Exhibit 4.3


 


NewPage Holding
Corporation


 


Floating
Rate Senior Unsecured PIK Notes due 2013


 










 


Exchange and Registration Rights Agreement


 


May 2, 2005


 


MeadWestvaco
Corporation 

Courthouse Plaza, NE 

Dayton, Ohio 45463


 


Goldman,
Sachs & Co., 

UBS Securities LLC


As representatives of the several Purchasers


other than MeadWestvaco Corporation


named in Schedule I to the Purchase Agreement 


c/o
Goldman, Sachs & Co. 

85 Broad Street 

New York, New York 10004


 


Ladies and Gentlemen:


 


NewPage Holding Corporation, a Delaware corporation (the “Company”), proposes to issue and sell to the Purchasers (as
defined herein) upon the terms set forth in the Purchase Agreement (as defined
herein) of $125,000,000 in aggregate principal amount of Floating Rate Senior
Unsecured PIK Notes due 2013. As an inducement to the Purchasers to enter into
the Purchase Agreement and in satisfaction of a condition to the obligations of
the Purchasers thereunder, the Company agrees with the Purchasers for the
benefit of holders (as defined herein) from time to time of the Registrable
Securities (as defined herein) as follows:


 


1.                                       Certain Definitions. For purposes of this Exchange and
Registration Rights Agreement, the following terms shall have the following
respective meanings:


 


“Additional Notes” has the meaning assigned thereto in the Indenture.


 


“Base Interest” shall mean the interest that would otherwise
accrue on the Securities under the terms thereof and the Indenture, without
giving effect to the provisions of this Exchange and Registration Rights
Agreement.


 


“Blackout Period” has the meaning assigned thereto in Section 2(g) hereof.


 


The term “broker-dealer” shall mean any broker or dealer registered
with the Commission under the Exchange Act.


 


“Closing Date” shall mean the date on which the Securities
are initially issued.


 


“Commission” shall mean the United States Securities and
Exchange Commission, or any other federal agency at the time administering the
Exchange Act or the Securities Act, whichever is the relevant statute for the
particular purpose.


 





















 


“Conduct
Rules” shall have the
meaning assigned thereto in Section 3(d)(xx) hereof.


 


“Effective
Time,” in the case of
(i) an Exchange Registration, shall mean the time and date as of which the
Commission declares the Exchange Registration Statement effective or as of
which the Exchange Registration Statement otherwise becomes effective and (ii) a
Shelf Registration, shall mean the time and date as of which the Commission
declares the Shelf Registration Statement effective or as of which the Shelf
Registration Statement otherwise becomes effective.


 


“Electing
Holder” shall mean
any holder of Registrable Securities that has returned a completed and signed
Notice and Questionnaire to the Company in accordance with Section 3(d)(ii) or
3(d)(iii) hereof.


 


“Exchange
Act” shall mean the
Securities Exchange Act of 1934, or any successor thereto, as the same shall be
amended from time to time.


 


“Exchange
Offer” shall have the
meaning assigned thereto in Section 2(a) hereof.


 


“Exchange
Registration” shall
have the meaning assigned thereto in Section 3(c) hereof.


 


“Exchange
Registration Statement” shall
have the meaning assigned thereto in Section 2(a) hereof.


 


“Exchange
Securities” shall
have the meaning assigned thereto in Section 2(a) hereof.


 


The term “holder” shall mean each of the Purchasers
and other persons who acquire Registrable Securities from time to time
(including any successors or assigns), in each case for so long as such person
owns any Registrable Securities.


 


“Indenture”
shall mean the
Indenture, dated as of May 2, 2005 between the Company and HSBC Bank USA,
National Association, as Trustee, as the same shall be amended from time to
time.


 


“NASD” has the meaning assigned thereto in Section 3(d)(xx)
hereof.


 


“Notice and
Questionnaire” means
a Notice of Registration Statement and Selling Securityholder Questionnaire
substantially in the form of Exhibit A hereto.


 


“Offering
Memorandum” means an
offering memorandum or offering circular prepared by the Company in connection
with a Private Placement pursuant to Section 2(c) hereof.


 


“Other
Purchaser” has the
meaning assigned thereto in the Purchase Agreement.


 


The term “person” shall mean a corporation,
association, limited liability company, partnership, organization, business,
individual, government or political subdivision thereof or governmental agency.


 


“Private
Placement” means the
reoffer, resale, pledge or transfer by holders of the Securities (a)(i) to
a person who such selling holder reasonably believes is a qualified
institutional buyer in a transaction meeting the requirements of Rule 144A
of the Securities Act, (ii) in an offshore transaction complying with Rule 903
or Rule 904 of Regulation S under the Securities Act, (iii) pursuant
to an exemption from registration under the Securities Act provided by Rule 144
thereunder (if available), or (iv) in a private placement pursuant to


 


2





















 


Section 4(2) of the Securities Act and (b) in accordance
with all applicable securities laws of the states of the United States and any
other applicable jurisdiction.


 


“Private
Placement Notice” means
a notice to the Company from Private Placement Holders of their intent to
conduct a Private Placement to sell or otherwise dispose of all or a portion of
their Registrable Securities in a Private Placement as specified in Section 2(c) hereof.


 


“Private
Placement Holders” means
one or more Purchasers that are holders, in the aggregate, of $7.5 million or
more in aggregate principal amount of Registrable Securities that has delivered
a Private Placement Notice to the Company.


 


“Purchase
Agreement” shall mean
the Purchase Agreement, dated as of May 2, 2005, among the Purchasers and
the Company relating to the Securities.


 


“Purchasers”
shall mean the
Purchasers named in Schedule I to the Purchase Agreement.


 


“Registrable
Securities” shall
mean the Securities; provided, however, that
a Security shall cease to be a Registrable Security when (i) in the
circumstances contemplated by Section 2(a) hereof, the Security has
been exchanged for an Exchange Security in an Exchange Offer as contemplated in
Section 2(a) hereof (provided that any Exchange Security
that, pursuant to the last two sentences of Section 2(a) hereof, is
included in a prospectus for use in connection with resales by broker-dealers
shall be deemed to be a Registrable Security with respect to Sections 5, 6 and
9 until resale of such Registrable Security has been effected within the Resale
Period referred to in Section 2(a) hereof); (ii) in the
circumstances contemplated by Section 2(b) hereof, a Shelf
Registration Statement registering such Security under the Securities Act has
been declared or becomes effective and such Security has been sold or otherwise
transferred by the holder thereof pursuant to and in a manner contemplated by
such effective Shelf Registration Statement; (iii) such Security is sold
pursuant to Rule 144 under circumstances in which any legend borne by such
Security relating to restrictions on transferability thereof, under the Securities
Act or otherwise, is removed by the Company or pursuant to the Indenture; (iv) such
Security is eligible to be sold pursuant to paragraph (k) of Rule 144; or (v) such
Security shall cease to be outstanding.


 


“Registration
Default” shall have
the meaning assigned thereto in Section 2(d) hereof.


 


“Registration
Default Period” shall
have the meaning assigned thereto in Section 2(d) hereof.


 


“Registration
Expenses” shall have
the meaning assigned thereto in Section 4 hereof.


 


“Resale
Period” shall have
the meaning assigned thereto in Section 2(a) hereof.


 


“Restricted
Holder” shall mean (i) a
holder that is an affiliate of the Company within the meaning of Rule 405,
(ii) a holder who acquires Exchange Securities outside the ordinary course
of such holder’s business, (iii) a holder who has arrangements or
understandings with any person to participate in the Exchange Offer for the
purpose of distributing Exchange Securities and (iv) a holder that is a
broker-dealer, but only with respect to Exchange Securities received by such
broker-dealer pursuant to an Exchange Offer in exchange for Registrable
Securities acquired by the broker-dealer directly from the Company.


 


3





















 


“Rule 144,”
“Rule 405” and “Rule 415”
shall mean, in each
case, such rule promulgated under the Securities Act (or any successor
provision), as the same shall be amended from time to time.


 


“Securities” shall mean, collectively, (i) the
Floating Rate Senior Unsecured PIK Notes due 2013 of the Company to be issued
and sold to the Purchasers, (ii) any Additional Notes issued as payment of
interest and Special Interest, if any, pursuant to the Indenture and (iii) securities
issued in exchange therefor or in lieu thereof pursuant to the Indenture.


 


“Securities
Act” shall mean the
Securities Act of 1933, or any successor thereto, as the same shall be amended
from time to time.


 


“Shelf
Registration” shall
have the meaning assigned thereto in Section 2(b) hereof.


 


“Shelf
Registration Statement” shall
have the meaning assigned thereto in Section 2(b) hereof.


 


“Special
Interest” shall have
the meaning assigned thereto in Section 2(d) hereof.


 


“Staleness
Date” means each of March 31st,
May 14th, August 14th and November 14th.


 


“Trust
Indenture Act” shall
mean the Trust Indenture Act of 1939, or any successor thereto, and the rules,
regulations and forms promulgated thereunder, all as the same shall be amended
from time to time.


 


Unless the context otherwise requires, any reference herein to a “Section”
or “clause” refers to a Section or clause, as the case may be, of this
Exchange and Registration Rights Agreement, and the words “herein,” “hereof”
and “hereunder” and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision.


 


2.               Registration Under the
Securities Act.


 


(a)  Except as set
forth in Section 2(b) below, the Company agrees to file under the
Securities Act, as soon as practicable, but no earlier than 180 days after the
Closing Date, or if the 180th day is not a business day, the first business day
thereafter, a registration statement relating to an offer to exchange (such
registration statement, the “Exchange
Registration Statement,” and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal
amount of debt securities issued by the Company, which debt securities are
substantially identical to the Securities (and are entitled to the benefits of
a trust indenture which is substantially identical to the Indenture and which
have been qualified under the Trust Indenture Act), except that they have been
registered pursuant to an effective registration statement under the Securities
Act and do not contain provisions for the additional interest contemplated in Section 2(d) below
(such new debt securities hereinafter called “Exchange
Securities”). The
Company agrees to use all commercially reasonable efforts to cause the Exchange
Registration Statement to become effective under the Securities Act as soon as
reasonably practicable, but no later than 270 days after the Closing Date, or
if the 270th day is not a business day, the first business day thereafter. The
Exchange Offer will be registered under the Securities Act on the appropriate form
and will comply with all applicable tender offer rules and regulations
under the Exchange Act. The Company further agrees to use all commercially
reasonable efforts to commence and complete the Exchange Offer promptly, but no
later than 45 business days after such registration statement has become
effective, hold the Exchange Offer open for at


 


4





















 


least 30 days and exchange Exchange Securities for all Registrable
Securities that have been properly tendered and not withdrawn on or prior to
the expiration of the Exchange Offer. The Exchange Offer will be deemed to have
been “completed” only if the debt securities received by holders other than
Restricted Holders in the Exchange Offer for Registrable Securities are, upon
receipt, transferable by each such holder without restriction under the
Securities Act and the Exchange Act (except for the requirement to deliver a
prospectus included in the Exchange Registration Statement applicable to
resales by any broker-dealer pursuant to an Exchange Offer in exchange for
Registrable Securities other than those acquired by the broker-dealer directly
from the Company) and without material restrictions under the blue sky or
securities laws of a substantial majority of the States of the United States of
America. The Exchange Offer shall be deemed to have been completed upon the
earlier to occur of (i) the Company having exchanged the Exchange
Securities for all outstanding Registrable Securities pursuant to the Exchange
Offer and (ii) the Company having exchanged, pursuant to the Exchange
Offer, Exchange Securities for all Registrable Securities that have been
properly tendered and not withdrawn before the expiration of the Exchange
Offer, which shall be on a date that is at least 30 days following the
commencement of the Exchange Offer. The Company agrees (x) to include in the
Exchange Registration Statement a prospectus for use in any resales by any
holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange
Registration Statement effective for a period (the “Resale Period”) beginning
when Exchange Securities are first issued in the Exchange Offer and ending upon
the earlier of the expiration of the 180th day after the Exchange Offer has
been completed or such time as such broker-dealers no longer own any
Registrable Securities. With respect to such Exchange Registration Statement,
such holders shall have the benefit of the rights of indemnification and
contribution set forth in Sections 6(a), (c), (d) and (e) hereof.


 


(b)  If (i) the
Company is not permitted to consummate the Exchange Offer because the Exchange
Offer is not permitted by applicable law or Commission policy; (ii) the
Exchange Offer has not been completed within 315 days following the Closing
Date or (iii) any Restricted Holder notifies the Company after and prior
to the 30th business day following, consummation of the Exchange Offer that (a) it
is prohibited by law or Commission policy from participating in the Exchange
Offer, (b) it may not resell the Exchange Securities acquired by it in the
Exchange Offer to the public without delivering a prospectus and the prospectus
contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales or (c) it is a broker-dealer and owns
Securities acquired directly from the Company or an affiliate of the Company,
the Company shall, in lieu of (or, in the case of clause (iii), in addition to)
conducting the Exchange Offer contemplated by Section 2(a), file under the
Securities Act as soon as reasonably practicable, but no later than 45 business
days after the time such obligation arises, a “shelf” registration statement
providing for the registration of, and the sale on a continuous or delayed
basis by the holders of, all of the Registrable Securities, pursuant to Rule 415
or any similar rule that may be adopted by the Commission (such filing,
the “Shelf Registration” and such
registration statement, the “Shelf
Registration Statement”).  The Company agrees to use all commercially
reasonable efforts (x) to cause the Shelf Registration Statement to become or
be declared effective no later than 150 days after such Shelf Registration
Statement is filed and to keep such Shelf Registration Statement continuously
effective (other than during any Blackout Period (as defined in Section 2(g) below))
for a period ending on the earlier of the second anniversary of the Closing
Date or such time as there are no longer any Registrable Securities
outstanding, provided, however, that
no holder shall be entitled to be named as a selling securityholder in the
Shelf Registration Statement or to use the prospectus forming a part thereof
for resales of Registrable Securities unless such holder is an Electing Holder,
and (y) after the Effective Time of the Shelf Registration Statement, promptly
upon the


 


5





















 


request of any holder of Registrable Securities that is not then an
Electing Holder, to take any action reasonably necessary to enable such holder to
use the prospectus forming a part thereof for resales of Registrable
Securities, including, without limitation, any action necessary to identify
such holder as a selling securityholder in the Shelf Registration Statement, provided, however, that nothing in this
Clause (y) shall relieve any such holder of the obligation to return a
completed and signed Notice and Questionnaire to the Company in accordance with
Section 3(d)(iii) hereof. The Company further agrees to supplement or
make amendments to the Shelf Registration Statement, as and when required by
the rules, regulations or instructions applicable to the registration form used
by the Company for such Shelf Registration Statement or by the Securities Act
or rules and regulations thereunder for shelf registration, and the
Company agrees to furnish to each Electing Holder copies of any such supplement
or amendment prior to its being used or promptly following its filing with the
Commission.


 


(c)  If the Company (i) has
not filed a Shelf Registration Statement and (ii) receives a Private
Placement Notice, it shall assist with the Private Placement contemplated by
the Private Placement Holders by using commercially reasonable efforts to
provide to such Private Placement Holders as soon as practicable, but in no
event later than 30 days after the receipt of such Private Placement Notice, a
complete printed Offering Memorandum, in form, substance and scope as are
customarily used in connection with an offering of debt securities in the 144A
market relating to the Private Placement and to provide documents and perform
obligations as specified in Section 3(g) hereof; provided that (a) in the event that
such Offering Memorandum is required to contain financial results for the
fiscal quarter ended March 31, 2005, such Offering Memorandum shall not be
required to be delivered prior to June 15, 2005 and (b) in the event
that the 30th day following the receipt of such Private Placement
Notice would fall on a date that is within 10 days of a Staleness Date, such 30-day
period shall be extended to 40 days. For the avoidance of doubt, the obligation
of the Company under Section 2(a) and 2(b) herein shall inure to
the benefit of, and shall be enforceable by, the holders of the Registrable
Securities who purchased such Securities under the Private Placement. The
Company shall only be required to prepare three Offering Memoranda pursuant to
this Agreement;  provided, however, if any Shelf
Registration Statement has not become effective or been declared effective by
the Commission on or before the date on which such Shelf Registration Statement
is required to become or be declared effective pursuant to Section 2(b),
there shall be no limit on the number of Offering Memoranda to be provided by
the Company from such date until the date on which such Shelf Registration
Statement has become or declared effective by the Commission.


 


(d)  In the event that (i) the
Company has not filed the Exchange Registration Statement or Shelf Registration
Statement on or before the date on which such registration statement is required
to be filed pursuant to Section 2(a) or 2(b) hereof,
respectively, (ii) such Exchange Registration Statement or Shelf
Registration Statement has not become effective or been declared effective by
the Commission on or before the date on which such registration statement is
required to become or be declared effective pursuant to Section 2(a) or
2(b), respectively, (iii) the Exchange Offer, if any, has not been
completed within 45 business days after the initial effective date of the
Exchange Registration Statement relating to the Exchange Offer (if the Exchange
Offer is then required to be made), (iv) any Exchange Registration
Statement or Shelf Registration Statement required by Section 2(a) or 2(b)
hereof is filed and declared effective but shall thereafter either be withdrawn
by the Company or shall become subject to an effective stop order issued
pursuant to Section 8(d) of the Securities Act suspending the
effectiveness of such registration statement (except as specifically permitted
herein, including any Blackout Period permitted herein) without being succeeded
immediately by an additional registration statement filed and declared
effective


 


6





















 


or (v) the Company has not provided the assistance as required to
be provided under Section 2(c) hereof on or before the date on which
such assistance is required to be provided (each such event referred to in
clauses (i) through (v), a “Registration Default”
and each period during which a Registration Default(s) has occurred and is
continuing, a “Registration Default Period”),
then, as liquidated damages for such Registration Default(s), the Securities
(including, for the avoidance of doubt, any Additional Notes outstanding)
affected thereby will be subject to the provisions of Section 9(b),
special interest (“Special Interest”),
in addition to the Base Interest, shall accrue on the outstanding principal
amount of such Securities at a per annum rate of 0.25% for the first 90 days of
the Registration Default Period, at a per annum rate of 0.50% for the second 90
days of the Registration Default Period, at a per annum rate of 0.75% for the
third 90 days of the Registration Default Period and at a per annum rate of
1.0% thereafter for the remaining portion of the Registration Default Period.


 


(e)  The Company shall
take all actions necessary or advisable to be taken by them to ensure that the
transactions contemplated herein are effected as so contemplated.


 


(f)  Any reference
herein to a registration statement as of any time shall be deemed to include
any document incorporated, or deemed to be incorporated, therein by reference
as of such time and any reference herein to any post-effective amendment to a
registration statement as of any time shall be deemed to include any document
incorporated, or deemed to be incorporated, therein by reference as of such
time. Any reference herein to an Offering Memorandum as of any time shall be
deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time and any reference herein to any amendment
to an Offering Memorandum as of any time shall be deemed to include any
document incorporated, or deemed to be incorporated, therein by reference as of
such time.


 


(g)  Notwithstanding
anything herein to the contrary, the Company, upon advising the Purchasers in
writing, may, pursuant to the advice of outside counsel to the Company, delay its
assistance with a Private Placement, the filing or effectiveness of any Exchange
Registration Statement or Shelf Registration Statement (if not filed or
effective, as applicable) or suspend, or otherwise fail to maintain, the
effectiveness thereof or cease to permit the use of an Offering Memorandum or
the prospectus included in such Registration Statement for a period (the “Blackout Period”) not to exceed an aggregate of 60 days in any
twelve consecutive month period in the event that (i) the Board of
Directors of the Company reasonably and in good faith determines that the premature
disclosure of a material event at such time could reasonably be expected to
have a material adverse effect on the Company’s business, operations or
prospects or (ii) the disclosure otherwise relates to a material business
transaction which has not been publicly disclosed and the Board of Directors of
the Company reasonably and in good faith determines that any such disclosure could
reasonably be expected to jeopardize the success of such transaction; provided, that, upon the termination of
such Blackout Period, the Company promptly shall advise the Purchasers that
such Blackout Period has been terminated. 
Notwithstanding the foregoing, no Blackout Period shall be declared by
the Company for a period of 60 days from the Closing Date.


 


3.      Registration Procedures.


 


If the Company files a registration statement pursuant to Section 2(a) or
Section 2(b) hereof, the following provisions shall apply:


 


7





















 


(a)  At or before the
Effective Time of the Exchange Offer or the Shelf Registration, as the case may
be, the Company shall qualify the Indenture under the Trust Indenture Act of 1939.


 


(b)  In the event that
such qualification would require the appointment of a new trustee under the
Indenture, the Company shall appoint a new trustee thereunder pursuant to the applicable
provisions of the Indenture.


 


(c)  In connection with
the Company’s obligations with respect to the registration of Exchange
Securities as contemplated by Section 2(a) hereof (the “Exchange Registration”), if applicable, the Company shall,
as soon as reasonably practicable (or as otherwise specified):


 


(i)  prepare and file
with the Commission, as soon as reasonably practicable but no later than 180
days after the Closing Date, or if the 180th day is not a business day, the
first business day thereafter, an Exchange Registration Statement on any form
which may be utilized by the Company and which shall permit the Exchange Offer
and resales of Exchange Securities by broker-dealers during the Resale Period
to be effected as contemplated by Section 2(a) hereof, and use all
commercially practicable efforts to cause such Exchange Registration Statement
to become effective as soon as reasonably practicable thereafter, but no later
than 270 days after the Closing Date, or if the 270th day is not a business
day, the first business day thereafter;


 


(ii)  as soon as
reasonably practicable prepare and file with the Commission such amendments and
supplements to such Exchange Registration Statement and the prospectus included
therein as may be necessary to effect and maintain the effectiveness of such
Exchange Registration Statement for the periods and purposes contemplated in Section 2(a) hereof
and as may be required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such Exchange
Registration Statement, and promptly provide each broker-dealer holding
Exchange Securities with such number of copies of the prospectus included
therein (as then amended or supplemented), in conformity in all material
respects with the requirements of the Securities Act and the Trust Indenture
Act and the rules and regulations of the Commission thereunder, as such
broker-dealer reasonably may request prior to the expiration of the Resale
Period, for use in connection with resales of Exchange Securities;


 


(iii)  promptly notify
each broker-dealer that has requested or received copies of the prospectus
included in such registration statement, and confirm such advice in writing, (A) when
such Exchange Registration Statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has been filed,
and, with respect to such Exchange Registration Statement or any post-effective
amendment, when the same has become effective, (B) of any comments by the
Commission and by the blue sky or securities commissioner or regulator of any
state with respect thereto or any request by the Commission for amendments or
supplements to such Exchange Registration Statement or prospectus or for
additional information, (C) of the issuance by the Commission of any stop
order suspending the effectiveness of such Exchange Registration Statement or
the initiation or threatening of any proceedings for that purpose, (D) if at
any time the representations and warranties of the Company contemplated by Section 5
cease to be true and correct in all material respects, (E) of the receipt
by


 


8





















 


the Company of any notification with respect to the suspension of the
qualification of the Exchange Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose or (F) at any
time during the Resale Period when a prospectus is required to be delivered
under the Securities Act, that such Exchange Registration Statement,
prospectus, prospectus amendment or supplement or post-effective amendment does
not conform in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and regulations
of the Commission thereunder or contains an untrue statement of a material fact
or omits to state any material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the circumstances
then existing;


 


(iv)  in the event that
the Company would be required, pursuant to Section 3(c)(iii)(F) above,
to notify any broker-dealers holding Exchange Securities, the Company shall
promptly prepare and furnish to each such holder a reasonable number of copies
of a prospectus supplemented or amended so that, as thereafter delivered to
purchasers of such Exchange Securities during the Resale Period, such
prospectus shall conform in all material respects to the applicable requirements
of the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and shall not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing;


 


(v)  use all
commercially reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of such Exchange Registration Statement or any
post-effective amendment thereto at the earliest practicable date;


 


(vi)  use all
commercially reasonable efforts to (A) register or qualify the Exchange
Securities under the securities laws or blue sky laws of such jurisdictions as
are contemplated by Section 2(a) no later than the commencement of
the Exchange Offer, (B) keep such registrations or qualifications in
effect and comply with such laws so as to permit the continuance of offers,
sales and dealings therein in such jurisdictions until the expiration of the Resale
Period and (C) take any and all other actions as may be reasonably
necessary or advisable to enable each broker-dealer holding Exchange Securities
to consummate the disposition thereof in such jurisdictions; provided, however, that the Company shall not
be required for any such purpose to (1) qualify as a foreign corporation in any jurisdiction wherein it would not otherwise be required to qualify
but for the requirements of this Section 3(c)(vi), (2) consent to
general service of process in any such jurisdiction or (3) make any
changes to its certificate of formation, certificate of incorporation, limited
liability company agreement or by-laws, as applicable, or any agreement between
it and its stockholders;


 


(vii)  use all
commercially reasonable efforts to obtain the consent or approval of each
governmental agency or authority, whether federal, state or local,
which may be required to effect the Exchange Registration, the Exchange Offer
and the offering and sale of Exchange Securities by broker-dealers during the
Resale Period;


 


(viii)  provide a CUSIP
number for all Exchange Securities, not later than the applicable Effective
Time; and


 


(ix)  comply with all
applicable rules and regulations of the Commission and any national
securities exchange or a quotation service on which the Exchange


 


9





















 


Securities may be listed or quoted, as applicable, and make generally
available to its securityholders as soon as reasonably practicable but no later
than eighteen months after the effective date of such Exchange Registration
Statement, an earning statement of the Company and its subsidiaries complying
with Section 11(a) of the Securities Act (including, at the option of
the Company, Rule 158 thereunder).


 


(d)  In connection with
the Company’s obligations with respect to the Shelf Registration, if
applicable, the Company shall, as soon as practicable (or as otherwise
specified):


 


(i)  prepare and file
with the Commission, as soon as reasonably practicable but in any case within
the time periods specified in Section 2(b), a Shelf Registration Statement
on any form which may be utilized by the Company and which shall register all
of the Registrable Securities for resale by the holders thereof in accordance
with such method or methods of disposition as may be specified by such of the
holders as, from time to time, may be Electing Holders and use all commercially
reasonable efforts to cause such Shelf Registration Statement to become
effective (other than during any Blackout Period, as defined in Section 2(f) hereof)
as soon as reasonably practicable but in any case within the time periods
specified in Section 2(g) hereof;


 


(ii)  not less than 30
calendar days prior to the Effective Time of the Shelf Registration Statement, mail
the Notice and Questionnaire to the holders of Registrable Securities; no
holder shall be entitled to be named as a selling securityholder in the Shelf
Registration Statement as of the Effective Time, and no holder shall be
entitled to use the prospectus forming a part thereof for resales of
Registrable Securities at any time unless such holder has returned a completed
and signed Notice and Questionnaire to the Company by the deadline for response
set forth therein; provided, however, holders
of Registrable Securities shall have at least 28 calendar days from the date on
which the Notice and Questionnaire is first mailed to such holders to return a
completed and signed Notice and Questionnaire to the Company;


 


(iii)  after the
Effective Time of the Shelf Registration Statement, upon the request of any
holder of Registrable Securities that is not then an Electing Holder, promptly
send a Notice and Questionnaire to such holder; provided that the Company shall not be required to take any
action to name such holder as a selling securityholder in the Shelf
Registration Statement or to enable such holder to use the prospectus forming a
part thereof for resales of Registrable Securities until such holder has
returned a completed and signed Notice and Questionnaire to the Company;


 


(iv)  as soon as
reasonably practicable, prepare and file with the Commission such amendments
and supplements to such Shelf Registration Statement and the prospectus
included therein as may be necessary to effect and maintain the effectiveness
of such Shelf Registration Statement for the period specified in Section 2(b) hereof
and as may be required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such Shelf
Registration Statement, and furnish to the Electing Holders copies of any such
supplement or amendment simultaneously with or prior to its being used or filed
with the Commission;


 


(v)  comply with the
provisions of the Securities Act with respect to the disposition of all of the
Registrable Securities covered by such Shelf Registration


 


10





















 


Statement in accordance with the intended methods of disposition by the
Electing Holders provided for in such Shelf Registration Statement;


 


(vi)  provide (A) the
Electing Holders, (B) the underwriters (which term, for purposes of this
Exchange and Registration Rights Agreement, shall include a person deemed to be
an underwriter within the meaning of Section 2(a)(11) of the Securities
Act), if any, thereof, (C) any sales or placement agent therefor, (D) counsel
for any such underwriter or agent and (E) not more than one counsel for
all the Electing Holders the opportunity to participate in the preparation of
such Shelf Registration Statement, each prospectus included therein or filed
with the Commission and each amendment or supplement thereto;


 


(vii)  for a reasonable
period prior to the filing of such Shelf Registration Statement, and throughout
the period specified in Section 2(b) hereof, make available at
reasonable times at the Company’s principal place of business or such other
reasonable place for inspection by the persons referred to in Section 3(d)(vi) hereof
who shall certify to the Company that they have a current intention to sell the
Registrable Securities pursuant to the Shelf Registration such financial and
other information and books and records of the Company, and cause the officers,
employees, counsel and independent certified public accountants of the Company
to respond to such inquiries, as shall be reasonably necessary, in the judgment
of the respective counsel referred to in Section 3(d)(vi) hereof, to
conduct a reasonable investigation within the meaning of Section 11 of the
Securities Act; provided, however, that
each such party shall be required to maintain in confidence and not to disclose
to any other person any information or records reasonably designated by the
Company as being confidential, until such time as (A) such information
becomes a matter of public record (whether by virtue of its inclusion in such
Shelf Registration Statement or otherwise, but not because of disclosure by
such person or its representatives that was otherwise in breach of this
provision), or (B) such person shall be required so to disclose such information
pursuant to a subpoena or order of any court or other governmental agency or
body having jurisdiction over the matter (subject to the requirements of such
order, and only after such person shall have given the Company prompt prior
written notice of such requirement), or (C) such information is required
to be set forth in such Shelf Registration Statement or the prospectus included
therein or in an amendment to such Shelf Registration Statement or an amendment
or supplement to such prospectus in order that such Shelf Registration
Statement, prospectus, amendment or supplement, as the case may be, complies
with applicable requirements of the federal securities laws and the rules and
regulations of the Commission and does not contain an untrue statement of a
material fact or omit to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in light of
the circumstances then existing;


 


(viii) promptly notify
each of the Electing Holders, any sales or placement agent therefor and any
underwriter thereof (which notification may be made through any managing
underwriter that is a representative of such underwriter for such purpose) and
confirm such advice in writing, (A) when such Shelf Registration Statement
or the prospectus included therein or any prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect to such Shelf
Registration Statement or any post-effective amendment, when the same has
become effective, (B) of any comments by the Commission and by the blue
sky or securities commissioner or regulator of any state with respect thereto
or any request


 


11





















 


by the Commission for amendments or supplements to such Shelf
Registration Statement or prospectus or for additional information, (C) of
the issuance by the Commission of any stop order suspending the effectiveness
of such Shelf Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the representations and
warranties of the Company contemplated by Section 3(d)(xviii) or Section 5
hereof cease to be true and correct in all material respects, (E) of the
receipt by the Company of any notification with respect to the suspension of
the qualification of the Registrable Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose or (F) if
at any time when a prospectus is required to be delivered under the Securities
Act, that such Shelf Registration Statement, prospectus, prospectus amendment
or supplement or post-effective amendment does not conform in all material
respects to the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission thereunder
or contains an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;


 


(ix)  In the event that
the Company would be required, pursuant to Section 3(d)(viii)(F) above,
to notify the Electing Holders, the placement or sales agent, if any, therefor
and the managing underwriters, if any, thereof, the Company shall promptly
prepare and furnish to each of the Electing Holders, to each placement or sales
agent, if any, and to each such underwriter, if any, a reasonable number of
copies of a prospectus supplemented or amended so that, as thereafter delivered
to purchasers of Registrable Securities, such prospectus shall conform in all
material respects to the applicable requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the Commission
thereunder and shall not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances in which they were made, not
misleading. Each Electing Holder agrees that upon receipt of any notice from
the Company pursuant to Section 3(d)(viii)(F) hereof, such Electing
Holder shall forthwith discontinue the disposition of Registrable Securities
pursuant to the Shelf Registration Statement applicable to such Registrable
Securities until such Electing Holder shall have received copies of such
amended or supplemented prospectus, and if so directed by the Company, such
Electing Holder shall deliver to the Company (at the Company’s expense) all
copies, other than permanent file copies, then in such Electing Holder’s
possession of the prospectus covering such Registrable Securities at the time
of receipt of such notice;


 


(x)  use all commercially reasonable efforts to
obtain the withdrawal of any order suspending the effectiveness of such Shelf
Registration Statement or any post-effective amendment thereto at the earliest
practicable date;


 


(xi)  if requested by any managing underwriter or
underwriters, any placement or sales agent or any Electing Holder, promptly
incorporate in a prospectus supplement or post-effective amendment such
information as is required by the applicable rules and regulations of the
Commission and as such managing underwriter or underwriters, such agent or such
Electing Holder reasonably specifies should be included therein relating to the
terms of the sale of such Registrable Securities, including information with
respect to the principal amount of Registrable Securities being sold by such
Electing Holder or agent or to any underwriters, the name and


 


12





















 


description of such Electing Holder, agent or underwriter, the offering
price of such Registrable Securities and any discount, commission or other
compensation payable in respect thereof, the purchase price being paid therefor
by such underwriters and with respect to any other material terms of the
offering of the Registrable Securities to be sold by such Electing Holder or
agent or to such underwriters; and make all required filings of such prospectus
supplement or post-effective amendment promptly after notification of the
matters to be incorporated in such prospectus supplement or post-effective
amendment;


 


(xii)  furnish to each Electing Holder, each
placement or sales agent, if any, therefor, each underwriter, if any, thereof and
the respective counsel referred to in Section 3(d)(vi) hereof an
executed copy (or, in the case of an Electing Holder, a conformed copy) of such
Shelf Registration Statement, each such amendment and supplement thereto (in
each case including all exhibits thereto (in the case of an Electing Holder of
Registrable Securities, upon request) and documents incorporated by reference
therein) and such number of copies of such Shelf Registration Statement
(excluding exhibits thereto and documents incorporated by reference therein
unless specifically so requested by such Electing Holder, agent or underwriter,
as the case may be) and of the prospectus included in such Shelf Registration
Statement (including each preliminary prospectus and any summary prospectus), in
conformity in all material respects with the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and regulations
of the Commission thereunder, and such other documents, as such Electing
Holder, agent, if any, and underwriter, if any, may reasonably request in order
to facilitate the offering and disposition of the Registrable Securities owned
by such Electing Holder, offered or sold by such agent or underwritten by such
underwriter and to permit such Electing Holder, agent and underwriter to
satisfy the prospectus delivery requirements of the Securities Act; and the
Company hereby consents to the use of such prospectus (including such
preliminary and summary prospectus) and any amendment or supplement thereto by
each such Electing Holder and by any such agent and underwriter, in each case
in the form most recently provided to such person by the Company, in connection
with the offering and sale of the Registrable Securities covered by the
prospectus (including such preliminary and summary prospectus) or any
supplement or amendment thereto;


 


(xiii)  use all commercially reasonable efforts to (A) register
or qualify the Registrable Securities to be included in such Shelf Registration
Statement under such securities laws or blue sky laws of such jurisdictions as
any Electing Holder and each placement or sales agent, if any, therefor and
underwriter, if any, thereof shall reasonably request, (B) keep such
registrations or qualifications in effect (other than during any Blackout Period)
and comply with such laws so as to permit the continuance of offers, sales and
dealings therein in such jurisdictions during the period the Shelf Registration
Statement is required to remain effective under Section 2(b) above
and for so long as may be necessary to enable any such Electing Holder, agent
or underwriter to complete its distribution (as long as such distribution is
commenced during the period the Shelf Registration Statement is required to
remain effective under Section 2(b) above) of Securities pursuant to
such Shelf Registration Statement and (C) take any and all other actions
as may be reasonably necessary or advisable to enable each such Electing
Holder, agent, if any, and underwriter, if any, to consummate the disposition
in such jurisdictions of such Registrable Securities; provided, however, that the Company shall
not be required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise


 


13





















 


be required to qualify but for the requirements of this Section 3(d)(xiii),
(2) consent to general service of process in any such jurisdiction or (3) make
any changes to its certificate of formation, certificate of incorporation,
limited liability company agreement or by-laws, as applicable, or any agreement
between it and its stockholders;


 


(xiv)  use all commercially reasonable efforts to
obtain the consent or approval of each governmental agency or authority,
whether federal, state or local, which may be required to effect the Shelf
Registration or the offering or sale in connection therewith or to enable the
selling holder or holders to offer, or to consummate the disposition of, their
Registrable Securities;


 


(xv)  unless any Registrable Securities shall be in
book-entry only form, cooperate with the Electing Holders and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold, which
certificates, if so required by any securities exchange upon which any
Registrable Securities are listed, shall be printed, penned, lithographed or
engraved, or produced by any combination of such methods, on steel engraved
borders, and which certificates shall not bear any restrictive legends; and, in
the case of an underwritten offering, enable such Registrable Securities to be
in such denominations and registered in such names as the managing underwriters
may request at least two business days prior to any sale of the Registrable
Securities;


 


(xvi)  provide a CUSIP number for all Registrable
Securities, not later than the applicable Effective Time;


 


(xvii)  enter into one or more underwriting
agreements, engagement letters, agency agreements, “commercially reasonable efforts” underwriting agreements or similar
agreements, as appropriate, including customary provisions relating to
indemnification and contribution, and take such other actions in connection
therewith as any Electing Holders aggregating at least 25% in aggregate principal
amount of the Registrable Securities at the time outstanding shall request in
order to expedite or facilitate the disposition of such Registrable Securities;


 


(xviii)  whether or not an agreement of the type
referred to in Section 3(d)(xvii) hereof is entered into and whether or
not any portion of the offering contemplated by the Shelf Registration is an
underwritten offering or is made through a placement or sales agent or any
other entity, (A) make such representations and warranties to the Electing
Holders and the placement or sales agent, if any, therefor and the
underwriters, if any, thereof in form, substance and scope as are customarily
made in connection with an offering of debt securities pursuant to any
appropriate agreement or to a registration statement filed on the form
applicable to the Shelf Registration
(provided, however,
that the Company shall not make any representations or warranties to
MeadWestvaco Corporation or any of its affiliates regarding the Company’s
assets, business, financial condition or results of operations at or prior to
the Closing Date); (B) obtain an opinion of counsel (which may be in-house
counsel) to the Company in customary form and covering such matters, of the type customarily covered by
such an opinion, as the managing underwriters, if any, or as any Electing
Holders of at least 25% in aggregate principal amount of the Registrable
Securities at the time outstanding may reasonably request, addressed to such
Electing Holder or Electing Holders and the placement or sales agent, if any,
therefor


 


14





















 


and the underwriters, if any, thereof and dated the effective date of
such Shelf Registration Statement (and if such Shelf Registration Statement
contemplates an underwritten offering of a part or all of the Registrable
Securities, dated the date of the closing under the underwriting agreement
relating thereto) (it being agreed that the matters to be covered by such
opinion shall include the good standing of the Company and its subsidiaries;
the qualification of the Company and its subsidiaries to transact business as
foreign entities in states where they transact business; the due authorization,
execution and delivery of the relevant agreement of the type referred to in Section 3(d)(xvii)
hereof; the due authorization, execution, authentication and issuance, and the
validity and enforceability, of the Registrable Securities, Securities or
Exchange Securities as applicable; the absence of material legal or
governmental proceedings involving the Company; the absence of a breach by the
Company or any of its subsidiaries of, or a default under, material agreements
binding upon the Company or any subsidiary of the Company; the absence of
governmental approvals required to be obtained in connection with the Shelf
Registration, the offering and sale of the Registrable Securities, this
Exchange and Registration Rights Agreement or any agreement of the type
referred to in Section 3(d)(xvii) hereof, except such approvals as may be
required under state securities or blue sky laws; the material compliance as to
form of such Shelf Registration Statement and any documents incorporated by
reference therein and of the Indenture with the requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder, respectively; and, as of the date of the opinion and of
the Shelf Registration Statement or most recent post-effective amendment
thereto, as the case may be, the absence from such Shelf Registration Statement
and the prospectus included therein, as then amended or supplemented, and from
the documents incorporated by reference therein (in each case other than the
financial statements and other financial information contained therein) of an
untrue statement of a material fact or the omission to state therein a material
fact necessary to make the statements therein not misleading (in the case of
such documents, in the light of the circumstances existing at the time that
such documents were filed with the Commission under the Exchange Act)); (C) obtain
a “cold comfort” letter or letters from the independent certified public
accountants of the Company addressed to the selling Electing Holders, the
placement or sales agent, if any, therefor or the underwriters, if any,
thereof, dated (i) the effective date of such Shelf Registration Statement
and (ii) the effective date of any prospectus supplement to the prospectus
included in such Shelf Registration Statement or post-effective amendment to
such Shelf Registration Statement which includes unaudited or audited financial
statements as of a date or for a period subsequent to that of the latest such
statements included in such prospectus (and, if such Shelf Registration Statement
contemplates an underwritten offering pursuant to any prospectus supplement to
the prospectus included in such Shelf Registration Statement or post-effective
amendment to such Shelf Registration Statement which includes unaudited or
audited financial statements as of a date or for a period subsequent to that of
the latest such statements included in such prospectus, dated the date of the
closing under the underwriting agreement relating thereto), such letter or
letters to be in customary form and covering such matters of the type
customarily covered by letters of such type; 
(D) deliver such documents and certificates, including officers’
certificates, as may be reasonably requested by any Electing Holders of at
least 25% in aggregate principal amount of the Registrable Securities at the
time outstanding or the placement or sales agent, if any, therefor and the
managing underwriters, if any, thereof to evidence the accuracy of the
representations and warranties made pursuant to clause (A) above or those


 


15





















 


contained in Section 5(a) hereof and the compliance with or
satisfaction of any agreements or conditions contained in the underwriting
agreement or other agreement entered into by the Company; and (E) undertake
such obligations relating to expense reimbursement, indemnification and
contribution as are provided in Section 6 hereof;


 


(xix)  notify in writing each holder of Registrable
Securities of any proposal by the Company to amend or waive any provision of
this Exchange and Registration Rights Agreement pursuant to Section 9(h) hereof
and of any amendment or waiver effected pursuant thereto, each of which notices
shall contain the text of the amendment or waiver proposed or effected, as the
case may be;


 


(xx)  in the event that any broker-dealer registered
under the Exchange Act shall underwrite any Registrable Securities or
participate as a member of an underwriting syndicate or selling group or “assist
in the distribution” (within the meaning of the Conduct Rules (the “Conduct Rules”) of the National Association of Securities Dealers, Inc. (“NASD”) or any successor thereto, as amended from time to
time) thereof, whether as a holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, assist such broker-dealer in complying with the
requirements of such Conduct Rules, including by (A) if such Conduct Rules shall
so require, engaging a “qualified independent
underwriter” (as defined in such Conduct Rules) to participate in
the preparation of the Shelf Registration Statement relating to such
Registrable Securities, to exercise usual standards of due diligence in respect
thereto and, if any portion of the offering contemplated by such Shelf
Registration Statement is an underwritten offering or is made through a
placement or sales agent, to recommend the yield of such Registrable
Securities, (B) indemnifying any such qualified independent underwriter to
the extent of the indemnification of underwriters provided in Section 6
hereof (or to such other customary extent as may be requested by such
underwriter) and (C) providing such information to such broker-dealer as
may be required in order for such broker-dealer to comply with the requirements
of the Conduct Rules; and


 


(xxi)  comply with all applicable rules and
regulations of the Commission and any national securities exchange or any
quotation service on which the Securities may be listed or quoted, as
applicable, and make generally available to its securityholders as soon as
reasonably practicable but in any event not later than eighteen months after
the effective date of such Shelf Registration Statement, an earning statement
of the Company and its subsidiaries complying with Section 11(a) of
the Securities Act (including, at the option of the Company, Rule 158
thereunder).


 


(e)  In the event of a
Shelf Registration, in addition to the information required to be provided by
each Electing Holder in its Notice Questionnaire, the Company may require such
Electing Holder to furnish to the Company such additional information regarding
such Electing Holder and such Electing Holder’s intended method of distribution
of Registrable Securities as may be required or necessary in order to comply
with the Securities Act. Each such Electing Holder agrees to notify the Company
as promptly as practicable of any inaccuracy or change in information
previously furnished by such Electing Holder to the Company or of the
occurrence of any event in either case as a result of which any prospectus
relating to such Shelf Registration contains or would contain an untrue
statement of a material fact regarding such Electing Holder or such Electing
Holder’s intended method of disposition of such Registrable Securities or omits
to state any material fact regarding


 


16





















 


such Electing Holder or such Electing Holder’s intended method of
disposition of such Registrable Securities required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing, and promptly to furnish to the Company any
additional information required to correct and update any previously furnished
information or required so that such prospectus shall not contain, with respect
to such Electing Holder or the disposition of such Registrable Securities, an
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances then existing.


 


(f)  Until the
expiration of two years after the Closing Date, the Company will not, and will
not permit any of its “affiliates” (as defined in Rule 144) to, resell any
of the Securities that have been reacquired by any of them except pursuant to
an effective registration statement under or an exemption from the registration
requirements of the Securities Act.


 


If the Company receives a
Private Placement Notice pursuant to Section 2(c) hereof, the
following provision will apply:


 


(g)  In connection with
the Company’s obligations with respect to the Private Placement contemplated by
Section 2(c) hereof, the Company shall, as soon as reasonably
practicable (or as otherwise specified):


 


(i)  notify each holder
of Registrable Securities of the Company’s receipt of a Private Placement
Notice;


 


(ii)  at any time prior
to the closing date of the Private Placement, notify each Private Placement
Holder that has requested or received copies of the Offering Memorandum, and
confirm such advice in writing, (A) of any comments by the blue sky or
securities commissioner or regulator of any state with respect thereto, (B) if
the representations and warranties of the Company contemplated by Section 5
cease to be true and correct in all material respects, (C) of the receipt
by the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose or (D) that such Offering
Memorandum, as amended or supplemented contains an untrue statement of a
material fact or omits to state any material fact necessary to make the
statements therein not misleading, in light of the circumstances then existing,
provided that the Company shall
not be required to so notify such Private Placement Holder as of any date that
is more than 15 days from the date of the Offering Memorandum, which 15 day
period may be extended by one additional 15 day period per Offering Memorandum
at the request of such Private Placement Holder;


 


(iii)  in the event
that the Company would be required, pursuant to Section 3(g)(ii)(D) above,
to notify the Private Placement Holders, the Company shall promptly prepare and
furnish to each such holder a reasonable number of copies of an Offering
Memorandum supplemented or amended so that, as thereafter delivered to
purchasers of such Securities, such Offering Memorandum shall not contain an
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein not misleading, in light of the circumstances
then existing, provided that the
Company shall not be required to so supplement or amend such Offering
Memorandum as of any date that is more than 15 days from the date of the Offering
Memorandum containing such material misstatements or omissions as specified in Section 3(g)(ii)(D),
which 15 day period may be extended by one


 


17





















 


additional 15 day period per Offering Memorandum at the request of such
Private Placement Holders;


 


(iv)  use all
commercially reasonable efforts to (A) register or qualify the Exchange
Securities under the securities laws or blue sky laws of such jurisdictions as are contemplated by the Private
Placement, (B) keep such registrations or qualifications in effect and
comply with such laws so as to permit the continuance of offers, sales and
dealings therein in such jurisdictions during such period as the Offering
Memorandum shall be available for use and (C) take any and all other
actions as may be reasonably necessary or advisable to enable each such holder
to consummate the disposition of its Securities in such jurisdictions; provided, however, that the Company shall
not be required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be required to
qualify but for the requirements of this Section 3(g)(iv), (2) consent
to general service of process in any such jurisdiction or (3) make any
changes to its certificate of formation, certificate of incorporation, limited
liability company agreement or by-laws, as applicable, or any agreement between
it and its stockholders;


 


(v)  use all
commercially reasonable efforts to obtain the consent or approval of each governmental
agency or authority, whether state or local, which may be required to effect
the Private Placement;


 


(vi)  unless any
Registrable Securities shall be in book-entry only form, cooperate with the
Private Placement Holders and the managing underwriters, if any, to facilitate
the timely preparation and delivery of certificates representing Registrable
Securities to be sold, which certificates, if so required by any quotation
service upon which any Registrable Securities are quoted, shall be printed, penned,
lithographed or engraved, or produced by any combination of such methods, on
steel engraved borders; and, in the case of an underwritten offering, enable
such Registrable Securities to be in such denominations and registered in such
names as the managing underwriters may request at least two business days prior
to any sale of the Registrable Securities;


 


(vii)  whether or not
any portion of the offering contemplated by the Private Placement is an
underwritten offering or is made through a placement or sales agent or any
other entity, (A) provide each Private Placement Holder with such number
of copies of the Offering Memorandum or (as then amended or supplemented) as
such holder reasonably may request for use in connection with the Private
Placement, which Offering Memorandum shall contain all financial statements
(including all appropriate audited financial statements, all appropriate
unaudited financial statements (which shall have been reviewed by the
independent accountants for the Company as provided in Statement on Auditing
Standards No. 100) and all appropriate pro forma financial statements (as
would have been required if such Offering Memorandum were a registration
statement filed on Form S-1) prepared in accordance with, or reconciled
to, accounting principles generally accepted in the United States and prepared
in accordance with Regulation S-X under the Securities Act; (B) make such
representations and warranties to the Private Placement Holders (provided, however, that
the Company shall not make any representations or warranties to MeadWestvaco
Corporation or any of its affiliates regarding the Company’s assets, business,
financial condition or results of operations at or prior to the Closing Date)
and the placement or sales agent, if any, therefor and the underwriters, if
any, thereof in form, substance and scope as are customarily made in


 


18





















 


connection with an offering of debt securities pursuant to any
appropriate agreement; (C) obtain an opinion of counsel (which may be
in-house counsel) to the Company in customary form and covering such matters,
of the type customarily covered by such an opinion, as the managing
underwriters, if any, or as any Private Placement Holders of the Registrable Securities
at the time outstanding may reasonably request, addressed to such Private
Placement Holder or Private Placement Holders and the placement or sales agent,
if any, therefor and the underwriters, if any, thereof and dated the closing
date of such Private Placement (it being agreed that the matters to be covered
by such opinion shall include the good standing of the Company and its
subsidiaries; the qualification of the Company and its subsidiaries to transact
business as foreign entities in states where they transact business; the due
authorization, execution and delivery of the relevant customary agreement to be
entered into; the due authorization, execution, authentication and issuance,
and the validity and enforceability, of the Registrable Securities or
Securities as applicable; the absence of material legal or governmental
proceedings involving the Company; the absence of a breach by the Company or
any of its subsidiaries of, or a default under, material agreements binding
upon the Company or any subsidiary of the Company; the absence of governmental
approvals required to be obtained in connection with the Private Placement, the
offering and sale of the Registrable Securities, this Exchange and Registration
Rights Agreement or any agreement customarily entered into, except such
approvals as may be required under state securities or blue sky laws; and the
material compliance as to form of any documents incorporated by reference
therein with the requirements of the Securities Act and the rules and regulations
of the Commission thereunder); (D) obtain an opinion of counsel (which may
not be in-house counsel) to the Company as to the absence from such Offering
Memorandum, as then amended or supplemented, and from the documents
incorporated by reference therein (in each case other than the financial
statements and other financial information contained therein) of an untrue
statement of a material fact or the omission to state therein a material fact
necessary to make the statements therein not misleading, in light of the
circumstances then existing, as of the date of the opinion and of the Offering
Memorandum or most recent amendment thereto, as the case may be; (E) obtain
a “cold comfort” letter or letters from the independent certified public
accountants of the Company addressed to the Private Placement Holders, the
placement or sales agent, if any, therefor or the underwriters, if any,
thereof, dated (i) the date of Offering Memorandum, such letter or letters
to be in customary form and covering such matters of the type customarily
covered by letters of such type; (F) facilitate the Private Placement
Holder’s due diligence efforts in connection with the Private Placement,
including providing access to documents and personnel of the Company as
requested by the Private Placement Holders subject to a customary
confidentiality obligation as may reasonably be requested by the Company; (G) deliver
such documents and certificates, including officers’ certificates, as may be
reasonably requested by any Private Placement Holders of the Registrable
Securities at the time outstanding or the placement or sales agent, if any,
therefor and the managing underwriters, if any, thereof to evidence the
accuracy of the representations and warranties made pursuant to clause (B) above
or those contained in Section 5(a) hereof and the compliance with or
satisfaction of any agreements or conditions contained in the underwriting
agreement or other agreement entered into by the Company; and (H) undertake
such obligations relating to expense reimbursement, indemnification and
contribution as are provided in Section 6 hereof; and


 


19





















 


(viii)  comply with all
applicable rules or regulation of the quotation service on which the
Securities may be quoted.


 


4.               Registration Expenses.


 


The Company agrees to bear and to pay or cause to be paid promptly all
expenses incident to the Company’s performance of or compliance with this
Exchange and Registration Rights Agreement, including (a) all Commission
and any NASD registration, filing and review fees and expenses with respect to
a Shelf Registration Statement, including with respect to reasonable fees and
disbursements of counsel for the placement or sales agent or underwriters in
connection with any such registration, filing and review, (b) all fees and
expenses in connection with the qualification of the Securities for offering
and sale under the State securities and blue sky laws referred to in Section 3(d)(xii)
and Section 3(g)(iv) hereof and determination of their eligibility
for investment under the laws of such jurisdictions as any managing
underwriters, the Electing Holders, the placement agent or the Private
Placement Holders, as applicable, may designate, including any reasonable fees
and disbursements of one counsel for the Electing Holders, underwriters, the
placement agent or the Private Placement Holders in connection with such
qualification and determination, (c) all expenses relating to the
preparation, printing, production, distribution and reproduction of each
registration statement required to be filed hereunder, each prospectus or each
Offering Memorandum prepared for distribution pursuant to this Exchange and
Registration Rights Agreement, each amendment or supplement to the foregoing,
the expenses of preparing the Securities for delivery and the expenses of
printing or producing any underwriting or purchase agreements, agreements among
underwriters, selling agreements and blue sky or legal investment memoranda and
all other documents in connection with the offering, sale or delivery of
Securities to be disposed of (including certificates representing the
Securities), (d) messenger, telephone and delivery expenses relating to
the offering, sale or delivery of Securities and the preparation of documents
referred in clause (c) above, (e) fees and expenses of the Trustee
under the Indenture, any agent of the Trustee and any counsel for the Trustee, (f) internal
expenses of the Company (including all salaries and expenses of the Company’s
officers and employees performing legal or accounting duties), (g) fees,
disbursements and expenses of counsel and independent certified public
accountants of the Company (including the expenses of any opinions or “cold
comfort” letters required by or incident to such performance and compliance), (h) fees,
disbursements and expenses of any “qualified independent underwriter” engaged
in connection therewith, (i) reasonable fees, disbursements and expenses
of one counsel for the Electing Holders and/or the Private Placement Holders
holding at least a majority in aggregate principal amount of the Registrable
Securities to be included in such offering or the Private Placement, as
applicable, as selected by the Electing Holders or the Private Placement
Holders, as applicable, in each case of at least a majority in aggregate
principal amount of the Registrable Securities held by Electing Holders or the
Private Placement Holders, as applicable (which counsel shall be reasonably
satisfactory to the Company), (j) any fees charged by securities rating
services for rating the Securities, and (k) fees, expenses and disbursements of
any other persons, including special experts, retained by the Company in
connection with such registration or Private Placement (collectively, the “Registration Expenses”). 
To the extent that any Registration Expenses are incurred, assumed or
paid by any holder of Registrable Securities or any placement or sales agent
therefor or underwriter thereof, the Company shall reimburse such person for the
full amount of the Registration Expenses so incurred, assumed or paid promptly
after receipt of a request therefor. Notwithstanding the foregoing, the holders
of the Registrable Securities being registered or sold under the Private
Placement shall pay all agency fees and commissions and underwriting discounts
and commissions attributable to the sale of such Registrable Securities and the
fees and disbursements of any counsel or other advisors or


 


20





















 


experts retained by such holders (severally or jointly), other than the
counsel and experts specifically referred to above.


 


5.               Representations and
Warranties.


 


The Company represents and warrants to, and agrees with, each Purchaser
and each of the holders from time to time of Registrable Securities that:


 


(a)  Each registration
statement covering Registrable Securities and each prospectus (including any
preliminary or summary prospectus) contained therein or furnished pursuant to Section 3(d) or
Section 3(c) hereof and any further amendments or supplements to any such
registration statement or prospectus, when it becomes effective or is filed
with the Commission, as the case may be, and, in the case of an underwritten
offering of Registrable Securities, at the time of the closing under the
underwriting agreement relating thereto, will conform in all material respects
to the requirements of the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and at all
times subsequent to the Effective Time when a prospectus would be required to
be delivered under the Securities Act, other than (A) from (i) such
time as a notice has been given to holders of Registrable Securities pursuant
to Section 3(d)(viii)(F) or Section 3(c)(iii)(F) hereof
until (ii) such time as the Company furnishes an amended or supplemented prospectus
pursuant to Section 3(c) or Section 3(d) hereof or (B) during
any Blackout Period, each such registration statement, and each prospectus
(including any summary prospectus) contained therein or furnished pursuant to Section 3(d) or
Section 3(c) hereof, as then amended or supplemented, will conform in all
material respects to the requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission thereunder
and will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing; provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by a holder of Registrable Securities expressly for use therein; provided, further, however, that the
Company shall not make any representations or warranties to MeadWestvaco Corporation
or any of its affiliates regarding the Company’s assets, business, financial condition
or results of operations at or prior to the Closing Date.


 


(b)  Each Offering
Memorandum (including any preliminary or summary Offering Memorandum) furnished
pursuant to Section 3(g) hereof and any further amendments or supplements
thereto, at the time of the closing under the purchase agreement relating thereto,
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and other than (A) from (i) such time as a
notice has been given to holders of Registrable Securities pursuant to Section 3(g)(ii)(D) hereof
until (ii) such time as the Company furnishes an amended or supplemented
Offering Memorandum pursuant to Section 3(g) hereof or (B) during
any Blackout Period, each such Offering Memorandum (including any summary Offering
Memorandum) contained therein or furnished pursuant to Section 3(g) hereof,
as then amended or supplemented, will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished


 


21





















 


in writing to the Company by a holder of Registrable
Securities expressly for use therein; provided,
further, however, that the Company shall not make any
representations or warranties to MeadWestvaco Corporation or any of its
affiliates regarding the Company’s assets, business, financial condition or
results of operations at or prior to the Closing Date.


 


(c)  Any documents
incorporated by reference in any prospectus referred to in Section 5(a) hereof,
when they become or became effective or are or were filed with the Commission
or are used, will, as the case may be, conform or conformed in all material respects
to the requirements of the Securities Act or the Exchange Act, as the case may
be, and none of such documents will contain or contained an untrue statement of
a material fact or will omit or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by
a holder of Registrable Securities expressly for use therein; provided, further, however, that the
Company shall not make any representations or warranties to MeadWestvaco
Corporation or any of its affiliates regarding the Company’s assets, business,
financial condition or results of operations at or prior to the Closing Date.


 


(d)  Any documents incorporated
by reference in any Offering Memorandum referred to in Section 5(b) hereof,
when they become or became effective or are or were filed with the Commission
or are used, will, as the case may be, conform or conformed in all material respects
to the requirements of the Securities Act or the Exchange Act, as applicable,
and none of such documents will contain or contained an untrue statement of a
material fact or will omit or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by a holder of Registrable Securities expressly for use therein; provided, further, however, that the
Company shall not make any representations or warranties to MeadWestvaco
Corporation or any of its affiliates regarding the Company’s assets, business,
financial condition or results of operations at or prior to the Closing Date.


 


(e)  The compliance by
the Company with all of the provisions of this Exchange and Registration Rights
Agreement and the consummation of the transactions herein contemplated will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any
subsidiary of the Company is a party or by which the Company or any subsidiary
of the Company is bound or to which any of the property or assets of the
Company or any subsidiary of the Company is subject, nor will such action
result in any violation of the provisions of the certificate of incorporation,
as amended, certificate of formation or limited liability company agreement, as
applicable, or the by-laws of the Company or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any subsidiary of the Company or any of their properties; and no
consent, approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated by this Exchange
and Registration Rights Agreement, except the registration under the Securities
Act of the Securities, qualification of the Indenture under the Trust Indenture
Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under State securities or blue sky laws in
connection with the offering and distribution of the Securities.


 


22





















 


(f)  This Exchange and
Registration Rights Agreement has been duly authorized, executed and delivered
by the Company.


 


6.               Indemnification.


 


(a)  Indemnification by the Company. The
Company will indemnify and hold harmless each of the holders of Registrable
Securities included in an Exchange Registration Statement, each of the Electing
Holders of Registrable Securities included in a Shelf Registration Statement,
each of the holders conducing the Private Placement and each person who
participates as a placement or sales agent or as an underwriter in any offering
or sale of such Registrable Securities against any losses, claims, damages or
liabilities, joint or several, to which such holder, agent, underwriter or
placement agent may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Exchange Registration Statement
or Shelf Registration Statement, as the case may be, under which such
Registrable Securities were registered under the Securities Act, any
preliminary, final or summary prospectus contained therein or furnished by the
Company or any preliminary, final or summary Offering Memorandum furnished by
the Company to any such holder, Electing Holder, Private Placement Holder,
agent, underwriter or placement agent, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse such holder, Electing
Holder, such Private Placement Holder, such agent, such underwriter and such
placement agent for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that
the Company shall not be liable to any such person in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, or preliminary, final or summary
prospectus or preliminary, final or summary Offering Memorandum, or amendment
or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by such person expressly for use therein,
and, in the case of MeadWestvaco Corporation, information furnished or provided
by MeadWestvaco or any of its affiliates regarding the Company’s assets,
business, financial condition or results of operations at or prior to the
Closing Date; provided, further, however, that
the Company will not be liable to any such person with respect to any
preliminary prospectus or Offering Memorandum to the extent that it shall be
proven in a court of competent jurisdiction in a judgment that has become final
in that it is no longer subject to appeal or other review that any such loss,
liability, claim, damage or expense arose out of or was based upon the fact
that such person sold securities to a person to whom such selling person failed
to send or give, at or prior to the time of sale, a copy of the final
prospectus or Offering Memorandum as then amended or supplemented if (i) the
Company has previously furnished copies thereof (sufficiently in advance of the
time of sale to allow for distribution by the time of sale) to such selling
person and the loss, liability, claim, damage or expense of such selling person
arose out of or was based upon an untrue statement or omission or alleged
untrue statement or omission of a material fact contained in or omitted from
the preliminary prospectus or Offering Memorandum which was corrected in the
final prospectus or Offering Memorandum prior to the time of sale and (ii) the
delivery of such final prospectus by the time of sale by such selling person
would have cured such loss, liability, claim, damage or expense asserted by
such party or parties.


 


23





















 


(b)  Indemnification by the Holders and any Agents and
Underwriters. The Company may require, as a condition to including
any Registrable Securities in any registration statement filed pursuant to Section 2(b) hereof,
providing any an Offering Memorandum in connection with the Private Placement
pursuant to Section 2(c) and to entering into any underwriting or
purchase agreement with respect thereto, that the Company shall have received
an undertaking reasonably satisfactory to it from the applicable of each
Electing Holder or Private Placement Holder and from each underwriter or
placement agent named in any such underwriting or purchase agreement, severally
and not jointly, to (i) indemnify and hold harmless the Company and all
other holders of Registrable Securities, against any losses, claims, damages or
liabilities to which the Company or such other holders of Registrable
Securities may become subject, under the Securities Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in such registration statement, any preliminary,
final or summary prospectus contained therein or furnished by the Company or
any preliminary, final or summary Offering Memorandum furnished by the Company
to any such Electing Holder, such Private Placement holder, agent, underwriter
or placement agent, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by
such Electing Holder, Private Placement Holder, agent, underwriter or placement
agent, expressly for use therein and, in the case of MeadWestvaco Corporation,
information furnished or provided by MeadWestvaco or any of its affiliates regarding
the Company’s assets, business, financial condition or results of operations at
or prior to the Closing Date and (ii) reimburse the Company for any legal
or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are incurred;
provided, however, that no such
Electing Holder or Private Placement Holder, as applicable, shall be required
to undertake liability to any person under this Section 6(b) for any
amounts in excess of the dollar amount of the proceeds to be received by such
Electing Holder or Private Placement Holder, from the sale of such holder’s
Registrable Securities pursuant to such registration.


 


(c)  Notices of
Claims, Etc.  Promptly after
receipt by an indemnified party under subsection (a) or (b) above
of written notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against an indemnifying party
pursuant to the indemnification provisions of or contemplated by this Section 6,
notify such indemnifying party in writing of the commencement of such action;
but the omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than under
the indemnification provisions of or contemplated by Section 6(a) or
6(b) hereof. In case any such action shall be brought against any
indemnified party and it shall notify an indemnifying party of the commencement
thereof, such indemnifying party shall be entitled to participate therein and,
to the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and, after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, such indemnifying party shall not be liable to
such indemnified party for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation.  No indemnifying party
shall, without the written consent of the


 


24





















 


indemnified party, effect the settlement or compromise of, or consent
to the entry of any judgment with respect to, any pending or threatened action
or claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i) includes
an unconditional release of the indemnified party from all liability arising
out of such action or claim and (ii) does not include a statement as to or
an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party. The indemnifying party shall not be required to indemnify
the indemnified party for any amount paid or payable by the indemnified party
in the settlement or compromise of, or entry into any judgment with respect to,
any pending or threatened action or claim in respect of which indemnification
or contribution may be sought hereunder without the written consent of the
indemnifying party, which consent shall not be unreasonably withheld.


 


(d)  Contribution. If for any reason the
indemnification provisions contemplated by Section 6(a) or Section 6(b) hereof
are unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and the indemnified party in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative fault of such indemnifying party and indemnified party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by such indemnifying party or by
such indemnified party, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 6(d) were determined by pro
rata allocation (even if the holders or any agents or underwriters or all of
them were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 6(d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, or liabilities (or actions in
respect thereof) referred to above shall be deemed to include any legal or
other fees or expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), no holder shall be required to contribute
any amount in excess of the amount by which the dollar amount of the proceeds
received by such holder from the sale of any Registrable Securities (after
deducting any fees, discounts and commissions applicable thereto) exceeds the
amount of any damages which such holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission, and no underwriter or placement agent shall be required to contribute
any amount in excess of the amount by which the total price at which the
Registrable Securities underwritten by it and distributed to the public, or
privately, were offered to the public, or privately, exceeds the amount of any
damages which such underwriter or placement agent has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11 (f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The holders’, any underwriters’ and any placement agents’
obligations in this Section 6(d) to contribute shall be several in
proportion to the principal amount of Registrable Securities registered or
underwritten, as the case may be, by them and not joint.


 


25





















 


(e)  The obligations of
the Company under this Section 6 shall be in addition to any liability
which the Company may otherwise have and shall extend, upon the same terms and
conditions, to each officer, director and partner of each holder, agent and
underwriter and each person, if any, who controls any holder, agent or
underwriter within the meaning of the Securities Act; and the obligations of
the holders and any agents or underwriters contemplated by this Section 6
shall be in addition to any liability which the respective holder, agent,
underwriter or placement agent may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company
(including any person who, with his consent, is named in any registration
statement as about to become a director of the Company) and to each person, if
any, who controls the Company within the meaning of the Securities Act.


 


7.               Underwritten Offerings.


 


(a)  Selection of Underwriters. In the case of
a Shelf Registration or a Private Placement in which any of the Registrable
Securities covered by such Shelf Registration or to be sold under the Private
Placement are to be sold pursuant to an underwritten offering, the managing
underwriter or underwriters or the managing placement agent or placement agents,
as the case may be, thereof shall be designated by Electing Holders or Private Placement
Holders, as the case may be, holding at least a majority in aggregate principal
amount of the Registrable Securities to be included in such offering, provided
that such designated managing underwriter or underwriters or managing placement
agent or placement agents, as the case may be, is or are reasonably acceptable
to the Company.


 


(b)  Participation by Holders. Each holder of
Registrable Securities hereby agrees with each other such holder that no such
holder may participate in any underwritten offering hereunder unless such
holder (i) agrees to sell such holder’s Registrable Securities on the basis
provided in any underwriting arrangements approved by the persons entitled hereunder
to approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreement and other documents
reasonably required under the terms of such underwriting arrangements.


 


8.               Rule 144.


 


The Company covenants to the holders of Registrable Securities that to
the extent it shall be required to do so under the Exchange Act, the Company
shall timely file the reports required to be filed by it under the Exchange Act
or the Securities Act (including the reports under Section 13 and 15(d) of
the Exchange Act referred to in subparagraph (c)(1) of Rule 144
adopted by the Commission under the Securities Act) and the rules and
regulations adopted by the Commission thereunder, and shall take such further
action as any holder of Registrable Securities 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 limitations
of the exemption provided by Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or any similar or successor rule or
regulation hereafter adopted by the Commission. Upon the request of any holder
of Registrable Securities in connection with that holder’s sale pursuant to Rule 144,
the Company shall deliver to such holder a written statement as to whether it
has complied with such requirements.


 


9.               Miscellaneous.


 


(a)  No Inconsistent Agreements.  The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant, registration
rights with respect to


 


26





















 


Registrable Securities or any other securities which would be
inconsistent with the terms contained in this Exchange and Registration Rights
Agreement.


 


(b)  Specific Performance.  The parties hereto acknowledge that
there would be no adequate remedy at law if the Company fails to perform any of
its obligations hereunder and that the Purchasers and the holders from time to
time of the Registrable Securities may be irreparably harmed by any such
failure, and accordingly agree that the Purchasers and such holders, in
addition to any other remedy to which they may be entitled at law or in equity,
shall be entitled to compel specific performance of the obligations of the
Company under this Exchange and Registration Rights Agreement in accordance
with the terms and conditions of this Exchange and Registration Rights
Agreement, in any court of the United States or any State thereof having
jurisdiction.


 


(c)  Notices. All notices, requests, claims,
demands, waivers and other communications hereunder shall be in writing and
shall be deemed to have been duly given when delivered by hand, if delivered
personally or by courier, or five business days after being deposited in the
mail (registered or certified mail, postage prepaid, return receipt requested)
as follows: If to the Company, to it at NewPage Holding Corporation,
Courthouse Plaza, NE, Dayton, Ohio 45463, Attention:  Corporate Secretary, with copies to Michael R.
Littenberg, Esq., Schulte Roth & Zabel LLP, 919 Third Avenue, New
York, New York 10022, and if to a holder, to the address of such holder set
forth in the security register or other records of the Company, or to such
other address as the Company or any such holder may have furnished to the other
in writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.


 


(d)  Parties in Interest. All the terms and
provisions of this Exchange and Registration Rights Agreement shall be binding
upon, shall inure to the benefit of and shall be enforceable by the parties
hereto and the holders from time to time of the Registrable Securities and the
respective successors and assigns of the parties hereto and such holders. In
the event that any transferee of any holder of Registrable Securities shall
acquire Registrable Securities, in any manner, whether by gift, bequest,
purchase, operation of law or otherwise, such transferee shall, without any
further writing or action of any kind, be deemed a beneficiary hereof for all
purposes and such Registrable Securities shall be held subject to all of the
terms of this Exchange and Registration Rights Agreement, and by taking and
holding such Registrable Securities such transferee shall be entitled to
receive the benefits of, and be conclusively deemed to have agreed to be bound
by all of the applicable terms and provisions of this Exchange and Registration
Rights Agreement. If the Company shall so request, any such successor, assign
or transferee shall agree in writing to acquire and hold the Registrable
Securities subject to all of the applicable terms hereof.


 


(e)  Survival.  The
respective indemnities, agreements, representations, warranties and each other
provision set forth in this Exchange and Registration Rights Agreement or made pursuant
hereto shall remain in full force and effect regardless of any investigation
(or statement as to the results thereof) made by or on behalf of any holder of
Registrable Securities, any director, officer or partner of such holder, any
agent or underwriter or any director, officer or partner thereof, or any
controlling person of any of the foregoing, and shall survive delivery of and
payment for the Registrable Securities pursuant to the Purchase Agreement and
the transfer and registration of Registrable Securities by such holder and the consummation
of an Exchange Offer.


 


(f)  Governing Law. 
This Exchange and Registration Rights Agreement shall be governed
by and construed in accordance with the laws of the State of New York.


 


27





















 


(g)  Headings. The descriptive headings of the
several Sections and paragraphs of this Exchange and Registration Rights
Agreement are inserted for convenience only, do not constitute a part of this
Exchange and Registration Rights Agreement and shall not affect in any way the
meaning or interpretation of this Exchange and Registration Rights Agreement.


 


(h)  Entire Agreement; Amendments. This
Exchange and Registration Rights Agreement and the other writings referred to
herein (including the Indenture and the form of Securities) or delivered
pursuant hereto which form a part hereof contain the entire understanding of
the parties with respect to its subject matter. This Exchange and Registration
Rights Agreement supersedes all prior agreements and understandings between the
parties with respect to its subject matter. This Exchange and Registration Rights
Agreement may be amended and the observance of any term of this Exchange and
Registration Rights Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only by a
written instrument duly executed by the Company and the holders of at least a
majority in aggregate principal amount of the Registrable Securities at the
time outstanding; provided, that
such duly written instrument shall be delivered to all holders of Registrable
Securities then existing prior to its delivery to the Company and, provided, further, that, for so
long as at least two initial holders hold Registrable Securities, no amendment
or waiver that is adverse or detrimental to any holder of a Registrable
Security shall be permitted without the additional prior written consent of a
majority in number (and not in aggregate principal amount) of the initial
holders then holding Registrable Securities. Each holder of any Registrable
Securities at the time or thereafter outstanding shall be bound by any
amendment or waiver effected pursuant to this Section 9(h), whether or not
any notice, writing or marking indicating such amendment or waiver appears on
such Registrable Securities or is delivered to such holder.


 


(i)  Inspection. For
so long as this Exchange and Registration Rights Agreement shall be in effect,
this Exchange and Registration Rights Agreement and a complete list of the
names and addresses of all the holders of Registrable Securities shall be made
available as soon as reasonably practicable, but no later than after five days’
notice, for inspection and copying on any business day by any holder of
Registrable Securities for proper purposes only (which shall include any
purpose related to the rights of the holders of Registrable Securities under
the Securities, the Indenture and this Agreement) at the offices of the Company
at the address thereof set forth in Section 9(c) above and at the
office of the Trustee under the Indenture.


 


(j)  Counterparts.
This Exchange and Registration Rights Agreement may be executed by
the parties in counterparts, each of which shall be deemed to be an original,
but all such respective counterparts shall together constitute one and the same
instrument.


 


28





















 


If the foregoing is in accordance with your understanding, please sign
and return to us one for the Company, MeadWestvaco Corporation and each of the
Representatives plus one for each counsel counterparts hereof, and upon the
acceptance hereof by you, on behalf of each of the Purchasers, this letter and
such acceptance hereof shall constitute a binding agreement between each of the
Purchasers and the Company. It is understood that your acceptance of this
letter on behalf of each of the Purchasers is pursuant to the authority set
forth in a form of Agreement among Purchasers, the form of which shall be
submitted to the Company for examination upon request, but without warranty on
your part as to the authority of the signers thereof.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
  NewPage Holding
  Corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Linda M. Sheffield

  
	
   

  	
   

  	
  Name:
  Linda M. Sheffield

  
	
   

  	
   

  	
  Title:
  Treasurer

  



 


	
  Accepted
  as of the date hereof:

  
	
   

  
	
  MeadWestvaco
  Corporation

  
	
   

  
	
  By:

  	
  /s/ Robert E.
  [Illegible]

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
  On
  behalf of itself

  
	
   

  
	
   

  
	
  and

  
	
   

  
	
   

  
	
  Goldman,
  Sachs & Co.

  
	
   

  
	
  By:

  	
  /s/ Goldman, Sachs
  & Co.

  	
   

  
	
   

  	
  (Goldman, Sachs & Co.)

  	
   

  
	
   

  
	
  UBS
  Investment Bank 

  
	
   

  
	
  By:

  	
  /s/
  Michael F. Newcomb II

  	
   

  
	
   

  	
  Name:
  Michael F. Newcomb II

  
	
   

  	
  Title:
  Executive Director

  
	
   

  	
  High Yield Capital Markets

  
	
   

  
	
  UBS
  Investment Bank

  
	
   

  
	
  By:

  	
  /s/ L. Brett Matkins

  	
   

  
	
   

  	
  Name:
  L. Brett Matkins

  
	
   

  	
  Title:
  Executive Director

  
	
   

  	
  High Yield Capital Markets

  



 


 


On
behalf of the Other Purchasers


 


 


HoldCo Registration Rights Agreement