, referred to
above in this Section 7(d) shall be deemed to include, for purposes of this
Section 7(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. 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. In any
event, a holder's obligation to provide contribution pursuant to this Section
7(d) shall be limited to the net amount of proceeds received by such holder from
the sale of Registrable Securities pursuant to such registration statement.
(e) STATE SECURITIES LAWS. Indemnification and
contribution similar to that specified in the preceding paragraphs of this
Section 7 (with appropriate modifications) shall be given by Newco, the holders
of the Registrable Securities and underwriters with respect to any required
registration or other qualification of securities under any state law or
regulation or governmental authority.
(f) OTHER RIGHTS. The obligations of the parties under
this Section 7 shall be in addition to any liability which any party may
otherwise have to any other party.
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8. RULE 144. Newco shall use its reasonable best efforts
to ensure that the conditions to the availability of Rule 144 set forth in
paragraph (c) thereof shall be satisfied. Upon the request of the holders of a
majority of the TPI Registrable Securities or the holders of a majority of the
PCA Registrable Securities, Newco will deliver to such holders a written
statement as to whether it has complied with such requirements.
9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No
holder of Registrable Securities may participate in any registration hereunder
which is underwritten unless such holder: (a) agrees to sell such holder's
securities on the basis provided in any underwriting arrangements contemplated
by such offering; and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements; provided, however, that no
holder of Registrable Securities included in any underwritten registration will
be required to make: (i) any representations or warranties to Newco, the
underwriters or other Persons other than representations and warranties
regarding such holder and such holder's intended method of distribution; or (ii)
any indemnities to Newco, the underwriter or other Persons on terms which are
not substantially identical to the provisions in Section 7(b) above.
10. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. Newco represents and
warrants to the holders of the Registrable Securities that it has not entered
into, and agrees with the holders of the Registrable Securities that it will not
hereafter enter into, any agreement with respect to its securities which is
inconsistent or conflicts with, or violates the rights granted to the holders of
Registrable Securities in, this Agreement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. In
addition to Newco's obligations under Section 6(a) above, Newco will not take
any action, or permit any change to occur, with respect to its securities which
would adversely affect the ability of the holders of Registrable Securities to
include such Registrable Securities in a registration undertaken pursuant to
this Agreement or which would adversely affect the marketability of such
Registrable Securities in any such registration (including effecting a stock
split or a combination of shares).
(c) REMEDIES. Each holder of Registrable Securities will
have all rights and remedies set forth in this Agreement, Newco's Certificate of
Incorporation and all rights and remedies which such holders have been granted
at any time under any other agreement and all of the rights which such holders
have under any law. Any Person having any rights under any provision of this
Agreement will be entitled to enforce such rights specifically, without posting
a bond or other security, to recover damages by reason of any breach of any
provision of this Agreement and to exercise all other rights granted by law.
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(d) AMENDMENTS; WAIVER. Except as otherwise expressly
provided herein, the provisions of this Agreement may be amended and Newco may
take any action herein prohibited, or omit to perform any act herein required to
be performed by it, only if Newco has obtained the written consent of both: (i)
TPI, as long as it or any of its Affiliates owns any TPI Registrable Securities;
and (ii) PCA, as long as it or any of its Affiliates owns any PCA Registrable
Securities. No other course of dealing between Newco and the holder of any
Registrable Securities or any delay in exercising any rights hereunder or under
the Certificate of Incorporation will operate as a waiver of any rights of any
such holders. For purposes of this Agreement, shares held by Newco or any of its
Subsidiaries will not be deemed to be Registrable Securities. If Newco pays any
consideration to any holder of Registrable Securities for such holder's consent
to any amendment, modification or waiver hereunder, Newco will also pay each
other holder granting its consent hereunder equivalent consideration computed on
a pro rata basis.
In the event that the Securities Act, Exchange Act and/or
regulations thereunder, respectively, are amended in a material respect and one
or more of such amendments reduce or diminish the benefits hereunder to the
holders of the Registrable Securities, including, without limitation, amendments
which may be adopted in connection with the Aircraft Carrier Release (any such
reducing or diminishing amendments being referred to herein as "SECURITIES LAW
AMENDMENTS"), Newco shall, upon the written request of both (i) TPI, as long as
it or any of its Affiliates owns any TPI Registrable Securities, and (ii) PCA,
as long as it or any of its Affiliates owns any PCA Registrable Securities,
amend this Agreement to provide the holders of the Registrable Securities with
benefits which, after giving effect to such Securities Law Amendments, are
equivalent to the benefits hereunder absent such Securities Law Amendments.
(e) HEADINGS. The headings in this Agreement are inserted
for convenience only and shall not be deemed to define or limit the scope of any
section or subsection.
(f) NOTICES. All requests, notices, demands or other
communications shall be in writing and will be deemed to have been given when
delivered to the recipient, when received by facsimile, one (1) business day
after the date when sent to the recipient by overnight courier service or five
(5) business days after the date when mailed to the recipient by certified or
registered mail, return receipt requested and postage prepaid. Such requests,
notices, demands and other communications will be sent to TPI, PCA and to Newco
at the addresses indicated below:
If to TPI:
Tenneco Packaging Inc.
1900 West Field Court
Lake Forest, Illinois 60045
Attn: General Counsel
Telecopy: 847/482-4589
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With a copy to:
Jenner & Block
One IBM Plaza
Chicago, Illinois 60611
Attn: Timothy R. Donovan, Esq.
Telecopy: 312/840-7271
If to PCA:
PCA Holdings, LLC
c/o Madison Dearborn Partners, Inc.
Three First National Plaza
Suite 3800
Chicago, Illinois 60602
Attn: Samuel M. Mencoff
Justin S. Huscher
Telecopy: (312) 895-1056
With a copy to:
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
Attn: William S. Kirsh, P.C.
Telecopy: 312/861-2200
If to Newco:
Packaging Corporation of America
1900 West Field Court
Lake Forest, Illinois 60045
Attn: Chief Executive Officer
Telecopy: 847/482-2446
or to such other address or to the attention of such other Person as the
recipient party has specified by prior written notice in accordance with the
procedures provided above. Notices to any other holders of Registrable
Securities shall be sent to the address specified by prior written notice to
Newco, TPI and PCA in accordance with the procedures provided above.
(g) NO THIRD-PARTY BENEFICIARIES. Subject to Section
10(k), this Agreement will not confer any rights or remedies upon any Person
other than Newco, TPI and PCA and their respective successors.
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(h) ENTIRE AGREEMENT. This Agreement (including the
documents referred to herein) constitutes the entire agreement among the parties
and supersedes any prior understandings, agreements, or representations by or
among the parties, written or oral, that may have related in any way to the
subject matter hereof.
(i) GOVERNING LAW. The corporate law of the State of
Delaware will govern all issues concerning the relative rights of Newco and its
stockholders. All other questions concerning the construction, validity and
interpretation of this Agreement will be governed by the internal law, and not
the law of conflicts, of the State of Illinois.
(j) SEVERABILITY. In the event any provision in this
Agreement is held to be invalid as applied to any fact or circumstance, it shall
be ineffective only to the extent of such invalidity, and such invalidity shall
not affect the other provisions of this Agreement or the same provision as
applied to any other fact or circumstance.
(k) SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon the parties hereto and their respective successors and any Person
who becomes a holder of Registrable Securities. This Agreement shall inure to
the benefit of and be enforceable by the parties hereto and their respective
successors and any Person who becomes a holder of Registrable Securities (to the
extent provided herein with respect to Registrable Securities of the type held
by such holder).
(l) COUNTERPARTS. This Agreement may be executed in
counterparts.
(m) TERMINATION. The rights of all holders of TPI
Registrable Securities under this Agreement shall terminate as of the date when
TPI, together with its Affiliates, holds Registrable Securities with a fair
market value of less than $500,000.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
NEWCO:
Packaging Corporation of America
By /s/ Richard B. West
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Its Secretary
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TPI:
Tenneco Packaging Inc.
By /s/ James V. Faulkner, Jr.
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Its Vice President
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PCA:
PCA Holdings, LLC
By /s/ Samuel M. Mencoff
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Its Managing Director
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