HUNTSMAN INTERNATIONAL LLC
$300,000,000 9 7/8% SENIOR NOTES DUE 2009
UNCONDITIONALLY GUARANTEED AS TO THE
PAYMENT OF PRINCIPAL, PREMIUM,
IF ANY, AND INTEREST BY
Eurofuels LLC
Eurostar Industries LLC
Xxxxxxxx XX Holdings LLC
Huntsman Ethyleneamines Ltd.
Huntsman International Financial LLC
Huntsman International Fuels, X.X.
Xxxxxxxx Propylene Oxide Holdings LLC
Huntsman Propylene Oxide Ltd.
Huntsman Texas Holdings LLC
Tioxide Americas Inc.
Tioxide Group
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
March 21, 2002
Deutsche Banc Xxxx. Xxxxx Inc.
X.X. Xxxxxx Securities Inc.
Xxxxxxx Xxxxx Xxxxxx Inc.
c/o Deutsche Banc Xxxx. Xxxxx Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Huntsman International LLC, a Delaware limited liability company (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)
$300,000,000 aggregate principal amount of its 9 7/8% Senior Notes due 2009,
which are unconditionally guaranteed by each of Eurofuels LLC, Eurostar
Industries LLC, Xxxxxxxx XX Holdings LLC, Hunts-
man Ethyleneamines Ltd., Huntsman International Financial LLC, Huntsman
International Fuels, L.P., Huntsman Propylene Oxide Holdings LLC, Huntsman
Propylene Oxide Ltd., Huntsman Texas Holdings LLC, Tioxide Americas Inc. and
Tioxide Group.
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 and the Guarantors agree 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:
"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 Agreement.
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.
"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.
2
"EXCHANGE SECURITIES" shall have the meaning assigned thereto
in Section 2(a) hereof.
"GUARANTEE" shall have the meaning assigned thereto in the
Indenture.
"GUARANTOR" shall have the meaning assigned thereto in the
Indenture.
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 March 21,
2002, between the Company, the Guarantors and Xxxxx Fargo Bank
Minnesota, National Association, as Trustee, as the same shall be
amended from time to time relating to the Securities.
"NOTICE AND QUESTIONNAIRE" means a Notice of Registration
Statement and Selling Securityholder Questionnaire substantially in the
form of Exhibit A hereto.
The term "PERSON" shall mean a corporation, association,
partnership, limited liability company, organization, business,
individual, government or political subdivision thereof or governmental
agency.
"PURCHASE AGREEMENT" shall mean the Purchase Agreement, dated
as of March 18, 2002, among the Purchasers, the Guarantors 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), 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 120-day period referred to in
Section 2(a)); (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.
3
"REGISTRATION DEFAULT" shall have the meaning assigned thereto
in Section 2(c) 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.
"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 the 9 7/8% Senior Notes due 2009 of
the Company to be issued and sold to the Purchasers pursuant to the
Purchase Agreement, and securities issued in exchange therefor or in
lieu thereof pursuant to the Indenture (other than Exchange
Securities). Each Security is entitled to the benefit of the guarantee
provided for in the Indenture (the "Guarantee") and, unless the context
otherwise requires, any reference herein to a "Security," an "Exchange
Security" or a "Registrable Security" shall include a reference to the
related Guarantee.
"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(c) hereof.
"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 Ex-
4
change 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 use its reasonable best efforts to file under the Securities
Act, as soon as practicable, but no later than 75 days after the Closing Date, 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 Registrable Securities for a like aggregate principal
amount of debt securities issued by the Company and guaranteed by the
Guarantors, which debt securities and guarantee are substantially identical to
the Securities and the related Guarantees, respectively (and are entitled to the
benefits of a trust indenture which is substantially identical to the applicable
Indenture or is such Indenture and which has 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 registration rights or the additional interest contemplated in Section 2(c)
below (such new debt securities hereinafter called "Exchange Securities"). The
Company agrees to use its reasonable best efforts to cause the Exchange
Registration Statement to become effective under the Securities Act as soon as
practicable, but no later than 210 days following the date of filing of the
Exchange Offer Registration Statement. 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 its reasonable best efforts to commence and
complete the Exchange Offer promptly, but no later than 45 days after such
registration statement has become effective, hold the Exchange Offer open for at
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 and related guarantee 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 without material restrictions under the
blue sky or securities laws of a substantial majority of the States of the
United States of America, it being understood that broker-dealers receiving
Exchange Notes will be subject to certain prospectus delivery requirements with
respect to resale of the Exchange Notes. 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 120th 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.
5
Each holder that participates in the Exchange Offer will be
required, as a condition to its participation in the Exchange Offer, to
represent to the Company in writing (which may be contained in the applicable
letter of transmittal) (i) that any Exchange Securities to be received by it
will be acquired in the ordinary course of its business, (ii) that at the time
of the commencement of the Exchange Offer such holder will have no arrangement
or understanding with any Person to participate in the distribution (within the
meaning of the Securities Act) of the Exchange Securities in violation of the
provisions of the Securities Act, (iii) that such holder is not an affiliate of
the Company within the meaning of the Securities Act and (iv) that such holder
is not acting on behalf of a Person who could not make the foregoing
representations. In addition, each broker-dealer that will receive Exchange
Securities for its own account in exchange for Securities that were acquired as
a result of market-making or other trading activities will be required to
represent that the Securities being tendered by such broker-dealer were acquired
in ordinary trading or market-making activities. A broker-dealer that is not
able to make the foregoing representation will not be permitted to participate
in the Exchange Offer.
(b) If (i) on or prior to the time the Exchange Offer is
completed existing Commission interpretations are changed such that the debt
securities or the related guarantee received by holders other than Restricted
Holders in the Exchange Offer for Registrable Securities are not or would not
be, upon receipt, transferable by each such holder without restriction under the
Securities Act, (ii) the Exchange Offer has not been completed within 255 days
following the date of filing of the Exchange Registration Statement or (iii) the
Exchange Offer is not available to any holder of the Securities by reason of
U.S. law or Commission policy (other than due solely to the status of such
holder as an affiliate of the Company within the meaning of the Securities Act),
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 practicable, but no later than the later of 75 days
after the time such obligation to file 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 its reasonable best efforts (x) to cause
the Shelf Registration Statement to become or be declared effective no later
than 210 days after such Shelf Registration Statement is filed and to keep such
Shelf Registration Statement continuously effective for a period ending on the
earlier of the second anniversary of the Effective Time or such time as there
are no longer any Registrable Securities outstanding, PROVIDED, HOWEVER, that
(I) 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
(II) the Company shall be permitted to take any action that would suspend the
effectiveness of a Shelf Registration Statement or result in holders covered by
a Shelf Registration Statement not being able to offer and sell such Securities
if (i) such action is required by law or (ii) such action is taken by the
Company in good faith and for valid business reasons involving a material
undisclosed event, and (y) after the Effective Time of the Shelf Registration
Statement, within 30 days following the 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
6
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) 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), respectively, or (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, or (iii) the Exchange Offer has not been completed
within 45 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) or (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) without being succeeded immediately by
an additional registration statement filed and declared effective (each such
event referred to in clauses (i) through (iv), a "Registration Default" and each
period during which a Registration Default has occurred and is continuing, a
"Registration Default Period"), then, as liquidated damages for such
Registration Default, subject to the provisions of Section 9(b), special
interest ("Special Interest"), in addition to the Base Interest, shall accrue 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; provided, however, that
Special Interest shall not accrue if the failure of the Company to comply with
its obligations hereunder is a result of the failure of any of the holders,
underwriters, Purchasers or placement or sales agents to fulfill their
respective obligations hereunder.
(d) The Company shall take, and shall cause the Guarantors to
take, all actions necessary or advisable to be taken by it to ensure that the
transactions contemplated herein are effected as so contemplated, including all
actions necessary or desirable to register the Guarantees under the registration
statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(e) 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.
7
3. REGISTRATION PROCEDURES.
If the Company files a registration statement pursuant to
Section 2(a) or Section 2(b), the following provisions shall apply:
(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.
(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) (the "Exchange Registration"), if applicable, the Company shall,
as soon as reasonably practicable (or as otherwise specified):
(i) use its reasonable best efforts to prepare and
file with the Commission, as soon as practicable but no later
than 75 days after the Closing Date, 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), and use its best
reasonable efforts to cause such Exchange Registration
Statement to become effective as soon as practicable
thereafter, but no later than 210 days following the date of
filing of the Exchange Registration Statement;
(ii) after the Effective Time of the Exchange
Registration Statement, except as permitted hereunder, as soon
as 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 may reasonably request prior to the
expiration of the Resale Period, for use in connection with
resales of Exchange Securities;
(iii) after the Effective Time of the Exchange
Registration Statement and during the Resale Period promptly
notify each broker-dealer that has requested copies of the
prospectus included in such registration statement, and
confirm such advice in
8
writing, (A) with respect to such Exchange Registration
Statement or any post-effective amendment, when the same has
become effective, (B) 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, (C) of the receipt by 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 (D) 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,
which such notice, in the case of clauses (B), (C) and (D)
shall require any broker-dealer to suspend the use of such
prospectus until further notice;
(iv) in the event that the Company would be required,
pursuant to Section 3(e)(iii)(D) above, to notify any
broker-dealers holding Exchange Securities, 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; provided, however, the Company
shall not be required to amend or supplement such prospectus
if (i) not permitted by law or (ii) the Company in good faith
and for valid business reasons and such misstatement or
omission involves a material undisclosed event;
(v) use its best 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 unless the Company in good
faith and for valid business reasons determines that to do so
would involve disclosing a material undisclosed event;
(vi) use its best 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
9
necessary or advisable to enable each broker-dealer holding
Exchange Securities to consummate the disposition thereof in
such jurisdictions; PROVIDED, HOWEVER, that neither the
Company nor the Guarantors shall 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 or taxation in any such
jurisdiction or (3) make any changes to its incorporating
documents or limited liability agreement or any other
agreement between it and its stockholders or members;
(vii) provide an ISIN and a CUSIP number for all
Exchange Securities, not later than the applicable Effective
Time;
(viii) comply with all applicable rules and
regulations of the Commission, and make generally available to
its securityholders as soon as practicable but no later than
18 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 reasonably 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
its best efforts to cause such Shelf Registration Statement to
become effective as soon as reasonably practicable but in any
case within the time periods specified in Section 2(b);
(ii) 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,
10
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 xxxxxx has returned a
completed and signed Notice and Questionnaire to the Company;
(iv) after the Effective Time of the Shelf
Registration Statement, except as permitted hereunder, 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 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, if any, therefor, (D) counsel for any such
underwriter or agent and (E) not more than one counsel for all
the Electing Holders a copy 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), 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) 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 reasonable
judgment of the respective counsel referred to in such
Section, 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
11
(A) such information becomes a matter of public record
(whether by virtue of its inclusion in such registration
statement or otherwise), 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 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) with respect to such Shelf Registration Statement
or any post-effective amendment, when the same has become
effective, (B) 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, (C) 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 (D) 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, which such notice,
in the case of clauses (B), (C) and (D) shall require the
suspension of the use of such prospectus until further notice;
(ix) use its best efforts to obtain the
withdrawal of any order suspending the effectiveness of such
registration statement or any post-effective amendment thereto
at the earliest practicable date unless the Company in good
faith and for valid business reasons determines that to do so
would involve disclosing a material undisclosed event;
(x) if reasonably 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
12
the applicable rules and regulations of the Commission and as
such managing underwriter or underwriters, such agent or such
Electing Holder 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 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 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;
(xi) 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) a conformed copy of such Shelf Registration
Statement, each such amendment and supplement thereto (in each
case including, upon request, all exhibits thereto and
documents incorporated by reference therein) and such number
of copies 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 that may be required in connection with
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 the prospectus
contained in the Exchange Registration Statement at the
Effective Time thereof 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 such
prospectus or any such supplement or amendment thereto;
(xii) use reasonable best 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 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 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 of Securities pursuant to
13
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 neither the Company nor the Guarantors shall 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(d)(xii), (2) consent to general service of process
or taxation in any such jurisdiction or (3) make any changes
to its incorporating documents or limited liability agreement
or any other agreement between it and its stockholders or
members;
(xiii) 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 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;
(xiv) enter into one or more underwriting
agreements, engagement letters, agency agreements, "best
efforts" underwriting agreements or similar agreements, as
appropriate, including customary provisions relating to
indemnification and contribution (such indemnification and
contribution obligations of the Company to be no more
extensive than those contained in the Purchase Agreement), and
take such other actions in connection therewith as any
Electing Holders aggregating at least 20% in aggregate
principal amount of the Registrable Securities at the time
outstanding shall reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities;
(xv) whether or not an agreement of the type
referred to in Section 3(d)(xvi) 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; (B) obtain an opinion of 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
20% in aggregate principal amount of the Registrable
Securities at the time outstanding may reasonably request,
14
addressed to such Electing Holder or Electing Holders and the
placement or sales agent, if any, therefor and the
underwriters, if any, thereof and dated the effective date of
such Shelf Registration Statement (or 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 due incorporation and good
standing of the Company and the Guarantors; the qualification
of the Company and the Guarantors to transact business as
foreign corporations; the due authorization, execution and
delivery of the relevant agreement, if any, of the type
referred to in Section 3(d)(xvi) hereof; the due
authorization, execution, authentication and issuance, and the
validity and enforceability, of the Securities; 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)(xvi) hereof, except such approvals as may have been
obtained or 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, if addressed to any underwriters, 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 or accounting 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; and (D)
deliver such documents and certificates, including offi-
15
cers' certificates, as may be reasonably requested by any
Electing Holders of at least 20% 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 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 or the Guarantors;
(xvi) 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 in any material respect pursuant to Section 9(h)
hereof and of any such 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;
(xvii) 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, cooperate with such broker-dealer in connection
with any filings required to be made by the NASD;
(xviii) comply with all applicable rules and
regulations of the Commission, and make generally available to
its securityholders as soon as practicable but in any event
not later than 18 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 that the Company would be
required, pursuant to Section 3(d)(viii)(D) above, to notify the
Electing Holders, the placement or sales agent, if any, therefor and
the managing underwriters, if any, thereof, the Company shall as soon
as reasonably practicable 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 not misleading in
light of the circumstances then existing; provided, however, the
Company
16
shall not be required to amend or supplement such prospectus if (i) not
permitted by law or (ii) the Company in good faith and for valid
business reasons and such misstatement or omission involves a material
undisclosed event. Each Electing Holder agrees that upon receipt of any
notice from the Company pursuant to Section 3(d)(viii)(D) 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 Xxxxxx's possession of the
prospectus covering such Registrable Securities at the time of receipt
of such notice.
(f) In the event of a Shelf Registration, in addition to
the information required to be provided by each Electing Holder in its
Notice and Questionnaire, the Company may require such Electing Holder
to furnish to the Company such additional information regarding such
Electing Holder and such Electing Xxxxxx's intended method of
distribution of Registrable Securities as may be required in order to
comply with the Securities Act. Each such Electing Holder agrees to (i)
notify the Company as promptly as practicable of (A) any inaccuracy or
change in information previously furnished by such Electing Holder to
the Company or (B) 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 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
(ii) promptly to furnish to the Company any additional information
required to correct and update any previously furnished required
information or 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.
(g) 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 the Securities Act.
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, (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) hereof under the laws of such jurisdictions as any managing
underwriters or the Electing Holders may designate, including
17
any fees and disbursements of counsel for the Electing Holders or underwriters
in connection with such qualification, (c) all expenses relating to the
preparation, printing, production, distribution and reproduction of each
registration statement required to be filed hereunder, each prospectus included
therein or prepared for distribution pursuant hereto, each amendment or
supplement to the foregoing, and the expenses of preparing the Securities for
delivery, (d) messenger, telephone and delivery expenses relating to the
preparation of documents referred in clause (c) above, (e) fees and expenses of
the Trustee under the Indenture, (f) internal expenses (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) reasonable fees, disbursements and expenses of
one counsel for the Electing Holders retained in connection with a Shelf
Registration, as selected by the Electing Holders of at least a majority in
aggregate principal amount of the Registrable Securities held by Electing
Holders (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
(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 reasonable 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 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 experts retained by such holders (severally or jointly), other than
the counsel and experts specifically referred to above.
5. REPRESENTATIONS AND WARRANTIES.
The Company and the Guarantors represent and warrant to, and
agree 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, 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 from (i)
such time as a notice has been given to holders of Registrable
Securities pursuant to Section 3(d)(viii)(D) or Section 3(c)(iii)(D)
hereof until (ii) such time as the Company furnishes an amended or
supplemented prospectus pursuant to Section 3(e) or Section 3(c)(iv)
hereof, each such registration statement, and each prospectus
(including any summary prospectus) contained therein or fur-
18
nished pursuant to Section 3(d) or Section 3(c) 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 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, a placement or sales agent or an underwriter expressly for
use therein.
(b) 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, as the case
may be, will conform or conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable,
and, as of such effective or filing date, 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, a placement or sales agent or an underwriter
expressly for use therein.
(c) 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,
except for such conflict, breach or default which (x) would not have a
material adverse effect on the business, condition (financial or
otherwise) or results of operations of the Company and its
subsidiaries, taken as a whole (any such event, a "Material Adverse
Effect") or (y) have been waived nor will such action result in any
violation of the provisions of the certificate of incorporation, as
amended, or the by-laws of the Company or the Guarantors or violate 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 except for such violation
which would not have a Material Adverse Effect; 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 and the Guarantors 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.
(d) This Exchange and Registration Rights Agreement has
been duly authorized, executed and delivered by the Company.
19
6. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY AND THE GUARANTORS.
The Company and the Guarantors, jointly and severally, will indemnify and hold
harmless each broker dealer selling Exchange Securities during the Resale
Period, and each of the Electing Holders of Registrable Securities included in a
Shelf Registration Statement against any losses, claims, damages or liabilities,
joint or several, to which such holder 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, or any preliminary, final or summary prospectus contained therein or
furnished by the Company to any such holder, 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 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 (i) neither the Company nor any Guarantor
shall 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
amendment or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by any holder, placement or sales agent or
underwriter expressly for use therein and (ii) such indemnity with respect to
any preliminary prospectus shall not inure to the benefit of any holder,
placement agent or underwriter (or any person controlling such person) to the
extent that any loss, claim, damage or liability of such person results from the
fact that such person sold Securities to a person as to whom it shall be
established that there was not sent or given, a copy of the final prospectus (or
the final prospectus as amended or supplemented) at or prior to the confirmation
of the sale of such Securities to such person if (x) the Company has previously
furnished copies thereof in sufficient quantity to such indemnified person and
the loss, claim, damage or liability of such indemnified person results from an
untrue statement or omission of a material fact contained in such preliminary
prospectus which was identified at such time to such indemnified person and
corrected in the final prospectus (or the final prospectus as amended or
supplemented) and (y) such loss, liability, claim, damage or expense would have
been eliminated by the delivery of such corrected final prospectus or the final
prospectus as then amended or supplemented.
(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 or to entering into any underwriting agreement with respect thereto,
that the Company shall have received an undertaking reasonably satisfactory to
it from the Electing Holder of such Registrable Securities and from each
underwriter named in any such underwriting agreement, severally and not jointly,
to (i) indemnify and hold harmless the Company, the Guarantors, and all other
holders of Registrable Securities, against any losses, claims, damages or
liabilities to which the Company, the Guarantors or such other holders of
Registrable Securities may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or li-
20
abilities (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, or any preliminary, final or summary prospectus
contained therein or furnished by the Company to any such Electing Holder, agent
or underwriter, 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, 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 or underwriter expressly for use therein, and
(ii) reimburse the Company and the Guarantors for any legal or other expenses
reasonably incurred by the Company and the Guarantors in connection with
investigating or defending any such action or claim as such expenses are
incurred; PROVIDED, HOWEVER, that no such Electing Holder shall be required to
undertake liability to any person under this Section 6(b) for any amounts in
excess of the euro amount of the proceeds to be received by such Electing Holder
from the sale of such Electing 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. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the written
consent of the 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. No indemnifying party shall be liable under
this Section 6(c) for any settlement of any claim or action effected without its
consent, which consent shall not be unreasonably withheld.
21
(d) CONTRIBUTION. If for any reason the indemnification
provisions contemplated by Section 6(a) or Section 6(b) 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 euro
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 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 were offered to the
public exceeds the amount of any damages which such underwriter 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' and any underwriters' 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.
(e) The obligations of the Company and the Guarantors
under this Section 6 shall be in addition to any liability which the Company or
the Guarantors 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 or underwriter
may otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company or the Guarantors and to each person, if
any, who controls the Company or a Guarantor within the meaning of the
Securities Act.
22
7. UNDERWRITTEN OFFERINGS.
(a) SELECTION OF UNDERWRITERS. If any of the
Registrable Securities covered by the Shelf Registration are to be sold
pursuant to an underwritten offering, the managing underwriter or
underwriters thereof shall be designated by Electing Holders 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 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 agreements 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 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
23
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 three 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 000 Xxxxxxxx Xxx, Xxxx Xxxx Xxxx, Xxxx 00000, 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, WITHOUT REFERENCE TO THE CONFLICT OF LAW RULES THEREOF.
(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.
24
(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. Each
holder of any of the 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 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 Trustee under the Indenture.
(j) COUNTERPARTS. This 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.
25
If the foregoing is in accordance with your understanding,
please sign and return to us five 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, the Guarantors 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,
HUNTSMAN INTERNATIONAL LLC
By:
---------------------------------
Name:
Title:
EUROFUELS LLC
By:
---------------------------------
Name:
Title:
EUROSTAR INDUSTRIES LLC
By:
---------------------------------
Name:
Title:
XXXXXXXX XX HOLDINGS LLC
By:
---------------------------------
Name:
Title:
26
HUNTSMAN ETHYLENEAMINES LTD.,
BY ITS FOLLOWING GENERAL PARTNER:
XXXXXXXX XX HOLDINGS LLC
By:
---------------------------------
Name:
Title:
HUNTSMAN INTERNATIONAL FINANCIAL LLC
By:
---------------------------------
Name:
Title:
HUNTSMAN INTERNATIONAL FUELS, L.P.,
BY ITS FOLLOWING GENERAL PARTNER:
EUROFUELS LLC
By:
---------------------------------
Name:
Title:
HUNTSMAN PROPYLENE OXIDE HOLDINGS LLC
By:
---------------------------------
Name:
Title:
HUNTSMAN PROPYLENE OXIDE LTD.,
BY ITS FOLLOWING GENERAL PARTNER:
HUNTSMAN PROPYLENE OXIDE
HOLDINGS LLC
By:
---------------------------------
Name:
Title:
27
HUNTSMAN TEXAS HOLDINGS LLC
By:
---------------------------------
Name:
Title:
TIOXIDE AMERICAS INC.
By:
---------------------------------
Name:
Title:
TIOXIDE GROUP
By:
---------------------------------
Name:
Title:
28
Accepted as of the date hereof:
Deutsche Banc Xxxx. Xxxxx Inc.
X.X. Xxxxxx Securities Inc.
Xxxxxxx Xxxxx Xxxxxx Inc.
BY: DEUTSCHE BANC XXXX. BROWN INC.
-------------------------------------------
(Deutsche Banc Xxxx. Xxxxx Inc.)
29
EXHIBIT A
HUNTSMAN INTERNATIONAL LLC
INSTRUCTION TO EUROCLEAR PARTICIPANTS
(DATE OF MAILING)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE] *
Euroclear has identified you as a Participant through which beneficial interests
in the Huntsman International LLC (the "Company") 9 7/8% Senior Notes due 2009
(the "Securities") are held.
The Company is in the process of registering the Securities under the Securities
Act of 1933 for resale by the beneficial owners thereof. In order to have their
Securities included in the registration statement, beneficial owners must
complete and return the enclosed Notice of Registration Statement and Selling
Securityholder Questionnaire.
IT IS IMPORTANT THAT BENEFICIAL OWNERS OF THE SECURITIES RECEIVE A COPY OF THE
ENCLOSED MATERIALS AS SOON AS POSSIBLE as their rights to have the Securities
included in the registration statement depend upon their returning the Notice
and Questionnaire by [DEADLINE FOR RESPONSE]. Please forward a copy of the
enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact Huntsman
International LLC, 000 Xxxxxxxx Xxx, Xxxx Xxxx Xxxx, Xxxx 00000, (000) 000-0000.
----------------------------------
*Not less than 28 calendar days from date of mailing.
Huntsman International LLC
Notice of Registration Statement
and
SELLING SECURITYHOLDER QUESTIONNAIRE
(Date)
Reference is hereby made to the Exchange and Registration Rights Agreement (the
"Exchange and Registration Rights Agreement") among Huntsman International LLC
(the "Company"), the Guarantors named therein and the Purchasers named therein.
Pursuant to the Exchange and Registration Rights Agreement, the Company has
filed with the United States Securities and Exchange Commission (the
"Commission") a registration statement on Form [__] (the "Shelf Registration
Statement") for the registration and resale under Rule 415 of the Securities Act
of 1933, as amended (the "Securities Act"), of the Company's 9 7/8% Senior Notes
due 2009 (the "Securities"). A copy of the Exchange and Registration Rights
Agreement has been filed as an exhibit to the Shelf Registration Statement. All
capitalized terms not otherwise defined herein shall have the meanings ascribed
thereto in the Exchange and Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined below) is entitled
to have the Registrable Securities beneficially owned by it included in the
Shelf Registration Statement. In order to have Registrable Securities included
in the Shelf Registration Statement, this Notice of Registration Statement and
Selling Securityholder Questionnaire ("Notice and Questionnaire") must be
completed, executed and delivered to the Company's counsel at the address set
forth herein for receipt ON OR BEFORE [DEADLINE FOR RESPONSE]. Beneficial owners
of Registrable Securities who do not complete, execute and return this Notice
and Questionnaire by such date (i) will not be named as selling securityholders
in the Shelf Registration Statement and (ii) may not use the prospectus forming
a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and related Prospectus. Accordingly, holders
and beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Shelf Registration Statement and
related prospectus.
The term "REGISTRABLE SECURITIES" is defined in the Exchange and Registration
Rights Agreement.
2
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable Securities
hereby elects to include in the Shelf Registration Statement the Registrable
Securities beneficially owned by it and listed below in Item (3). The
undersigned, by signing and returning this Notice and Questionnaire, agrees to
be bound with respect to such Registrable Securities by the terms and conditions
of this Notice and Questionnaire and the Exchange and Registration Rights
Agreement, including, without limitation, Section 6 of the Exchange and
Registration Rights Agreement, as if the undersigned Selling Securityholder were
an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
and the Trustee for the Securities the Notice of Transfer set forth in Appendix
A to the Prospectus and as Exhibit B to the Exchange and Registration Rights
Agreement.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
3
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
--------------------------------------------------------------
(b) Full Legal Name of Registered Holder (if not the same as in
(a) above) of Registrable Securities Listed in Item (3) below:
--------------------------------------------------------------
(c) Full Legal Name of Euroclear Participant (if applicable and if
not the same as (b) above) Through Which Registrable
Securities Listed in Item (3) below are Held:
--------------------------------------------------------------
(2) Address for Notices to Selling Securityholder:
--------------------------------
--------------------------------
--------------------------------
Telephone:
--------------------------------
Fax:
--------------------------------
Contact Person:
--------------------------------
(3) Beneficial Ownership of Securities:
EXCEPT AS SET FORTH BELOW IN THIS ITEM (3), THE UNDERSIGNED DOES NOT
BENEFICIALLY OWN ANY SECURITIES.
(a) Principal amount of Registrable Securities beneficially owned:
--------------------------------------------------------------
ISIN No(s). of such Registrable Securities:
-----------------
--------------------------------------------------------------
(b) Principal amount of Securities other than Registrable
Securities beneficially owned:
--------------------------------
--------------------------------------------------------------
ISIN No(s). of such other Securities:
-----------------------
--------------------------------------------------------------
(c) Principal amount of Registrable Securities which the
undersigned wishes to be included in the Shelf Registration
Statement:
----------------------------------------------------
--------------------------------------------------------------
ISIN No(s). of such Registrable Securities to be included in
the Shelf Registration Statement:
-----------------------------
--------------------------------------------------------------
4
(4) Beneficial Ownership of Other Securities of the Company:
EXCEPT AS SET FORTH BELOW IN THIS ITEM (4), THE UNDERSIGNED SELLING
SECURITYHOLDER IS NOT THE BENEFICIAL OR REGISTERED OWNER OF ANY OTHER
SECURITIES OF THE COMPANY, OTHER THAN THE SECURITIES LISTED ABOVE IN
ITEM (3).
State any exceptions here:
---------------------------------------------
(5) Relationships with the Company:
EXCEPT AS SET FORTH BELOW, NEITHER THE SELLING SECURITYHOLDER NOR ANY
OF ITS AFFILIATES, OFFICERS, DIRECTORS OR PRINCIPAL EQUITY HOLDERS (5%
OR MORE) HAS HELD ANY POSITION OR OFFICE OR HAS HAD ANY OTHER MATERIAL
RELATIONSHIP WITH THE COMPANY (OR ITS PREDECESSORS OR AFFILIATES)
DURING THE PAST THREE YEARS.
State any exceptions here:
(6) Plan of Distribution:
EXCEPT AS SET FORTH BELOW, THE UNDERSIGNED SELLING SECURITYHOLDER
INTENDS TO DISTRIBUTE THE REGISTRABLE SECURITIES LISTED ABOVE IN ITEM
(3) ONLY AS FOLLOWS (IF AT ALL): SUCH REGISTRABLE SECURITIES MAY BE
SOLD FROM TIME TO TIME DIRECTLY BY THE UNDERSIGNED SELLING
SECURITYHOLDER OR, ALTERNATIVELY, THROUGH UNDERWRITERS, BROKER-DEALERS
OR AGENTS. SUCH REGISTRABLE SECURITIES MAY BE SOLD IN ONE OR MORE
TRANSACTIONS AT FIXED PRICES, AT PREVAILING MARKET PRICES AT THE TIME
OF SALE, AT VARYING PRICES DETERMINED AT THE TIME OF SALE, OR AT
NEGOTIATED PRICES. SUCH SALES MAY BE EFFECTED IN TRANSACTIONS (WHICH
MAY INVOLVE CROSSES OR BLOCK TRANSACTIONS) (i) ON ANY NATIONAL
SECURITIES EXCHANGE OR QUOTATION SERVICE ON WHICH THE REGISTERED
SECURITIES MAY BE LISTED OR QUOTED AT THE TIME OF SALE, (ii) IN THE
OVER-THE-COUNTER MARKET, (iii) IN TRANSACTIONS OTHERWISE THAN ON SUCH
EXCHANGES OR SERVICES OR IN THE OVER-THE-COUNTER MARKET, OR (iv)
THROUGH THE WRITING OF OPTIONS. IN CONNECTION WITH SALES OF THE
REGISTRABLE SECURITIES OR OTHERWISE, THE SELLING SECURITYHOLDER MAY
ENTER INTO HEDGING TRANSACTIONS WITH BROKER-DEALERS, WHICH MAY IN TURN
ENGAGE IN SHORT SALES OF THE REGISTRABLE SECURITIES IN THE COURSE OF
HEDGING THE POSITIONS THEY ASSUME. THE SELLING SECURITYHOLDER MAY ALSO
SELL REGISTRABLE SECURITIES SHORT AND DELIVER REGISTRABLE SECURITIES TO
CLOSE OUT SUCH SHORT POSITIONS, OR LOAN OR PLEDGE REGISTRABLE
SECURITIES TO BROKER-DEALERS THAT IN TURN MAY SELL SUCH SECURITIES.
State any exceptions here:
5
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
In the event that the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Company, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section 3(d) of
the Exchange and Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Securityholder agrees to promptly notify the Company of any inaccuracies
or changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Exchange and Registration
Rights Agreement shall be made in writing, by hand-delivery, first-class mail,
or air courier guaranteeing overnight delivery as follows:
(i) To the Company:
-------------------------
-------------------------
-------------------------
-------------------------
-------------------------
(ii) With a copy to:
-------------------------
-------------------------
-------------------------
-------------------------
-------------------------
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company's counsel, the terms of this Notice and Questionnaire,
and the representations and warran-
6
ties contained herein, shall be binding on, shall inure to the benefit of and
shall be enforceable by the respective successors, heirs, personal
representatives, and assigns of the Company and the Selling Securityholder (with
respect to the Registrable Securities beneficially owned by such Selling
Securityholder and listed in Item (3) above). This Agreement shall be governed
in all respects by the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated:
----------------------------
--------------------------------------------------------------
Selling Securityholder
(Print/type full legal name of beneficial owner of Registrable
Securities)
By:
----------------------------------------------------------
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
-------------------------
-------------------------
-------------------------
-------------------------
-------------------------
7
EXHIBIT B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
The Bank of New York
Huntsman International LLC
c/o The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Trust Officer
Re: Huntsman International LLC (the "Company")
9 7/8% Senior Notes due 2009
Dear Sirs:
Please be advised that_______________________ has transferred EU__________
aggregate principal amount of the above-referenced Notes pursuant to an
effective Registration Statement on Form [_____] (File No.333-_________) filed
by the Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Notes is named as a "Selling Holder" in the Prospectus
dated [DATE] or in supplements thereto, and that the aggregate principal amount
of the Notes transferred are the Notes listed in such Prospectus opposite such
owner's name.
Dated:
Very truly yours,
-----------------------------
(Name)
By:
---------------------------
(Authorized Signature)
