Exhibit 4.3
[FORM OF REGISTRATION RIGHTS AGREEMENT]
REGISTRATION RIGHTS AGREEMENT
by and among
PACKAGING INVESTORS, L.P.,
DCBS INVESTORS, L.L.C.,
CB INVESTORS, L.L.C.,
and
PACKAGING DYNAMICS CORPORATION
TABLE OF CONTENTS
1. SECURITIES SUBJECT TO THIS AGREEMENT .................................... 1
1.1 Definitions ......................................................... 1
1.2 Registrable Securities .............................................. 2
1.3 Holders of Registrable Securities ................................... 2
2. SHELF REGISTRATION ...................................................... 2
2.1 Request for Shelf Registration ..................................... 2
2.2 Effective Shelf Registration and Expenses .......................... 3
2.3 Underwriting Procedures ............................................ 3
2.4 Selection of Underwriters .......................................... 4
3. DEMAND REGISTRATION ..................................................... 4
3.1 Request for Demand Registration .................................... 4
3.2 Effective Demand Registration and Expenses ......................... 4
3.3 Underwriting Procedures ............................................ 5
3.4 Selection of Underwriters .......................................... 5
4. PIGGY-BACK REGISTRATION OF COMMON STOCK. ................................ 5
5. HOLDBACK AGREEMENTS. .................................................... 6
6. REGISTRATION PROCEDURES. ................................................ 6
7. REGISTRATION EXPENSES. .................................................. 10
8. INDEMNIFICATION; CONTRIBUTION ........................................... 10
8.1 Indemnification by Packaging Dynamics .............................. 10
8.2 Indemnification by Each Holder ..................................... 10
8.3 Conduct of Indemnification Proceedings ............................. 11
8.4 Contribution ....................................................... 11
9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. ............................ 13
10. COVENANT OF HOLDERS OF REGISTRABLE SECURITIES. .......................... 13
11. RULE 144. ............................................................... 13
12. MISCELLANEOUS ........................................................... 13
12.1 Recapitalization, Exchanges, etc., Affecting Packaging Dynamics .... 13
Capital Stock ...................................................... 13
12.2 No Inconsistent Agreements ......................................... 14
12.3 Remedies ........................................................... 14
12.4 Amendments and Waivers ............................................. 14
12.5 Notices ............................................................ 14
12.6 Successors and Assigns ............................................. 15
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12.7 Counterparts ....................................................... 16
12.8 Headings ........................................................... 16
12.9 Governing Law ...................................................... 16
12.10 Severability ....................................................... 16
12.11 Entire Agreement ................................................... 16
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated [.], 2002 (this "Agreement"), among
Packaging Dynamics Corporation, a Delaware corporation ("Packaging Dynamics"),
Packaging Investors, L.P., a Delaware limited partnership ("Packaging
Investors"), DCBS Investors, L.L.C., a Delaware limited liability company ("DCBS
Investors"), and CB Investors, L.L.C., a Delaware limited liability company ("CB
Investors"). Packaging Investors, DCBS Investors and CB Investors are sometimes
hereinafter referred to as the "Holders" and each of them, individually, as a
Holder.
Packaging Dynamics and the Holders are entering into this Agreement with
respect to the Registrable Securities (as hereinafter defined) in accordance
with paragraph 2 of that certain letter agreement, dated March 18, 2002 (the
"Letter Agreement"), among the Holders and Ivex Packaging Corporation, a
Delaware corporation ("Ivex") of which Packaging Dynamics was an indirect
wholly-owned subsidiary at the time of the execution thereof.
The parties herby agree as follows:
1. SECURITIES SUBJECT TO THIS AGREEMENT
1.1 Definitions
1.1.1 "Common Stock" means Packaging Dynamics' common stock, par value
$.01 per share, as constituted on the date hereof, any stock into which such
common stock shall have been changed or any stock resulting from any
reclassification of such common stock, and all other stock of any class or
classes (however designated) of the Company, the holders of which have the
right, without limitation as to amount, either to all or to a share of the
balance of current dividends and liquidating dividends after the payment of
dividends and distributions of any shares entitled to preference, and any shares
of capital stock issued or issuable with respect to any of the foregoing as a
result of any stock split, stock dividend, reorganization, merger,
recapitalization, exchange or similar event or otherwise.
1.1.2 "Registrable Securities" means, subject to Section 1.2, any
shares of Common Stock issued to a Holder in the transaction described in
paragraph 2 of that certain letter agreement, dated March 18, 2002, among Ivex
Packaging Corporation, a Delaware corporation, DCBS Investors, CB Investors and
Packaging Investors or acquired by a Holder thereafter and any securities issued
or issuable with respect to any Common Stock referred to above by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise.
1.1.3 "Stockholders Agreement" means that certain Stockholders
Agreement, dated as of June ___, 2002, among Packaging Dynamics, Packaging
Investors, DCBS Investors and CB Investors.
1.2 Registrable Securities. Only Registrable Securities shall be eligible
for registration pursuant to the terms hereof. For purposes of this Agreement,
Registrable Securities will cease to be Registrable Securities when (i) a
registration statement covering such Registrable Securities has been declared
effective under the Securities Act of 1933, as amended (the "Act"), by the
Securities and Exchange Commission (the "SEC"), and such Registrable Securities
have been disposed of pursuant to such effective registration statement or (ii)
the entire amount of Registrable Securities proposed to be sold in a single sale
is, or, in the opinion of counsel to Packaging Dynamics, may be distributed to
the public pursuant to Rule 144 (or any successor provision then in force) under
the Act or otherwise without registration under the Act.
1.3 Holders of Registrable Securities. A person is deemed to be a holder of
Registrable Securities whenever such person owns of record Registrable
Securities. If Packaging Dynamics receives conflicting instructions, notices or
elections from two or more persons with respect to the same Registrable
Securities, Packaging Dynamics shall act upon the basis of the instructions,
notice or election received from the registered owner of such Registrable
Securities.
2. SHELF REGISTRATION
2.1 Request for Shelf Registration. Packaging Dynamics shall file as soon
as reasonably practicable upon the written request of the holder or holders of
Registrable Securities constituting one percent (1.0%) or more of the aggregate
outstanding shares of Common Stock, one or more "shelf" registration statements
on Form S-3 (or any successor thereto) under the Act with respect to the
Registrable Securities pursuant to Rule 415 under the Act and/or any similar
rule that may be adopted by the SEC (the "Shelf Registration"). Notwithstanding
the immediately preceding sentence or any other provision of this Agreement,
Packaging Dynamics shall have no obligation to register Registrable Securities
under this Section 2.1 on more than three occasions with respect to any holder
of Registrable Securities and shall have no obligation to register, or to
commence any registration of, Registrable Securities under this Section 2.1 (a)
until after the sixty (60th) day following the date of the distribution of
Common Stock pursuant to the Distribution Agreement, dated March 18, 2002,
between Ivex and Packaging Dynamics (the "Distribution"), (b) not having an
aggregate offering price of more than $1 million or (c) at any time when
Packaging Dynamics is not eligible to use Form S-3 (or any successor thereto)
under the Act to register the Registrable Securities covered by such written
request.
At least fifteen (15) days prior to the first anticipated filing date of
each Shelf Registration, Packaging Dynamics shall notify each holder of
Registrable Securities of the information Packaging Dynamics reasonably requires
from each such holder if they elect to have any of their Registrable Securities
included in the Shelf Registration (the "Requested Information"). If within five
(5) business days prior to the first anticipated filing date, Packaging Dynamics
has not received the Requested Information in writing from any of such holders
(the "Non-Responsive Holders"), Packaging Dynamics may file the Shelf
Registration without including the Registrable Securities of the Non-Responsive
Holders. At any time subsequent to the date of the first filing of the Shelf
Registration
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and up to the date that is ten (10) business days prior to the first anticipated
effective date of such Shelf Registration, a Non-Responsive Holder may notify
Packaging Dynamics in writing that they elect to have all or part of their
Registrable Securities included in the Shelf Registration and Packaging Dynamics
shall so include such Registrable Securities in such Shelf Registration;
provided, however, that such Non-Responsive Holders shall have furnished to
Packaging Dynamics in writing all Requested Information on or prior to the tenth
(10th) business day prior to the first anticipated effective date of such Shelf
Registration.
2.2 Effective Shelf Registration and Expenses. Packaging Dynamics shall use
its best efforts to have the Shelf Registration declared effective as soon as
reasonably practicable after such filing and shall use reasonable efforts to
keep the Shelf Registration continuously effective for a period of nine (9)
months from the date such Shelf Registration is declared effective. Packaging
Dynamics shall have the right to postpone for up to sixty (60) days any
registration requested pursuant to this Section 2 if, in the opinion of the
board of directors of Packaging Dynamics, such registration would interfere with
any material acquisition or financing transaction then being pursued by
Packaging Dynamics. Packaging Dynamics may not exercise its right to so delay
registration under this Section 2 more than once in any twelve-month period.
Packaging Dynamics shall supplement or amend, if necessary, each Shelf
Registration, as required by the registration form utilized by Packaging
Dynamics, by the instructions applicable to such registration form, by the Act
or the rules and regulations promulgated thereunder or as reasonably required by
the holder or holders of (or any underwriter for) a majority of the aggregate
outstanding shares of Registrable Securities held by the holders of Registrable
Securities hereunder to which such Shelf Registration relates, and shall furnish
to the holders of the Registrable Securities to which the Shelf Registration
relates copies of any such supplement or amendment prior to its being used
and/or filed with the SEC. Packaging Dynamics shall pay all Registration
Expenses (as defined in Section 7 hereof) in connection with each Shelf
Registration, whether or not it becomes effective. No Shelf Registration shall
include any securities other than Registrable Securities unless the holder or
holders of a majority of the aggregate outstanding shares of Registrable
Securities held by the holders of Registrable Securities hereunder to which the
Shelf Registration relates consent to such inclusion; provided, however, that
this Agreement shall not prohibit the filing of shelf registrations other than a
Shelf Registration.
2.3 Underwriting Procedures. If the holder or holders of a majority of the
aggregate outstanding shares of Registrable Securities held by the holders of
Registrable Securities hereunder to which the Shelf Registration relates so
elect, the offering of such Registrable Securities pursuant to a Shelf
Registration shall be in the form of an underwritten offering and the managing
underwriter or underwriters selected for such offering shall be the Approved
Underwriter (as defined below). In such event, if the Approved Underwriter
advises Packaging Dynamics in writing that in its opinion the aggregate amount
of Registrable Securities requested to be included in such offering is
sufficiently large as to have a material adverse effect on the success of such
offering, Packaging Dynamics shall include in such registration only the
aggregate amount of
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Registrable Securities that, in the opinion of the Approved Underwriter,
may be sold without any such material adverse effect and shall reduce, pro rata,
the amount of Registrable Securities to be included by each holder of
Registrable Securities in such offering.
2.4 Selection of Underwriters. If any Shelf Registration is in the form of
an underwritten offering, the holder or holders of a majority of the aggregate
outstanding shares of Registrable Securities held by the holders of Registrable
Securities hereunder to which such Shelf Registration relates shall select and
obtain the investment banker or investment bankers and manager or managers that
will administer the offering (the "Approved Underwriter"); provided, that the
Approved Underwriter shall be reasonably acceptable to Packaging Dynamics. The
holders of Registrable Securities to be included in such offering shall pay pro
rata all discounts and commissions of the Approved Underwriter.
3. DEMAND REGISTRATION
3.1 Request for Demand Registration. At any time after the 60th day
following the date of the Distribution when a Shelf Registration with respect to
Registrable Securities is not in effect under the Act or a Shelf Registration is
not available for use by the holders of the Registrable Securities hereunder,
the holder or holders of Registrable Securities constituting one percent (1.0%)
or more of the aggregate outstanding shares of Common Stock may make a written
request for registration of Registrable Securities having an aggregate offering
price of more than $1 million under the Act and under the securities or blue sky
laws of any jurisdiction designated by such holder or holders (a "Demand
Registration"). This request for a Demand Registration shall specify the amount
of the Registrable Securities proposed to be sold and the intended method of
disposition thereof. Upon a request for a Demand Registration, Packaging
Dynamics shall promptly take such steps as are necessary or appropriate to
prepare for the registration of the Registrable Securities to be registered;
provided that Packaging Dynamics shall have the right to postpone for up to 60
days any registration requested pursuant to this Section 3 if, in the opinion of
the board of directors of Packaging Dynamics, such registration would interfere
with any material acquisition or financial transaction then being pursued by
Packaging Dynamics. Packaging Dynamics may not exercise its right to delay
registration under this Section 3 more than once in any twelve month period.
Subject to Section 3.2 hereof, Packaging Dynamics shall have no obligation to
register Registrable Securities under this Section 3.1 on more than three
occasions with respect to any holder of Registrable Securities.
3.2 Effective Demand Registration and Expenses. Packaging Dynamics shall,
subject to Section 3.3 hereof, use its best efforts to effect three (3) Demand
Registrations pursuant to written requests made in accordance with Section 3.1
of this Agreement. If a Demand Registration is not declared effective on or
before the expiration of one hundred and twenty (120) days after a request is
delivered under Section 3.1, then Packaging Dynamics shall be required to effect
one (1) additional Demand Registration for the Registrable Securities included
in such Demand Registration pursuant to the terms of this Agreement. A
registration shall not count as a Demand Registration until it has become
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effective and remains continuously effective for not less than one hundred and
twenty (120) days. Packaging Dynamics shall use its best efforts to cause any
such Demand Registration to become effective not later than ninety (90) days
after it receives a request under Section 3.1 hereof. In any registration
initiated as a Demand Registration, Packaging Dynamics shall pay all
Registration Expenses in connection therewith, whether or not such Demand
Registration becomes effective.
3.3 Underwriting Procedures. If the holder or holders of a majority of the
aggregate outstanding shares of Registrable Securities to which the Demand
Registration relates so elect, the offering of such issue of Registrable
Securities pursuant to such Demand Registration shall be in the form of an
underwritten offering and the managing underwriter or underwriters selected for
such offering shall be the Approved Underwriter. In such event, if the Approved
Underwriter advises Packaging Dynamics in writing that in its opinion the
aggregate amount of Registrable Securities requested to be included in such
offering is sufficiently large as to have a material adverse effect on the
success of such offering, Packaging Dynamics shall include in such registration
only the aggregate amount of Registrable Securities that, in the opinion of the
Approved Underwriter, may be sold without any such material adverse effect and
shall reduce, pro rata, the amount of Registrable Securities to be included by
each Holder in such offering.
3.4 Selection of Underwriters. If any Demand Registration of Registrable
Securities is in the form of an underwritten offering, the Approved Underwriter
shall be selected and obtained and their discounts and commissions, if any, paid
in accordance with the procedure set forth in Section 2.4 hereof.
4. PIGGY-BACK REGISTRATION OF COMMON STOCK.
If Packaging Dynamics proposes to file a registration statement under the
Act with respect to an offering by Packaging Dynamics for its own account of
Common Stock or other securities of Packaging Dynamics (other than a
registration statement on Form S-4 or S-8 or any successor or similar forms
thereto), then Packaging Dynamics shall give written notice of such proposed
registration and distribution (including those jurisdictions where registration
under the securities or blue sky laws is intended) and offer the opportunity to
register such amount of Registrable Securities as each holder of Registrable
Securities hereunder may request in writing. Subject to Section 9 hereof,
Packaging Dynamics shall use its best efforts (within thirty (30) days after the
notice provided for in the preceding sentence) to cause the managing underwriter
or underwriters of a proposed underwritten offering (the "Company Underwriter")
to permit the holders of Registrable Securities to participate in the
registration for such offering and to include such Registrable Securities in
such offering. If Packaging Dynamics is offering securities of the same class as
any Registrable Securities, any such Registrable Securities of the holders
registered pursuant to this Agreement shall be included in the offering on the
same terms and conditions as such securities being offered by Packaging
Dynamics. Notwithstanding the foregoing, if the Company Underwriter advises
Packaging Dynamics in writing that in its opinion the total amount of
Registrable Securities, other Common Stock and other securities which the
holders of Registrable Securities, Packaging Dynamics and any other persons or
entities intend to include in
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such offering (the "Total Securities") is sufficiently large as to have a
material adverse effect on the distribution of the Total Securities, then the
amount of securities to be offered for the account of the holders of Registrable
Securities and such other persons or entities shall be reduced pro rata to the
extent necessary to reduce the Total Securities to the amount recommended by the
Company Underwriter. Packaging Dynamics shall bear all Registration Expenses in
connection with any registration pursuant to this Section 4 (except for the
discounts or commissions of the Company Underwriter applicable to the holders'
Registrable Securities, which shall be paid in accordance with the procedures
set forth in Section 2.4 hereof).
5. HOLDBACK AGREEMENTS.
Restrictions on Public Sale by the Holders. To the extent not inconsistent
with applicable law, the holders of Registrable Securities agree not to effect
any public sale or distribution of any Registrable Securities being registered
or of securities convertible into or exchangeable or exercisable for such
Registrable Securities, including a sale pursuant to Rule 144 under the Act,
during the ten (10) days prior to, and during the one hundred and eighty (180)
day period beginning on, the effective date of the applicable registration
statement under Section 2.3 or 4 of this Agreement (except as part of such
registration), if and to the extent requested by Packaging Dynamics in the case
of a nonunderwritten public offering or if and to the extent requested by
Packaging Dynamics or the Company Underwriter in the case of an underwritten
public offering.
6. REGISTRATION PROCEDURES.
In connection with any registration effected pursuant to the terms of this
Agreement, Packaging Dynamics shall as expeditiously as possible:
(a) prepare and file with the SEC, not later than forty-five (45) business
days after receipt of a request to file a registration statement with respect to
Registrable Securities, a registration statement of any form for which Packaging
Dynamics then qualifies and which counsel for Packaging Dynamics deems
appropriate for the sale of such Registrable Securities in accordance with the
intended method of(a) distribution thereof. Packaging Dynamics shall use its
best efforts to cause such registration statement to become effective; provided,
however, that before filing a registration statement or prospectus or any
amendments or supplements thereto, Packaging Dynamics shall (i) provide counsel
selected by the holder or holders of a majority of the aggregate outstanding
shares of Registrable Securities held by the holders of Registrable Securities
hereunder being registered in such registration ("Holders' Counsel") and any
other Inspector (as defined below) with an opportunity to participate in the
preparation of such registration statement and each prospectus included therein
(and each amendment or supplement thereto) to be filed with the SEC, which
documents shall be subject to the review of Holders' Counsel, and (ii) notify
Holders' Counsel and the holders of Registrable Securities of any stop order
issued or threatened by the SEC and take all reasonable action required to
prevent the entry of such stop order or to remove it if entered;
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(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 until the earliest to
occur of (i) the expiration of nine (9) months, (ii) the date all Registrable
Securities included therein have been sold, and (iii) the expiration of ninety
(90) day period referred to in Section 4(3) of the Act and Rule 174 thereunder,
if applicable, and comply with the provisions of the Act with respect to the
disposition of all securities covered by such registration statement during such
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such registration statement;
(c) furnish to the Holders' Counsel, prior to filing a registration
statement, copies of such registration statement as proposed to be filed, and
thereafter such number of copies of such registration statement, each amendment
and supplement thereto (in each case including all exhibits thereto), the
prospectus included in such registration statement (including each preliminary
prospectus) and such other documents as the Holders' Counsel may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by the holders of Registrable Securities;
(d) use its best efforts to register or qualify such Registrable Securities
under such other securities or blue sky laws of such jurisdictions as the
Holders' Counsel reasonably request and do any and all other acts and things
which may be reasonably necessary or advisable to enable the holders of
Registrable Securities to consummate the disposition in such jurisdictions of
the Registrable Securities held by such holders of Registrable Securities;
provided, however, that Packaging Dynamics shall not be required to (i) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this paragraph (d), (ii) subject itself to taxation
in any such jurisdiction or (iii) consent to general service of process in any
such jurisdiction;
(e) use its best efforts to cause the Registrable Securities covered by
such registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
business and operations of Packaging Dynamics to enable the holders of
Registrable Securities to consummate the disposition of such Registrable
Securities;
(f) notify the holders of Registrable Securities, at any time when a
prospectus relating to the registration statement is required to be delivered
under the Act, upon discovery of, or upon the happening of any event as a result
of which, the prospectus included in such registration statement contains an
untrue statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances under which they were made. In such instance,
Packaging Dynamics promptly shall prepare and file a supplement or amendment to
such prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not contain an untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances under which they were made;
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(g) enter into and perform customary agreements (including an underwriting
agreement in customary form) and take such other actions as are reasonably
required in order to expedite or facilitate the disposition of such Registrable
Securities;
(h) make available for inspection by any managing underwriter participating
in any disposition pursuant to such registration statement, Holders' Counsel and
any accountant or other agent retained by the holder or holders of a majority of
the aggregate outstanding shares of Registrable Securities held by the holders
of Registrable Securities hereunder or any managing underwriter (collectively,
the "Inspectors"), all pertinent financial and other records, pertinent
corporate documents and properties of Packaging Dynamics and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause Packaging Dynamics' and
its subsidiaries' officers, directors and employees, and the independent public
accountants of Packaging Dynamics, to supply all information reasonably
requested by any such Inspector in connection with such registration statement.
Records and other information that Packaging Dynamics determines in good faith
to be confidential, and of which determination the Inspectors are so notified,
shall not be disclosed by the Inspectors unless (i) the disclosure of such
Records or other information is necessary to avoid or correct a misstatement or
omission in the registration statement, (ii) the release of such Records or
other information is ordered pursuant to a subpoena or other order from a court
of competent jurisdiction or (iii) the information in such Records or such other
information has been made generally available to the public by someone other
than such Inspector. Packaging Dynamics shall not be required to disclose any
such confidential information or Records until and unless the Inspectors shall
have entered into customary confidentiality agreements with Packaging Dynamics
with respect thereto. Each holder of Registrable Securities agrees that it
shall, upon learning that disclosure of such Records or other information is
sought in a court of competent jurisdiction, give notice to Packaging Dynamics
and allow Packaging Dynamics, at Packaging Dynamics' expense, to undertake
appropriate action to prevent disclosure of the Records or other information
deemed confidential;
(i) in the event such sale is pursuant to an underwritten offering, use its
best efforts to obtain a "cold comfort" letter from Packaging Dynamics'
independent public accountants in customary form and covering such matters of
the type customarily covered by "cold comfort" letters as Holders' Counsel or
the managing underwriter reasonably request;
(j) use its best efforts to obtain, at the request of Holders' Counsel on
the date such securities are delivered to the underwriters for sale pursuant to
such registration or, if such securities are not being sold through
underwriters, on the date the registration statement with respect to such
securities becomes effective, an opinion of counsel representing Packaging
Dynamics for the purposes of such registration, addressed to the underwriters,
if any, and to the holders of Registrable Securities, covering such legal
matters with respect to the registration in respect of which such opinion is
being given as the Holders' Counsel may reasonably request and are customarily
included in such opinions;
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(k) 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, but no later than fifteen (15) months after the
effective date of the registration statement, an unaudited earnings statement
covering a period of twelve (12) months beginning within three (3) months after
the effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Act;
(l) keep each holder of Registrable Securities advised in writing as to the
initiation and progress of any registration under Section 2, 3 or 4 hereunder;
(m) provide officers' certificates and other customary closing documents;
(n) notify each seller of such Registrable Securities and each underwriter
participating in the disposition of such Registrable Securities of any stop
order or other suspension of effectiveness of the registration statement;
(o) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of the registration statement at the earliest
possible moment;
(p) cooperate with the sellers of such Registrable Securities and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of book-entry securities or, if applicable, of
certificates (not bearing any restrictive legends) representing securities, to
be sold under the registration statement and enable such securities to be in
such denominations or amounts, as the case may be, and registered in such names
as the managing underwriter or underwriters, if any, or such sellers may
request;
(q) cooperate with each seller of Registrable Securities and each
underwriter participating in the disposition of such Registrable Securities and
their respective counsel in connection with any filings required to be made with
the National Association of Securities Dealers, Inc. (the "NASD"); and
(r) use all reasonable efforts to take all other steps necessary to effect
the registration of the Registrable Securities contemplated hereby.
Packaging Dynamics may require each holder of Registrable Securities to
furnish to Packaging Dynamics such information regarding the distribution of
such securities as Packaging Dynamics may from time to time reasonably request
in writing.
Each holder of Registrable Securities agrees that, upon receipt of any
notice from Packaging Dynamics of the happening of any event of the kind
described in Section 6(f) hereof, such holder of Registrable Securities shall
forthwith discontinue disposition of Registrable Securities pursuant to the
registration statement covering such Registrable Securities until such holder's
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 6(f) hereof and, if so directed by Packaging Dynamics, such holder shall
deliver to Packaging Dynamics (at Packaging Dynamics'
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expense) all copies, other than permanent file copies then in such holder's
possession, of the prospectus covering such Registrable Securities current at
the time of receipt of such notice. In the event Packaging Dynamics shall give
any such notice, Packaging Dynamics shall extend the period during which such
registration statement shall be maintained effective pursuant to this Agreement
(including, without limitation, the period referred to in Section 6(b)) by the
number of days of the period from and including the date of the giving of such
notice pursuant to Section 6(f) hereof to and including the date when the holder
of Registrable Securities shall have received the copies of the supplemented or
amended prospectus contemplated by and meeting the requirements of Section 6(f).
7. REGISTRATION EXPENSES.
Packaging Dynamics shall pay all expenses (other than underwriting
discounts and commissions of the Approved Underwriters or of the Company
Underwriter applicable to the holders of Registrable Securities) arising from or
incident to its performance of, or compliance with, this Agreement, including
without limitation, (i) required SEC, stock exchange and NASD registration and
filing fees (including, if applicable, the fees and expenses of any "qualified
independent underwriter" as such term is defined in Rule 2720 set forth in the
NASD Manual, and of its counsel), (ii) all fees and expenses incurred in
complying with securities or blue sky laws (including reasonable fees and
disbursements of counsel in connection with blue sky qualifications of the
Registrable Securities), (iii) all printing (including expenses of printing
prospectuses if such printing is reasonably requested by the holder or holders
of a majority of the aggregate outstanding shares of Registrable Securities held
by the holders of Registrable Securities hereunder), messenger and delivery
expenses, (iv) the fees and disbursements of counsel to Packaging Dynamics and
of its independent public accountants and any other accounting and legal fees
and expenses incurred by Packaging Dynamics (including without limitation any
expenses arising from any special audits or "cold comfort" letters required by
or incident to any registration or qualification), (v) internal expenses
(including, without limitation, all salaries and expenses of officers and
employees performing legal or accounting duties) and (vi) the reasonable fees
and expenses of any special experts retained by Packaging Dynamics in connection
with any registration pursuant to the terms of this Agreement, regardless of
whether such registration statement is declared effective. In connection with
each registration hereunder, Packaging Dynamics shall reimburse the holders of
Registrable Securities being registered in such registration for the reasonable
fees and disbursements of not more than one counsel for the holders of
Registrable Securities selected by the holder or holders of a majority of the
aggregate outstanding Registrable Securities included, or to be included, in
such registration statement. All of the expenses described in this Section 7 are
herein called "Registration Expenses."
8. INDEMNIFICATION; CONTRIBUTION
8.1 Indemnification by Packaging Dynamics. Packaging Dynamics agrees to
indemnify, to the full extent permitted by law, each holder of Registrable
Securities, its officers, directors, partners, members, employees and agents and
each person who
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controls (within the meaning of the Act and the Securities Exchange Act of 1934,
as amended (the "Exchange Act") such holder, and any investment adviser thereof
or agent therefor from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation and legal
expenses) arising out of or based upon any untrue, or alleged untrue, statement
of a material fact contained in any registration statement, prospectus or
preliminary prospectus or notification or offering circular (as amended or
supplemented if Packaging Dynamics shall have furnished any amendments or
supplements thereto) or arising out of or based upon 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 in light of the
circumstances under which they were made. The indemnification agreement
contained in this Section 8.1 shall not apply to statements or omissions made in
reliance upon and in conformity with information furnished in writing to
Packaging Dynamics by such holder of Registrable Securities expressly for use
therein. The indemnification agreement contained in this Section 8.1 with
respect to any preliminary prospectus shall not inure to the benefit of any
person from whom the person asserting any such losses, claims, damages,
liabilities or expenses purchased the Registrable Securities that are the
subject thereof (or to the benefit of any person controlling such person) if the
untrue statement or omission of material fact contained in the preliminary
prospectus was corrected in the prospectus, as then amended or supplemented, and
such person failed to deliver a copy of the amended or supplemented prospectus
to the person asserting such loss, claim, damage, liability or expense after
Packaging Dynamics had furnished such person with copies of the same. Packaging
Dynamics shall also indemnify any underwriters of the Registrable Securities,
their officers, directors and employees and each person who controls such
underwriters (within the meaning of the Act and the Exchange Act) to the same
extent as provided above with respect to the indemnification of the holders of
Registrable Securities.
8.2 Indemnification by Each Holder. In connection with any registration
statement in which a holder of Registrable Securities is participating pursuant
to Section 2, 3 or 4 hereof, such holder shall furnish to Packaging Dynamics in
writing such information and affidavits with respect to such holder as Packaging
Dynamics may reasonably request for use in connection with any such registration
statement, preliminary prospectus or prospectus (or amendment or supplement
thereof) and each holder of Registrable Securities agrees to indemnify, to the
extent permitted by law, Packaging Dynamics, any underwriter retained by
Packaging Dynamics and their respective directors, officers, employees and each
person who controls Packaging Dynamics or such underwriter (within the meaning
of the Act and the Exchange Act), but only with respect to any such information
furnished in writing by such holder of Registrable Securities.
8.3 Conduct of Indemnification Proceedings. Any person entitled to
indemnification hereunder (the "Indemnified Party") agrees to give prompt
written notice to the indemnifying party (the "Indemnifying Party") after the
receipt by the Indemnified Party of any written notice of the commencement of
any action, suit, proceeding or investigation or threat thereof made in writing
for which the Indemnified Party intends to claim indemnification or contribution
pursuant to this Agreement; provided, however, that the failure so to notify the
Indemnifying Party shall relieve the Indemnifying Party of any liability that it
may have to the Indemnified Party hereunder only to the extent that it
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is prejudiced by such delay or failure. In case notice of commencement of any
such action shall be given to the Indemnifying Party as above provided, the
Indemnifying Party shall be entitled to participate in and, to the extent it may
wish, jointly with any other Indemnifying Party similarly notified, to assume
the defense of such action at its own expense, with counsel chosen by it and
reasonably satisfactory to such Indemnified Party. The Indemnified Party shall
have the right to employ separate counsel in any such action and participate in
the defense thereof, but the fees and expenses of such counsel shall be paid by
the Indemnified Party unless (i) the Indemnifying Party agrees to pay the same,
(ii) the Indemnifying Party fails to assume the defense of such action with
counsel reasonably satisfactory to the Indemnified Party, (iii) the named
parties to any such action (including any impleaded parties) have been advised
by their counsel that either (x) representation of such Indemnified Party and
the Indemnifying Party by the same counsel would be inappropriate under
applicable standards of professional conduct or (y) there may be one or more
legal defenses available to it which are different from or additional to those
available to the Indemnifying Party. In the instances listed in the previous
sentence, the Indemnifying Party shall not have the right to assume the defense
of such action on behalf of the Indemnified Party, but will not be obligated to
pay the fees and expenses of more than one counsel for all Indemnified Parties
with respect to such claim. The Indemnified Party shall not be required to
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such indemnified party of a release from all liability with respect to such
claim or litigation. The Indemnifying Party shall not be liable for any
settlement entered into without its consent, which consent shall not be
unreasonably withheld.
8.4 Contribution. If the indemnification provided for in this Section 8
from the Indemnifying Party is unavailable to an Indemnified Party hereunder in
respect of any losses, claims, damages, liabilities or expenses referred to
herein, then the Indemnifying Party, in lieu of indemnifying such Indemnified
Party, shall contribute to the amount paid or payable by such Indemnified Party
as a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party and Indemnified Party in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such Indemnifying Party
and Indemnified Party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such Indemnifying Party or
Indemnified Party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. 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 8.1, 8.2 and 8.3, any legal or other fees or
expenses reasonably incurred by such party in connection with any investigation
or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8.4 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred
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to in the immediately preceding paragraph. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person.
9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
A holder of Registrable Securities may not participate in any underwritten
registration hereunder unless such holder (a) agrees to sell such holder's
Registrable Securities on the basis provided in any underwriting arrangements
entered into in accordance with this Agreement and (b) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements,
custody agreements and other documents reasonably required under the terms of
such underwriting arrangements and (c) agrees to pay their pro rata portion of
all underwriting discounts and commissions of Approved Underwriters or the
Company Underwriter.
10. COVENANT OF HOLDERS OF REGISTRABLE SECURITIES.
Each holder of Registrable Securities by its acceptance of the Registrable
Securities agrees to reasonably cooperate with Packaging Dynamics in connection
with the preparation and filing of any registration statement hereunder.
11. RULE 144.
Packaging Dynamics covenants that it shall file any reports required to be
filed by it under the Act, the Exchange Act and the rules and regulations
adopted by the SEC thereunder and that it shall take such further action as a
holder of Registrable Securities may reasonably request (including providing any
information necessary to comply with Rule 144A under the Act), all to the extent
required from time to time to enable such holder to sell Registrable Securities
without registration under the Act within the limitation of the exemptions
provided by (a) Rule 144 or Rule 144A under the Act, as such rules may be
amended from time to time, or (b) any similar rules or regulations hereafter
adopted by the SEC. Packaging Dynamics shall, upon the request of a holder of
Registrable Securities, deliver to such holder of Registrable Securities a
written statement as to filings made by Packaging Dynamics with the SEC.
12. MISCELLANEOUS
12.1 Recapitalization, Exchanges, etc., Affecting Packaging Dynamics'
Capital Stock. The provisions of this Agreement shall apply, to the full extent
set forth herein with respect to any and all common stock of Packaging Dynamics
or any successor or assign of Packaging Dynamics (whether by merger,
consolidation, sale of assets or otherwise) which may be issued in respect of,
in exchange for or in substitution of, the Registrable Securities and shall be
appropriately adjusted for any stock dividends, splits, reverse splits,
combinations, recapitalizations and the like occurring after the date hereof.
12.2 No Inconsistent Agreements. Packaging Dynamics shall not enter into
any agreement with respect to its securities that is inconsistent with the
rights granted to the holders of Registrable Securities in this Agreement.
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12.3 Remedies. The holders of Registrable Securities, in addition to
being entitled to exercise all rights granted by law (including recovery of
damages), shall be entitled to specific performance of their rights under this
Agreement. Packaging Dynamics agrees 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 agrees to waive the defense that a remedy at law
would be adequate in any action for specific performance.
12.4 Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given
unless Packaging Dynamics has consented in writing thereto and has obtained the
written consent of (i) the holder or holders of at least a majority of the
aggregate outstanding shares of Registrable Securities hereunder affected by
such amendment, modification, supplement, waiver or departure and (ii) the
holder or holders at least a majority of all such Registrable Securities owned
by DCBS or any of its members.
12.5 Notices. All notices or other communications provided for herein
shall be in writing and shall be given personally, telegraphed, telexed, sent by
facsimile transmission or sent by prepaid air courier or certified, registered
or express mail, postage prepaid. Any such notice shall be deemed to have been
given (a) when received, if delivered in person, telegraphed, telexed, sent by
facsimile transmission and confirmed in writing, (b) two (2) business days
thereafter if sent by reputable overnight, prepaid air courier or (c) three (3)
business days following the mailing thereof, if mailed by certified first class
mail, postage prepaid, return receipt requested, in any such case as follows (or
to such other address or addresses as a party may have advised the other in the
manner provided in this Section 12.5):
(i) if to Packaging Dynamics:
Packaging Dynamics Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Executive Officer
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(ii) if to the Holders:
Packaging Investors, L.P.
c/o Group III 31, L.L.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
and
DCBS Investors, L.L.C.
c/o Packaging Dynamics Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
and
CB Investors, L.L.C.
c/o Packaging Dynamics Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
and if to any other holder of Registrable Securities, at the address that such
holder shall have furnished to Packaging Dynamics in writing, or, until any such
other holder so furnishes to Packaging Dynamics an address, then to and at the
address of the last holder of such Registrable Securities that has furnished an
address to Packaging Dynamics.
12.6 Successors and Assigns. Except as otherwise expressly provided herein,
the provisions of this Agreement shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto, including without limitation any person or entity to whom or
which any Registrable Securities are transferred or distributed other than in
violation of Section 4 of the Stockholders Agreement (a "Transferee"), it being
understood and agreed that no such transfer shall be made, and Packaging
Investors shall not be required to acknowledge or recognize any such transfer,
unless such Transferee has executed and delivered an agreement whereby
15
such Transferee agrees to become a party hereto and to be bound by all the
provisions hereof which were applicable to such Transferee's transferor.
12.7 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.
12.8 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
12.9 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to contracts made
and to be performed wholly within such State.
12.10 Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law. Furthermore, in
lieu of each such illegal, invalid or unenforceable provision there shall be
added automatically as a part of this Agreement a provision as similar in terms
to such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
12.11 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.
This Agreement supersedes all prior agreements, discussions and understandings
between the parties with respect to such subject matter.
16
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the
date first above written.
PACKAGING DYNAMICS CORPORATION
By: _______________________
Name:
Title:
PACKAGING INVESTORS, L.P.
By: _______________________
Name:
Title:
DCBS INVESTORS, L.L.C.
By: _______________________
Name:
Title:
CB INVESTORS, L.L.C.
By: _______________________
Name:
Title:
17