Exhibit 99
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is dated as of
February 1, 1996 and is entered into by and between Sun Company, Inc., a
Pennsylvania corporation (the "Company"), and The Glenmede Trust Company, a
Pennsylvania trust company ("Glenmede"), in its corporate capacity and as
trustee or co-trustee of The Pew Memorial Trust, The J. Xxxxxx Xxx Freedom
Trust, The Xxxxx Xxx Myrin Trust, The X. X. Xxx, Xx. Charitable Trust and The
Medical Trust (the "Charitable Trusts").
WHEREAS, Glenmede, as trustee or co-trustee of Charitable Trusts,
holds 3,869,148 shares of the Company's common stock, par value $1.00 per share
("Common Stock") and 11,748,491 shares of the Company's depositary shares
("Depositary Shares"), each representing one-half of a share of the Company's
Series A Cumulative Preference Stock, no par value ("Series A Stock"); and
WHEREAS, the Company has the right to call outstanding shares of
Series A Stock by delivering shares of Common Stock to the holders of Depositary
Shares; and
WHEREAS, the Company is willing to grant to Glenmede the registration
rights set forth in this Agreement, in consideration of the undertakings of
Glenmede set forth in this Agreement.
NOW, THEREFORE, in consideration of the covenants contained herein and
other good and valuable consideration, and intending to be legally bound hereby,
the parties agree as follows:
1. Definitions. As used herein, the following terms shall have the
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following meanings:
"Exchange Act" means the Securities Exchange Act of 1934, and the rules and
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regulations of the SEC thereunder, as in effect from time to time.
"NASD" means the National Association of Securities Dealers, Inc.
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"Prospectus" means the prospectus included in any Registration Statement
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with respect to the terms of any public offering of any portion of the
Registrable Shares, including any preliminary prospectus, final prospectus, and
post-effective amendment.
"Registrable Shares" means all shares of the Company's Common Stock and
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Depositary Shares now held by Glenmede as trustee or co-trustee of the
Charitable Trusts, and any other shares of the same or any other classes of the
Company's Voting Stock which may be hereafter acquired from the Company by
Glenmede, as trustee or co-trustee of the Charitable Trusts, in any redemption
of the Company's Series A Stock or by way of any stock split, stock dividend,
exchange, combination, reclassification, merger, consolidation, reorganization
or recapitalization involving the Common Stock or Depositary Shares now held by
Glenmede for the account of the Charitable Trusts.
"Registration Statement" means any registration statement which covers any
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of the Registrable Shares pursuant to the provisions of this Agreement,
including the Prospectus, and all amendments, supplements and exhibits to a
Registration Statement.
"Registration Expenses" means all costs, fees and expenses incurred by the
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Company or Glenmede in connection with any public offering pursuant to a
Registration Statement, including, without limitation, (i) all filing fees
charged by the SEC, the NASD, and any foreign or state securities commissions
(including fees and disbursements of counsel incurred in connection with such
filings with foreign or state securities commissions), (ii) the fees and
disbursements charged by any firm of independent public accountants (including,
without limitation, those fees and disbursements incurred in connection with the
preparation of a comfort letter), (iii) all costs and expenses incurred in
connection with the printing and distribution of Registration Statements, and
the certificates representing Registrable Shares, (iv) all transfer agent fees,
and (v) any fees payable or expenses incurred in connection with the listing of
the Registrable Shares on the New York Stock Exchange or any regional or other
national securities exchange.
"SEC" means the Securities and Exchange Commission.
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"Securities Act" means the Securities Act of 1933, and the rules and
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regulations of the SEC thereunder, as in effect from time to time.
"Shares to be Registered" means the number(s) and class(es) of Registrable
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Shares which Glenmede request to be registered, as set forth in a Demand
Registration Notice, as defined in Section 2(a), or an Incidental Registration
Notice, as defined in Section 3(a).
"Termination Date" means the date which is the earlier of (i) July 31, 1997
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or (ii) the date on which Glenmede, as trustee or co-trustee of the Charitable
Trusts, ceases to have beneficial ownership of five percent (5%) or more of the
issued and outstanding shares of Company's Voting Stock, unless extended
pursuant to Section 2(d) hereof. For purposes of the foregoing provision,
"beneficial ownership" shall be determined in the manner specified in Rule 13d-3
of the Exchange Act.
"Voting Stock" means Common Stock and any shares of any class or series
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of stock of the Company having preference over Common Stock as to dividends or
as to liquidation and entitled to vote on each matter on which the holders of
Common Stock shall be entitled to vote.
2. Demand Registration Rights.
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(a) At any time after the date hereof and prior to the Termination
Date, Glenmede may, by written notice (a "Demand Registration Notice"), request
the Company to register under the Securities Act Registrable Shares in such
numbers and of such classes (which may be Common Stock, Depositary Shares, any
other class of Voting Stock, or any combination thereof), as may be determined
by Glenmede in its sole discretion, so as to permit the public offering and sale
thereof.
(b) The Company, as soon as reasonably practicable following its
receipt of a Demand Registration Notice, will prepare and file with the SEC a
Registration Statement on such form as the Company, in consultation with
Glenmede and the managing underwriter, shall determine to be appropriate in
conformance with applicable SEC rules and regulations, so as to permit Glenmede
to complete a public offering of the Shares to be Registered. The Company will
use its best efforts to cause each Registration Statement to become effective as
soon as practicable following the Company's receipt of a Demand Registration
Notice and to remain effective, and the Prospectus included therein to remain
current and meet the requirements of the Securities Act, until the earlier of
(i) the 90th calendar day following the day upon which the SEC declares the
Registration Statement effective and (ii) the first day on which all of the
Shares to be Registered have been sold ("Closing"); provided, however, that the
Company may postpone the filing of a Registration Statement with respect to
such a public offering,for up to 45 calendar days after receipt of a Demand
Registration Notice, if the Company's Board of Directors determines in the good
faith exercise of its reasonable judgment that, due to a pending or contemplated
acquisition, disposition or securities offering by the Company, the registration
of the Shares to be Registered within such period would be detrimental to the
Company and its shareholders.
(c) Glenmede shall have the right to require the Company to complete
and have declared effective by the SEC a maximum of two (2) Registration
Statements pursuant to this Section 2 between the date hereof and the
Termination Date; provided, however, that the Company shall not be required to
complete and file with the SEC a second Registration Statement within 90
calendar days after the Closing of the first public offering under this Section
2 or within 90 calendar days after the Closing of a public offering in which
Registrable Shares have been sold pursuant to Section 3 hereof.
(d) If, on the Termination Date, Glenmede, as trustee or co-trustee of
the Charitable Trusts, continues to hold any combination of Registrable Shares
representing 5% or more of the outstanding shares of the Company's Voting Stock,
and fewer than two public offerings have been completed under this Section 2 due
to the exercise by the Company of its right under Section 2(b) hereof to
postpone a public offering, or because the Closing of the first public offering
occurred within 90 calendar days of the Termination Date, then the Termination
Date shall be extended for
180 days or until a total of two public offerings have been completed, whichever
first occurs.
(e) No shares other than Registrable Shares shall be covered by any
Registration Statement filed under this Section 2.
3. Incidental Registration Rights. If at any time between the date hereof
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and the Termination Date (as the same may be extended pursuant to Section 2(d)
hereof), the Company proposes to register any shares of its Common Stock under
the Securities Act for sale to the public, whether for its own account or for
the account of persons other than Glenmede ("Other Securities"), in an
underwritten offering, on a form and in a manner which would permit the
registration of Registrable Shares which are shares of Common Stock, the Company
shall give Glenmede prompt written notice of the Company's intention, specifying
the number of shares of Other Securities to be registered and the intended
method of disposition. Glenmede, by written notice (an "Incidental Registration
Notice") delivered to the Company within fourteen (14) business days after
Glenmede's receipt of the Company's notice, may request that the Company
register that number of Registrable Shares which are shares of Common Stock set
forth in the Incidental Registration Notice. On receipt of an Incidental
Registration Notice, the Company will use its reasonable efforts to effect the
registration of the Shares to be Registered in conjunction with the registration
of such Other Securities.
(a) Glenmede shall be required to sell the Shares to be Registered
pursuant to this Section 3 to the underwriters at the same price and on the same
terms applicable to the Other Securities.
(b) The Company may withdraw any registration statement filed as
provided in this Section 3, at any time before it becomes effective, without
liability or obligation to Glenmede.
(c) The number of Shares to be Registered in a registration under this
Section 3 may be reduced to the extent that the managing underwriter shall
advise the Company and Glenmede in writing that the inclusion of the total
number of Shares to be Registered would adversely affect the orderly sale and
distribution, or the price of, the Other Securities.
(d) No registration of Registrable Shares effected under this Section 3
shall relieve the Company of its obligations to effect registrations of
Registrable Shares pursuant to Section 2 hereof.
(e) The Company shall have no obligation under this Section 3 to
register Registrable Shares which are not shares of Common Stock.
4. Registration Procedures. In connection with each
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registration under Section 2 or Section 3:
(a) Glenmede will furnish to the Company in writing such information
with respect to Glenmede and the Charitable Trusts and the proposed distribution
of Registrable Shares as shall be requested by the Company and reasonably
necessary in order to assure compliance with federal and applicable state
securities laws.
(b) the Company will:
(i) give Glenmede and the underwriters the opportunity to
participate in the preparation of the Registration Statement and Prospectus and,
as to any registration under Section 2, not file any Registration Statement to
which Glenmede or the underwriters reasonably object;
(ii) furnish to Glenmede and to each underwriter such number of
copies of the Registration Statement and the Prospectus as such persons may
reasonably request in order to facilitate the public sale or other disposition
of the Registrable Shares covered by such Registration Statement;
(iii) use its reasonable efforts to register or qualify the Shares
to be Registered under the securities or blue sky laws of such jurisdictions as
Glenmede shall reasonably request; provided, however, that the Company shall not
be required to qualify to do business in any jurisdiction where it is not
qualified or to take any action which would subject it to taxation or service of
process in any jurisdiction where it is not otherwise subject to taxation or
service of process;
(iv) at any time when a Prospectus relating to a registration of
Registrable Shares is required to be delivered under the Securities Act,
immediately notify Glenmede of the happening of any event as a result of which
the Prospectus, as then in effect, includes 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 the light of the
circumstances then existing and, as expeditiously as possible, amend or
supplement such Prospectus to eliminate the untrue statement or the omission;
(v) use its reasonable efforts to furnish, on the date that
Registrable Shares are delivered to the underwriters for sale: (i) an opinion
letter, dated such date, from counsel representing the Company, addressed to the
underwriters and to Glenmede, stating that such Registration Statement has
become effective under the Securities Act and that (A) to the best knowledge of
such counsel, no stop order suspending the effectiveness thereof has been issued
and no proceedings for that purpose have been instituted or are pending or
contemplated under the Securities Act, (B) the Registration Statement and the
related Prospectus comply as to form in all material respects with the
requirements of the Securities Act (except that such counsel need express no
opinion as to financial statements and financial and statistical data contained
therein) and (C) to such
other effects as may reasonably be requested by the underwriters or Glenmede or
their respective counsel, and (ii) a letter, dated such date, from the
independent public accountants retained by the Company, addressed to the
underwriters and to Glenmede, stating that they are independent public
accountants within the meaning of the Securities Act and that, in their opinion,
the financial statements of the Company included in the Registration Statement
or the Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and covering such other financial
matters (including information as to the period ending no more than five
business days prior to the date of such letter) as such underwriters or Glenmede
may reasonable request; and
(vi) make available for inspection by any underwriter
participating in any distribution pursuant to such Registration Statement, and
any attorney retained by Glenmede or such underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and cause
the Company's officers, directors and employees to supply all information
reasonably requested by such underwriter or attorney, in connection with such
Registration Statement.
5. Expenses.
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(a) In the case of a Registration under Section 2 hereof, the Company
and Glenmede will each pay fifty percent (50%) of all Registration Expenses. In
the case of a Registration under Section 3 hereof, The Company will pay all
Registration Expenses.
(b) In all cases, Glenmede shall be solely responsible for (i) all
underwriting discounts and commissions with respect to Registrable Shares, (ii)
the fees and disbursements of its outside legal counsel, and (iii) the internal
costs of Glenmede and the Charitable Trusts (including, without limitation, the
costs of inside counsel and inside auditors, if any); and
(c) In all cases, the Company shall be solely responsible for (i) all
underwriting discounts and commissions with respect to Other Securities, (ii)
the fees and disbursements of its outside legal counsel, and (iii) the Company's
internal costs (including, without limitation, the costs of inside counsel and
inside auditors, if any).
6. Indemnification. In connection with any registration of Registrable
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Shares:
(a) the Company will indemnify and hold harmless Glenmede and each
Charitable Trust, each co-trustee of a Charitable Trust, each underwriter, and
each other person, if any, who controls Glenmede or such Charitable Trust or
underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities
(including without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such claim), to which Glenmede
or such co-trustee, trust, or controlling person 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 any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement or any Prospectus contained therein, 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, except (i) with respect to Glenmede or the Charitable Trusts,
insofar as any such losses, claims, damages or liabilities (or actions in
respect thereof) are caused by any such untrue statement or omission or alleged
untrue statement or omission based on information relating to Glenmede or the
Charitable Trusts and furnished by Glenmede to the Company in writing expressly
for use in such Registration Statement or Prospectus; and (ii) with respect to
the underwriters, insofar as any such losses, claims, damages or liabilities (or
actions in respect thereof) are caused by any such untrue statement or omission
or alleged untrue statement or omission based on information relating to the
underwriters and furnished to the Company in writing by or in behalf of any
underwriter expressly for use in such Registration Statement or Prospectus.
(b) Glenmede, in its individual corporate capacity, will indemnify and
hold harmless the Company and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, each officer of the Company who signs the Registration
Statement, each director of the Company, each underwriter and each person who
controls any underwriter within the meaning of either such Section, from and
against any and all losses, claims, damages and liabilities (including without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or Prospectus or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, but only insofar as the same is based on
information relating to Glenmede or the Charitable Trusts furnished in writing
to the Company by Glenmede expressly for use in such Registration Statement or
Prospectus.
(c) The indemnification of underwriters provided for in this Section 7
shall be limited to such terms and conditions as are at the time customary and
reasonably required by the underwriters in light of industry practice.
7. Certain Covenants. Glenmede covenants and agrees
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that it will not, directly or indirectly, between the date hereof and July 31,
1997 (except as provided in subsection (c)(vii) below), for its own corporate
account or on behalf of and as trustee or co-trustee of the Charitable Trusts:
(a) acquire beneficial ownership of any additional shares of Voting
Stock of the Company; provided, however, that nothing contained herein shall
prohibit the acquisition of Voting Stock (x) as a result of a stock split, stock
dividend, exchange or recapitalization by the Company, or in a transaction
referred to in subsection (c)(iii) or (c)(v) below, (y) pursuant to the exercise
in accordance with its terms of any warrant, option or other right to receive
Voting Stock ("Rights") that it now holds or hereafter receives from the Company
pursuant to any distribution by the Company to its shareholders, or (z)
otherwise directly from the Company; or
(b) solicit any person or group of persons to make any public tender or
exchange offer for a majority of the Company's outstanding Voting Stock or to
propose a merger or consolidation of the Company or to acquire all or
substantially all of the assets of the Company.
(c) Sell, transfer or otherwise dispose of, or agree to sell, transfer
or otherwise dispose of, any Registrable Shares, except:
(i) in a registered public offering;
(ii) to the Company;
(iii) in response to a public tender or exchange offer made to all
shareholders of the Company, or all holders a class of the Company's securities;
(iv) in accordance with the terms of any Registrable Shares or
Rights;
(v) in connection with a merger, consolidation, reorganization,
recapitalization or dissolution of the Company not solicited by Glenmede;
(vi) by charitable gift; or
(vii) after June 30, 1996, in accordance with SEC Rule 144.
8. Scope of Agreement. Nothing in this Agreement shall apply in any way
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to any securities of the Company held by Glenmede for the account of any
customer other than the Charitable Trusts.
9. Representations and Warranties. Each of the Company and Glenmede
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represents and warrants to the other as follows:
(b) its execution and delivery of this Agreement have been duly
authorized by all requisite corporate action and do not violate any provision of
law, its Certificate of Incorporation or Bylaws, or any provision of any
indenture, agreement or other instrument to which it or any of its properties or
assets is
bound, or conflict with, result in a breach of or constitute (with due notice or
lapse of time or both) a default under any such indenture, agreement or other
instrument.
(c) It has duly executed and delivered this Agreement, which
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms.
10. Miscellaneous.
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(a) All notices, requests, demands or other communications required or
contemplated by this Agreement to be effective shall be in writing addressed to
the parties as specified herein and shall be delivered, at the election of the
sender thereof, by facsimile, by overnight courier or by first class certified
mail for which the postage has been prepaid and a return receipt requested, and
shall be deemed to have been duly given, made and received by the recipient
thereof when confirmation of receipt is obtained in the case of transmission by
facsimile, or one business day after being properly sent in the case of delivery
by overnight courier, or four business days after being deposited with the U.S.
Postal Service in the case of first class certified mail. Such notices,
requests, demands or other communications shall be addressed and directed to the
parties listed below or to such other address or recipient as may hereafter be
designated by a party pursuant to this section:
To Company:
Sun Company, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Xx.
fax: (000) 000-0000
With a copy to:
Xxxx X. Xxxxx
Sun Company, Inc.
0000 Xxxxxx Xxxxxx Xxxxxxxxxxxx, XX 00000
fax: (000) 000-0000
To Glenmede:
The Glenmede Trust Company
One Liberty Place
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: X. X. Xxxxxxx
fax: (000) 000-0000
With a copy to:
Xxxxxxxx X. Xxxxxxx
Pepper, Xxxxxxxx & Xxxxxxx
3000 Two Xxxxx Square
00xx xxx Xxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
fax: (000) 000-0000
(b) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the Commonwealth of Pennsylvania,without regard to
its conflict-of-laws rules.
(c) This Agreement constitutes the entire agreement of the parties
with respect to the subject matter hereof and may not be modified or amended
except in a writing signed on behalf of the Company and Glenmede which shall be
duly authorized by all necessary action, corporate or otherwise, of each party.
SUN COMPANY, INC.
By: s/ XXXXXX X. XXXXX, XX.
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Xxxxxx X. Xxxxx, Xx.
Title: Senior Vice President
and Chief Financial Officer
THE GLENMEDE TRUST COMPANY
By: s/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx
Title: President
THE GLENMEDE TRUST COMPANY,
as trustee or co-trustee of The Pew Memorial Trust, The
J. Xxxxxx Xxx Freedom Trust, The Xxxxx Xxx Myrin Trust,
The X. X. Xxx, Xx. Charitable Trust and The Medical
Trust:
By: s/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx
Title: President
