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EXHIBIT 4.27
EXECUTION COPY
OWENS-BROCKWAY GLASS CONTAINER INC.
8 3/4% SENIOR SECURED NOTES DUE 2012
REGISTRATION RIGHTS AGREEMENT
New York, New York
December 18, 2002
Salomon Smith Barney Inc.
Banc of America Securities LLC
Deutsche Bank Securities Inc.
Banc One Capital Markets, Inc.
Scotia Capital (USA) Inc.
Goldman, Sachs & Co.
Barclays Capital Inc.
BNP Paribas Securities Corp.
Credit Lyonnais Securities (USA) Inc.
Fleet Securities, Inc.
McDonald Investments Inc.
SG Cowen Securities Corporation
BNY Capital Markets, Inc.
TD Securities (USA) Inc.
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Dear Sirs:
Owens-Brockway Glass Container Inc., a corporation organized under the
laws of Delaware (the "COMPANY"), proposes to issue and sell to certain
purchasers (the "INITIAL PURCHASERS"), upon the terms set forth in a purchase
agreement dated December 11, 2002 (the "PURCHASE AGREEMENT"), its 8 3/4% Senior
Secured Notes due 2012 (the "NOTES") guaranteed by the Guarantors (the
"GUARANTEES" and, together with the Notes, the "SECURITIES") relating to the
initial placement of the Securities (the "INITIAL PLACEMENT"). To induce the
Initial Purchasers to enter into the Purchase Agreement and to satisfy a
condition of your obligations thereunder, each of the Company and the Guarantors
agree, as follows:
1. DEFINITIONS. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized defined terms shall have the following
meanings:
"ACT" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"ADDITIONAL SECURITIES" shall have the meaning set forth in the
Indenture.
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"ADVICE" shall have the meaning set forth in Section 6 hereof.
"AFFILIATE" of any specified Person shall mean any other Person that,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such specified Person. For purposes of this definition, "control"
of a Person shall mean the power, direct or indirect, to direct or cause the
direction of the management and policies of such Person whether by contract or
otherwise, and the terms "controlling" and "controlled" shall have meanings
correlative to the foregoing.
"BROKER-DEALER" shall mean any broker or dealer registered as such
under the Exchange Act.
"BROKER-DEALER TRANSFER RESTRICTED SECURITIES" shall mean New
Securities that are acquired by a Broker-Dealer in the Exchange Offer in
exchange for Securities that such Broker-Dealer acquired for its own account as
a result of market-making activities or other trading activities (other than
Securities acquired directly from the Company or any of its Affiliates).
"BUSINESS DAY" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City or in the city of the
corporate trust office of the Trustee.
"CLOSING DATE" shall mean the date of this Agreement.
"COMMISSION" shall mean the Securities and Exchange Commission.
"CONSUMMATE" an Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the New Securities to be issued in the Exchange Offer, (ii) the
maintenance of such Exchange Offer Registration Statement continuously effective
and the keeping of the Exchange Offer open for a period not less than the
minimum period required pursuant to Section 3(b) hereof, and (iii) the delivery
by the Company to the Registrar under the Indenture of New Securities in the
same aggregate principal amount as the aggregate principal amount of Securities
that were tendered by Holders thereof pursuant to the Exchange Offer.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"EXCHANGE OFFER" shall mean the registration by the Company and the
Guarantors under the Act of the New Securities pursuant to a Registration
Statement pursuant to which the Company offers the Holders of all outstanding
Transfer Restricted Securities the opportunity to exchange all such outstanding
Transfer Restricted Securities held by such Holders for New Securities in an
aggregate principal amount equal to the aggregate principal amount of the
Transfer Restricted Securities tendered in such exchange offer by such Holders.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean a registration
statement of the Company and the Guarantors on an appropriate form under the Act
with respect to the Exchange Offer, all amendments and supplements to such
registration statement, including post-
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effective amendments thereto, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"FINAL MEMORANDUM" shall have the meaning set forth in the Purchase
Agreement.
"GUARANTORS" shall mean the guarantors listed on the signature pages
hereof (each individually, a "GUARANTOR" and collectively, the "GUARANTORS").
"HOLDER" shall have the meaning set forth in Section 2(b) hereof.
"INDEMNIFIED PARTY" shall have the meaning set forth in Section 8(c)
hereof.
"INDEMNIFYING PARTY" shall have the meaning set forth in Section 8(c)
hereof.
"INDENTURE" shall mean the Indenture, dated as of January 24, 2002,
among the Company, the Guarantors and U.S. Bank, N.A., as trustee (the
"Trustee"), as supplemented by the Third Supplemental Indenture, dated as of
November 13, 2002, among the Company, the Guarantors and the Trustee and the
Additional Supplemental Indenture, dated as of December 18, 2002, among the
Company, the Guarantors and the Trustee, pursuant to which the Securities and
the New Securities are to be issued as such Indenture, Third Supplemental
Indenture and Additional Supplemental Indenture may be amended or supplemented
from time to time in accordance with the terms thereof.
"INITIAL PLACEMENT" shall have the meaning set forth in the preamble
hereto.
"INITIAL PURCHASER" shall have the meaning set forth in the preamble
hereto.
"INTEREST PAYMENT DATE" shall have the meaning set forth in the
Indenture and the Notes.
"LIQUIDATED DAMAGES" shall have the meaning set forth in Section 5
hereof.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"NEW SECURITIES" shall mean debt securities of the Company, including
guarantees thereon, identical in all material respects to the Securities and any
Additional Securities (except that the cash interest, interest rate step-up
provisions and transfer restrictions shall be modified or eliminated, as
appropriate) to be issued under the Indenture in exchange for Transfer
Restricted Securities.
"NOTES" shall have the meaning set forth in the preamble hereto.
"PERSON" shall mean an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"PROSPECTUS" shall mean the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a
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prospectus filed as part of an effective Registration Statement in reliance upon
Rule 430A under the Act), as amended or supplemented by any prospectus
supplement, with respect to an Exchange Offer or a Shelf Registration, and all
amendments and supplements thereto and all material incorporated by reference
therein.
"PURCHASE AGREEMENT" shall have the meaning set forth in the preamble
hereto.
"REGISTRATION DEFAULT" shall have the meaning set forth in Section 5
hereof.
"REGISTRATION STATEMENT" shall mean any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Securities or
the New Securities pursuant to the provisions of this Agreement, any amendments
and supplements to such registration statement, including post-effective
amendments (in each case including the Prospectus contained therein), all
exhibits thereto and all material incorporated by reference therein.
"SECURITIES" shall have the meaning set forth in the preamble hereto.
"SHELF FILING DEADLINE" shall have the meaning set forth in Section
4(a) hereof.
"SHELF REGISTRATION" shall mean a registration effected pursuant to
Section 4 hereof.
"SHELF REGISTRATION STATEMENT" shall have the meaning set forth in
Section 4(a) hereof.
"TRANSFER RESTRICTED SECURITIES" shall mean each Security, until the
earliest to occur of (a) the date on which such Security has been exchanged by a
Person other than a broker-dealer for a New Security in the Exchange Offer, (b)
following the exchange by a broker-dealer in the Exchange Offer of a Security
for a New Security, the date on which such New Security 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, (c)
the date on which such Security has been effectively registered under the Act
and disposed of in accordance with the Shelf Registration Statement, or (d) the
date on which such Security is distributed to the public pursuant to Rule 144
under the Act.
"TRUST INDENTURE ACT" shall mean the Trust Indenture Act of 1939, as
amended.
"TRUSTEE" shall mean the trustee with respect to the Securities under
the Indenture.
"UNDERWRITER" shall mean any underwriter of Securities in connection
with an offering thereof under a Shelf Registration Statement.
"UNDERWRITTEN REGISTRATION" or "UNDERWRITTEN OFFERING" shall mean a
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
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2. SECURITIES SUBJECT TO THIS AGREEMENT.
(a) TRANSFER RESTRICTED SECURITIES. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities.
(b) HOLDERS OF TRANSFER RESTRICTED SECURITIES. A Person is deemed to
be a holder of Transfer Restricted Securities (each, a "HOLDER") whenever such
Person owns Transfer Restricted Securities.
3. REGISTERED EXCHANGE OFFER.
(a) Unless the Exchange Offer shall not be permissible under
applicable law or Commission policy (after the procedures set forth in Section
6(a) below have been complied with), the Company and the Guarantors shall (i)
use their best efforts to cause to be filed with the Commission on or prior to
March 13, 2003, the Exchange Offer Registration Statement under the Act relating
to the New Securities and the Exchange Offer, (ii) use their commercially
reasonable efforts to cause such Exchange Offer Registration Statement to become
effective on or prior to June 1, 2003, (iii) in connection with the foregoing,
file (A) all pre-effective amendments to such Exchange Offer Registration
Statement as may be necessary in order to cause such Exchange Offer Registration
Statement to become effective, (B) if applicable, a post-effective amendment to
such Exchange Offer Registration Statement pursuant to Rule 430A under the Act
and (C) cause all necessary filings in connection with the registration and
qualification of the New Securities to be made under the Blue Sky laws of such
jurisdictions as are necessary to permit Consummation of the Exchange Offer, and
(iv) upon the effectiveness of such Exchange Offer Registration Statement,
commence the Exchange Offer. The Exchange Offer shall be on the appropriate form
permitting registration of the New Securities to be offered in exchange for the
Transfer Restricted Securities and to permit resales of Broker-Dealer Transfer
Restricted Securities by Broker-Dealers as contemplated by Section 3(c) below.
(b) The Company and the Guarantors shall cause the Exchange Offer
Registration Statement to be effective continuously and shall keep the Exchange
Offer open for a period of not less than the minimum period required under
applicable federal and state securities laws to Consummate the Exchange Offer;
PROVIDED, HOWEVER, that in no event shall such period be less than 20 Business
Days. The Company and the Guarantors shall cause the Exchange Offer to comply
with all applicable federal and state securities laws. No securities other than
the New Securities shall be included in the Exchange Offer Registration
Statement. The Company and the Guarantors shall use their commercially
reasonable efforts to cause the Exchange Offer to be Consummated within 40 days
after the Exchange Offer Registration Statement has become effective.
(c) The Company shall indicate in a "Plan of Distribution" section
contained in the Prospectus forming a part of the Exchange Offer Registration
Statement that any Broker-Dealer who holds Securities that are Transfer
Restricted Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company or one of its
Affiliates), may exchange such Securities pursuant to the Exchange Offer;
however, such Broker-Dealer may be deemed to be an "underwriter" within the
meaning of the Act and must, therefore, deliver a
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prospectus meeting the requirements of the Act in connection with any resales of
the New Securities received by such Broker-Dealer in the Exchange Offer, which
prospectus delivery requirement may be satisfied by the delivery by such
Broker-Dealer of the Prospectus contained in the Exchange Offer Registration
Statement. Such "Plan of Distribution" section shall also contain all other
information with respect to such resales by Broker-Dealers that the Commission
may require in order to permit such resales pursuant thereto, but such "Plan of
Distribution" shall not name any such Broker-Dealer or disclose the amount of
Securities held by any such Broker-Dealer except to the extent required by the
Commission as a result of a change in policy after the date of this Agreement.
The Company and the Guarantors shall use their commercially reasonable
efforts to keep the Exchange Offer Registration Statement continuously
effective, supplemented and amended as required by the provisions of Section
6(c) below to the extent necessary to ensure that it is available for resales of
Broker-Dealer Transfer Restricted Securities acquired by Broker-Dealers, and to
ensure that it conforms with the requirements of this Agreement, the Act and the
policies, rules and regulations of the Commission as announced from time to
time, for a period ending on the earlier of (i) 90 days from the date on which
the Exchange Offer Registration Statement is declared effective and (ii) the
date on which a Broker-Dealer is no longer required to deliver a prospectus in
connection with market-making or other trading activities.
The Company shall provide sufficient copies of the latest version of
such Prospectus to such Broker-Dealers promptly upon request at any time during
such 90-day (or shorter as provided in the foregoing sentence) period in order
to facilitate such resales.
4. SHELF REGISTRATION.
(a) SHELF REGISTRATION. If (i) the Company and the Guarantors are not
permitted to Consummate the Exchange Offer because the Exchange Offer is not
permitted by applicable law or Commission policy (after the procedures set forth
in Section 6(a) below have been complied with), or (ii) any Holder of Transfer
Restricted Securities shall notify the Company on or prior to the 20th day
following the Consummation of the Exchange Offer that (A) such Holder is
prohibited by applicable law or Commission policy from participating in the
Exchange Offer, (B) such Holder may not resell the New Securities acquired by it
in the Exchange Offer to the public without delivering a prospectus and that the
Prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder, or (C) such Holder is
a Broker-Dealer and owns Securities acquired directly from the Company or an
Affiliate of the Company, then, the Company and the Guarantors shall:
(x) use their best efforts to cause to be filed a shelf registration
statement pursuant to Rule 415 under the Act, which may be an amendment to
the Exchange Offer Registration Statement (in either event, the "SHELF
REGISTRATION STATEMENT") on or prior to 60 days after such filing
obligation arises pursuant to this paragraph 4(a), (such date being the
"SHELF FILING DEADLINE"), which Shelf Registration Statement shall provide
for resales of all Transfer Restricted Securities the Holders of which
shall have provided the information required pursuant to Section 4(b)
hereof; and
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(y) use their commercially reasonable efforts to cause such Shelf
Registration Statement to be declared effective by the Commission on or
prior to 120 days after such filing obligation arises pursuant to paragraph
4(a) above.
The Company and the Guarantors shall use their commercially reasonable efforts
to keep such Shelf Registration Statement continuously effective, supplemented
and amended as required by the provisions of Sections 6(b) and (c) hereof to the
extent necessary to ensure that it is available for resales of Notes by the
Holders of Transfer Restricted Securities entitled to the benefit of this
Section 4(a), and to ensure that it conforms with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of at least two years following the
effective date of such Shelf Registration Statement (or shorter period that will
terminate when all the Securities covered by such Shelf Registration Statement
have been sold pursuant to such Shelf Registration Statement).
(b) PROVISION BY HOLDERS OF CERTAIN INFORMATION IN CONNECTION WITH
THE SHELF REGISTRATION STATEMENT. No Holder of Transfer Restricted Securities
may include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 days after receipt of a request therefor, such
information as the Company may reasonably request for use in connection with any
Shelf Registration Statement or Prospectus or preliminary Prospectus included
therein. Each Holder as to which any Shelf Registration Statement is being
effected agrees to furnish promptly to the Company all information required to
be disclosed in order to make the information previously furnished to the
Company by such Holder not materially misleading.
5. LIQUIDATED DAMAGES.
If (i) any Registration Statement required by this Agreement is not
filed with the Commission on or prior to the date specified for such filing in
this Agreement, (ii) any such Registration Statement has not been declared
effective by the Commission on or prior to the date specified for such
effectiveness in this Agreement, (iii) the Exchange Offer has not been
Consummated within 40 days after the Exchange Offer Registration Statement is
declared effective or (iv) any Registration Statement required by this Agreement
is filed and declared effective but shall thereafter cease to be effective or
fail to be usable for its intended purpose without being succeeded immediately
by a post-effective amendment to such Registration Statement that cures such
failure and that is itself immediately declared effective (each such event
referred to in clauses (i) through (iv), a "REGISTRATION DEFAULT"), the Company
and the Guarantors hereby agree to pay liquidated damages to each Holder of
outstanding Securities ("LIQUIDATED DAMAGES") during the period of one or more
Registration Defaults, with respect to the first 90-day period immediately
following the occurrence of the first Registration Default in an amount equal to
0.25% per annum (which amount will be increased by an additional 0.25% per annum
for each subsequent 90-day period that any Liquidated Damages continue to
accrue; provided that the amounts at which Liquidated Damages accrue may in no
event exceed 1.0% per annum) in respect of the Transfer Restricted Securities
held by such Holder until the applicable Registration Statement is filed, the
Exchange Offer Registration Statement is declared effective and the Exchange
Offer is Consummated or the Shelf Registration Statement is declared effective
or again becomes effective, as the case may be. All accrued Liquidated
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Damages will be paid by the Company and the Guarantors on each Interest Payment
Date to Holders of global Securities by wire transfer of immediately available
funds or by federal funds check and to holders of certificated Securities by
wire transfer to the accounts specified by them or by mailing checks to their
registered addresses if no such accounts have been specified. Following the cure
of all Registration Defaults, the accrual of Liquidated Damages will cease;
PROVIDED, HOWEVER, that, if after the cessation of the accrual of Liquidated
Damages, a different Registration Default occurs, Liquidated Damages shall again
accrue pursuant to the foregoing provisions.
All obligations of the Company and the Guarantors set forth in the
preceding paragraph that are outstanding with respect to any Transfer Restricted
Security at the time such security ceases to be a Transfer Restricted Security
shall survive until such time as all such obligations with respect to such
Security shall have been satisfied in full.
6. REGISTRATION PROCEDURES.
(a) EXCHANGE OFFER REGISTRATION STATEMENT. In connection with the
Exchange Offer, the Company and the Guarantors shall comply with the applicable
provisions of Section 6(c) below, shall use their commercially reasonable
efforts to effect such exchange to permit the sale of Broker-Dealer Transfer
Restricted Securities being sold in accordance with the intended method or
methods of distribution thereof (which shall be in a manner consistent with the
terms of this Agreement), and shall comply with all of the following provisions:
(i) If in the reasonable opinion of counsel to the Company
there is a question as to whether the Exchange Offer is permitted by
applicable law, the Company and the Guarantors hereby agree to seek a
no-action letter or other favorable decision from the Commission allowing
the Company and the Guarantors to Consummate an Exchange Offer for such
Securities. The Company and the Guarantors each hereby agree to pursue the
issuance of such a decision to the Commission staff level but shall not be
required to take commercially unreasonable action to effect a change of
Commission policy. The Company and the Guarantors each hereby agree,
however, to (A) participate in telephonic conferences with the staff of
Commission, (B) deliver to the Commission staff an analysis prepared by
counsel to the Company setting forth the legal bases, if any, upon which
such counsel has concluded that such an Exchange Offer should be permitted
and (C) use commercially reasonable efforts to diligently pursue a
favorable resolution by the Commission staff of such submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer Restricted
Securities shall furnish, upon the request of the Company, prior to the
Consummation thereof, a written representation to the Company (which may be
contained in the letter of transmittal contemplated by the Exchange Offer
Registration Statement) to the effect that (A) it is not an Affiliate of
the Company, (B) it is not engaged in, and does not intend to engage in,
and has no arrangement or understanding with any person to participate in,
a distribution of the New Securities to be issued in the Exchange Offer and
(C) it is acquiring the New Securities in its ordinary course of business.
In addition, all such Holders of Transfer Restricted Securities shall
otherwise cooperate in the Company's and
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the Guarantor's preparations for the Exchange Offer. Each Holder hereby
acknowledges and agrees that any Broker-Dealer and any such Holder using
the Exchange Offer to participate in a distribution of the securities to be
acquired in the Exchange Offer (1) could not under Commission policy as in
effect on the date of this Agreement rely on the position of the Commission
enunciated in MORGAN STANLEY AND CO., INC. (available June 5, 1991) and
EXXON CAPITAL HOLDINGS CORPORATION (available May 13, 1988), as interpreted
in the Commission's letter to Shearman & Sterling dated July 2, 1993, and
similar no-action letters (which may include any no-action letter obtained
pursuant to clause (i) above), and (2) must comply with the registration
and prospectus delivery requirements of the Act in connection with a
secondary resale transaction and that such a secondary resale transaction
should be covered by an effective registration statement containing the
selling security holder information required by Item 507 or 508, as
applicable, of Regulation S-K under the Act if the resales are of New
Securities obtained by such Holder in exchange for Securities acquired by
such Holder directly from the Company or one of its Affiliates.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Company and the Guarantors shall provide a supplemental
letter to the Commission (A) stating that the Company and the Guarantors
are registering the Exchange Offer in reliance on the position of the
Commission enunciated in EXXON CAPITAL HOLDINGS CORPORATION (available May
13, 1988), MORGAN STANLEY AND CO., INC. (available June 5, 1991) and, if
applicable, any no-action letter obtained pursuant to clause (i) above, (B)
including a representation that neither the Company nor any Guarantor has
entered into any arrangement or understanding with any Person to distribute
the New Securities to be received in the Exchange Offer and that, to the
best of the Company's information and belief, each Holder participating in
the Exchange Offer is acquiring the New Securities in its ordinary course
of business and has no arrangement or understanding with any Person to
participate in the distribution of the New Securities received in the
Exchange Offer and (C) any other undertaking or representation required by
the Commission as set forth in any no-action letter obtained pursuant to
clause (i) above.
(b) SHELF REGISTRATION STATEMENT. In connection with the Shelf
Registration Statement, the Company and the Guarantors shall comply with all the
provisions of Section 6(c) below and shall use their commercially reasonable
efforts to effect such registration to permit the sale of the Transfer
Restricted Securities being sold in accordance with the intended method or
methods of distribution thereof, and pursuant thereto the Company and the
Guarantors will as expeditiously as possible prepare and file with the
Commission a Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available for the sale of
the Transfer Restricted Securities in accordance with the intended method or
methods of distribution thereof.
(c) GENERAL PROVISIONS. In connection with any Registration Statement
and any Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities (including, without limitation, any Registration
Statement and the related Prospectus required to permit resales of Broker-Dealer
Transfer Restricted Securities by Broker-Dealers), the Company and the
Guarantors shall:
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(i) use their commercially reasonable efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements (including, if required by the Act or any regulation
thereunder, financial statements of the Guarantors) for the period
specified in Section 3 or 4 of this Agreement, as applicable; upon the
occurrence of any event that would cause any such Registration Statement or
the Prospectus contained therein (A) to contain a material misstatement or
omission or (B) not to be effective and usable for resale of Transfer
Restricted Securities during the period required by this Agreement, the
Company and the Guarantors shall file promptly an appropriate amendment to
such Registration Statement, in the case of clause (A), correcting any such
misstatement or omission, and, in the case of either clause (A) or (B), use
their commercially reasonable efforts to cause such amendment to be
declared effective and such Registration Statement and the related
Prospectus to become usable for their intended purpose(s) as soon as
practicable thereafter;
(ii) use commercially reasonable efforts to prepare and file
with the Commission such amendments and post-effective amendments to the
Registration Statement as may be necessary to keep the Registration
Statement effective for the applicable period set forth in Section 3 or 4
hereof, as applicable, or such shorter period as will terminate when all
Transfer Restricted Securities covered by such Registration Statement have
been sold; cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule
424 under the Act, and to comply fully with the applicable provisions of
Rules 424 and 430A under the Act in a timely manner; and comply with the
provisions of the Act with respect to the disposition of all securities
covered by such Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the
sellers thereof set forth in such Registration Statement or supplement to
the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons, to confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when the
same has become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements to
the Prospectus or for additional information relating thereto, (C) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement under the Act or of the suspension by any
state securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation of
any proceeding for any of the preceding purposes, (D) of the existence of
any fact or the happening of any event that makes any statement of a
material fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto, or any document incorporated by reference
therein untrue, or that requires the making of any additions to or changes
in the Registration Statement or the Prospectus in order to make the
statements therein not misleading. If at any time the Commission shall
issue any stop order suspending the effectiveness of the Registration
Statement, or any state securities commission or other regulatory authority
shall issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state securities
or Blue Sky laws, the Company and the Guarantors shall use their
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commercially reasonable efforts to obtain the withdrawal or lifting of such
order at the earliest possible time;
(iv) in the case of a Shelf Registration Statement, furnish
without charge to each of the Initial Purchasers, each selling Holder named
in any Registration Statement, and each of the underwriter(s), if any,
before filing with the Commission, copies of any Registration Statement or
any Prospectus included therein or any amendments or supplements to any
such Registration Statement or Prospectus (including all documents
incorporated by reference after the initial filing of such Registration
Statement), which documents will be subject to the review of such Holders
and underwriter(s) in connection with such sale, if any, for a period of at
least three Business Days, and neither the Company nor the Guarantors will
file any such Registration Statement or Prospectus or any amendment or
supplement to any such Registration Statement or Prospectus (including all
such documents incorporated by reference) to which an Initial Purchaser or
the underwriter(s), if any, shall reasonably object in writing within five
Business Days after the receipt thereof (such objection to be deemed timely
made upon confirmation of telecopy transmission within such period). The
objection of an Initial Purchaser or underwriter, if any, shall be deemed
to be reasonable if such Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed, contains a material
misstatement or omission;
(v) in connection with any underwritten offering pursuant to
a Shelf Registration Statement, promptly prior to the filing of any
document that is to be incorporated by reference into a Shelf Registration
Statement or Prospectus, provide copies of such document to the Initial
Purchasers, each selling Holder named in any Shelf Registration Statement,
and to the underwriter(s), if any, make the Company's representatives and
representatives of the Guarantors available for discussion of such document
and other customary due diligence matters, and include such information in
such document prior to the filing thereof as such selling Holders or
underwriter(s), if any, reasonably may request;
(vi) in connection with any underwritten offering pursuant to
a Shelf Registration Statement, make available at reasonable times during
normal business hours for inspection by the Initial Purchasers, any
managing underwriter participating in any disposition pursuant to such
Registration Statement and any attorney or accountant retained by such
Initial Purchasers or any of the underwriter(s), all financial and other
records, pertinent corporate documents and properties of the Company and
the Guarantors and cause the Company's and the Guarantors' officers,
directors and employees to supply all information reasonably requested by
any such Holder, underwriter, attorney or accountant in connection with
such Registration Statement subsequent to the filing thereof and prior to
its effectiveness;
(vii) if requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in any Registration Statement
or Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such selling Holders and underwriter(s), if
any, may reasonably request to have included therein, including, without
limitation, information relating to the "Plan of Distribution" of the
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Transfer Restricted Securities, information with respect to the principal
amount of Transfer Restricted Securities being sold to such underwriter(s),
the purchase price being paid therefor and any other terms of the offering
of the Transfer Restricted Securities to be sold in such offering; and make
all required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after the Company or a Guarantor is
notified of the matters to be incorporated in such Prospectus supplement or
post-effective amendment;
(viii) furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of each
amendment thereto, including financial statements and schedules, all
documents incorporated by reference therein and all exhibits (including
exhibits incorporated therein by reference);
(ix) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) and any amendment or supplement
thereto as such Persons reasonably may request; the Company and the
Guarantors hereby consent to the use of the Prospectus and any amendment or
supplement thereto by each of the selling Holders and each of the
underwriter(s), if any, in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or any amendment
or supplement thereto;
(x) in connection with any underwritten offering of Transfer
Restricted Securities pursuant to a Shelf Registration Statement, enter
into, and cause the Guarantors to enter into, such agreements (including an
underwriting agreement), and make, and cause the Guarantors to make, such
representations and warranties, and take all such other actions in
connection therewith reasonably necessary to expedite or facilitate the
disposition of the Transfer Restricted Securities, all to such extent as
may be reasonably requested by any Holder of Transfer Restricted Securities
or underwriter in connection with any sale or resale pursuant to
underwritten offerings of Transfer Restricted Securities pursuant to a
Shelf Registration Statement contemplated by this Agreement and shall:
(A) furnish to each Initial Purchaser, each selling
Holder and each underwriter, if any, in such substance and scope as
they may reasonably request and as are customarily made by issuers to
underwriters in primary underwritten offerings, upon the date of the
Consummation of the Exchange Offer and, if applicable, the
effectiveness of the Shelf Registration Statement:
(1) a certificate, dated the date of effectiveness
of the Shelf Registration Statement, signed by (y) the Chairman
of the Board, the Chief Executive Officer, President, any
Executive Vice President or any Vice President and (z) a
principal financial or accounting officer of each of the Company
and Owens-Illinois Group, Inc., confirming, as of the date
thereof, the matters set forth in paragraphs (i) and (ii) of
Section 6(c) of the Purchase Agreement or such other matters as
such parties may reasonably request;
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(2) opinions, dated the date of effectiveness of
the Shelf Registration Statement of counsel for the Company and
the Guarantors, covering the matters set forth in paragraph (a)
of Section 6 of the Purchase Agreement and Exhibits B and C
referred to therein and such other matters as such parties may
reasonably request; and
(3) a customary comfort letter, dated as of the
date of effectiveness of the Shelf Registration Statement from
the Company's independent accountants, in the customary form and
covering matters of the type customarily covered in comfort
letters by underwriters in connection with primary underwritten
offerings, and affirming the matters set forth in the comfort
letter delivered pursuant to Section 6(e) of the Purchase
Agreement;
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, indemnification provisions and
procedures of Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section (or such other provisions or
procedures acceptable to selling Holders representing a majority in
aggregate principal amount of Transfer Restricted Securities covered
by such Shelf Registration Statement and the underwriters, if any);
and
(C) deliver such other documents and certificates as may
be reasonably requested by such parties to evidence compliance with
clause (A) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company
or the Guarantors pursuant to this clause (x), if any.
If at any time the representations and warranties of the Company and
the Guarantors contemplated in clause (A)(1) above cease to be true and correct
in all material respects, the Company or the Guarantors shall so advise the
Initial Purchasers and the underwriter(s), if any, and each selling Holder
promptly and, if requested by such Persons, shall confirm such advice in
writing;
(xi) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriter(s), if any,
and their respective counsel in connection with the registration and
qualification of the Transfer Restricted Securities under the securities or
Blue Sky laws of such jurisdictions as the selling Holders or
underwriter(s) may request and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of
the Transfer Restricted Securities covered by the Shelf Registration
Statement; PROVIDED, HOWEVER, that neither the Company nor the Guarantors
shall be required to register or qualify as a foreign corporation where it
is not then so qualified or to take any action that would subject it to the
service of process in suits or to taxation, other than as to matters and
transactions relating to any Registration Statement, in any jurisdiction
where it is not then so subject;
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(xii) shall issue, upon the request of any Holder of Securities
covered by the Shelf Registration Statement, New Securities, having an
aggregate principal amount equal to the aggregate principal amount of
Securities surrendered to the Company by such Holder in exchange therefor
or being sold by such Holder; such New Securities to be registered in the
name of such Holder or in the name of the purchaser(s) of such New
Securities, as the case may be; in return, the Securities held by such
Holder shall be surrendered to the Company for cancellation;
(xiii) cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and delivery
of certificates representing Transfer Restricted Securities to be sold and
not bearing any restrictive legends; and enable such Transfer Restricted
Securities to be in such denominations and registered in such names as the
Holders or the underwriter(s), if any, may request at least two Business
Days prior to any sale of Transfer Restricted Securities made by such
underwriter(s);
(xiv) use their commercially reasonable efforts to cause the
Transfer Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof or
the underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in clause (xi)
above;
(xv) if any fact or event contemplated by clause 6(c)(iii)(D)
above shall exist or have occurred, prepare a supplement or post-effective
amendment to the Registration Statement or related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein not misleading;
(xvi) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the Registration Statement
and provide the Trustee under the Indenture with printed certificates for
the Transfer Restricted Securities which are in a form eligible for deposit
with the Depositary Trust Company;
(xvii) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation by
any underwriter (including any "qualified independent underwriter") that is
required to be retained in accordance with the rules and regulations of the
NASD, and use their commercially reasonable efforts to cause such
Registration Statement to become effective and approved by such
governmental agencies or authorities as may be necessary to enable the
Holders selling Transfer Restricted Securities to consummate the
disposition of such Transfer Restricted Securities;
(xviii) otherwise use their commercially reasonable efforts to
comply with all applicable rules and regulations of the Commission, and
make generally available to the Company's security holders, as soon as
practicable, a consolidated earnings statement
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meeting the requirements of Rule 158 under the Act (which need not be
audited) for the twelve-month period (A) commencing at the end of any
fiscal quarter in which Transfer Restricted Securities are sold to
underwriters in a firm or best efforts Underwritten Offering or (B) if not
sold to underwriters in such an offering, beginning with the first month of
the Company's first fiscal quarter commencing after the effective date of
the Registration Statement;
(xix) cause the Indenture to be qualified under the Trust
Indenture Act not later than the effective date of the first Registration
Statement required by this Agreement, and, in connection therewith,
cooperate, and cause the Guarantors to cooperate with, with the Trustee and
the Holders of Notes to effect such changes to the Indenture as may be
required for such Indenture to be so qualified in accordance with the terms
of the Trust Indenture Act; and to execute, and use their commercially
reasonable efforts to cause the Trustee to execute, all documents that may
be required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to be so
qualified in a timely manner; and
(xx) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the requirements of Section
13 or Section 15 of the Exchange Act or provide each such requesting Holder
the location where such Holder can obtain such information without charge.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Company or any Guarantor of the
existence of any fact of the kind described in Section 6(c)(iii)(D) hereof, such
Holder will forthwith discontinue disposition of Transfer Restricted Securities
pursuant to the applicable Registration Statement until such Holder's receipt of
the copies of the supplemented or amended Prospectus contemplated by Section
6(c)(xv) hereof, or until it is advised in writing (the "ADVICE") by the Company
that the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference in the
Prospectus. If so directed by the Company, each Holder will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such Transfer
Restricted Securities that was current at the time of receipt of such notice. In
the event the Company or any Guarantor shall give any such notice, the time
period regarding the effectiveness of such Registration Statement set forth in
Section 3 or 4 hereof, as applicable, shall be extended by the number of days
during the period from and including the date of the giving of such notice
pursuant to Section 6(c)(iii)(D) hereof to and including the date when each
selling Holder covered by such Registration Statement shall have received the
copies of the supplemented or amended Prospectus contemplated by Section
6(c)(xv) hereof or shall have received the Advice; HOWEVER, no such extension
shall be taken into account in determining whether Liquidated Damages are due
pursuant to Section 5 hereof or the amount of such Liquidated Damages, it being
agreed that the Company's and the Guarantor's option to suspend use of a
Registration Statement pursuant to this paragraph shall be treated as a
Registration Default for purposes of Section 5.
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7. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's or the Guarantors'
performance of or compliance with this Agreement will be borne by the Company or
the Guarantors, regardless of whether a Registration Statement becomes
effective, including without limitation: (i) all registration and filing fees
and expenses (including filings made by any Initial Purchaser or Holder with the
NASD (and, if applicable, the fees and expenses of any "qualified independent
underwriter" and its counsel that may be required by the rules and regulations
of the NASD)); (ii) all fees and expenses of compliance with federal securities
and state Blue Sky or securities laws; (iii) all expenses of printing (including
printing certificates for the New Securities to be issued in the Exchange Offer
and printing of Prospectuses), messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel for the Company, the Guarantors and,
subject to Section 7(b) below, the Holders of Transfer Restricted Securities;
(v) all application and filing fees in connection with listing the New
Securities on a national securities exchange or automated quotation system
pursuant to the requirements thereof; and (vi) all fees and disbursements of
independent certified public accountants of the Company and the Guarantors
(including the expenses of any special audit and comfort letters required by or
incident to such performance).
The Company and the Guarantors will, in any event, bear their internal
expenses (including, without limitation, all salaries and expenses of their
officers and employees performing legal or accounting duties), the expenses of
any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company or the Guarantors.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company and the Guarantors
will reimburse the Initial Purchasers and the Holders of Transfer Restricted
Securities being tendered in the Exchange Offer and/or resold pursuant to the
"Plan of Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be
Simpson Thacher & Bartlett or such other counsel as may be chosen by the Holders
of a majority in principal amount of the Transfer Restricted Securities for
whose benefit such Registration Statement is being prepared.
8. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE HOLDERS. The Company and each Guarantor,
jointly and severally, agree to indemnify and hold harmless each Holder, its
directors, officers and employees, and each person, if any, who controls any
Holder within the meaning of the Act and the Exchange Act against any loss,
claim, damage, liability or expense, as incurred, to which such Holder or such
controlling person may become subject, under the Act, the Exchange Act or other
federal or state statutory law or regulation, or at common law or otherwise
(including in settlement of any litigation, if such settlement is effected with
the written consent of the Company or Owens-Illinois Group, Inc.), insofar as
such loss, claim, damage, liability or expense (or actions in respect thereof as
contemplated below) arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
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Statement or Prospectus, or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; PROVIDED, HOWEVER,
that the foregoing indemnity agreement shall not apply to any loss, claim,
damage, liability or expense to the extent, but only to the extent, arising out
of or based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with written
information furnished to the Company by the Holders expressly for use in any
Registration Statement or Prospectus; PROVIDED, FURTHER, that the foregoing
indemnity agreement shall not inure to the benefit of any Holder, its directors,
officers and employees, and each person, if any, who controls such Holder within
the meaning of the Act and the Exchange Act, who, in contravention of a
requirement of applicable law, failed to deliver, or otherwise convey the
information contained in, any Prospectus (as then amended or supplemented) to
the person asserting any losses, claims, damages, liabilities or expenses,
caused by any untrue statement or alleged untrue statement of a material fact
contained in any preliminary Prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, if such material
misstatement or omission or alleged material misstatement or omission was cured
in the Prospectus (as then amended or supplemented) and such Prospectus was
required by law to be delivered at or prior to the written confirmation of sale
to such person and the Prospectus and any amendment or supplement thereto was
provided by the Company to the Holder in the requisite quantity and on a timely
basis to permit proper delivery on or prior to the closing of such sale by such
Holder. The indemnity agreement set forth in this Section 8 shall be in addition
to any liabilities that the Company or any of the Guarantors may otherwise have.
(b) INDEMNIFICATION OF THE COMPANY, THE GUARANTORS AND THEIR
DIRECTORS AND OFFICERS. Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company and the Guarantors and each of their
respective directors, and each person, if any, who controls the Company or the
Guarantors, as the case may be, within the meaning of the Act or the Exchange
Act, against any loss, claim, damage, liability or expense, as incurred, to
which the Company or such Guarantor or any such director, or controlling person
may become subject, under the Act, the Exchange Act, or other federal or state
statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of such Holder), insofar as such loss, claim, damage, liability or
expense (or actions in respect thereof as contemplated below) arises out of or
is based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or Prospectus, or the omission or
alleged omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, 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 any Registration Statement or Prospectus, in reliance upon
and in conformity with written information furnished to the Company by the
Holders expressly for use therein; and to reimburse the Company and the
Guarantors, or any such director or controlling person for any legal and other
expenses reasonably incurred by the Company and the Guarantors, or any such
director or controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability,
expense or action. The indemnity agreement set forth in this Section 8 shall be
in addition to any liabilities that each Holder may otherwise have. In no event
shall the liability of any selling Holder hereunder be greater in amount than
the dollar amount of
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proceeds received by such Holder upon the sale of the Securities giving rise to
such indemnification obligation.
(c) NOTIFICATIONS AND OTHER INDEMNIFICATION PROCEDURES. Promptly
after receipt by any person in respect of which indemnity may be sought pursuant
to Section 8(a) or 8(b) (the "INDEMNIFIED PARTY") of notice of the commencement
of any action, such indemnified party shall, if a claim in respect thereof is to
be made against any person against whom indemnity may be sought pursuant to
Section 8(a) or 8(b) (the "INDEMNIFYING PARTY"), notify the indemnifying party
in writing of the commencement thereof, but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party for contribution or otherwise than under the indemnity
agreement contained in this Section 8 or to the extent it is not prejudiced as a
proximate result of such failure. In case any such action is brought against any
indemnified party and such indemnified party seeks or intends to seek indemnity
from an indemnifying party, the indemnifying party shall be entitled to
participate in and, to the extent that it shall elect, jointly with all other
indemnifying parties similarly notified, by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party; PROVIDED, HOWEVER, if the defendants in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded, based on the advice
of legal counsel, that a conflict may arise between the positions of the
indemnifying party and the indemnified party in conducting the defense of any
such action or that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of such indemnifying party's election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
shall not be liable to such indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel (together with local
counsel), approved by the indemnifying party, representing the indemnified
parties who are parties to such action) or (ii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action, in each of which cases the fees and expenses of counsel shall be at the
expense of the indemnifying party.
(d) SETTLEMENTS. The indemnifying party under this Section 8 shall
not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
against any loss, claim, damage, liability or expense by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by this
Section 8, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written
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consent if (i) such settlement is entered into more than 30 days after receipt
by such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement, compromise or consent to the entry of judgment in any pending or
threatened action, suit or proceeding in respect of which any indemnified party
is or could have been a party and indemnity was or could have been sought
hereunder by such indemnified party, unless such settlement, compromise or
consent includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such action, suit or
proceeding.
(e) CONTRIBUTION. If the indemnification provided for in this Section
8 is for any reason held to be unavailable to or otherwise insufficient to hold
harmless an indemnified party under Section 8(a) or Section 8(b) hereof (other
than by reason of exceptions provided in those Sections) in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or payable by
such indemnified party, as incurred, as a result of any losses, claims, damages,
liabilities or expenses referred to therein (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Guarantors, on the one hand, and the Holders, on the other hand, from the
Initial Placement (which, in the case of the Company and the Guarantors shall be
deemed to be equal to the total gross proceeds from the Initial Placement as set
forth on the cover page to the Final Memorandum), the amount of Liquidated
Damages which did not become payable as a result of the filing of the
Registration Statement resulting in such losses, claims, damages, liabilities,
judgments actions or expenses, and such Registration Statement, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Guarantors, on the one hand, and the Holders, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Guarantors, on the one hand, and the Holders, on the other, with respect to such
offering shall be deemed to be in the same proportion as the total net proceeds
from Initial Placement (before deducting expenses) received by the Company and
the Guarantors, on the one hand, and the total net proceeds received by such
Holder upon its resale of Notes less the amount paid by such Holder for such
Notes, on the other hand, bear to the total sum of such amounts. The relative
fault 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 the Company
and the Guarantors or such Holder, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. For the purposes of the preceding two sentences, the net
proceeds deemed to be received by the Company shall be deemed to be also for the
benefit of the Guarantors and the information supplied by the Company shall also
be deemed to have been supplied by the Guarantors.
The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in Section 8(a), any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim. The provisions set forth in this
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Section 8 with respect to notice of commencement of any action shall apply if a
claim for contribution is to be made under this Section 8(e); PROVIDED, HOWEVER,
that no additional notice shall be required with respect to any action for which
notice has been given under this Section 8 for purposes of indemnification.
The Company, the Guarantors and the Holders agree that it would not be
just and equitable if contribution pursuant to this Section 8(e) were determined
by pro rata allocation (even if the Holders 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 8(e). Notwithstanding the
provisions of this Section 8(e), no Holder shall be required to contribute any
amount in excess of the amount by which the total net proceeds received by such
Holder upon its resale of Notes exceeds the sum of the amount paid by such
Holder for such Notes (or, if such Notes have not been sold by such Holder, the
total discount received by such Holder with respect to such Notes) and the
amount of any damages which such Holder has otherwise paid or become liable to
pay by reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11 of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Holders' obligations to
contribute pursuant to this Section 8(e) are several, and not joint, in
proportion to the respective principal amount of Notes held by each of the
Holders hereunder. For purposes of this Section 8(e), each director, officer and
employee of an Holder and each person, if any, who controls an Holder within the
meaning of the Act and the Exchange Act shall have the same rights to
contribution as such Holder, and each director of the Company and the
Guarantors, and each person, if any, who controls the Company with the meaning
of the Act and the Exchange Act shall have the same rights to contribution as
the Company and the Guarantors.
(f) The remedies provided for in this Section 8 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
9. RULE 144A.
The Company and the Guarantors each hereby agree with each Holder, for
so long as any Transfer Restricted Securities remain outstanding, to make
available to any Holder or beneficial owner of Transfer Restricted Securities in
connection with any sale thereof and any prospective purchaser of such Transfer
Restricted Securities from such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A.
10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) 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 (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
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11. SELECTION OF UNDERWRITERS.
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering shall be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; PROVIDED, that such investment bankers and managers must be
reasonably satisfactory to the Company.
12. MISCELLANEOUS.
(a) REMEDIES. The Company and the Guarantors each hereby agree that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agree to
waive the defense in any action for specific performance that a remedy at law
would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Company shall not, and shall
cause the Guarantors not to, on or after the date of this Agreement enter into
any agreement with respect to the Company's securities that would prevent the
Company or any Guarantor from satisfying its obligations hereunder or that would
otherwise conflict with the provisions hereof. Other than the Registration
Rights Agreement dated as of January 24, 2002 with respect to the Company's
8 7/8% Senior Secured Notes due 2009 and the Registration Rights Agreement dated
as of November 13, 2002 with respect to the Company's outstanding 8 3/4% Senior
Secured Notes due 2012, neither the Company nor any of the Guarantors has
entered into any agreement granting any registration rights with respect to the
Company's securities to any Person. The rights granted to the Holders hereunder
do not in any way conflict with and are not inconsistent with the rights granted
to the holders of the Company's securities under any agreement in effect on the
date hereof.
(c) ADJUSTMENTS AFFECTING THE SECURITIES. Neither the Company nor the
Guarantors shall take any action, or permit any change to occur, with respect to
the Securities that would materially and adversely affect the ability of the
Holders to Consummate any Exchange Offer.
(d) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to the
rights of Holders whose securities are being tendered pursuant to the Exchange
Offer and that does not affect directly or indirectly the rights of other
Holders whose securities are not being tendered pursuant to such Exchange Offer
may be given by the Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities being tendered or registered; PROVIDED THAT, with
respect to any matter that directly or indirectly affects the rights of any
Initial Purchaser hereunder, the Company shall obtain the written consent of
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each such Initial Purchaser with respect to which such amendment, qualification,
supplement, waiver, consent or departure is to be effective.
(e) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records
of the Registrar under the Indenture, with a copy to the Registrar under
the Indenture; and
(ii) if to the Company:
Owens-Brockway Glass Container Inc.
One SeaGate
Toledo, OH 43666
Telecopier No.: 419-247-1218
Attention: Treasurer
With a copy to:
Latham & Watkins
505 Montgomery Street, Suite 1900
San Francisco, CA 94111
Telecopier No.: 415-395-8095
Attention: Tracy K. Edmonson, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities; PROVIDED, HOWEVER, that
this Agreement shall not inure to the benefit of or be binding upon a successor
or assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities from such Holder.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
22
<Page>
(h) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(j) ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company and the
Guarantors with respect to the Transfer Restricted Securities. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
(k) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(l) SECURITIES HELD BY THE COMPANY, ETC. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
or New Securities is required hereunder, Securities or New Securities, as
applicable, held by the Company or its Affiliates (other than subsequent Holders
of Securities or New Securities if such subsequent Holders are deemed to be
Affiliates solely by reason of their holdings of such Securities or New
Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
23
<Page>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a building agreement among the
Company, each of the Guarantors and the several Initial Purchasers.
Very truly yours,
OWENS-BROCKWAY GLASS CONTAINER INC.
By: /s/ James W. Baehren
---------------------------
Name: James W. Baehren
Title: Vice President
On behalf of each entity named
on the attached EXHIBIT A, in
the capacity set forth for such
entity on such EXHIBIT A
By: /s/ James W. Baehren
---------------------------
Name: James W. Baehren
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
SALOMON SMITH BARNEY INC.
BANC OF AMERICA SECURITIES LLC
DEUTSCHE BANK SECURITIES INC.
BANC ONE CAPITAL MARKETS, INC.
SCOTIA CAPITAL (USA) INC.
GOLDMAN, SACHS & CO.
BARCLAYS CAPITAL INC.
BNP PARIBAS SECURITIES CORP.
CREDIT LYONNAIS SECURITIES (USA) INC.
FLEET SECURITIES, INC.
MCDONALD INVESTMENTS INC.
SG COWEN SECURITIES CORPORATION
BNY CAPITAL MARKETS, INC.
TD SECURITIES (USA) INC.
By: SALOMON SMITH BARNEY INC.
By:
-------------------------
Name:
Title:
<Page>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a building agreement among the
Company, each of the Guarantors and the several Initial Purchasers.
Very truly yours,
OWENS-BROCKWAY GLASS CONTAINER INC.
By:
---------------------------
Name: James W. Baehren
Title: Vice President
On behalf of each entity named
on the attached EXHIBIT A, in
the capacity set forth for such
entity on such EXHIBIT A
By:
---------------------------
Name: James W. Baehren
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
SALOMON SMITH BARNEY INC.
BANC OF AMERICA SECURITIES LLC
DEUTSCHE BANK SECURITIES INC.
BANC ONE CAPITAL MARKETS, INC.
SCOTIA CAPITAL (USA) INC.
GOLDMAN, SACHS & CO.
BARCLAYS CAPITAL INC.
BNP PARIBAS SECURITIES CORP.
CREDIT LYONNAIS SECURITIES (USA) INC.
FLEET SECURITIES, INC.
MCDONALD INVESTMENTS INC.
SG COWEN SECURITIES CORPORATION
BNY CAPITAL MARKETS, INC.
TD SECURITIES (USA) INC.
By: SALOMON SMITH BARNEY INC.
By: /s/ Whitner Marshall
-------------------------
Name: Whitner Marshall
Title: Vice President
<Page>
EXHIBIT A
<Table>
<Caption>
TITLE OF OFFICER EXECUTING
NAME OF ENTITY ON BEHALF OF SUCH ENTITY
-------------- --------------------------
ACI America Holdings Inc. Vice President and Secretary
Anamed International, Inc. Vice President and Secretary
BriGam Medical, Inc. Vice President and Secretary
BriGam Ventures, Inc. Vice President and Secretary
BriGam, Inc. Vice President and Secretary
Brockway Realty Corporation Vice President and Secretary
Brockway Research, Inc. Vice President and Secretary
Continental PET Technologies, Inc. Vice President and Secretary
Marc Industries, Inc. Vice President and Secretary
Martell Medical Products, Incorporated Vice President and Secretary
NHW Auburn, LLC Vice President and Secretary of its
sole member
OB Cal South Inc. Vice President and Secretary
OI AID STS Inc. Vice President and Secretary
OI Auburn Inc. Vice President and Secretary
OI Australia Inc. Vice President and Secretary
OI Brazil Closure Inc. Vice President and Secretary
OI California Containers Inc. Vice President and Secretary
OI Castalia STS Inc. Vice President and Secretary
OI Consol STS Inc. Vice President and Secretary
OI Ecuador STS Inc. Vice President and Secretary
OI Europe & Asia Inc. Vice President and Secretary
OI General Finance Inc. Vice President and Secretary
OI General FTS Inc. Vice President and Secretary
</Table>
<Page>
<Table>
<Caption>
TITLE OF OFFICER EXECUTING
NAME OF ENTITY ON BEHALF OF SUCH ENTITY
-------------- --------------------------
O-I Health Care Holding Corp. Vice President and Secretary
O-I Holding Company, Inc. Vice President and Secretary
OI Hungary Inc. Vice President and Secretary
OI International Holdings Inc. Vice President and Secretary
OI Levis Park STS Inc. Vice President and Secretary
OI Medical Holdings Inc. Vice President and Secretary
OI Medical Inc. Vice President and Secretary
OI Peru STS Inc. Vice President and Secretary
OI Plastic Products FTS Inc. Vice President and Secretary
OI Poland Inc. Vice President and Secretary
OI Puerto Rico STS Inc. Vice President and Secretary
OI Regioplast STS Inc. Vice President and Secretary
OI Venezuela Plastic Products Inc. Vice President and Secretary
OIB Produvisa Inc. Vice President and Secretary
Overseas Finance Company Vice President and Secretary
Owens-BriGam Medical Company Vice President and Secretary of each
general partner
Owens-Brockway Glass Container Trading Vice President and Secretary
Company
Owens-Brockway Packaging, Inc. Vice President and Secretary
Owens-Brockway Plastic Products Inc. Vice President and Secretary
Owens-Illinois Closure Inc. Vice President and Secretary
Owens-Illinois General Inc. Vice President and Secretary
Owens-Illinois Group, Inc. Vice President, Director of Finance
and Secretary
</Table>
2
<Page>
<Table>
<Caption>
TITLE OF OFFICER EXECUTING
NAME OF ENTITY ON BEHALF OF SUCH ENTITY
-------------- --------------------------
Owens-Illinois Prescription Products Inc. Vice President and Secretary
Owens-Illinois Specialty Products Puerto Vice President and Secretary
Rico, Inc.
Product Design & Engineering, Inc. Vice President and Secretary
SeaGate II, Inc. Vice President and Secretary
SeaGate III, Inc. Vice President and Secretary
SeaGate, Inc. Vice President and Secretary
Specialty Packaging Licensing Company Vice President and Secretary
Universal Materials, Inc. Vice President and Secretary
</Table>
3