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TRANS-RESOURCES, INC.
$135,000,000 Aggregate Principal Amount at Maturity
12% Senior Discount Notes due 2008
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
March 16, 1998
CHASE SECURITIES INC.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
c/o Chase Securities Inc.
000 Xxxx Xxxxxx, 0xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Trans-Resources, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to Chase Securities Inc. ("CSI") and Xxxxxxxxx,
Xxxxxx & Xxxxxxxx Securities Corporation (together with CSI, the "Initial
Purchasers"), upon the terms and subject to the conditions set forth in a
purchase agreement dated March 11, 1998 (the "Purchase Agreement") between the
Company and the Initial Purchasers, relating to the sale by the Company to the
Initial Purchasers of $135,000,000 aggregate principal amount at maturity of its
12% Senior Discount Notes due 2008 (the "Senior Discount Notes"). Capitalized
terms used but not defined herein shall have the meanings given to such terms in
the Purchase Agreement.
As an inducement to the Initial Purchasers to enter into the
Purchase Agreement and in satisfaction of a condition to the obligations of the
Initial Purchasers thereunder, the Company agrees with the Initial Purchasers,
for the benefit of the holders (including the Initial Purchasers) of the Senior
Discount Notes, the Senior Discount Exchange Notes (as defined herein) and the
Private Senior Discount Exchange Notes (as defined herein) (collectively, the
"Holders"), as follows:
1. Registered Exchange Offer. The Company shall (i) prepare and, not
later than 60 days following the date of original issuance of the Senior
Discount Notes (the "Issue Date"), file with the Commission a registration
statement (the "Exchange Offer Registration Statement") on Form S-1 or Form S-4,
if the use of such forms is then available, with
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respect to a proposed offer to the Holders of the Senior Discount Notes (the
"Registered Exchange Offer") to issue and deliver to such Holders, in exchange
for the Senior Discount Notes, a like aggregate principal amount of debt
securities of the Company that are identical in all material respects to the
Senior Discount Notes, except for the transfer restrictions relating to the
Senior Discount Notes, (ii) use its reasonable best efforts to cause the
Exchange Offer Registration Statement to become effective under the Securities
Act no later than 150 days after the Issue Date and the Registered Exchange
Offer to be consummated no later than 180 days after the Issue Date and (iii)
keep the Exchange Offer Registration Statement effective for not less than 20
business days (or longer, if required by applicable law) after the date on which
notice of the Registered Exchange Offer is mailed to the Holders (such period
being called the "Exchange Offer Registration Period"). The Senior Discount
Exchange Notes will be issued under the Senior Discount Notes Indenture or an
indenture (the "Senior Discount Exchange Notes Indenture") between the Company
and the Senior Discount Notes Trustee or such other bank or trust company that
is reasonably satisfactory to the Initial Purchasers, as trustee (the "Senior
Discount Exchange Notes Trustee"), such indenture to be identical in all
material respects to the Senior Discount Notes Indenture, except for the
transfer restrictions relating to the Senior Discount Notes (as described
above).
Upon the effectiveness of the Exchange Offer Registration Statement,
the Company shall promptly commence the Registered Exchange Offer, it being the
objective of such Registered Exchange Offer to enable each Holder electing to
exchange Senior Discount Notes for Senior Discount Exchange Notes (assuming that
such Holder (a) is not an affiliate of the Company or an Exchanging Dealer (as
defined herein) not complying with the requirements of the next sentence, (b) is
not an Initial Purchaser holding Senior Discount Notes that have, or that are
reasonably likely to have, the status of an unsold allotment in an initial
distribution, (c) acquires the Senior Discount Exchange Notes in the ordinary
course of such Holder's business and (d) has no arrangements or understandings
with any person to participate in the distribution of the Senior Discount
Exchange Notes) and to trade such Senior Discount Exchange Notes from and after
their receipt without any limitations or restrictions under the Securities Act
and without material restrictions under the securities laws of the several
states of the United States. The Company, the Initial Purchasers and each
Exchanging Dealer acknowledge that, pursuant to current interpretations by the
Commission's staff of Section 5 of the Securities Act, each Holder that is a
broker-dealer electing to exchange Senior Discount Notes, acquired for its own
account as a result of market-making activities or other trading activities, for
Senior Discount Exchange Notes (an "Exchanging Dealer"), is required to deliver
a prospectus containing substantially the information set forth in Annex A
hereto on the cover, in Annex B hereto in the "Exchange Offer Procedures" and
the "Purpose of the Exchange Offer" sections of such prospectus and in Annex C
hereto in the "Plan of Distribution" section of such prospectus in connection
with a sale of any such Senior Discount Exchange Notes received by such
Exchanging Dealer pursuant to the Registered Exchange Offer.
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If, prior to the consummation of the Registered Exchange Offer, any
Holder holds any Senior Discount Notes acquired by it that have, or that are
reasonably likely to be determined to have, the status of an unsold allotment in
an initial distribution, or any Holder is not entitled to participate in the
Registered Exchange Offer, the Company shall, upon the request of any such
Holder, simultaneously with the delivery of the Senior Discount Exchange Notes
in the Registered Exchange Offer, issue and deliver to any such Holder, in
exchange for the Senior Discount Notes held by such Holder (the "Private
Exchange"), a like aggregate principal amount of debt securities of the Company
that are identical in all material respects to the Senior Discount Exchange
Notes (the "Private Senior Discount Exchange Notes"), except for the transfer
restrictions relating to such Private Senior Discount Exchange Notes. The
Private Senior Discount Exchange Notes will be issued under the same indenture
as the Senior Discount Exchange Notes, and the Company shall use its reasonable
best efforts to cause the Private Senior Discount Exchange Notes to bear the
same CUSIP number as the Senior Discount Exchange Notes.
In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 20
business days (or longer, if required by applicable law) after the date on
which notice of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York;
(d) permit Holders to withdraw tendered Senior Discount Notes at any
time prior to the close of business, New York City time, on the last
business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are
applicable to the Registered Exchange Offer.
As soon as practicable after the close of the Registered Exchange
Offer and any Private Exchange, as the case may be, the Company shall:
(a) accept for exchange all Senior Discount Notes tendered and not
validly withdrawn pursuant to the Registered Exchange Offer and the
Private Exchange;
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(b) deliver to the Senior Discount Notes Trustee for cancellation
all Senior Discount Notes so accepted for exchange; and
(c) cause the Senior Discount Notes Trustee or the Senior Discount
Exchange Notes Trustee, as the case may be, promptly to authenticate and
deliver to each Holder, Senior Discount Exchange Notes or Private Senior
Exchange Notes, as the case may be, equal in principal amount to the
Senior Discount Notes of such Holder so accepted for exchange.
The Company shall use its reasonable best efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement the
prospectus contained therein in order to permit such prospectus to be used by
all persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as such persons must comply with such requirements
in order to resell the Senior Discount Exchange Notes; provided, however, that
(i) in the case where such prospectus and any amendment or supplement thereto
must be delivered by an Exchanging Dealer, such period shall be the lesser of
180 days and the date on which all Exchanging Dealers have sold all Senior
Discount Exchange Notes held by them and (ii) the Company shall make such
prospectus and any amendment or supplement thereto available to any
broker-dealer for use in connection with any resale of any Senior Discount
Exchange Notes for a period of not less than 180 days after the consummation of
the Registered Exchange Offer.
The Senior Discount Notes Indenture or the Senior Discount Exchange
Notes Indenture, as the case may be, shall provide that the Senior Discount
Notes, the Senior Discount Exchange Notes and the Private Senior Discount
Exchange Notes shall vote and consent together on all matters as one class and
that none of the Senior Discount Notes, the Senior Discount Exchange Notes or
the Private Senior Discount Exchange Notes will have the right to vote or
consent as a separate class on any matter.
Interest on each Senior Discount Exchange Note and Private Senior
Discount Exchange Note issued pursuant to the Registered Exchange Offer and in
the Private Exchange will accrete in the manner provided in the Senior Discount
Notes Indenture.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company that at the time of the consummation of the
Registered Exchange Offer (i) any Senior Discount Exchange Notes received by
such Holder will be acquired in the ordinary course of business, (ii) such
Holder will have no arrangements or understandings with any person to
participate in the distribution of the Senior Discount Notes or the Senior
Discount Exchange Notes within the meaning of the Securities Act and (iii) such
Holder is not an affiliate of the Company or, if it is such an affiliate, such
Holder will comply with the registration and prospectus delivery requirements of
the Securities Act to the extent applicable.
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Notwithstanding any other provisions hereof, the Company will ensure
that (i) any Exchange Offer Registration Statement and any amendment thereto and
any prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations of the
Commission thereunder, (ii) any Exchange Offer Registration Statement and any
amendment thereto does not, when it becomes effective, 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
(iii) any prospectus forming part of any Exchange Offer Registration Statement,
and any supplement to such prospectus, does not, as of the consummation of the
Registered Exchange Offer, include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
2. Shelf Registration. If (i) because of any change in law or
applicable interpretations thereof by the Commission's staff, the Company is not
permitted to effect the Registered Exchange Offer as contemplated by Section 1
hereof, or (ii) any Senior Discount Notes validly tendered pursuant to the
Registered Exchange Offer are not exchanged for Senior Discount Exchange Notes
within 180 days after the Issue Date, or (iii) any Initial Purchaser so requests
with respect to Senior Discount Notes or Private Senior Discount Exchange Notes
not eligible to be exchanged for Senior Discount Exchange Notes in the
Registered Exchange Offer and held by it following the consummation of the
Registered Exchange Offer, or (iv) any applicable law or interpretations do not
permit any Holder to participate in the Registered Exchange Offer, or (v) any
Holder that participates in the Registered Exchange Offer does not receive
freely transferable Senior Discount Exchange Notes in exchange for Senior
Discount Notes (other than due solely to the status of a Holder (other than an
Initial Purchaser) as an affiliate of the Company within the meaning of the
Securities Act, and other than any state securities law restrictions which,
individually or in the aggregate, do not materially adversely affect the ability
of any such Holder to resell the securities held by such Holder), or (vi) the
Company so elects, then the following provisions shall apply:
(a) The Company shall use its reasonable best efforts to file a
shelf registration statement (a "Shelf Registration Statement" and, together
with any Exchange Offer Registration Statement, a "Registration Statement")
prior to the later of (a) 60 days after the Issue Date or (b) 30 days after the
obligation to file the Shelf Registration Statement arises. The Company shall
thereafter use its reasonable best efforts to cause such Shelf Registration
Statement to be declared effective on an appropriate form under the Securities
Act, relating to the offer and sale of the Transfer Restricted Senior Discount
Notes (as defined below) by the holders thereof from time to time, in accordance
with the methods of distribution set forth in such Shelf Registration Statement,
prior to the later of (a) 150 days after the Issue Date or (b) 120 days after
the obligation to file such Shelf Registration Statement arises.
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(b) The Company shall use its reasonable best efforts to keep the
Shelf Registration Statement continuously effective in order to permit the
prospectus forming part thereof to be used by Holders of Transfer Restricted
Senior Discount Notes for a period ending on the earlier of (i) two years from
the Issue Date or such shorter period that will terminate when all the Transfer
Restricted Senior Notes covered by the Shelf Registration Statement have been
sold pursuant thereto and (ii) the date on which the Senior Discount Notes
become eligible for resale without volume restrictions pursuant to Rule 144
under the Securities Act (in any such case, such period being called the "Shelf
Registration Period"). The Company shall be deemed not to have used its
reasonable best efforts to keep the Shelf Registration Statement effective
during the requisite period if it voluntarily takes any action that would result
in Holders of Transfer Restricted Senior Discount Notes covered thereby not
being able to offer and sell such Transfer Restricted Senior Discount Notes
during that period, unless such action is required by applicable law; provided,
however, that the foregoing shall not apply to actions taken by the Company in
good faith and for valid business reasons (not including avoidance of their
obligations hereunder), including, without limitation, the acquisition or
divestiture of assets, so long as the Company within 60 days thereafter complies
with the requirements of Section 4(j) hereof. Any such period during which the
Company fails to keep the registration statement effective and usable for offers
and sales of Senior Discount Notes and Senior Discount Exchange Notes is
referred to as a "Suspension Period." A Suspension Period shall commence on and
include the date that the Company gives notice to the Holders to the effect
that, in the reasonable judgment of the Company, the use of the Shelf
Registration Statement would materially interfere with a valid business purpose
of the Company and that the Shelf Registration Statement is no longer effective
or the prospectus included therein is no longer usable for offers and sales of
Senior Discount Notes and Senior Discount Exchange Notes and shall end on the
date when each Holder of Senior Discount Notes and Senior Discount Exchange
Notes covered by such registration statement either receives the copies of the
supplemented or amended prospectus contemplated by Section 4(j) hereof or is
advised in writing by the Company that use of the prospectus may be resumed. If
one or more Suspension Periods occur, the two year time period referenced above
shall be extended by the number of days included in each such Suspension Period;
provided, however, that the aggregate number of days of any Suspension Periods
shall not exceed 60 days in any calendar year.
(c) Notwithstanding any other provisions hereof, the Company will
ensure that (i) any Shelf Registration Statement and any amendment thereto and
any prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations of the
Commission thereunder, (ii) any Shelf Registration Statement and any amendment
thereto (in either case, other than with respect to information included therein
in reliance upon or in conformity with written information furnished to the
Company by or on behalf of any Holder specifically for use therein (the
"Holders' In-
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formation")) does 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 (iii) any prospectus forming part of any
Shelf Registration Statement, and any supplement to such prospectus (in either
case, other than with respect to Holders' Information), does not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
3. Liquidated Damages. (a) The parties hereto agree that the Holders
of Transfer Restricted Senior Discount Notes will suffer damages if the Company
fails to fulfill its obligations under Section 1 or Section 2, as applicable,
and that it would not be feasible to ascertain the extent of such damages.
Accordingly, if (i) the Registration Statement is not filed with the Commission
within 60 days after the Issue Date or, in the event that a Shelf Registration
Statement is required, such Shelf Registration Statement is not filed on or
prior to the later of (a) 60 days after the Issue Date or (b) 30 days after the
obligation to file a Shelf Registration Statement arises, (ii) the Exchange
Offer Registration Statement (if applicable) is not declared effective within
150 days after the Issue Date or, in the event that a Shelf Registration
Statement is required, such Shelf Registration Statement is not declared
effective on or prior to the later of (a) 150 days after the Issue Date or (b)
120 days after the obligation to file a Shelf Registration Statement arises,
(iii) the Registered Exchange Offer (if applicable) is not consummated on or
prior to 180 days after the Issue Date, or (iv) the Shelf Registration Statement
is filed and declared effective prior to the later of (a) 150 days after the
Issue Date or (b) 120 days after the obligation to file a Shelf Registration
Statement arises, but shall thereafter cease to be effective (at any time that
the Company is obligated to maintain the effectiveness thereof) without being
succeeded within 15 days by an additional Registration Statement filed and
declared effective (each such event referred to in clauses (i) through (iv), a
"Registration Default"), the Company will be obligated to pay liquidated damages
on the Accreted Value of the Senior Discount Notes to each Holder of Transfer
Restricted Senior Discount Notes, during the period of one or more such
Registration Defaults, in an amount equal to $0.192 per week per $1,000
principal amount of Transfer Restricted Senior Discount Notes held by such
Holder until (a) the applicable Registration Statement is filed, (b) the
Exchange Offer Registration Statement is declared effective and the Registered
Exchange Offer is consummated, (c) the Shelf Registration Statement is declared
effective or (d) the Shelf Registration Statement again becomes effective, as
the case may be. Following the cure of all Registration Defaults, the accrual of
liquidated damages will cease. As used herein, the term "Transfer Restricted
Senior Discount Notes" means (i) each Senior Discount Note until the date on
which such Senior Discount Note has been exchanged for a freely transferable
Senior Discount Exchange Note in the Registered Notes Offer, (ii) each Senior
Discount Note or Private Senior Discount Exchange Note until the date on which
it has been effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement
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or (iii) each Senior Discount Note or Private Senior Discount Exchange Note
until the date on which it is distributed to the public pursuant to Rule 144
under the Securities Act or is saleable pursuant to Rule 144(k) under the
Securities Act. Notwithstanding anything to the contrary in this Section 3(a),
the Company shall not be required to pay liquidated damages to a Holder of
Transfer Restricted Senior Discount Notes if such Holder failed to comply with
its obligations to make the representations set forth in the second to last
paragraph of Section 1 or failed to provide the information required to be
provided by it, if any, pursuant to Section 4(n). Liquidated damages shall not
accrue during any Suspension Period permitted pursuant to Section 2(b) above.
(b) The Company shall notify the Senior Discount Notes Trustee and
the Paying Agent under the Senior Discount Notes Indenture immediately upon the
happening of each and every Registration Default. The Company shall pay the
liquidated damages due on the Transfer Restricted Senior Discount Notes by
depositing with the Paying Agent (which may not be the Company for these
purposes), in trust, for the benefit of the Holders thereof, prior to 10:00
a.m., New York City time, on the next interest payment date specified by the
Senior Discount Notes Indenture and the Senior Discount Notes, sums sufficient
to pay the liquidated damages then due. The liquidated damages due shall be
payable on each interest payment date specified by the Senior Discount Notes
Indenture and the Senior Discount Notes to the record holder entitled to receive
the interest payment to be made on such date. Each obligation to pay liquidated
damages shall be deemed to accrue from and including the date of the applicable
Registration Default.
(c) The parties hereto agree that the liquidated damages provided
for in this Section 3 constitute a reasonable estimate of and are intended to
constitute the sole damages that will be suffered by Holders of Transfer
Restricted Senior Discount Notes by reason of the failure of (i) the Shelf
Registration Statement or the Exchange Offer Registration Statement to be filed,
(ii) the Shelf Registration Statement to remain effective or (iii) the Exchange
Offer Registration Statement to be declared effective and the Registered
Exchange Offer to be consummated, in each case to the extent required by this
Agreement.
4. Registration Procedures. In connection with any Registration
Statement, the following provisions shall apply:
(a) The Company shall (i) furnish to each Initial Purchaser, prior
to the filing thereof with the Commission, a copy of the Registration Statement
and each amendment thereof and each supplement, if any, to the prospectus
included therein and shall use its reasonable best efforts to reflect in each
such document, when so filed with the Commission, such comments as any Initial
Purchaser may reasonably propose; (ii) include the information set forth in
Annex A hereto on the cover, in Annex B hereto in the "Exchange Offer
Procedures" section and the "Purpose of the Exchange Offer" section, include the
information set
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forth in Annex C hereto in the "Plan of Distribution" section of the prospectus
forming a part of the Exchange Offer Registration Statement, and include the
information set forth in Annex D hereto in the Letter of Transmittal delivered
pursuant to the Registered Exchange Offer; and (iii) if requested by any Initial
Purchaser, include the information required by Items 507 or 508 of Regulation
S-K, as applicable, in the prospectus forming a part of the Exchange Offer
Registration Statement.
(b) The Company shall advise each Initial Purchaser, each Exchanging
Dealer and the Holders (if applicable) and, if requested by any such person,
confirm such advice in writing (which advice pursuant to clauses (ii)-(v) hereof
shall be accompanied by an instruction to suspend the use of the prospectus
until the requisite changes have been made):
(i) when any Registration Statement and any amendment thereto
has been filed with the Commission and when such Registration Statement or
any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or
supplements to any Registration Statement or the prospectus included
therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of any Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Company, the Senior
Discount Exchange Notes or the Private Senior Discount Exchange Notes for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(v) of the happening of any event that requires the making of
any changes in any Registration Statement or the prospectus included
therein in order that the statements therein are not misleading and do not
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading.
(c) The Company will make every reasonable effort to obtain the
withdrawal at the earliest possible time of any order suspending the
effectiveness of any Registration Statement.
(d) The Company will furnish to each Holder of Transfer Restricted
Senior Discount Notes included within the coverage of any Shelf Registration
Statement, without charge, at least one conformed copy of such Shelf
Registration Statement and any
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post-effective amendment thereto, including financial statements and schedules
and, if any such Holder so requests in writing, all exhibits thereto (including
those, incorporated by reference, if any).
(e) The Company will, during the Shelf Registration Period, promptly
deliver to each Holder of Transfer Restricted Senior Discount Notes included
within the coverage of any Shelf Registration Statement, without charge, as many
copies of the prospectus (including each preliminary prospectus) included in
such Shelf Registration Statement and any amendment or supplement thereto as
such Holder may reasonably request; and the Company consents to the use of such
prospectus or any amendment or supplement thereto by each of the selling Holders
of Transfer Restricted Senior Discount Notes in connection with the offer and
sale of the Transfer Restricted Senior Discount Notes covered by such prospectus
or any amendment or supplement thereto.
(f) The Company will furnish to each Initial Purchaser and each
Exchanging Dealer, and to any other Holder who so requests, without charge, at
least one conformed copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including financial statements and schedules
and, if any Initial Purchaser or Exchanging Dealer or any such Holder so
requests in writing, all exhibits thereto (including those incorporated by
reference, if any).
(g) The Company will, during the Exchange Offer Registration Period
or the Shelf Registration Period, as applicable, promptly deliver to each
Initial Purchaser, each Exchanging Dealer and such other persons that are
required to deliver a prospectus following the Registered Exchange Offer,
without charge, as many copies of the final prospectus included in the Exchange
Offer Registration Statement or the Shelf Registration Statement and any
amendment or supplement thereto as such Initial Purchaser, Exchanging Dealer or
other persons may reasonably request; and the Company consents to the use of
such prospectus or any amendment or supplement thereto by any such Initial
Purchaser, Exchanging Dealer or other persons, as applicable, as aforesaid.
(h) Prior to the effective date of any Registration Statement, the
Company will use its reasonable best efforts to register or qualify, or
cooperate with the Holders of Senior Discount Notes, Senior Discount Exchange
Notes or Private Senior Discount Exchange Notes included therein and their
respective counsel in connection with the registration or qualification of, such
Senior Discount Notes, Senior Discount Exchange Notes or Private Senior Discount
Exchange Notes for offer and sale under the securities or blue sky laws of such
jurisdictions as any such Holder reasonably requests in writing and do any and
all other acts or things necessary or advisable to enable the offer and sale in
such jurisdictions of the Senior Discount Notes, Senior Discount Exchange Notes
or Private Senior Discount Exchange Notes covered by such Registration
Statement; provided, however, that the Company
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will not be required to qualify generally to do business in any jurisdiction
where it is not then so qualified or to take any action which would subject it
to general service of process or to taxation in any such jurisdiction where it
is not then so subject.
(i) The Company will cooperate with the Holders of Senior Discount
Notes, Senior Discount Exchange Notes or Private Senior Discount Exchange Notes
to facilitate the timely preparation and delivery of certificates representing
Senior Discount Notes, Senior Discount Exchange Notes or Private Senior Discount
Exchange Notes to be sold pursuant to any Registration Statement free of any
restrictive legends and in such denominations and registered in such names as
the Holders thereof may request in writing prior to sales of Senior Discount
Notes, Senior Discount Exchange Notes or Private Senior Discount Exchange Notes
pursuant to such Registration Statement.
(j) If any event contemplated by Section 4(b)(ii) through (v) occurs
during the period for which the Company required to maintain an effective
Registration Statement, the Company will promptly prepare and file with the
Commission a post-effective amendment to the Registration Statement or a
supplement to the related prospectus or file any other required document so
that, as thereafter delivered to purchasers of the Senior Discount Notes, Senior
Discount Exchange Notes or Private Senior Discount Exchange Notes from a Holder,
the prospectus will not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(k) Not later than the effective date of the applicable Registration
Statement, the Company will provide a CUSIP number for the Senior Discount
Notes, the Senior Discount Exchange Notes and the Private Senior Discount
Exchange Notes, as the case may be, and provide the applicable trustee with
certificates for the Senior Discount Notes, the Senior Discount Exchange Notes
or the Private Senior Discount Exchange Notes, as the case may be, in a form
eligible for deposit with The Depository Trust Company.
(l) The Company will comply with all applicable rules and
regulations of the Commission and the Company will make generally available to
its security holders as soon as practicable after the effective date of the
applicable Registration Statement an earning statement satisfying the provisions
of Section 11(a) of the Securities Act; provided, however, that in no event
shall such earning statement be delivered later than 45 days after the end of a
12-month period (or 90 days, if such period is a fiscal year) beginning with the
first month of the Company's first fiscal quarter commencing after the effective
date of the applicable Registration Statement, which statement shall cover such
12-month period.
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(m) The Company will cause the Senior Discount Notes Indenture or
the Senior Discount Exchange Notes Indenture, as the case may be, to be
qualified under the Trust Indenture Act as required by applicable law in a
timely manner.
(n) The Company may require each Holder of Transfer Restricted
Senior Discount Notes to be registered pursuant to any Shelf Registration
Statement to furnish to the Company such information concerning the Holder and
the distribution of such Transfer Restricted Senior Discount Notes as the
Company may from time to time reasonably require for inclusion in such Shelf
Registration Statement, and the Company may exclude from such registration the
Transfer Restricted Senior Discount Notes of any Holder that fails to furnish
such information within a reasonable time after receiving such request.
(o) In the case of a Shelf Registration Statement, each Holder of
Transfer Restricted Senior Discount Notes to be registered pursuant thereto
agrees by acquisition of such Transfer Restricted Senior Discount Notes that,
upon receipt of any notice from the Company pursuant to Section 4(b)(ii) through
(v), such Holder will discontinue disposition of such Transfer Restricted Senior
Discount Notes until such Holder's receipt of copies of the supplemental or
amended prospectus contemplated by Section 4(j) or until advised in writing (the
"Advice") by the Company that the use of the applicable prospectus may be
resumed. If the Company shall give any notice under Section 4(b)(ii) through (v)
during the period that the Company is required to maintain an effective
Registration Statement (the "Effectiveness Period"), such Effectiveness Period
shall be extended by the number of days during such period from and including
the date of the giving of such notice to and including the date when each seller
of Transfer Restricted Senior Discount Notes covered by such Registration
Statement shall have received (x) the copies of the supplemental or amended
prospectus contemplated by Section 4(j) (if an amended or supplemental
prospectus is required) or (y) the Advice (if no amended or supplemental
prospectus is required).
(p) In the case of a Shelf Registration Statement, the Company shall
enter into such customary agreements (including, if such Shelf Registration
includes at least $20.0 million aggregate principal amount at maturity of
securities, if requested by a majority of the aggregate principal amount of
Senior Discount Notes, Senior Discount Exchange Notes and Private Senior
Discount Exchange Notes included in the Shelf Registration Statement, an
underwriting agreement in customary form) and take all such other action, if
any, as Holders of a majority in aggregate principal amount of the Senior
Discount Notes, Senior Discount Exchange Notes and Private Senior Discount
Exchange Notes being sold or the managing underwriters (if any) shall reasonably
request in order to facilitate any disposition of Senior Discount Notes, Senior
Discount Exchange Notes or Private Senior Discount Exchange Notes pursuant to
such Shelf Registration Statement.
13
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(q) In the case of a Shelf Registration Statement, the Company shall
(i) make reasonably available for inspection by a representative of, and Special
Counsel (as defined below) acting for, Holders of a majority in aggregate
principal amount of the Senior Discount Notes, Senior Discount Exchange Notes
and Private Senior Discount Exchange Notes being sold and any underwriter
participating in any disposition of Senior Discount Notes, Senior Discount
Exchange Notes or Private Senior Discount Exchange Notes pursuant to such Shelf
Registration Statement, all relevant financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries and (ii)
use its reasonable best efforts to have its officers, directors, employees,
accountants and counsel supply all relevant information reasonably requested by
such representative, Special Counsel or any such underwriter (an "Inspector") in
connection with such Shelf Registration Statement.
(r) In the case of a Shelf Registration Statement, the Company
shall, if requested by Holders of a majority in aggregate principal amount of
the Senior Discount Notes, Senior Discount Exchange Notes and Private Senior
Discount Exchange Notes being sold, their Special Counsel or the managing
underwriters, if any, in connection with such Shelf Registration Statement, use
their reasonable best efforts to cause (i) their counsel to deliver an opinion
relating to the Shelf Registration Statement and the Senior Discount Notes,
Senior Discount Exchange Notes or Private Senior Discount Exchange Notes, as
applicable, in customary form, (ii) their officers to execute and deliver all
customary documents and certificates requested by Holders of a majority in
aggregate principal amount of the Senior Discount Notes, Senior Discount
Exchange Notes and Private Senior Discount Exchange Notes being sold, their
Special Counsel or the managing underwriters, if any, and (iii) their
independent public accountants to provide a comfort letter or letters in
customary form, subject to receipt of appropriate documentation as contemplated,
and only if permitted, by Statement of Auditing Standards No. 72.
5. Registration Expenses. Subject to Section 9, the Company will
bear all expenses incurred in connection with the performance of its obligations
under Sections 1, 2, 3 and 4 and the Company will reimburse the Initial
Purchasers and the Holders for the reasonable fees and disbursements of one firm
of attorneys chosen by the Holders of a majority in aggregate principal amount
of the Senior Discount Notes, the Senior Discount Exchange Notes and the Private
Senior Discount Exchange Notes to be sold pursuant to the Registration
Statements (the "Special Counsel") acting for the Initial Purchasers or Holders
in connection therewith.
6. Indemnification. (a) In the event of a Shelf Registration
Statement or in connection with any prospectus delivery pursuant to an Exchange
Offer Registration Statement by an Initial Purchaser or Exchanging Dealer, as
applicable, the Company shall indemnify and hold harmless each Holder
(including, without limitation, any such Initial Purchaser or Exchanging
Dealer), its affiliates, their respective officers, directors, employees,
14
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representatives and agents, and each person, if any, who controls such Holder
within the meaning of the Securities Act or the Exchange Act (collectively
referred to for purposes of this Section 6 and Section 7 as a Holder) from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, without limitation, any loss, claim, damage,
liability or action relating to purchases and sales of Senior Discount Notes,
Senior Discount Exchange Notes or Private Senior Discount Exchange Notes), to
which that Holder may become subject, whether commenced or threatened, under the
Securities Act, the Exchange Act, any other federal or state statutory law or
regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any such Registration
Statement or any prospectus forming part thereof or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and shall reimburse each Holder promptly upon demand for
any legal or other expenses reasonably incurred by that Holder in connection
with investigating or defending or preparing to defend against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, an untrue statement
or alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with any Holders' Information;
provided, further, however, that with respect to any such untrue statement in or
omission from any related preliminary prospectus, the indemnity agreement
contained in this Section 6(a) shall not inure to the benefit of any Holder from
whom the person asserting any such loss, claim, damage, liability or action
received Senior Discount Notes, Senior Discount Exchange Notes or Private Senior
Discount Exchange Notes to the extent that such loss, claim, damage, liability
or action of or with respect to such Holder results from the fact that both (A)
a copy of the final prospectus was not sent or given to such person at or prior
to the written confirmation of the sale of such Senior Discount Notes, Senior
Discount Exchange Notes or Private Senior Discount Exchange Notes to such person
and (B) the untrue statement in or omission from the related preliminary
prospectus was corrected in the final prospectus unless, in either case, such
failure to deliver the final prospectus was a result of non-compliance by the
Company with Section 4(d), 4(e), 4(f) or 4(g).
(b) In the event of a Shelf Registration Statement, each Holder,
severally and not jointly, shall indemnify and hold harmless the Company, its
affiliates, its officers, directors, employees, representatives and agents, and
each person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act (collectively referred to for purposes of
this Section 6(b) and Section 7 as the Company), from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Com-
15
-15-
pany may become subject, whether commenced or threatened, under the Securities
Act, the Exchange Act, any other federal or state statutory law or regulation,
at common law or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any such Registration Statement
or any prospectus forming part thereof or in any amendment or supplement thereto
or (ii) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with any Holders' Information furnished to the Company by
such Holder, and shall reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
or preparing to defend against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that no such Holder shall be liable
for any indemnity claims hereunder in excess of the amount of net proceeds
received by such Holder from the sale of Senior Discount Notes, Senior Discount
Exchange Notes or Private Senior Discount Exchange Notes pursuant to such Shelf
Registration Statement.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 6(a) or 6(b), notify the indemnifying
party in writing of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 6 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; provided, further, however, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 6.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than the reasonable costs of investigation; provided, however,
that an indemnified party shall have the right to employ its own counsel in any
such action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (1)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party,
16
-16-
(2) the indemnified party has reasonably concluded (based upon advice of counsel
to the indemnified party) that there may be legal defenses available to it or
other indemnified parties that are different from or in addition to those
available to the indemnifying party, (3) a conflict or potential conflict exists
(based upon advice of counsel to the indemnified party) between the indemnified
party and the indemnifying party (in which case the indemnifying party will not
have the right to direct the defense of such action on behalf of the indemnified
party) or (4) the indemnifying party has not in fact employed counsel reasonably
satisfactory to the indemnified party to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and other
charges of counsel will be at the expense of the indemnifying party or parties.
It is understood that the indemnifying party or parties shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees, disbursements and other charges of more than one
separate firm of attorneys (in addition to any local counsel) at any one time
for all such indemnified party or parties. Each indemnified party, as a
condition of the indemnity agreements contained in Sections 6(a) and 6(b), shall
use all reasonable efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall be liable for
any settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment for the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld), effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
7. Contribution. If the indemnification provided for in Section 6 is
unavailable or insufficient to hold harmless an indemnified party under Section
6(a) or 6(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company from the offering and sale of the Senior
Discount Notes, on the one hand, and a Holder with respect to the sale by such
Holder of Senior Discount Notes, Senior Discount Exchange Notes or Private
Senior Discount Exchange Notes, on the other, or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and such Holder
on the other with respect to the statements or omissions that resulted in such
loss,
17
-17-
claim, damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and a Holder on the other with respect to such offering and such
sale shall be deemed to be in the same proportion as the total net proceeds from
the offering of the Senior Discount Notes (before deducting expenses) received
by or on behalf of the Company as set forth in the table on the cover of the
Offering Memorandum, on the one hand, bear to the total proceeds received by
such Holder with respect to its sale of Senior Discount Notes, Senior Discount
Exchange Notes or Private Senior Discount Exchange Notes, on the other. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to the Company or information
supplied by the Company on the one hand or to any Holders' Information supplied
by such Holder on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this Section 7 were to be determined
by pro rata allocation or by any other method of allocation that does not take
into account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 7
shall be deemed to include, for purposes of this Section 7, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending or preparing to defend any such action or claim.
Notwithstanding the provisions of this Section 7, an indemnifying party that is
a Holder of Senior Discount Notes, Senior Discount Exchange Notes or Private
Senior Discount Exchange Notes shall not be required to contribute any amount in
excess of the amount by which the total price at which the Senior Discount
Notes, Senior Discount Exchange Notes or Private Senior Discount Exchange Notes
sold by such indemnifying party to any purchaser exceeds the amount of any
damages which such indemnifying party has otherwise paid or become liable to pay
by reason of any 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.
8. Rules 144 and 144A. The Company shall use its reasonable best
efforts to file the reports required to be filed by it under the Securities Act
and the Exchange Act in a timely manner and, if at any time the Company is not
required to file such reports, it shall, upon the written request of any Holder
of Transfer Restricted Senior Discount Notes, provide other information so long
as necessary to permit sales of such Holder's securities pursuant to Rules 144
and 144A. The Company covenants that it will take such further reasonable action
as any Holder of Transfer Restricted Senior Discount Notes may reasonably
request, all to the extent required from time to time to enable such Holder to
sell Transfer Restricted Senior Discount Notes without registration under the
Securities Act within the limitation of the exemp-
18
-18-
tions provided by Rules 144 and 144A (including, without limitation, the
requirements of Rule 144A(d)(4)). Upon the written request of any Holder of
Transfer Restricted Senior Discount Notes, the Company shall deliver to such
Holder a written statement as to whether it has complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 8 shall be deemed to
require the Company to register any of its securities pursuant to the Exchange
Act.
9. Underwritten Registrations. If any of the Transfer Restricted
Senior Discount Notes covered by any Shelf Registration Statement are to be sold
in an underwritten offering, the investment banker or investment bankers and
manager or managers that will administer the offering will be selected by the
Holders of a majority in aggregate principal amount of such Transfer Restricted
Senior Discount Notes included in such offering, subject to the consent of the
Company (which shall not be unreasonably withheld or delayed), and such Holders
shall be responsible for all underwriting commissions and discounts in
connection therewith.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted Senior
Discount Notes on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
10. Miscellaneous. (a) Amendments and Waivers. The provisions of
this Agreement may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, unless the
Company has obtained the written consent of Holders of a majority in aggregate
principal amount of the Senior Discount Notes, Senior Discount Exchange Notes
and Private Senior Discount Exchange Notes, taken as a single class.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders whose Senior Discount Notes, Senior Discount Exchange Notes or Private
Senior Discount Exchange Notes are being sold pursuant to a Registration
Statement and that does not directly or indirectly materially affect the rights
of other Holders may be given by Holders of a majority in aggregate principal
amount of the Senior Discount Notes, Senior Discount Exchange Notes and Private
Senior Discount Exchange Notes being sold by such Holders pursuant to such
Registration Statement.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telecopier or air courier guaranteeing next-day delivery:
19
-19-
(1) if to a Holder, at the most current address given by such Holder
to the Company in accordance with the provisions of this Section 10(b),
which address initially is, with respect to each Holder, the address of
such Holder maintained by the Registrar under the Senior Discount Notes
Indenture, with a copy in like manner to Chase Securities Inc. and
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation;
(2) if to an Initial Purchaser, initially at its address set forth
in the Purchase Agreement; and
(3) if to the Company, initially at the address of the Company set
forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; one business day
after being delivered to a next-day air courier; five business days after being
deposited in the mail; and when receipt is acknowledged by the recipient's
telecopier machine, if sent by telecopier.
(c) Successors and Assigns. This Agreement shall be binding upon the
Company and their successors and assigns.
(d) Counterparts. This Agreement may be executed in any number of
counterparts (which may be delivered in original form or by telecopier) and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(e) Definition of Terms. For purposes of this Agreement, (a) the
term "business day" means any day on which the New York Stock Exchange, Inc. is
open for trading, (b) the term "subsidiary" has the meaning set forth in Rule
405 under the Securities Act and (c) except where otherwise expressly provided,
the term "affiliate" has the meaning set forth in Rule 405 under the Securities
Act.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
(h) Remedies. In the event of a breach by the Company or by any
Holder of any of their obligations under this Agreement, each Holder or the
Company, as the case may be, in addition to being entitled to exercise all
rights granted by law, including recovery of damages (other than the recovery of
damages for a breach by the Company of their obligations under Sections 1 or 2
hereof for which liquidated damages have been paid pursuant to
20
-20-
Section 3 hereof), will be entitled to specific performance of its rights under
this Agreement. The Company and each Holder agree that monetary damages would
not be adequate compensation for any loss incurred by reason of a breach by it
of any of the provisions of this Agreement and hereby further agree that, in the
event of any action for specific performance in respect of such breach, it shall
waive the defense that a remedy at law would be adequate.
(i) No Inconsistent Agreements. The Company represents, warrants and
agrees that (i) it has not entered into, and shall not, on or after the date of
this Agreement, enter into, any agreement that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof, (ii) it has not previously entered into any agreement which
remains in effect granting any registration rights with respect to any of its
debt securities to any person and (iii) without limiting the generality of the
foregoing, without the written consent of the Holders of a majority in aggregate
principal amount of the then outstanding Transfer Restricted Senior Discount
Notes, it shall not grant to any person the right to request the Company to
register any debt securities of the Company under the Securities Act unless the
rights so granted are not in conflict or inconsistent with the provisions of
this Agreement.
(j) No Piggyback on Registrations. Neither the Company, any of its
security holders (other than the holders of Transfer Restricted Senior Discount
Notes in such capacity and the holders of Transfer Restricted Senior Notes in
such capacity (as defined in the Senior Notes Exchange and Registration Rights
Agreement)) shall have the right to include any securities of the Company in any
Shelf Registration or Registered Exchange Offer other than Transfer Restricted
Senior Discount Notes and Transfer Restricted Senior Notes.
(k) Severability. The remedies provided herein are cumulative and
not exclusive of any remedies provided by law. If any term, provision, covenant
or restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
the parties hereto shall use their reasonable best efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
21
S-1
Please confirm that the foregoing correctly sets forth the agreement
among the Company and the Initial Purchasers.
Very truly yours,
TRANS-RESOURCES, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and
Chief Financial Officer
Accepted:
CHASE SECURITIES INC.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------
Authorized Signatory
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By: /s/ Xxxxx Xxxxx
---------------------------
Authorized Signatory
22
ANNEX A
Each broker-dealer that receives Senior Discount Exchange Notes for
its own account pursuant to the Registered Exchange Offer must acknowledge that
it will deliver a prospectus in connection with any resale of such Senior
Discount Exchange Notes. The Letter of Transmittal states that by so
acknowledging and by delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
This Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Senior Discount Exchange
Notes received in exchange for Senior Discount Notes where such Senior Discount
Notes were acquired by such broker-dealer as a result of market-making
activities or other trading activities. The Company has agreed that, for a
period of 180 days after the Expiration Date (as defined herein), it will make
this Prospectus available to any broker-dealer for usein connection with any
such resale. See "Plan of Distribution."
23
ANNEX B
Each broker-dealer that receives Senior Discount Exchange Notes for
its own account in exchange for Senior Discount Notes, where such Senior
Discount Notes were acquired by such broker-dealer as a result of market-making
activities or other trading activities, must acknowledge that it will deliver a
prospectus in connection with any resale of such Senior Discount Exchange Notes.
See "Plan of Distribution."
24
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Senior Discount Exchange Notes for
its own account pursuant to the Registered Exchange Offer must acknowledge that
it will deliver a prospectus in connection with any resale of such Senior
Discount Exchange Notes. This Prospectus, as it may be amended or supplemented
from time to time, may be used by a broker-dealer in connection with resales of
Senior Discount Exchange Notes received in exchange for Senior Discount Notes
where such Senior Discount Notes were acquired as a result of market-making
activities or other trading activities. The Company has agreed that, for a
period of 180 days after the Expiration Date, it will make this prospectus, as
amended or supplemented, available to any broker-dealer for use in connection
with any such resale. In addition, until , 1998, all dealers effecting
transactions in the Senior Discount Exchange Notes may be required to deliver a
prospectus.
The Company will not receive any proceeds from any sale of Senior
Discount Exchange Notes by broker-dealers. Senior Discount Exchange Notes
received by broker-dealers for their own account pursuant to the Registered
Exchange Offer may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of
options on the Senior Discount Exchange Notes or a combination of such methods
of resale, at market prices prevailing at the time of resale, at prices related
to such prevailing market prices or at negotiated prices. Any such resale may be
made directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer or the purchasers of any such Senior Discount Exchange Notes. Any
broker-dealer that resells Senior Discount Exchange Notes that were received by
it for its own account pursuant to the Registered Exchange Offer and any broker
or dealer that participates in a distribution of such Senior Discount Exchange
Notes may be deemed to be an "underwriter" within the meaning of the Securities
Act and any profit on any such resale of Senior Discount Exchange Notes and any
commission or concessions received by any such persons may be deemed to be
underwriting compensation under the Securities Act. The Letter of Transmittal
states that, by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Registered Exchange Offer (including the ex-
25
penses of one counsel for the Holders of the Senior Discount Notes) other than
commissions or concessions of any broker-dealers and will indemnify the Holders
of the Senior Discount Notes (including any broker-dealers) against certain
liabilities, including liabilities under the Securities Act.
26
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS
OR SUPPLEMENTS THERETO.
Name:
Address:
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Senior
Discount Exchange Notes. If the undersigned is a broker-dealer that will receive
Senior Discount Exchange Notes for its own account in exchange for Senior
Discount Notes that were acquired as a result of market-making activities or
other trading activities, it acknowledges that it will deliver a prospectus in
connection with any resale of such Senior Discount Exchange Notes; however, by
so acknowledging and by delivering a prospectus, the undersigned will not be
deemed to admit that it is an "underwriter" within the meaning of the Securities
Act.
