Exhibit 4.3


 


EXECUTION COPY


 


 


REGISTRATION RIGHTS AGREEMENT


 


between


 


SEALED AIR CORPORATION,


 


as Issuer,


 


and


 


MORGAN STANLEY & CO. INCORPORATED


CITIGROUP
GLOBAL MARKETS INC.


CREDIT SUISSE FIRST BOSTON LLC


BANC OF AMERICA SECURITIES LLC


MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED


and


LEHMAN BROTHERS INC.,


 


as Initial Purchasers


 


 


Dated as of July 1, 2003


 

















 


REGISTRATION RIGHTS AGREEMENT dated as of July 1, 2003 between
Sealed Air Corporation, a Delaware corporation (the “Company”), and Morgan Stanley
& Co. Incorporated, Citigroup Global Markets Inc., Credit Suisse First
Boston LLC, Banc of America Securities LLC, Merrill Lynch, Pierce, Fenner &
Smith Incorporated and Lehman Brothers Inc. (collectively, the “Initial
Purchasers”) pursuant to the Purchase Agreement dated June 26,
2003 (as amended from time to time, the “Purchase Agreement”), between the Company
and the Initial Purchasers.  In order to
induce the Initial Purchasers to enter into the Purchase Agreement, the Company
has agreed to provide the registration rights set forth in this Agreement.  The execution of this Agreement is a
condition to the closing under the Purchase Agreement.


 


The
Company agrees with the Initial Purchasers, (i) for their benefit as Initial
Purchasers and (ii) for the benefit of the beneficial owners (including the
Initial Purchasers) from time to time of the Company’s 3% Convertible Senior
Notes due 2033 (the “Notes”),
which are convertible into Underlying Common Stock (as defined herein), and the
beneficial owners from time to time of the Underlying Common Stock issued upon
conversion of the Notes (each of the foregoing a “Holder” and together the “Holders”),
as follows:


 


SECTION 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
terms shall have the following meanings:


 


“Amendment
Effectiveness Deadline Date” has the meaning set forth in Section
2(d) hereof.


 


“Business Day”
means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on
which banking institutions in The City of New York are authorized or obligated
by law or executive order to close.


 


“Common Stock”
means the shares of common stock, par value $.10 per share, of the Company and
any other shares of common stock as may constitute “Common Stock” for purposes
of the Indenture, including the Underlying Common Stock.


 


“Company”
has the meaning set forth in the preamble hereof.


 


“Conversion
Price” has the meaning assigned such term in the Indenture.


 


“Damages
Accrual Period” has the meaning set forth in Section 2(e) hereof.


 


“Damages
Payment Date” means each June 30 and December 30.


 


“Deferral
Notice” has the meaning set forth in Section 3(h) hereof.


 


“Deferral
Period” has the meaning set forth in Section 3(h) hereof.


 


“Effectiveness
Deadline Date” has the meaning set forth in Section 2(a) hereof.


 


“Effectiveness
Period” means the period commencing on the date hereof and ending on
the date that all Registrable Securities have ceased to be Registrable
Securities.


 


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“Event”
has the meaning set forth in Section 2(e) hereof.


 


“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the SEC promulgated thereunder.


 


“Filing
Deadline Date” has the meaning set forth in Section 2(a) hereof.


 


“Holder”
has the meaning set forth in the second paragraph of this Agreement.


 


“Indenture”
means the Indenture, dated as of July 1, 2003, between the Company and
SunTrust Bank, as trustee, pursuant to which the Notes are being issued.


 


“Initial
Purchasers” has the meaning set forth in the preamble hereof.


 


“Initial
Shelf Registration Statement”  has the meaning set forth in Section 2(a)
hereof.


 


“Issue Date”
means July 1, 2003.


 


“Liquidated
Damages Amount” has the meaning set forth in Section 2(e) hereof.


 


 “Material Event” has the meaning set forth
in Section 3(h) hereof.


 


 “Notes” has the meaning set forth in the
preamble hereof.


 


“Notice and
Questionnaire” means a written notice delivered to the Company
containing substantially the information called for by the Selling
Securityholder Notice and Questionnaire attached as Annex A to the Offering
Memorandum of the Company dated June 26, 2003 relating to the Notes.


 


“Notice
Holder” means, on any date, any Holder that has delivered a Notice
and Questionnaire to the Company on or prior to such date.


 


“Purchase
Agreement” has the meaning set forth in the preamble hereof.


 


“Prospectus”
means the prospectus included in any Registration Statement (including, without
limitation, a prospectus that discloses information previously omitted from a
prospectus filed as part of an effective registration statement in reliance
upon Rule 430A promulgated under the Securities Act), as amended or
supplemented by any amendment or prospectus supplement, including
post-effective amendments, and all materials incorporated by reference or
explicitly deemed to be incorporated by reference in such Prospectus.


 


“Record
Holder” means with respect to any Damages Payment Date relating to
any Notes convertible into Registrable Securities as to which any Liquidated
Damages Amount has accrued, the registered holder of such Notes on the
June 15 immediately preceding a Damages Payment Date occurring on a
June 30, and on the December 15 immediately preceding a Damages
Payment Date occurring on a December 30.


 


“Registrable
Securities” means the Underlying Common Stock and any securities
into or for which such Underlying Common Stock has been converted or exchanged,
and any security


 


3

















 


issued with respect thereto upon any stock dividend,
split or similar event until, in the case of any such security, (A) the
earliest of (i) its effective registration under the Securities Act and resale
in accordance with the Registration Statement covering it, (ii) expiration of
the holding period that would be applicable thereto, under Rule 144(k) or (iii)
its sale to the public pursuant to Rule 144 (or any similar provision then in
force, but not Rule 144A) under the Securities Act, and (B) as a result of the
event or circumstance described in any of the foregoing clauses (i) through
(iii), the legend with respect to transfer restrictions required under the Indenture
is removed or removable in accordance with the terms of the Indenture or such
legend, as the case may be.


 


“Registration
Statement” means any registration statement of the Company that
covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits and
all materials incorporated by reference or explicitly deemed to be incorporated
by reference in such registration statement.


 


“Rule 144”
means Rule 144 under the Securities Act, as such Rule may be amended from time
to time, or any similar rule or regulation hereafter adopted by the SEC.


 


“Rule 144A”
means Rule 144A under the Securities Act, as such Rule may be amended from time
to time, or any similar rule or regulation hereafter adopted by the SEC.


 


“SEC”
means the Securities and Exchange Commission.


 


“Securities
Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated by the SEC thereunder.


 


“Shelf
Registration Statement” has the meaning set forth in Section 2(a)
hereof.


 


“Special
Counsel” means Shearman & Sterling LLP or one such other
successor counsel as shall be specified by the Holders of a majority of all Registrable
Securities, but which may, with the written consent of the Initial Purchasers
(which shall not be unreasonably withheld), be another nationally recognized
law firm experienced in securities law matters designated by the Company, the
reasonable fees and expenses of which will be paid by the Company pursuant to
Section 5 hereof.  Throughout this
Agreement, for purposes of determining the holders of a majority of Registrable
Securities in this definition, Holders of Notes shall be deemed to be the Holders
of the number of shares of Underlying Common Stock into which such Notes are or
would be convertible as of the date the consent is requested.


 


“Subsequent
Shelf Registration Statement” has the meaning set forth in Section
2(b) hereof.


 


“Trustee”
means SunTrust Bank, the Trustee under the Indenture.


 


“Underlying
Common Stock” means the Common Stock into which the Notes are
convertible or issued upon any such conversion.


 


“Underwritten
Holders” has the meaning set forth in Section 8(a) hereof.


 


4

















 


SECTION 2.           Shelf Registration.  (a) 
The Company shall prepare and file or cause to be prepared and filed
with the SEC, as soon as practicable but in any event by the date (the “Filing
Deadline Date”) ninety (90) days after the Issue Date, a
Registration Statement for an offering to be made on a delayed or continuous
basis pursuant to Rule 415 of the Securities Act (a “Shelf Registration Statement”)
registering the resale from time to time by Holders thereof of all of the
Registrable Securities (the “Initial Shelf Registration Statement”).  The Initial Shelf Registration Statement
shall be on Form S-3 or another appropriate form permitting registration of
such Registrable Securities for resale by such Holders in accordance with the
methods of distribution elected by the Holders and set forth in the Initial
Shelf Registration Statement.  The
Company shall use its reasonable efforts to cause the Initial Shelf
Registration Statement to be declared effective under the Securities Act as
promptly as is practicable but in any event by the date (the “Effectiveness
Deadline Date”) that is one hundred eighty (180) days after the
Issue Date, and to keep the Initial Shelf Registration Statement (or any
Subsequent Shelf Registration Statement) continuously effective under the
Securities Act until the expiration of the Effectiveness Period.  To the extent permitted by applicable law
and the interpretations of the staff of the SEC, the Initial Shelf Registration
Statement may be terminated with respect to the Registrable Securities on the
date the Effectiveness Period expires. 
At the time the Initial Shelf Registration Statement is declared
effective, each Holder that became a Notice Holder on or prior to the date five
(5) Business Days prior to such time of effectiveness shall be named as a
selling securityholder in the Initial Shelf Registration Statement and the
related Prospectus in such a manner as to permit such Holder to deliver such
Prospectus to purchasers of Registrable Securities in accordance with
applicable law.


 


(b)           If the Initial Shelf
Registration Statement or any Subsequent Shelf Registration Statement ceases to
be effective for any reason at any time during the Effectiveness Period (other
than because all Registrable Securities registered thereunder shall have been
resold pursuant thereto or shall have otherwise ceased to be Registrable
Securities), the Company shall use its reasonable efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof, and in any event
shall within forty-five (45) days of such cessation of effectiveness amend the
Shelf Registration Statement in a manner reasonably expected to obtain the
withdrawal of the order suspending the effectiveness thereof, or file an additional
Shelf Registration Statement pursuant to Rule 415 covering all of the
Registrable Securities (or, in the event Rule 415 shall not be available for
any of the Registrable Securities, covering an offering to be made as permitted
under the terms of the Notes and this Agreement, including the offering of the
Underlying Common Stock upon exchange, repurchase or redemption of the Notes
(each, a “Subsequent Shelf Registration
Statement”).  If a Subsequent
Shelf Registration Statement is filed, the Company shall use its reasonable
efforts to cause the Subsequent Shelf Registration Statement to become
effective as promptly as is practicable after such filing and to keep such
Registration Statement (or subsequent Shelf Registration Statement)
continuously effective until the end of the Effectiveness Period.


 


(c)           The Company shall
supplement and amend the Shelf Registration Statement if required by the rules,
regulations or instructions applicable to the registration form used by the
Company for such Shelf Registration Statement, if required by the Securities
Act or as necessary to name a Notice Holder as a selling securityholder
pursuant to Section (d) below.


 


5

















 


(d)           Each Holder agrees
that if such Holder wishes to sell Registrable Securities pursuant to a Shelf
Registration Statement and related Prospectus, it will do so only in accordance
with this Section 2(d) and Section 3(h). 
Following the date that the Initial Shelf Registration Statement is
declared effective, each Holder wishing to sell Registrable Securities pursuant
to a Shelf Registration Statement and related Prospectus agrees to deliver a
Notice and Questionnaire to the Company at least three (3) Business Days prior
to any intended distribution of Registrable Securities under the Shelf
Registration Statement.  Each holder who
elects to sell Registrable Securities pursuant to a Shelf Registration
Statement agrees that, by submitting a Notice and Questionnaire to the Company,
it will be bound by the terms and conditions of the Notice and Questionnaire
and this Agreement.  From and after the
date the Initial Shelf Registration Statement is declared effective, the
Company shall, as promptly as practicable after the date a Notice and
Questionnaire is delivered pursuant to Section 9(c) hereof, and in any event
upon the later of (x) fifteen (15) Business Days after such date or (y) fifteen
(15) Business Days after the expiration of any Deferral Period in effect when
the Notice and Questionnaire is delivered or put into effect within fifteen
(15) Business Days of such delivery date:


 


(i)            if
required by applicable law, file with the SEC a post-effective amendment to the
Shelf Registration Statement or prepare and, if required by applicable law,
file a supplement to the related Prospectus or a supplement or amendment to any
document incorporated therein by reference or file any other required document
so that the Holder delivering such Notice and Questionnaire is named as a
selling securityholder in the Shelf Registration Statement and the related
Prospectus in such a manner as to permit such Holder to deliver such Prospectus
to purchasers of the Registrable Securities in accordance with applicable law
and, if the Company shall file a post-effective amendment to the Shelf
Registration Statement, use its reasonable efforts to cause such post-effective
amendment to be declared effective under the Securities Act as promptly as is
practicable, but in any event by the date (the “Amendment Effectiveness Deadline Date”) that is forty-five
(45) days after the date such post-effective amendment is required by this
clause to be filed;


 


(ii)           provide
such Holder copies of any documents filed pursuant to Section 2(d)(i); and


 


(iii)          notify
such Holder as promptly as practicable after the effectiveness under the
Securities Act of any post-effective amendment filed pursuant to Section
2(d)(i);


 


provided,
that if such Notice and Questionnaire is delivered during a Deferral Period,
the Company shall so inform the Holder delivering such Notice and Questionnaire
and shall take the actions set forth in clauses (i), (ii) and (iii) above upon
expiration of the Deferral Period in accordance with Section 3(h).  Notwithstanding anything contained herein to
the contrary, (i) the Company shall be under no obligation to name any Holder
that is not a Notice Holder as a selling securityholder in any Registration
Statement or related Prospectus and (ii) the Amendment Effectiveness Deadline
Date shall be extended by up to ten (10) Business Days from the expiration of a
Deferral Period (and the Company shall incur no obligation to pay Liquidated
Damages during such extension or during such Deferral Period) if such Deferral
Period shall be in effect on the Amendment Effectiveness Deadline Date.


 


6

















 


(e)           The parties hereto
agree that the Holders of Registrable Securities will suffer damages, and that
it would not be feasible to ascertain the extent of such damages with
precision, if, other than as permitted hereunder,


 


(i)            the
Initial Shelf Registration Statement has not been filed on or prior to the
Filing Deadline Date,


 


(ii)           the
Initial Shelf Registration Statement has not been declared effective under the
Securities Act on or prior to the Effectiveness Deadline Date,


 


(iii)          the
Company has failed to perform its obligations set forth in Section 2(d)(i)
within the time period required therein,


 


(iv)          any
post-effective amendment to a Shelf Registration Statement filed pursuant to
Section 2(d)(i) has not become effective under the Securities Act on or prior
to the Amendment Effectiveness Deadline Date, or


 


(v)           the
aggregate duration of Deferral Periods in any period exceeds the number of days
permitted in respect of such period pursuant to Section 3(h) hereof.


 


Each event described in any of the foregoing clauses
(i) through (v) is individually referred to herein as an “Event.”  For purposes of this Agreement, each Event
set forth above shall begin and end on the dates set forth in the table set
forth below:


 


	
  Type of

  Event by

  Clause

  	
   

  	
  Beginning

  Date

  	
   

  	
  Ending

  Date

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (i)

  	
   

  	
  Filing
  Deadline Date

  	
   

  	
  the date the
  Initial Shelf Registration Statement is filed

  
	
  (ii)

  	
   

  	
  Effectiveness
  Deadline Date

  	
   

  	
  the date the
  Initial Shelf Registration Statement becomes effective under the Securities
  Act

  
	
  (iii)

  	
   

  	
  the date by
  which the Company is required to perform its obligations under Section 2(d)

  	
   

  	
  the date the
  Company performs its obligations set forth in Section 2(d)

  



 


7

















 


	
  Type of

  Event by

  Clause

  	
   

  	
  Beginning

  Date

  	
   

  	
  Ending

  Date

  
	
  (iv)

  	
   

  	
  the
  Amendment Effectiveness Deadline Date

  	
   

  	
  the date the
  applicable post-effective amendment to a Shelf Registration Statement becomes
  effective under the Securities Act

  
	
  (v)

  	
   

  	
  the date on
  which the aggregate duration of Deferral Periods in any period exceeds the
  number of days permitted by Section 3(h)

  	
   

  	
  termination
  of the Deferral Period that caused the limit on the aggregate duration of
  Deferral Periods to be exceeded

  



 


For purposes of this Agreement, Events shall begin on
the dates set forth in the table above and shall continue until the ending
dates set forth in the table above.


 


Commencing
on (and including) any date that an Event has begun and ending on (but
excluding) the next date on which there are no Events that have occurred and
are continuing (a “Damages Accrual Period”), the Company shall
pay, as liquidated damages and not as a penalty, to Record Holders of Notes an
amount (the “Liquidated Damages Amount”) accruing, for each day in the
Damages Accrual Period, in respect of any Note, at a rate per annum equal to
0.5% of the aggregate principal amount of the Notes outstanding until the
Registration Statement is filed or made effective or during the additional
period the Prospectus is unavailable; provided that in the case of a Damages
Accrual Period that is in effect solely as a result of an Event of the type
described in clause (iii) or (iv) of the preceding paragraph, such Liquidated
Damages Amount shall be paid only to the Holders of Notes (as set forth in the
succeeding paragraph) that have delivered Notices and Questionnaires that
caused the Company to incur the obligations set forth in Section 2(d) the
non-performance of which is the basis of such Event.  Notwithstanding the foregoing, no Liquidated Damages Amount shall
accrue as to any Note from and after the earlier of (x) the date that the
Registrable Securities into which such Note is convertible have ceased to be
Registrable Securities and (y) expiration of the Effectiveness Period.  The rate of accrual of the Liquidated
Damages Amount with respect to any period shall not exceed the rate provided
for in this paragraph notwithstanding the occurrence of multiple concurrent
Events.


 


The
Liquidated Damages Amount shall accrue from the first day of the applicable
Damages Accrual Period, and shall be payable on each Damages Payment Date
during the Damage Accrual Period (and on the Damages Payment Date next
succeeding the end of the Damages Accrual Period if the Damage Accrual Period
does not end on a Damages Payment Date) to the Record Holders of Notes entitled
thereto; provided
that any Liquidated Damages Amount accrued with respect to any Note or portion
thereof redeemed by the Company on a redemption date or converted into
Underlying Common Stock on a conversion date prior to the Damages Payment Date,
shall, in any such event, be paid instead to the Holder who submitted such Note
or portion thereof for redemption or conversion on the applicable redemption
date or


 


8

















 


conversion date, as the case may be, on such date (or
promptly following the conversion date, in the case of conversion); provided
further that, in the case of an Event of the type described in
clause (iii) or (iv) of the first paragraph of this Section 2(e), such
Liquidated Damages Amount shall be paid only to the Holders of Notes entitled
thereto pursuant to such first paragraph by check mailed to the address set
forth in the Notice and Questionnaire delivered by such Holder.  The Trustee shall be entitled, on behalf of
registered holders of Notes, to seek any available remedy for the enforcement
of this Agreement, including for the payment of such Liquidated Damages Amount.
Notwithstanding the foregoing, the parties agree that the sole damages payable
for a violation of the terms of this Agreement with respect to which liquidated
damages are expressly provided shall be such liquidated damages.  Nothing shall preclude any Holder from
pursuing or obtaining specific performance or other equitable relief with
respect to this Agreement.


 


All of
the Company’s obligations set forth in this Section 2(e) that are outstanding
with respect to any Note shall survive until such time as all such obligations
with respect to such security have been satisfied in full (notwithstanding
termination of this Agreement pursuant to Section 9(k)).


 


The
parties hereto agree that the liquidated damages provided for in this Section
2(e) constitute a reasonable estimate of the damages that may be incurred by
Holders of Notes and Registrable Securities by reason of the failure of the
Shelf Registration Statement to be filed or declared effective or available for
effecting resales of Registrable Securities in accordance with the provisions
hereof.


 


SECTION 3.           Registration
Procedures.  In
connection with the registration obligations of the Company under Section 2
hereof, during the Effectiveness Period, the Company shall:


 


(a)           Prepare and file
with the SEC a Registration Statement or Registration Statements on any
appropriate form under the Securities Act available for the sale of the
Registrable Securities by the Holders thereof in accordance with the intended
method or methods of distribution thereof, and use its reasonable efforts to
cause each such Registration Statement to become effective and remain effective
as provided herein; provided that before filing any
Registration Statement or Prospectus or any amendments or supplements thereto
with the SEC (but excluding reports filed with the SEC under the Exchange Act),
furnish to and afford the Initial Purchasers and the Special Counsel a
reasonable opportunity to review copies of all such documents proposed to be
filed (in each case, where possible, at least five (5) Business Days prior to
the filing of such Registration Statement or amendment thereto or Prospectus or
supplement thereto, or such later date as is reasonable under the
circumstances).


 


(b)           Subject to Section
3(h), prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the applicable period
specified in Section 2(a); cause the related Prospectus to be supplemented by
any required prospectus supplement, and as so supplemented to be filed pursuant
to Rule 424 (or any similar provisions then in force) under the Securities Act;
and use its reasonable efforts to comply with the provisions of the Securities
Act applicable to it with respect to


 


9

















 


the disposition of all securities covered by such Registration
Statement during the Effectiveness Period in accordance with the intended
methods of disposition by the sellers thereof set forth in such Registration
Statement as so amended or such Prospectus as so supplemented.


 


(c)           As promptly as
practicable give notice to the Notice Holders, the Initial Purchasers and the
Special Counsel, (i) when any Prospectus, prospectus supplement, Registration
Statement or post-effective amendment to a Registration Statement has been
filed with the SEC and, with respect to a Registration Statement or any
post-effective amendment, when the same has been declared effective, (ii) of
any request, following the effectiveness of the Initial Shelf Registration
Statement under the Securities Act, by the SEC or any other federal or state
governmental authority for amendments or supplements to any Registration
Statement or related Prospectus or for additional information relating to the
Shelf Registration Statement, (iii) of the issuance by the SEC or any other
federal or state governmental authority of any stop order suspending the
effectiveness of any Registration Statement or the initiation or threatening of
any proceedings for that purpose, (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) of the occurrence of, but not the nature of or details concerning,
a Material Event and (vi) of the determination by the Company that a
post-effective amendment to a Registration Statement will be filed with the
SEC, which notice may, at the discretion of the Company (or as required
pursuant to Section 3(h)), state that it constitutes a Deferral Notice, in
which event the provisions of Section 3(h) shall apply.


 


(d)           Use its reasonable
efforts to prevent the issuance of any order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use of a
Prospectus and, if any such order is issued, to use its reasonable efforts to
obtain the withdrawal of any such order at the earliest possible moment, and
provide prompt notice to each Notice Holder and the Initial Purchaser of the
withdrawal of any such order.


 


(e)           As promptly as
practicable furnish to each Notice Holder, the Special Counsel and the Initial
Purchaser, upon request and without charge, at least one (1) conformed copy of
the Registration Statement and any amendment thereto, including exhibits and if
requested, all documents incorporated or deemed to be incorporated therein by
reference.


 


(f)            Deliver to each
Notice Holder, the Special Counsel, if any, and the Initial Purchaser, in connection
with any sale of Registrable Securities pursuant to a Registration Statement,
without charge, as many copies of the Prospectus or Prospectuses relating to
such Registrable Securities (including each preliminary prospectus) and any
amendment or supplement thereto as such Notice Holder may reasonably request;
and the Company hereby consents (except during such periods that a Deferral
Notice is outstanding and has not been revoked) to the use of such Prospectus
or each amendment or supplement thereto by each Notice Holder in connection
with any offering and sale of


 


10

















 


the Registrable Securities covered by such Prospectus or any amendment
or supplement thereto in the manner set forth therein.


 


(g)           Prior to any public
offering of the Registrable Securities pursuant to a Registration Statement,
use its reasonable efforts to register or qualify or cooperate with the Notice
Holders and the Special Counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of such
Registrable Securities for offer and sale under the securities or Blue Sky laws
of such jurisdictions within the United States as any Notice Holder reasonably
requests in writing (which request shall be included in the Notice and
Questionnaire or shall otherwise be timely delivered to the Company); prior to
any public offering of the Registrable Securities pursuant to the Shelf
Registration Statement, use its reasonable efforts to keep each such
registration or qualification (or exemption therefrom) effective during the
Effectiveness Period in connection with such Notice Holder’s offer and sale of
Registrable Securities pursuant to such registration or qualification (or
exemption therefrom) and do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such jurisdictions of such
Registrable Securities in the manner set forth in the relevant Registration
Statement and the related Prospectus; provided that the Company will not be
required to (i) qualify as a foreign corporation or as a dealer in securities
in any jurisdiction where it would not otherwise be required to qualify but for
this Agreement or (ii) take any action that would subject it to general service
of process in suits or to taxation in any such jurisdiction where it is not
then so subject.


 


(h)           Upon (A) the
issuance by the SEC of a stop order suspending the effectiveness of the Shelf
Registration Statement or the initiation of proceedings with respect to the
Shelf Registration Statement under Section 8(d) or 8(e) of the Securities Act,
(B) the occurrence of any event or the existence of any fact (a “Material Event”) as a result of which any
Registration Statement shall contain any 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, or any Prospectus shall contain any
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, in the light
of the circumstances under which they were made, not misleading, or (C) the
occurrence or existence of any pending corporate development that, in the
reasonable discretion of the Company, makes it appropriate to suspend the
availability of the Shelf Registration Statement and the related Prospectus:


 


(i) 
in the case of clause (B) above, subject to the next sentence, as
promptly as practicable prepare and file, if necessary pursuant to applicable
law, a post-effective amendment to such Registration Statement or a supplement
to the related Prospectus or any document incorporated therein by reference or
file any other required document that would be incorporated by reference into
such Registration Statement and Prospectus so that such Registration Statement
does not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or


 


11

















 


necessary to make the statements therein not misleading, and such
Prospectus does not contain any 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, in the light of the circumstances under which they were
made, not misleading, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, and, in the case of a
post-effective amendment to a Registration Statement, subject to the next
sentence, use its reasonable efforts to cause it to be declared effective as
promptly as is practicable, and


 


(ii) 
give notice to the Notice Holders, and the Special Counsel, if any, that
the availability of the Shelf Registration Statement is suspended (a “Deferral Notice”) and, upon receipt of any
Deferral Notice, each Notice Holder agrees not to sell any Registrable
Securities pursuant to the Registration Statement until such Notice Holder’s
receipt of copies of the supplemented or amended Prospectus provided for in
clause (i) above, or until it is advised in writing by the Company that the
Prospectus may be used, and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by reference
in such Prospectus.


 


The Company will use its reasonable efforts to ensure
that the use of the Prospectus may be resumed (x) in the case of clause (A)
above, as promptly as is practicable, (y) in the case of clause (B) above, as
soon as, in the sole judgment of the Company, public disclosure of such
Material Event would not be prejudicial to or contrary to the interests of the
Company or, if necessary to avoid unreasonable burden or expense, as soon as
practicable thereafter and (z) in the case of clause (C) above, as soon as in
the reasonable discretion of the Company, such suspension is no longer
appropriate.  The Company shall be
entitled to exercise its right under this Section 3(h) to suspend the
availability of the Shelf Registration Statement or any Prospectus, without
incurring or accruing any obligation to pay liquidated damages pursuant to
Section 2(e) (the “Deferral Period”); provided that the aggregate
duration of any Deferral Periods shall not (other than as described in the next
sentence) exceed 45 days in any three month period or 120 days in any twelve
(12) month period.  Notwithstanding the
foregoing, in the case of any Material Events relating to any possible
acquisitions or financings, recapitalizations, business combinations or other
similar material transactions involving the Company, the Company may, without
incurring any obligation to pay liquidated damages pursuant to Section 2(e),
suspend the availability of the Shelf Registration Statement for up to an
aggregate of 180 days in any twelve (12) month period (with no limitation on
the aggregate duration of any such Deferral Period in any three-month period).


 


(i)            If reasonably
requested in writing in connection with a disposition of Registrable Securities
pursuant to a Registration Statement, make reasonably available for inspection
during normal business hours by a representative for the Notice Holders of such
Registrable Securities, any broker-dealers, underwriters, attorneys and
accountants retained by such Notice Holders, and any attorneys or other agents
retained by a broker-dealer or underwriter engaged by such Notice Holders, all
relevant financial and other records and pertinent corporate documents and
properties of the Company and its subsidiaries, and cause the appropriate
officers, directors and employees of the Company and its subsidiaries to make
reasonably available for inspection during normal business hours on reasonable
notice all relevant information reasonably requested by such representative for
the Notice Holders, or any such broker-dealers, underwriters, attorneys


 


12

















 


or accountants in connection with such disposition, in each case as is
customary for similar “due diligence” examinations, other than those subject to
an attorney-client or other privilege; provided that such persons shall first
agree in writing with the Company that any information that is reasonably
designated by the Company as confidential at the time of delivery of such
information shall be kept confidential by such persons and shall be used solely
for the purposes of exercising rights under this Agreement, unless (i)
disclosure of such information is required by court or administrative order or
is necessary to respond to inquiries of regulatory authorities, (ii) disclosure
of such information is required by law (including any disclosure requirements
pursuant to federal securities laws in connection with the filing of any
Registration Statement or the use of any Prospectus referred to in this
Agreement), (iii) such information becomes generally available to the public
other than as a result of a disclosure or failure to safeguard by any such
person or (iv) such information becomes available to any such person from a
source other than the Company and such source is not bound by a confidentiality
agreement, and provided further that the foregoing inspection and
information gathering shall, to the greatest extent possible, be coordinated on
behalf of all the Notice Holders and the other parties entitled thereto by the
Special Counsel.  Any person legally
compelled to disclose any such confidential information made available for
inspection shall provide the Company with prompt prior written notice of such
requirement so that the Company may seek a protective order or other appropriate
remedy.


 


(j)            Comply with all
applicable rules and regulations of the SEC and make generally available to its
securityholders earning statements (which need not be audited) satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or
any similar rule promulgated under the Securities Act) for a 12-month period
commencing on the first day of the first fiscal quarter of the Company
commencing after the effective date of a Registration Statement, which
statements shall be made available no later than 45 days after the end of the
12-month period or 90 days if the 12-month period coincides with the fiscal
year of the Company.  Compliance with
all applicable rules and regulations of the SEC satisfies the Company’s
obligation to provide such earnings statement if the Company is then a
reporting company subject to Section 13 or 15(d) of the Exchange Act.


 


(k)           Cooperate with each
Notice Holder to facilitate the timely preparation and delivery of certificates
representing Registrable Securities sold or to be sold pursuant to a
Registration Statement, which certificates shall not bear any restrictive
legends, and cause such Registrable Securities to be registered in such names
as such Notice Holder may request in writing at least two (2) Business Day
prior to any sale of such Registrable Securities.


 


(l)            Provide a CUSIP
number for all Registrable Securities covered by each Registration Statement
not later than the effective date of such Registration Statement and provide
the transfer agent for the Common Stock with printed certificates for the
Registrable Securities that are in a form eligible for deposit with The
Depository Trust Company.


 


13

















 


(m)          Cooperate and assist
in any necessary filings required to be made with the National Association of
Securities Dealers, Inc.


 


(n)           In the case of a
Shelf Registration Statement involving an underwritten offering, the Company
shall enter into such customary agreements (including, if requested, an
underwriting agreement in customary form) and take all such other action, if
any, as Holders of a majority of the Registrable Securities being sold or any
managing underwriters shall reasonably request in order to facilitate any
disposition of Underlying Common Stock pursuant to such Shelf Registration
Statement, including, without limitation, (i) using its reasonable efforts to
cause its counsel to deliver an opinion or opinions in customary form, (ii)
using its reasonable efforts to cause its officers to execute and deliver all
customary documents and certificates and (iii) using its reasonable efforts to
cause its independent public accountants to provide a comfort letter or letters
in customary form.


 


(o)           Upon (i) the filing
of the Initial Shelf Registration Statement and (ii) the effectiveness of the
Initial Shelf Registration Statement, announce the same, in each case by
release to Reuters Economic Services and Bloomberg Business News.


 


SECTION 4.           Holder’s Obligations.  Each Holder agrees, by acquisition of the
Notes or any Registrable Securities, that no Holder shall be entitled to sell
any of such Registrable Securities pursuant to a Registration Statement or to
receive a Prospectus relating thereto, unless such Holder has furnished the
Company with a Notice and Questionnaire as required pursuant to Section 2(d)
hereof (including the information required to be included in such Notice and
Questionnaire) and the information set forth in the next sentence.  Each Notice Holder agrees promptly to
furnish to the Company all information required to be disclosed in order to
make the information previously furnished to the Company by such Notice Holder
not misleading and any other information regarding such Notice Holder and the
distribution of such Registrable Securities as the Company may from time to
time reasonably request.  Any sale of
any Registrable Securities by any Holder shall constitute a representation and
warranty by such Holder that the information relating to such Holder and its
plan of distribution is as set forth in the Prospectus delivered by such Holder
in connection with such disposition, that such Prospectus does not as of the
time of such sale contain any untrue statement of a material fact relating to
or provided by such Holder or its plan of distribution and that such Prospectus
does not as of the time of such sale omit to state any material fact relating
to or provided by such Holder or its plan of distribution necessary to make the
statements in such Prospectus, in the light of the circumstances under which
they were made, not misleading.


 


Each
Holder agrees by acquisition of its Notes or any Registrable Securities that,
upon actual receipt of any notice from the Company of the happening of any
event of the kind described in Section 3(c)(iii), 3(c)(v) or 3(c)(vi) hereof,
or of a Deferral Period pursuant to Section 3(h) hereof, such Holder will
forthwith discontinue disposition of such Registrable Securities covered by
such Registration Statement or Prospectus pursuant to such Registration Statement
or Prospectus until such Holder’s receipt of the copies of the supplemented or
amended Registration Statement or Prospectus contemplated by Section 3(h)(i)
hereof, or until it is advised in writing by the Company that the use of the
applicable Registration Statement or Prospectus may be resumed, and has
received copies or any amendments or supplements thereto.


 


14

















 


Notwithstanding anything to the contrary contained
herein, the Company shall not have any liability for any incremental expenses
incurred as a result of an underwritten offering of any Registrable Securities.


 


SECTION 5.           Registration Expenses.  The Company shall bear all fees and expenses incurred in
connection with the performance by the Company of its obligations under
Sections 2 and 3 of this Agreement whether or not any Registration Statement is
declared effective.  Such fees and
expenses shall include, without limitation, (i) all registration and filing
fees (including, without limitation, fees and expenses of compliance with
federal and state securities or Blue Sky laws (including, without limitation,
reasonable fees and disbursements of the Special Counsel in connection with
Blue Sky qualifications of the Registrable Securities under the laws of such
jurisdictions as Notice Holders of a majority of the Registrable Securities
being sold pursuant to a Registration Statement may designate), (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Registrable Securities in a form eligible for deposit with The Depository Trust
Company), (iii) duplication expenses relating to copies of any Registration
Statement or Prospectus delivered to any Holders hereunder, (iv) fees and
disbursements of counsel for the Company in connection with the Shelf
Registration Statement, (v) reasonable fees and disbursements of the Trustee
and its counsel and of the registrar and transfer agent for the Common Stock
and (vi) any Securities Act liability insurance obtained by the Company in its
sole discretion. In addition, the Company shall pay the internal expenses of
the Company (including, without limitation, all salaries and expenses of
officers and employees performing legal or accounting duties), the expense of
any annual audit, the fees and expenses incurred in connection with the listing
by the Company of the Registrable Securities on any securities exchange on
which similar securities of the Company are then listed and the fees and
expenses of any person, including special experts, retained by the
Company.  Notwithstanding the provisions
of this Section 5, each seller of Registrable Securities shall pay selling
expenses, including any underwriting discount and commissions, and all registration
expenses to the extent required by applicable law.


 


Notwithstanding
anything to the contrary contained herein, the Company shall not have any
liability for any incremental expenses incurred as a result of an underwritten
offering of any Registrable Securities by any Holder other than the Initial
Purchasers.


 


SECTION 6.           Indemnification
and Contribution.


 


(a)           Indemnification by the Company.  The Company agrees to indemnify and hold
harmless each Notice Holder whose Registrable Securities are to be included in
a Registration Statement pursuant to Section 3, and each person, if any, who
controls such Notice Holder within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement or any amendment thereof, any preliminary prospectus or the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), 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, except insofar as such losses,
claims, damages or liabilities are caused by any


 


15

















 


such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Holder furnished to the Company in the Notice and
Questionnaire or otherwise in writing by such Holder expressly for use therein;
provided that the indemnification
contained in this paragraph shall not inure to the benefit of any Holder (or to
the benefit of any person controlling such Holder) on account of any such
losses, claims, damages or liabilities caused by any untrue statement or
alleged untrue statement or omission or alleged omission made in any
preliminary prospectus provided in each case the Company has performed its
obligations under Section 3(a) hereof if either (A) (i) such Holder failed to
send or deliver a copy of the Prospectus with or prior to the delivery of written
confirmation of the sale by such Holder to the person asserting the claim from
which such losses, claims, damages or liabilities arise and (ii) the Prospectus
would have corrected such untrue statement or alleged untrue statement or such
omission or alleged omission, or (B) (x) such untrue statement or alleged
untrue statement, omission or alleged omission is corrected in an amendment or
supplement to the Prospectus and (y) having previously been furnished by or on
behalf of the Company with copies of the Prospectus as so amended or
supplemented, such Holder thereafter fails to deliver such Prospectus as so
amended or supplemented, with or prior to the delivery of written confirmation
of the sale of a Registrable Security to the person asserting the claim from
which such losses, claims, damages or liabilities arise.  In connection with any underwritten offering
pursuant to Section 8, the Company will also indemnify the underwriters, if
any, their officers and directors and each person who controls such underwriters
(within the meaning of the Securities Act and the Exchange Act) to the same
extent as provided herein with respect to the indemnification of the Holders,
if requested in connection with any Registration Statement.


 


(b)           Indemnification by Holders.  Each Holder agrees severally and not jointly
to indemnify and hold harmless the Company and its directors, its officers and
each person, if any, who controls the Company (within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act) or any
other Holder, to the same extent as the foregoing indemnity from the Company to
such Holder, but only with reference to information relating to such Holder
furnished to the Company in the Notice and Questionnaire or otherwise in writing
by such Holder expressly for use in such Registration Statement or Prospectus
or amendment or supplement thereto.  In
no event shall the liability of any Holder hereunder be greater in amount than
the dollar amount of the proceeds received by such Holder upon the sale of the
Registrable Securities pursuant to the Registration Statement giving rise to
such indemnification obligation.  In
connection with any underwritten offering pursuant to Section 8, each Holder
will also indemnify the underwriters, if any, their officers and directors and
each person who controls such underwriters (within the meaning of the
Securities Act and the Exchange Act) to the same extent as provided herein with
respect to the indemnification of the Company, if requested in connection with
any Registration Statement.


 


(c)           Conduct of Indemnification Proceedings.  In case any proceeding (including any
governmental investigation) shall be instituted involving any person in respect
of which indemnity may be sought pursuant to Section 6(a) or 6(b) hereof, such
person (the “indemnified party”)
shall promptly notify the person against whom such indemnity may be sought (the
“indemnifying party”) in writing
and the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the reasonable fees and disbursements of such counsel
related to such proceeding.  In


 


16

















 


any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. 
It is understood that the indemnifying party shall not, in respect of
the legal expenses of any indemnified party in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for
all such indemnified parties and that all such fees and expenses shall be reimbursed
as they are incurred.  Such firm shall
be designated in writing by, in the case of parties indemnified pursuant to
Section 6(a), the Holders of a majority (with Holders of Notes deemed to be the
Holders, for purposes of determining such majority, of the number of shares of
Underlying Common Stock into which such Notes are or would be convertible as of
the date on which such designation is made) of the Registrable Securities
covered by the Registration Statement held by Holders that are indemnified parties
pursuant to Section 6(a) and, in the case of parties indemnified pursuant to
Section 6(b), the Company.  The
indemnifying party 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 from and against any loss or liability by
reason of such settlement or judgment. 
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.


 


(d)           Contribution.  To the extent that the indemnification provided for in Section
6(a) or 6(b) is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand 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 indemnifying party or
parties on the one hand and of the indemnified party or parties on the other
hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations.  The relative benefits
received by the Company shall be deemed to be equal to the total net proceeds
from the initial placement pursuant to the Purchase Agreement (before deducting
expenses) of the Registrable Securities to which such losses, claims, damages
or liabilities relate.  The relative
benefits received by any Holder shall be deemed to be equal to the value of
receiving Registrable Securities that are registered under the Securities
Act.  The relative fault of the Holders
on the one hand and the Company on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Holders or by the Company,
and the parties’ relative intent, knowledge, access to information and
opportunity to


 


17

















 


correct or
prevent such statement or omission.  The
Holders’ respective obligations to contribute pursuant to this Section 6 are
several in proportion to the respective number of Registrable Securities they
have sold pursuant to a Registration Statement, and not joint.


 


The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 6(d) were determined by pro rata allocation or by
any other method of allocation that does not take into account the equitable
considerations referred to in the immediately preceding paragraph.  The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim.  Notwithstanding this
Section 6, no indemnifying party that is a selling Holder shall be required to
contribute any amount in excess of the amount by which the total price at which
the Registrable Securities sold by it and distributed to the public were
offered to the public exceeds the amount of any damages that such indemnifying
party has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission.  No person guilty of fraudulent misrepresentation (within the
meaning of Section 11 (f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.


 


(e)           The remedies
provided for in this Section 6 are not exclusive and shall not limit any rights
or remedies which may otherwise be available to an indemnified party at law or
in equity, hereunder, under the Purchase Agreement or otherwise.


 


(f)            The indemnity and
contribution provisions contained in this Section 6 shall remain operative and
in full force and effect regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of any Holder, any person
controlling any Holder or any affiliate of any Holder or by or on behalf of the
Company, its officers or directors or any person controlling the Company and
(iii) the sale of any Registrable Securities by any Holder.


 


SECTION 7.           Information Requirements.  The Company covenants that, if at any time
before the end of the Effectiveness Period the Company is not subject to the
reporting requirements of the Exchange Act, it will cooperate with any Holder
and take such further reasonable action as any Holder may reasonably request in
writing (including, without limitation, making such reasonable representations
as any such Holder may reasonably request), all to the extent required from
time to time to enable such Holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144 and Rule 144A under the Securities Act and customarily
taken in connection with sales pursuant to such exemptions.  Upon the written request of any Holder, the
Company shall deliver to such Holder a written statement as to whether it has
complied with such filing requirements, unless such a statement has been
included in the Company’s most recent report filed pursuant to Section 13 or
Section 15(d) of Exchange Act. 
Notwithstanding the foregoing, nothing in this Section 7 shall be deemed
to require the Company to register any of its securities (other than the Common
Stock) under any section of the Exchange Act.


 


SECTION 8.           Underwritten
Registrations.  (a)  The Holders of Registrable Securities covered by a
Shelf Registration Statement who desire to do so may sell such Registrable


 


18

















 


Securities to an underwriter in an
underwritten offering for reoffering to the public (the “Underwritten Holders”), subject to the consent of the Company (which
shall not be unreasonably withheld or delayed).  If any of the Registrable Securities covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Company and the Holders
participating in such underwritten offering or reoffering shall be responsible
for all underwriting commissions and discounts and any transfer taxes in
connection therewith.  No person may
participate in any underwritten registration hereunder unless such person (i)
agrees to sell such person’s Registrable Securities on the basis reasonably
provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.


 


(b)  If the
managing underwriter(s) for such underwritten offering advises the Company and
the representative for the Underwritten Holders that the amount of Registrable
Securities requested to be included therein exceeds the amount of Registrable
Securities that can be sold in such underwritten offering or that the number of
shares of Registrable Securities proposed to be included in any such
underwritten offering would materially and adversely affect the price per share
of the Company’s Common Stock to be sold in such underwritten offering, the
number of Registrable Securities to be included in such underwritten offering
shall be the number of shares of Registrable Securities which in the opinion of
such managing underwriter(s) can be sold. 
If the number of shares which can be sold is less than the number of
shares of Registrable Securities requested to be included in such underwritten
offering, any securities to be sold by the Underwritten Holders shall be reduced
pro rata on the basis of the number of shares requested to be registered by
such Underwritten Holders or as such Underwritten Holders may otherwise agree.


 


SECTION 9.           Miscellaneous.


 


(a)           No Conflicting Agreements.  The Company is not, as of the date hereof, a
party to, nor shall it, on or after the date of this Agreement, enter into, any
agreement with respect to its securities that conflicts with the rights granted
to the Holders in this Agreement.  The
Company represents and warrants that the rights granted to the Holders
hereunder do not in any way conflict with the rights granted to the holders of
the Company’s securities under any other agreements.


 


(b)           Amendments and Waivers.  The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless the Company has obtained the written consent of Holders of a
majority of the then outstanding Underlying Common Stock constituting
Registrable Securities (with Holders of Notes deemed to be the Holders, for
purposes of this Section, of the number of outstanding shares of Underlying
Common Stock into which such Notes are or would be convertible as of the date
on which such consent is requested). 
Notwithstanding the foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose securities are being sold pursuant to a Registration
Statement and that does not directly or


 


19

















 


indirectly
affect the rights of other Holders may be given by Holders of at least a
majority of the Registrable Securities being sold by such Holders pursuant to
such Registration Statement; provided
that the provisions of this sentence may not be amended, modified or
supplemented except in accordance with the provisions of the immediately
preceding sentence. Notwithstanding the foregoing sentence, this Agreement may
be amended by written agreement signed by the Company and the Initial
Purchasers, without the consent of the Holders of Registrable Securities, to
cure any ambiguity or to correct or supplement any provision contained herein
that may be defective or inconsistent with any other provision contained
herein, or to make such other provisions in regard to matters or questions
arising under this Agreement that shall not adversely affect the interests of
the Holders of Registrable Securities. 
Each Holder of Registrable Securities outstanding at the time of any
such amendment, modification, supplement, waiver or consent or thereafter shall
be bound by any such amendment, modification, supplement, waiver or consent
effected pursuant to this Section 9(b), whether or not any notice, writing or
marking indicating such amendment, modification, supplement, waiver or consent
appears on the Registrable Securities or is delivered to such Holder.


 


(c)           Notices. 
All notices and other communications provided for or permitted hereunder
shall be made in writing by hand delivery, by telecopier, by courier
guaranteeing overnight delivery or by first-class mail, return receipt
requested, and shall be deemed given (i) when made, if made by hand delivery,
(ii) upon confirmation, if made by telecopier, (iii) one (1) Business Day after
being deposited with such courier, if made by overnight courier or (iv) on the
date indicated on the notice of receipt, if made by first-class mail, to the
parties as follows:


 


(i) 
if to a Holder, at the most current address given by such Holder to the
Company in a Notice and Questionnaire or any amendment thereto;


 


(ii) 
if to the Company, to:


 


Sealed
Air Corporation


Park
80 East


Saddle
Brook, New Jersey 07663-5291


Attention:  General Counsel and Secretary


Telecopy:  (201) 703-4113


 


and


 


Skadden,
Arps, Slate, Meagher & Flom LLP


Four
Times Square


New
York, New York 6522


Attention:  Robert M. Chilstrom


Telecopy
No.:  (212) 735-2000


 


(iii) 
if to the Initial Purchasers, to:


 


Morgan
Stanley & Co. Incorporated


1585 Broadway


New
York, New York


 


20

















 


Attention:  Equity Capital Markets


Telecopy
No.: (212) 761-0538


 


or to such other address as such person may have
furnished to the other persons identified in this Section 9(c) in writing in
accordance herewith.


 


(d)           Approval of Holders.  Whenever the consent or approval of Holders
of a specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or its affiliates (as such term is
defined in Rule 405 under the Securities Act) (other than the Initial
Purchasers or subsequent Holders if such subsequent Holders are deemed to be
such affiliates solely by reason of their holdings of such Registrable
Securities) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.


 


(e)           Successors and Assigns.  Any person who purchases any Registrable
Securities from the Initial Purchasers shall be deemed, for purposes of this
Agreement, to be an assignee of the Initial Purchasers.  This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties and shall
inure to the benefit of and be binding upon each Holder of any Registrable
Securities, provided that nothing
herein shall be deemed to permit any assignment, transfer or other disposition
of Registrable Securities in violation of the terms of the Indenture.  If any transferee of any Holder shall
acquire Registrable Securities, in any manner, whether by operation of law or
otherwise, such Registrable Securities shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Securities,
such person shall be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement and such person shall
be entitled to receive the benefits hereof.


 


(f)            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 original and all of which taken together shall constitute
one and the same agreement.


 


(g)           Headings. 
The headings in this Agreement are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.


 


(h)           Governing Law.  THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.


 


(i)            Severability.  If any term provision, covenant or restriction of this Agreement
is held to be invalid, illegal, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
thereby, and the parties hereto shall use their reasonable efforts to find and
employ an alternative means to achieve the same or substantially the same
result as that contemplated by such term, provision, covenant or restriction,
it being intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.


 


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(j)            Entire Agreement.  This Agreement is intended by the parties as
a final expression of their agreement and is 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 and the registration rights
granted by the Company with respect to the Registrable Securities.  Except as provided in the Purchase
Agreement, the Indenture and the Notes, 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 with respect to
the Registrable Securities.  This
Agreement supersedes all prior agreements and undertakings among the parties
with respect to such registration rights. 
No party hereto shall have any rights, duties or obligations other than
those specifically set forth in this Agreement.


 


(k)           Termination.  This Agreement and the obligations of the parties hereunder shall
terminate upon the end of the Effectiveness Period, except for any liabilities
or obligations under Section 4, 5 or 6 hereof and the obligations to make
payments of and provide for liquidated damages under Section 2(e) hereof to the
extent such damages accrue prior to the end of the Effectiveness Period, each
of which shall remain in effect in accordance with its terms.


 


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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.


 


	
   

  	
  SEALED AIR
  CORPORATION

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ David H.
  Kelsey

  	
   

  
	
   

  	
   

  	
  Name:  David H. Kelsey

  
	
   

  	
   

  	
  Title:  Vice President and Chief Financial Officer

  



 


 


Confirmed and accepted as
of

the date first above written:


 


MORGAN STANLEY & CO.
INCORPORATED


CITIGROUP GLOBAL MARKETS INC.


CREDIT SUISSE FIRST BOSTON LLC


BANC OF AMERICA SECURITIES LLC


MERRILL LYNCH, PIERCE,
FENNER & SMITH


INCORPORATED


LEHMAN BROTHERS INC.


 


	
  By:  MORGAN STANLEY & CO. INCORPORATED

  
	
   

  
	
  By: 

  	
  /s/ William L. Blais

  	
   

  
	
   

  	
  Name: 
  William L. Blais

  
	
   

  	
  Title: 
  Executive Director

  



 


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