REGISTRATION RIGHTS AGREEMENT
Dated as of o
among
HUNTSMAN INTERNATIONAL HOLDINGS LLC
and
THE HOLDERS
named herein
------------------------------
$604,557,000
8% SENIOR SUBORDINATED RESET DISCOUNT NOTES DUE 2009
TABLE OF CONTENTS
Definitions ............................ 1
Demand Registration .................... 4
Additional Interest .................... 6
Registrations .......................... 7
Registration Procedures ................ 8
Expenses ............................... 14
Indemnification ........................ 15
Rule 144A Transaction .................. 18
Private Sale Transaction ............... 19
Rule 144 and Rule 144A ................. 22
Miscellaneous .......................... 22
ii
REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement (the "AGREEMENT") is made and entered
into as of o, by and among
Huntsman International Holdings LLC (the "ISSUER"), a
Delaware limited liability company, and the holders of the Notes (as defined
below) whose signatures appear on the execution pages of this Agreement (the
"HOLDERS").
The parties hereby agree as follows:
1. DEFINITIONS
Capitalized terms used herein without definition shall have the respective
meanings set forth in the Amended and Restated Indenture dated as of o, 2001 (as
amended or supplemented from time to time, the "INDENTURE"), between the Issuer
and Bank One, N.A., as trustee, pursuant to which the Notes (as defined below)
are being issued, as amended or supplemented from time to time in accordance
with the terms thereof. As used in this Agreement, the following terms shall
have the following meanings:
ACCRETED VALUE: Has the meaning given to such term in the Indenture.
ADDITIONAL INTEREST: See Section 3(a).
ADDITIONAL INTEREST PAYMENT DATE: See Section 3(b).
ADVICE: See the last paragraph of Section 5.
AGREEMENT: See the first introductory paragraph to this Agreement.
BUSINESS DAY: Any day other than a Saturday, Sunday or any day on which any
or all of the commercial banks in
New York City, the
New York Stock Exchange or
the SEC is authorized or required by law to close.
CONFIDENTIALITY AGREEMENT: See Section 9(c).
DEMAND FILING DEADLINE: The 45th day after the receipt of a Demand Notice
or such date thereafter to which the Demand Filing Deadline may be extended
pursuant to Section 2(a) hereof.
DEMAND NOTICE: See Section 2(a).
DEMAND REGISTRATION STATEMENT: See Section 2(a).
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EFFECTIVENESS DATE: The 120th day after the Filing Date.
EXCHANGE OFFER
REGISTRATION RIGHTS AGREEMENT: A
registration rights
agreement in substantially the form of Exhibit A hereto.
FILING DATE: See Section 2(a).
HOLDERS: The holders of the Notes whose signatures appear on the execution
pages of this Agreement and any transferee of Registrable Notes of any of the
foregoing persons.
INDEMNIFIED PERSON: See Section 7(c).
INDEMNIFYING PERSON: See Section 7(c).
INDENTURE: See the first paragraph of Section 1.
INFORMATION MEMORANDUM: See Section 9(b).
INSPECTORS: See Section 5(p).
ISSUER: See the first introductory paragraph to this Agreement.
INTEREST PERIOD: See Section 3(b).
NASD: See Section 5(n).
NOTES: The $604,557,000 aggregate principal amount at maturity of 8% Senior
Subordinated Reset Discount Notes due 2009 of the Issuer issued pursuant to the
Indenture and any Reset Notes (as defined in the Indenture) issued in exchange
therefor.
OFFERING MEMORANDUM: An offering memorandum for use in connection with an
offering required by a Rule 144A Notice that is similar in form and substance to
a Prospectus (including, without limitation, any offering memorandum subject to
completion and an offering memorandum that includes any information omitted from
a previously distributed offering memorandum), as amended or supplemented by any
offering memorandum supplement, with respect to the terms of the offering of any
portion of the Notes covered by such offering memorandum, and all other
amendments and supplements to the Offering Memorandum, and all material
incorporated by reference or deemed to be incorporated by reference in such
Prospectus.
OFFERING MEMORANDUM DEADLINE: With respect to each Rule 144A Notice, the
60th day following the Issuer's receipt of such Rule 144A Notice or such date
thereafter to which the Offering Memorandum Deadline may be extended pursuant to
Section 2(a) hereof.
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PARTICIPANT: See Section 7(a).
PRIVATE SALE: See the first paragraph of Section 9.
PRIVATE SALE NOTICE: See the first paragraph of Section 9.
PRIVATE SALE ROADSHOW: See Section 9(e).
PROSPECTUS: The prospectus included in a Registration Statement (including,
without limitation, any prospectus subject to completion and a prospectus that
includes any information previously omitted from a prospectus filed as part of
an effective registration statement in reliance upon Rule 430A promulgated under
the Securities Act), as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of the Registrable
Notes covered by such Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
REGISTRATION: The obligation hereunder of the Issuer to (i) file a
Registration Statement and use its reasonable best efforts to cause such
Registration Statement to become effective under the Securities Act pursuant to
the terms hereof or (ii) prepare an Offering Memorandum pursuant to Section 8
hereof.
REGISTRATION ELECTION: See Section 8.
REGISTRABLE NOTES: The Notes upon original issuance thereof and at all
times subsequent thereto, until in the case of any such Note (i) a Registration
Statement covering such Note has been declared effective and such Note has been
disposed of in accordance with such effective Registration Statement, (ii) it is
sold in compliance with, or may be sold without restriction pursuant to, Rule
144, (iii) it shall have been otherwise transferred and a new certificate for
any such Note not bearing a legend restricting further transfer shall have been
delivered by the Issuer, or (iv) it ceases to be outstanding.
REGISTRATION STATEMENT: A registration statement of the Issuer filed or
required to be filed with the SEC pursuant to Section 2(a) hereof, including the
Prospectus, amendments and supplements to such registration statement, including
post-effective amendments, all exhibits and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
RULE 144: Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or any similar rule (other than Rule 144A) or regulation
hereafter adopted by the SEC.
RULE 144A: Rule 144A under the Securities Act, as such Rule may be amended
from
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time to time, or any similar rule (other than Rule 144) or regulation hereafter
adopted by the SEC.
RULE 144A NOTICE: See Section 8.
RULE 144A RESALE: See Section 8.
SEC: The Securities and Exchange Commission.
SECURITIES ACT: The Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
TERMINATION DATE: See Section 2(a).
TIA: The Trust Indenture Act of 1939, as amended.
TRUSTEE: The trustee under the Indenture.
UNDERWRITTEN OFFERING: An offering in which securities of the Issuer are
sold to underwriters or initial purchasers for reoffering pursuant to a
Registration Statement or Offering Memorandum.
2. DEMAND REGISTRATION
(a) RIGHT TO DEMAND. At any time after the date hereof, one or more
Holders of the Notes shall have the right to make a written request (such
request, if in compliance with the requirements hereof, a "DEMAND NOTICE") to
the Issuer to register all or part of such Holders' Registrable Notes under and
in accordance with the provisions of the Securities Act, which request must
specify (i) the aggregate principal amount at maturity of the Registrable Notes
to be registered, and (ii) the intended method of disposition thereof. Within 15
days after receipt of a Demand Notice, the Issuer will send written notice of
such Demand Notice to all Holders of Registrable Notes who did not participate
in the Demand Notice, and the Issuer will include in such registration all
Registrable Notes of such other Holders with respect to which the Issuer has
received written requests for inclusion therein within 10 Business Days after
the receipt by the applicable Holder of the Issuer's written notice. As soon as
reasonably practicable thereafter, but in no event later than the Demand Filing
Deadline, the Issuer will cause to be filed a Registration Statement covering
such Registrable Notes that the Issuer has been so requested to register
providing for the registration under the Securities Act of such Registrable
Notes so to be registered in accordance with the intended method of distribution
specified in the Demand Notice (a "DEMAND REGISTRATION STATEMENT"). Such
Registration Statement shall be on Form S-1 or any other appropriate form
permitting registration of such Registrable Notes. The Issuer shall not permit
any securities other than the Registrable Notes to be included in a Registration
Statement
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without the consent of the Holders of a majority of the principal amount of the
Notes to be registered in such Registration Statement. The Issuer shall use its
reasonable best efforts to cause any such Registration Statement to be declared
effective under the Securities Act as soon as practicable after the date on
which such Registration Statement is filed (such date, the "FILING DATE"), but
not later than the Effectiveness Date and to keep such Registration Statement
continuously effective for 90 days from the actual date of its effectiveness
(subject to extension pursuant to the last paragraph of Section 5) (the
"TERMINATION DATE"), or such shorter period ending when all Registrable Notes
covered by such Registration Statement have been sold in the manner set forth
and as contemplated in such Registration Statement. Notwithstanding anything to
the contrary in this Agreement, at any time, the Issuer may (i) delay the filing
of any Registration Statement or extend the Offering Memorandum Deadline or (ii)
delay or suspend (a) the effectiveness of a Registration Statement or (b) the
use of any Offering Memorandum, in either case of clause (i) or clause (ii) for
a reasonable period of time, but not in excess of an aggregate of 90 days in any
consecutive twelve month period, if the Board of Managers of the Issuer
determine in good faith that the filing of any such Registration Statement (or
effectiveness or the continuing effectiveness thereof) or the circulation of an
Offering Memorandum (or any other use thereof) would require the disclosure of
non-public material information that, in the reasonable judgment of the Board of
Managers of the Issuer, would be detrimental to the Issuer if so disclosed or
would otherwise materially adversely affect a financing, acquisition,
disposition, merger or other material transaction.
(b) EFFECTIVENESS OF REGISTRATIONS. For purposes of Section 4(b), the
Issuer shall not be deemed to have effected a Registration under this Agreement
in connection with any Registration Statement or Offering Memorandum with
respect to which the Holders have withdrawn or cancelled their Demand Notice or
a Rule 144A Notice (i) at any time prior to the filing of a Registration
Statement or the completion of preparation of a preliminary Offering Memorandum,
as the case may be, in respect of such request or, (ii) in the case of an
Underwritten Offering, at any time following the failure of any condition to the
obligation of the underwriters to effect such offering (other than any such
failure which is caused by any action or failure to act on the part of any or
all of the Holders) which is set forth in any written purchase agreement entered
into, inter alia, between the Holders, on the one hand, and such underwriter, on
the other hand (it being understood and agreed that the failure or inability of
the Holders or any underwriter to enter into a purchase agreement shall not
constitute a failure of any condition for the purposes of this clause (ii)). No
such withdrawal or cancellation shall affect the Holders' obligation, if any, to
pay the expenses described in Section 6. In addition, if after a Registration
Statement is initially declared effective by the SEC, such Registration
Statement is interfered with by any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or court, such
Registration Statement shall be deemed not to have become effective for purposes
of this Agreement.
(c) SUPPLEMENTS AND AMENDMENTS. The Issuer shall promptly supplement and
amend a Registration Statement if required by the rules, regulations or
instructions applicable to
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the registration form used for such Registration Statement, if required by the
Securities Act.
3. ADDITIONAL INTEREST
(a) The Issuer agrees that the Holders of Registrable Notes will suffer
damages if the Issuer fails to fulfill its obligations under Section 2 or
Section 8 hereof (except as a result of the failure of the Holders or any
underwriters to fulfill their obligations hereunder) and that it would not be
feasible to ascertain the extent of such damages with precision. Accordingly,
the Issuer agrees to pay, as liquidated damages, additional interest on
Registrable Notes ("ADDITIONAL INTEREST") under the circumstances and to the
extent set forth below (each of which shall be given independent effect):
(i) if a Demand Registration Statement has not been filed on or prior
to its Demand Filing Deadline, then commencing on the day after such Demand
Filing Deadline, Additional Interest shall be accrued on the Registrable
Notes to be covered by such Demand Registration Statement over and above
the accrued interest at a rate of .25% per annum on the Accreted Value of
such Registrable Notes for the first 90 days immediately following such
Demand Filing Deadline, such Additional Interest rate increasing by an
additional .25% per annum on the Accreted Value of such Registrable Notes
at the beginning of each subsequent 90-day period;
(ii) if such Demand Registration Statement has not been declared
effective on or prior to such Effectiveness Date, then commencing on the
day after such Effectiveness Date, Additional Interest shall be accrued on
the Registrable Notes included in such Demand Registration Statement over
and above the accrued interest at a rate of .25% per annum on the Accreted
Value of such Notes for the first 90 days immediately following the day
after such Effectiveness Date, such Additional Interest rate increasing by
an additional .25% per annum on the Accreted Value of such Registrable
Notes at the beginning of each subsequent 90-day period;
(iii) if a Demand Registration Statement has been declared effective
and such Demand Registration Statement ceases to be effective at any time
prior to the Termination Date, then Additional Interest shall be accrued on
the Registrable Notes affected thereby over and above any other accrued
interest at a rate of .25% per annum on the Accreted Value of such Notes
for the first 90 days commencing on the day such Registration Statement
ceases to be effective, such Additional Interest rate increasing by an
additional .25% per annum on the Accreted Value of such Demand Registrable
Notes at the beginning of each such subsequent 90-day period;
(iv) if a preliminary Offering Memorandum has not been prepared in
accordance with the provisions of Section 8 on or prior to its Offering
Memorandum Deadline, then commencing on the day after such Offering
Memorandum Deadline,
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Additional Interest shall be accrued on the Registrable Notes to be covered
by the Rule 144A Resale proposed in such Rule 144A Notice over and above
the accrued interest at a rate of .25% per annum on the Accreted Value of
such Registrable Notes for the first 90 days immediately following such
Offering Memorandum Deadline, such Additional Interest rate increasing by
an additional .25% per annum on the Accreted Value of such Registrable
Notes at the beginning of each subsequent 90-day period;
PROVIDED, HOWEVER, that the Additional Interest rate on any Note may not exceed
at any one time in the aggregate 1.0% per annum on the Accreted Value of such
Registrable Notes; PROVIDED, FURTHER that Additional Interest shall not accrue
if the failure of the Issuer to comply with its obligations hereunder is a
result of the failure of the Holders or any underwriters to fulfill their
obligations hereunder; and PROVIDED, FURTHER, that (1) upon the filing of a
Registration Statement (in the case of (i) above), (2) upon the effectiveness of
a Registration Statement (in the case of (ii) above), (3) upon the effectiveness
of a substitute Registration Statement (in the case of (iii) above), or (4) upon
the preparation of a preliminary Offering Memorandum in accordance with the
provisions of Section 8 (except with respect to the requirement that such
Offering Memorandum be prepared on or before the Offering Memorandum Deadline)
(in the case of (iv) above), Additional Interest on such Registrable Notes as a
result of such clause shall cease to accrue.
(b) The Issuer shall notify the Trustee within one Business Day after each
and every date on which an event occurs in respect of which Additional Interest
is required to be paid. Any amounts of Additional Interest due pursuant to
Section 3(a) will accrue semi-annually on each July 1, and January 1 (each an
"ADDITIONAL INTEREST PAYMENT DATE"), commencing with the first such date
occurring after any such Additional Interest commences to accrue. The amount of
Additional Interest will be determined on the basis of a 360-day year comprised
of twelve 30-day months.
On any Additional Interest Payment Date, to the extent any Additional
Interest shall have accrued during the period from the previous Additional
Interest Payment Date (the "INTEREST PERIOD") due to the occurrence during such
Interest Period of an event described in Section 3(a), the Issuer shall issue a
note or notes to the holders on the Additional Interest Payment Date
substantially in the form of Exhibit A to the Indenture. The Accreted Value of
such notes shall be equal to the Additional Interest accrued during such
Interest Period and shall otherwise have the same terms as the Notes.
4. REGISTRATIONS AND PRIVATE SALE NOTICES
(a) UNDERWRITTEN REGISTRATIONS. If any of the Registrable Notes covered by
a Registration Statement or Offering Memorandum are to be sold in an
Underwritten Offering, the investment banker or investment bankers and manager
or managers that will manage the offering will be selected by the Holders of a
majority in aggregate principal amount at maturity of the
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Registrable Notes included in such offering and reasonably acceptable to the
Issuer.
(b) NUMBER OF REGISTRATIONS. The Issuer shall be obligated to effect up to
three (3) Registrations (whether pursuant to Section 2(a) or Section 8) in the
aggregate pursuant to this Agreement, PROVIDED that each Private Sale Notice
given by a Holder shall reduce by one the number of Registrations that the
Issuer is obligated to effect hereunder.
(c) NUMBER OF PRIVATE SALE NOTICES. The Holders shall be entitled to give
up to three (3) Private Sale Notices in the aggregate pursuant to this
Agreement, PROVIDED that each Registration effected by the Issuer shall reduce
by one the number of Private Sale Notices that the Holders can give hereunder.
5. REGISTRATION PROCEDURES
In connection with the obligations of the Issuer pursuant (i) to Section 2
hereof, the Issuer shall use its reasonable best efforts to cause a Registration
Statement to become effective and remain effective as provided herein, (ii) to
Section 8 hereof, the Issuer shall use its reasonable best efforts to prepare a
preliminary and a final Offering Memorandum, and (iii) to Section 9 hereof, the
Issuer shall use its reasonable best efforts to prepare an Information
Memorandum, and in each case (and to the extent applicable to the preparation of
a preliminary and a final Offering Memorandum pursuant to Section 8 and an
Information Memorandum pursuant to Section 9), without limiting the generality
of the foregoing, the Issuer shall use its reasonable best efforts to, as
expeditiously as possible:
(a) Before filing a Registration Statement or Prospectus or any amendments
or supplements thereto (not including documents that would be incorporated or
deemed to be incorporated therein by reference), afford the Holders of the
Registrable Notes covered by a Registration Statement, their counsel and the
managing underwriters, if any, an opportunity to review, promptly, copies of all
such documents proposed to be filed, and such Holders shall have the opportunity
to object to any information pertaining to the Holders and their plan of
distribution that is contained therein and the Issuer will make the corrections
reasonably requested by such Holders prior to filing any such Registration
Statement, Prospectus or any amendment or supplement thereto; PROVIDED, HOWEVER,
that the Issuer shall not be required to afford such Holders an opportunity to
review a copy of (i) any such document that has not been materially changed from
a copy of such document that such person was previously afforded an opportunity
to review and (ii) any amendments or supplements to a Registration Statement or
Prospectus which are made solely as a result of any filing by the Issuer of
reports required to be filed pursuant to the Exchange Act.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to a Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the time periods prescribed
hereby; cause the related
8
Prospectus to be supplemented by any Prospectus supplement required by
applicable law, and as so supplemented to be filed pursuant to Rule 424 (or any
similar provisions then in force) promulgated under the Securities Act; and
comply with the provisions of the Securities Act and the Exchange Act and the
rules and regulations of the SEC promulgated thereunder applicable to it with
respect to the disposition of all securities covered by such Registration
Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the selling Holders of Registrable Notes, their counsel and the
managing underwriters, if any, promptly (but in any event within two Business
Days after becoming aware thereof) (i) when a Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same has become
effective (including in such notice a written statement that any Holder may,
upon request, obtain, without charge, as many conformed copies of such
Registration Statement or post-effective amendment including financial
statements and schedules, including any documents incorporated or deemed to be
incorporated by reference and exhibits, as they may reasonably request), (ii) of
any request by the SEC for any amendment or supplement to such Registration
Statement or Prospectus included therein, (iii) of the issuance by the SEC of
any stop order suspending the effectiveness of such Registration Statement or of
any order preventing or suspending the use of any preliminary Prospectus or the
initiation of any proceedings for that purpose, (iv) if at any time when a
prospectus is required by the Securities Act to be delivered in connection with
sales of the Registrable Notes covered by such Registration Statement the
representations and warranties of the Issuer contained in any underwriting
agreement contemplated by Section 5(o) cease to be true and correct in all
material respects, (v) of the receipt by the Issuer of any notification with
respect to the suspension of the qualification or exemption from qualification
of such Registration Statement or any of the Registrable Notes for offer or sale
in any jurisdiction, or with respect to the initiation or threatening of any
proceeding for such purpose, (vi) of the happening of any event, the existence
of any condition or any information becoming known that makes any statement made
in such Registration Statement or related Prospectus, or in an Offering
Memorandum, or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the making of any
changes in such Registration Statement, Prospectus, Offering Memorandum or
documents so that, in the case of a Registration Statement, it will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, not
misleading, and that in the case of the Prospectus or Offering Memorandum, it
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and (vii) of the Issuer's reasonable determination that a
post-effective amendment to such Registration Statement or a supplement to an
Offering Memorandum would be appropriate.
(d) Use its reasonable best efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of
9
a Prospectus or suspending the qualification (or exemption from qualification)
of any of the Registrable Notes for sale in any jurisdiction, and, if any such
order is issued, to obtain the withdrawal of any such order at the earliest
possible moment.
(e) If requested by the managing underwriters, if any, or the Holders of a
majority in aggregate principal amount at maturity of the Registrable Notes
being sold in connection with an Underwritten Offering, (i) promptly incorporate
in a Prospectus supplement or post-effective amendment or in an Offering
Memorandum, as applicable, such information as the managing underwriters, if
any, or such Holders reasonably request to be included therein, (ii) make all
required filings of any such Prospectus supplement or such post-effective
amendment as soon as practicable after the Issuer receives notification of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment, and (iii) supplement or make amendments to any Registration Statement
or Offering Memorandum, as applicable.
(f) Furnish to each selling Holder of Registrable Notes who so requests
and to counsel and each managing underwriter, if any, without charge, as many
conformed copies of the Registration Statement and each post-effective amendment
thereto and of each Offering Memorandum and supplement thereto, including
financial statements and schedules, and, if requested, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits
as they may reasonably request.
(g) Deliver to each selling Holder of Registrable Notes, their counsel and
the underwriters, if any, without charge, as many copies of each Prospectus and
Offering Memorandum (including each form of preliminary prospectus and offering
memorandum) and each amendment or supplement thereto and any documents
incorporated by reference therein as such Persons may reasonably request; and,
subject to the last paragraph of this Section 5, the Issuer hereby consents to
the use of such Prospectus and Offering Memorandum and each amendment or
supplement thereto by each of the selling Holders of Registrable Notes and the
underwriters or agents, if any, in connection with the offering and sale of the
Registrable Notes covered by such Prospectus or Offering Memorandum and any
amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes, to register or
qualify, and to cooperate with the selling Holders of Registrable Notes, the
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Notes for offer and sale under the securities
or Blue Sky laws of such jurisdictions within the United States as any selling
Holder, or the managing underwriters reasonably request in writing; PROVIDED
that where Registrable Notes are offered other than through an Underwritten
Offering, the Issuer agrees to cause its counsel to perform Blue Sky
investigations and file registrations and qualifications required to be filed
pursuant to this Section 5(h); keep such registration or qualification (or
exemption therefrom) effective during the period any Registration Statement is
required to be kept effective and do any
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and all other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Notes covered by any
Registration Statement; PROVIDED, HOWEVER, that the Issuer shall not be required
to (A) qualify generally to do business in any jurisdiction where it is not then
so qualified, (B) take any action that would subject it to general service of
process in any such jurisdiction where it is not then so subject or (C) become
subject to taxation in any such jurisdiction where it is not then so subject.
(i) Cooperate with the selling Holders of Registrable Notes and the
managing underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Notes to be sold, which certificates
shall not bear any restrictive legends and shall be in a form eligible for
deposit with The Depository Trust Company; and enable such Registrable Notes to
be in such denominations and registered in such names as the managing
underwriters, if any, or selling Holders of Registrable Notes may reasonably
request at least two Business Days prior to any sale of Registrable Notes.
(j) Use its reasonable best efforts to cause the Registrable Notes covered
by a Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the selling
Holders or the underwriters, if any, to consummate the disposition of such
Registrable Notes, except as may be required solely as a consequence of the
nature of such selling Holder's business, in which case the Issuer will
cooperate in all reasonable respects with such registration and the granting of
such approvals.
(k) Upon the occurrence of any event contemplated by paragraph 5(c)(v) or
5(c)(vi), as promptly as practicable prepare and file with the SEC, at the
expense of the Issuer, a supplement or post-effective amendment to a
Registration Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, or file any
other required document so that, as thereafter delivered to the purchasers of
the Registrable Notes being sold thereunder, such Prospectus 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.
(l) Use its reasonable best efforts to cause the Registrable Notes covered
by a Registration Statement or Offering Memorandum, as applicable, to be rated
with the appropriate rating agencies, if so requested by the Holders of a
majority in aggregate principal amount at maturity of Registrable Notes covered
by a Registration Statement or Offering Memorandum or the managing underwriters,
if any.
(m) Prior to the actual effective date of a Registration Statement or
consummation of a Rule 144A Resale, (i) provide the Trustee with printed
certificates for the Registrable Notes covered by such Registration Statement or
Rule 144A Resale in a form eligible for deposit with The Depository Trust
Company and (ii) provide a CUSIP number for the
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Registrable Notes.
(n) Cooperate with each selling Holder of Registrable Notes covered by a
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Notes and their respective counsel in connection
with any filings required to be made with the National Association of Securities
Dealers, Inc. (the "NASD").
(o) If requested by Holders of a majority in aggregate principal amount at
maturity of Registrable Notes covered by a Registration Statement or Offering
Memorandum, enter into an underwriting agreement in form, scope and substance as
is customary in underwritten offerings and take all such other actions as are
reasonably requested by the managing underwriters in order to expedite or
facilitate the registration or the disposition of such Registrable Notes, and in
such connection, (i) make such representations and warranties to the
underwriters, with respect to the business of the Issuer and its subsidiaries,
and a Registration Statement, Prospectus or Offering Memorandum and documents,
if any, incorporated or deemed to be incorporated by reference therein, in each
case, in form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings of debt securities similar to the
Registrable Notes, and confirm the same if and when requested; (ii) obtain
opinions of counsel to the Issuer and updates thereof in form, scope and
substance reasonably satisfactory to the managing underwriters, addressed to the
underwriters covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably requested by
underwriters; (iii) obtain "cold comfort" letters and updates thereof in form
and substance reasonably satisfactory to the managing underwriter or
underwriters from the independent certified public accountants of the Issuer
(and, if necessary, any other independent certified public accountants of any
subsidiary of the Issuer or of any business acquired by the Issuer for which
financial statements and financial data are, or are required to be, included in
the Registration Statement or Offering Memorandum), addressed to each of the
underwriters, such letters to be in customary form and covering matters of the
type customarily covered in "cold comfort" letters in connection with
underwritten offerings of debt securities similar to the Registrable Notes; (iv)
if an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable to the Participants
than those set forth in Section 7 (or such other less favorable provisions and
procedures acceptable to Holders of a majority in aggregate principal amount at
maturity of Registrable Notes covered by such Registration Statement or Offering
Memorandum and the managing underwriters or agents) with respect to all parties
to be indemnified pursuant to said Section; and (v) with respect to an aggregate
of three Registrations pursuant to Section 2(a) or Section 8 upon the written
request of the Holders providing the Demand Notice or the Rule 144A Notice, as
applicable, and as reasonably determined by the Issuer, make the appropriate
members of the Issuer's senior management available to participate in customary
"road show" activities with respect to such three Registrations, PROVIDED that
each Private Sale Roadshow which occurs pursuant to this Agreement shall count
as a roadshow allotted hereby regardless of whether any such Private Sale is
consummated. The above clauses (i)-(iv) shall be done at each closing under such
12
underwriting agreement, or as and to the extent required thereunder.
(p) Make available for inspection by a representative of the selling
Holders of Registrable Notes, any underwriter participating in any such
disposition of Registrable Notes, if any, and any attorney or accountant or
other agent retained by any such representative of such selling Holders or
underwriter (collectively, the "INSPECTORS"), at the offices where normally
kept, during reasonable business hours, all financial and other records,
pertinent corporate documents and properties of the Issuer and its subsidiaries,
and cause the officers, directors and employees of the Issuer and its
subsidiaries to supply all information, in each case reasonably requested by any
such Inspector in connection with a Registration Statement or Offering
Memorandum; PROVIDED, HOWEVER, that any information that is designated in
writing by the Issuer, in good faith, as confidential at the time of delivery of
such information, shall be kept confidential by such Inspector unless (i)
disclosure of such information is required by court or administrative order,
(ii) disclosure of such information, in the opinion of counsel to such
Inspector, is necessary to avoid or correct a misstatement or omission of a
material fact in a Registration Statement, Prospectus or Offering Memorandum or
any supplement or post-effective amendment thereto or disclosure is otherwise
required by law, (iii) disclosure of such information is, in the opinion of
counsel for any Inspector, necessary or advisable in connection with any action,
claim, suit or proceeding, directly or indirectly, involving or potentially
involving such Inspector and arising out of, based upon, relating to, or
involving this Agreement, or any transactions contemplated hereby or arising
hereunder, or (iv) such information becomes generally available to the public
other than as a result of a disclosure or failure to safeguard by such
Inspector. Each selling Holder of such Registrable Notes will be required to
agree that information obtained by it as a result of such inspections shall be
deemed confidential and shall not be used by it as the basis for any market
transactions in the securities of the Issuer unless and until such is made
generally available to the public. Each selling Holder of such Registrable Notes
will be required to further agree that it will, upon learning that disclosure of
any such information is sought in a court of competent jurisdiction, give notice
to the Issuer and allow the Issuer to undertake appropriate action to prevent
disclosure of the information deemed confidential at their expense.
(q) Provide an indenture trustee for the Registrable Notes and, in
connection with any Registration Statement, cause the Indenture to be qualified
under the TIA not later than the effective date of the Registration Statement
relating to the Registrable Notes; and in connection therewith, cooperate with
the Trustee under any such indenture and the Holders of the Registrable Notes,
to effect such changes to such indenture as may be required for such Indenture
to be so qualified in accordance with the terms of the TIA; and execute, and use
its reasonable best efforts to cause such trustee to execute, all documents as
may be required to effect such changes, and all other forms and documents
required to be filed with the SEC to enable such indenture to be so qualified in
a timely manner.
(r) Comply with all applicable rules and regulations of the SEC and make
generally available to its securityholders earnings statements satisfying the
provisions of
13
Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 days after the end of any
fiscal quarter (or 90 days after the end of any 12-month period if such period
is a fiscal year) commencing at the end of any fiscal quarter in which
Registrable Notes are sold to underwriters in a firm commitment or best efforts
Underwritten Offering.
(s) Use its reasonable best efforts to take all other steps reasonably
necessary to effect the registration of the Registrable Notes covered by a
Registration Statement.
The Issuer may require each selling Holder of Registrable Notes as to which
any registration is being effected to furnish to the Issuer such information
regarding such selling Holder and the distribution of such Registrable Notes as
the Issuer may, from time to time, reasonably request. The Issuer may exclude
from such registration the Registrable Notes of any selling Holder so long as
such selling Holder fails to furnish such information within a reasonable time
after receiving such request. If the identity of a selling Holder of Registrable
Notes is to be disclosed in a Registration Statement, such selling Holder shall
be permitted to include all information regarding such selling Holder in such
Registration Statement as it shall reasonably request.
Each Holder, upon receipt of any notice from the Issuer of the happening of
any event of the kind described in Section 5(c), will forthwith discontinue
disposition of such Registrable Notes covered by such Registration Statement or
Prospectus (or Offering Memorandum), until such Holder's receipt of the copies
of the supplemented or amended Prospectus (or Offering Memorandum) contemplated
by Section 5(c), or until it is advised in writing (the "ADVICE") by the Issuer
that the use of the applicable Prospectus (or Offering Memorandum) may be
resumed. In the event the Issuer shall give any such notice, the Termination
Date shall be extended by the number of days during such periods from and
including the date of the giving of such notice to and including the date when
each seller of Registrable Notes covered by such Registration Statement (or
Offering Memorandum) shall have received the copies of the supplemented or
amended Prospectus (or Offering Memorandum) contemplated by Section 5(c) or the
Advice.
6. EXPENSES
Except as provided below, all fees and expenses (including any underwriting
discounts and commissions) incident to the performance of or compliance with
this Agreement (including, for the avoidance of doubt, the provisions of Section
9 hereof) by the Issuer shall be borne by the Holders, and shall constitute a
joint and several obligation of each of them, including, without limitation, (i)
all registration and filing fees (including, without limitation, (A) fees with
respect to filings required to be made with the NASD in connection with an
Underwritten Offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation, reasonable fees and
disbursements of counsel in connection
14
with Blue Sky qualifications of the Registrable Notes and determination of the
eligibility of the Registrable Notes for investment under the laws of such
jurisdictions as provided in Section 5(h) hereof), (ii) the expenses relating to
printing, word processing and distributing such Registration Statements,
Offering Memoranda, Prospectuses, Information Memoranda, underwriting
agreements, indentures and any other documents necessary in order to comply with
this Agreement, (iii) fees and disbursements of counsel for the Holders and
counsel for the underwriters, if any, (iv) reasonable fees and disbursements of
any independent certified public accountants retained by the Holders for
services in connection with this Agreement and in connection with the
preparation of Registration Statements, Offering Memoranda and Information
Memoranda required hereby (including, without limitation, the expenses of any
special audit and "cold comfort" letters required by or incident to such
performance), (v) the reasonable fees and expenses of any special experts
retained by the Issuer in connection with a Registration Statement, Offering
Memorandum or Information Memorandum, (vi) the fees and expenses of any
"qualified independent underwriter" or other independent appraiser participating
in an offering pursuant to Schedule E to the By-laws of the NASD, (vii) 50% of
any and all rating agency fees, (viii) any fees and expenses incurred in
connection with the listing of the securities to be registered on any securities
exchange, and (ix) all other fees and expenses of any Holder, underwriter,
initial purchaser or placement agent, PROVIDED that the following expenses shall
be borne by the Issuer: (A) any and all internal costs and expenses of the
Issuer and any of its affiliates, (B) fees and disbursements of any counsel
retained by the Issuer and any of its affiliates, (C) any and all fees and
disbursements of any independent certified public accountants retained by the
Issuer, and (D) 50% of any and all rating agency fees.
7. INDEMNIFICATION
(a) The Issuer, agrees to indemnify and hold harmless each Holder of
Registrable Notes, the affiliates, officers, directors, representatives,
employees and agents of each such Person, and each Person, if any, who controls
any such Person within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act (each, a "PARTICIPANT"), from and against any and
all losses, claims, damages, judgments, liabilities and reasonable expenses
(including, without limitation, the reasonable legal fees and other expenses
actually incurred in connection with any suit, action or proceeding or any claim
asserted) caused by, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in such Registration
Statement (or any amendment thereto) or Prospectus or Offering Memorandum (as
amended or supplemented if the Issuer shall have furnished any amendments or
supplements thereto) or any preliminary Prospectus or Offering Memorandum, or
caused by, arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in the case of the Prospectus or Offering Memorandum in
the light of the circumstances under which they were made, not misleading;
PROVIDED, HOWEVER, that the Issuer will not be liable for any untrue statement
or omission or alleged untrue statement or omission in such Registration
Statement, Prospectus or Offering Memorandum that was (i) made by the Issuer in
reliance upon and in conformity with
15
information furnished to the Issuer by the selling Holders or the underwriters
for use in such Registration Statement, Prospectus or Offering Memorandum, or
(ii) corrected by the Issuer in an amended or supplemented Registration
Statement, Prospectus or Offering Memorandum if the Person asserting any such
loss, claim, damage or liability purchased Registrable Notes which are the
subject thereof from such Participant in reliance upon such inaccurate
Prospectus or Offering Memorandum but was not sent or given a copy of the
corrected Prospectus or Offering Memorandum (as amended or supplemented) at or
prior to the written confirmation of the sale of such Registrable Notes, to such
Person, unless such failure to deliver such corrected Prospectus or Offering
Memorandum (as amended or supplemented) was a result of noncompliance by the
Issuer with Section 5 of this Agreement or (iii) contained in any Prospectus or
Offering Memorandum that the Participant delivered and was not permitted to use
in accordance with the last paragraph of Section 5.
(b) Each Participant agrees, severally and not jointly, to indemnify and
hold harmless the Issuer, the Issuer's affiliates, officers, directors,
representatives, employees and agents and each Person who controls the Issuer
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent (but on a several, and not joint, basis) as the
foregoing indemnity from the Issuer to each Participant, but only with reference
to information relating to such Participant furnished to the Issuer in writing
by such Participant expressly for use in such Registration Statement, Prospectus
or Offering Memorandum, any amendment or supplement thereto, or any preliminary
Prospectus or Offering Memorandum. The liability of any Participant under this
paragraph shall in no event exceed the proceeds received by such Participant
from sales of Registrable Notes giving rise to such obligations.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such Person (the "INDEMNIFIED PERSON") shall promptly
notify the Person against whom such indemnity may be sought (the "INDEMNIFYING
PERSON") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may reasonably designate in such proceeding and shall pay
the fees and expenses actually incurred by such counsel related to such
proceeding; PROVIDED, HOWEVER, that the failure to so notify the Indemnifying
Person (i) shall not relieve it of any obligation or liability which it may have
hereunder or otherwise (unless and only to the extent that such failure directly
results in the loss or compromise of any material rights or defenses by the
Indemnifying Person). In any such proceeding, any Indemnified Person shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person unless (i) the Indemnifying
Person and the Indemnified Person shall have mutually agreed in writing to the
contrary, (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such
16
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the Indemnifying Person shall not, in
connection with any proceeding or separate but substantially similar related
proceeding in the same jurisdiction arising out of the same general allegations,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such separate firm for
the Participants and such control Persons of Participants shall be designated in
writing by Participants who sold a majority in interest of Registrable Notes
sold by all such Participants in the related registration or offering and any
such separate firm for the Issuer, its directors, its officers and such control
Persons of the Issuer shall be designated in writing by the Issuer. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final non-appealable judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. No Indemnifying Person
shall, without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
(d) If the indemnification provided for in the first and second paragraphs
of this Section 7 is for any reason unavailable to, or insufficient to hold
harmless, an Indemnified Person in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such
paragraphs, in lieu of indemnifying such Indemnified Person thereunder and in
order to provide for just and equitable contribution, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such losses,
claims, damages or liabilities in such proportion as is appropriate to reflect
the relative fault of the Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof). The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Issuer on the one hand or
such Participants or such other Indemnified Person, as the case may be, on the
other, the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission and any other
equitable considerations appropriate under the circumstances.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by PRO RATA allocation
(even if the Participants were treated as one entity for such purpose) or by any
other method of allocation that does not take
17
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages, judgments, liabilities and expenses referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any reasonable legal or other expenses actually
incurred by such Indemnified Person in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 7, in no event shall a Participant be required to contribute any amount
in excess of the amount by which proceeds received by such Participant from
sales of Registrable Notes, exceeds the amount of any damages that such
Participant 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.
(f) The indemnity and contribution agreements contained in this Section 7
will be in addition to any liability which the Indemnifying Persons may
otherwise have to the Indemnified Persons referred to above.
8. RULE 144A TRANSACTION
At any time after the date hereof but prior to the time any Holder or
Holders have given an aggregate of three Demand Notices or Rule 144A Notices,
including requests to execute a copy of the Exchange Offer
Registration Rights
Agreement, any Holder shall be entitled to elect, by providing written notice of
such election (a "RULE 144A NOTICE") to the Issuer, to pursue a sale of all or a
portion of the Registrable Notes pursuant to Rule 144A under the Securities Act
(a "RULE 144A RESALE"). Such written notice shall specify the aggregate
principal amount at maturity of the Registrable Notes to be included in the Rule
144A Resale and the intended method of disposition thereof. In connection with
any Rule 144A Resale, the Holder or Holders may elect (if an election for an
exchange offer is available under applicable law and regulations) to require the
Issuer to enter into an Exchange Offer
Registration Rights Agreement (a
"REGISTRATION ELECTION") with the initial purchasers in the Rule 144A Resale. If
(and only if) such Registration Election is included in a Rule 144A Notice, then
such Rule 144A Notice and Registration Election together shall count as only one
(1) Registration within the meaning of Section 4(b). In the event that such
Registration Election is made, then the Issuer shall promptly execute an
Exchange Offer
Registration Rights Agreement.
In connection with a Rule 144A Notice, the Issuer will cooperate in
connection with the related Rule 144A Resale by using its reasonable best
efforts (and subject to the cooperation of the Holders) to prepare a preliminary
Offering Memorandum on or before the Offering Memorandum Deadline and shall
otherwise comply with the provisions of Section 5 to the extent that such
provisions either refer to a Rule 144A Resale or to the extent that such
provisions are typically applicable to Rule 144A Resales. Without limiting the
foregoing and provided that the Holders shall have given at least one (1)
Business Day prior written notice to
18
the Issuer as to the time of the pricing, upon receipt of the pricing
information from the Holders, the Issuer shall promptly prepare a final Offering
Memorandum that incorporates such pricing information and makes any other
changes that are necessary to prepare a final Offering Memorandum. The failure
of the Holders to give at least one (1) Business Day prior written notice to the
Issuer as to the time of the pricing shall not affect the Issuer's obligation to
prepare a final Offering Memorandum unless and to the extent that such failure
effects the ability of the Company to promptly prepare such final Offering
Memorandum.
9. PRIVATE SALE TRANSACTION
At any time after the date hereof, any Holder or Holders shall be entitled
to elect, by providing written notice of such election (a "PRIVATE SALE NOTICE")
to the Issuer, to pursue a private sale of all or part of the Registrable Notes
(a "PRIVATE SALE"), PROVIDED that the Holders will not be deemed to have given
(for the purposes of Section 4(c) of this Agreement and for purposes of the
following paragraph) a Private Sale Notice with respect to which the Holders
have withdrawn or cancelled such Private Sale Notice (i) at any time prior to
the completion or preparation of an Information Memorandum described in Section
9(b) below (for the avoidance of doubt, the test under this clause (i) is
completion of the Information Memorandum, not delivery thereof to any
prospective purchaser) or (ii) at any time following the failure of any
condition to the obligations of any purchaser to effect such Private Sale (other
than any such failure which is caused by any action or failure to act on the
part of any or all of the Holders) which is set forth in any written purchase
agreement entered into, inter alia, between the Holders, on the one hand, and
such prospective purchaser, on the other hand (it being understood and agreed
that the failure or inability of the Holders or any prospective purchaser to
enter into a purchase agreement shall not constitute a failure of any condition
for the purposes of this clause (ii)).
The Issuer shall be obligated to participate in up to three Private Sale
Roadshows (as defined below) in the aggregate pursuant to this Agreement,
PROVIDED that each roadshow which occurs pursuant to this Agreement shall be
counted as a Private Sale Roadshow hereunder.
In connection with a Private Sale, the Issuer will comply with the
provisions of Section 5 of this Agreement to the extent that such provisions
would be customary for a private sale transaction (including, without
limitation, the requirements of paragraphs (a)-(g) below), and will also
reasonably cooperate with and assist the Holders in any such Private Sale by
using its reasonable best efforts, as expeditiously as practicable, to:
(a) enter into a purchase agreement relating to a purchase of the
Registrable Notes, which agreement will contain terms and conditions
customary in transactions of a similar kind, and in which the Issuer
will give such representations, warranties and indemnities and obtain
such opinions of the Issuer's counsel and accountants' comfort letters
as are customary in
19
private sale transactions;
(b) prepare an information memorandum and any necessary or appropriate
amendments or supplements thereto (the "INFORMATION MEMORANDUM")
regarding the business, operations and prospects of the Issuer,
including a review of the Issuer's historical financial information by
business unit. The Information Memorandum will, once approved by the
Issuer, be provided by the Holders to prospective purchasers on a
strictly confidential basis, PROVIDED that the Information Memorandum
will not be provided to a Holder, any prospective purchaser or any
other person who has not entered into a written confidentiality
agreement with respect thereto and to any other confidential
information provided by the Issuer or its advisors, including any such
information provided or obtained pursuant to this Agreement, that is
customary for a private sale transaction and reasonably satisfactory,
in form and substance, to the Issuer (each, a "CONFIDENTIALITY
AGREEMENT"). The Issuer will be responsible for the contents of the
Information Memorandum, subject to normal exceptions, including any
forward looking information contained therein, which will be prepared
in good faith;
(c) subject to execution of Confidentiality Agreements, provide for review
any information provided to any of the Issuer's lenders, or to the
lenders of any of the Issuer's principal operating subsidiaries,
within the past 12 months;
(d) subject to execution of Confidentiality Agreements, provide all
information and documentation reasonably requested by a prospective
purchaser and its counsel in connection with their investigation of
the Issuer's business, financial performance and prospects, including,
without limitation, everything to be provided to Inspectors pursuant
to Section 5(p) of this Agreement;
(e) subject to execution of Confidentiality Agreements,
(i) as reasonably determined by the Issuer, make the appropriate
senior management of the Issuer (including, without limitation,
the Issuer's CFO and Treasurer) and each of the Issuer's
principal business units available to participate in conference
calls, meetings at the offices of the Issuer (or such other
places as agreed between the parties) and such other marketing
support activities for the Registrable Notes to be sold under
this Agreement, PROVIDED that in each case under this clause (i)
such activities shall be arranged so as to cause minimal
disruption to such management personnel's
20
work-related duties to the Issuer and its affiliates, and
PROVIDED FURTHER that upon receipt of a written notice from the
Issuer that the activities proposed by a prospective purchaser or
anyone acting on its behalf would exceed the level of cooperation
from the Issuer described in this clause (i) with respect to any
member of the Issuer's senior management (other than the Issuer's
CFO and Treasurer), the Holders may (1) instruct the Issuer to
participate in a Private Sale Roadshow (as described in (ii)
below) or (2) instruct the Issuer not to exceed the level of
cooperation from the Issuer described under this clause (i),
PROVIDED that in the circumstances referred to in this clause
(2), the Issuer agrees that for a period of 15 Business days
following such instruction the Issuer will continue to cooperate
to the extent such cooperation is required under this clause (i)
in order to allow a prospective purchaser an opportunity to
complete a Private Sale, or
(ii) at the request of the Holders,
(A) as reasonably determined by the Issuer, make reasonably
available the appropriate senior management of the Issuer
and each of the Issuer's principal business units for
discussions concerning their respective businesses and
prospects, with a view to providing all reasonable
assistance to the due diligence efforts of a prospective
purchaser and its advisors, and
(B) make reasonable arrangements for site visits to facilities
operated by the Issuer and each of its principal business
units for any prospective purchaser and its advisors (it
being agreed by the parties that the activities described in
clause (ii)(A) and (B) together constitute a "PRIVATE SALE
ROADSHOW");
(f) subject to execution of Confidentiality Agreements, provide the
information and consultation rights necessary for a prospective
purchaser to qualify as a venture capital operating company pursuant
to the Employee Retirement Income Security Act guidelines; and
(g) provide any further assistance reasonably requested by the Holders or
any prospective purchaser and customarily provided in private sale
transactions of a similar kind.
21
10. RULE 144 AND RULE 144A
The Issuer covenants and agrees that it will file the reports required to
be filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder in a timely manner and, if at any time
the Issuer is not required to file such reports, such Issuer will, upon the
request of any Holder or beneficial owner of Registrable Notes, make publicly
available annual and quarterly reports and such information, documents and other
reports of the type specified in Sections 13 and 15(d) of the Exchange Act. The
Issuer further covenants and agrees, for so long as any Registrable Notes remain
outstanding, to make available to any Holder or beneficial owner of Registrable
Notes in connection with any sale thereof and any prospective purchaser of such
Registrable Notes from such Holder or beneficial owner, the information required
by Rule 144A(d)(4) under the Act in order to permit resales of such Registrable
Notes pursuant to Rule 144A.
11. MISCELLANEOUS
(a) NO INCONSISTENT AGREEMENTS. The Issuer has not, as of the date hereof,
and the Issuer shall not, after the date of this Agreement, enter into any
agreement with respect to any of its securities that is inconsistent with the
rights granted to the Holders of Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof. The Issuer has not entered and
will not enter into any agreement with respect to any of its securities which
will grant to any Person piggy-back rights with respect to a Registration
Statement.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the Issuer has obtained the
written consent of Holders of at least a majority of the then outstanding
aggregate principal amount at maturity of Registrable Notes. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders of Registrable
Notes whose securities are being sold pursuant to a Registration Statement and
that does not directly or indirectly affect, impair, limit or compromise the
rights of other Holders of Registrable Notes may be given by Holders of at least
a majority in aggregate principal amount at maturity of the Registrable Notes
being sold by such Holders pursuant to such Registration Statement; PROVIDED
that the provisions of this sentence may not be amended, modified or
supplemented except in accordance with the provisions of the immediately
preceding sentence.
(c) NOTICES. All notices and other communications (including without
limitation any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or facsimile:
(i) if to a Holder of the Registrable Notes, at the most current
address given by such Holder to the Issuer in accordance with the
provisions of this Section 11(c), with
22
a copy in like manner to the Holders as follows:
o
Facsimile No.: o
Attention: o
with a copy to: o
Facsimile No.: o
Attention: o
(ii) if to the Issuer at the address as follows:
Huntsman International Holdings LLC
c/o Huntsman Corporation
000 Xxxxxxxx Xxx
Xxxx Xxxx Xxxx, Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Corporate Secretary
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
XXX
Facsimile No: 000-000-000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; one Business Day after
being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in such Indenture.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties hereto and
the Holders.
(e) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed
23
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(f) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED ENTIRELY WITHIN THE STATE OF
NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(h) SEVERABILITY. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their best efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(i) SECURITIES HELD BY THE ISSUER OR ITS AFFILIATES. Whenever the consent
or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Issuer or its affiliates (as
such term is defined in Rule 405 under the Securities Act) shall not be counted
in determining whether such consent or approval was given by the Holders of such
required percentage.
(j) BUSINESS DAY. If any date or deadline set forth in this Agreement
shall fall on a day other than a Business Day, then such date or deadline shall
be deemed to refer to the next succeeding Business Day thereafter.
(SIGNATURE PAGE FOLLOWS.)
24
S-1
SIGNATURES
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
HUNTSMAN INTERNATIONAL HOLDINGS LLC
By:
-------------------------------
Name:
Title:
HOLDERS:
By:
-------------------------------
Name:
Title:
EXHIBIT A
FORM OF
REGISTRATION
RIGHTS AGREEMENT FOR
144A TRANSACTION
