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TRANS-RESOURCES, INC.
$100,000,000
10 3/4% Senior 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 $100,000,000 aggregate principal amount of its 10 3/4%
Senior Notes due 2008 (the "Senior 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
Notes, the Senior Exchange Notes (as defined herein) and the Private Senior
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 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 respect to a proposed offer to the Holders of
the Senior Notes (the "Registered Exchange Offer") to issue and deliver to such
Holders, in exchange for the Senior Notes, a like aggregate principal amount of
debt securities of the Company (the "Senior Exchange Notes") that are identical
in all material respects to the Senior Notes, except for the transfer
restrictions relating to the
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Xxxxxx Xxxxx, (xx) 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 Exchange Notes will
be issued under the Senior Notes Indenture or an indenture (the "Senior Exchange
Notes Indenture") between the Company and the Senior Notes Trustee or such other
bank or trust company that is reasonably satisfactory to the Initial Purchasers,
as trustee (the "Senior Exchange Notes Trustee"), such indenture to be identical
in all material respects to the Senior Notes Indenture, except for the transfer
restrictions relating to the Senior 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 Notes for Senior 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 Notes that have, or that are reasonably likely to have,
the status of an unsold allotment in an initial distribution, (c) acquires the
Senior 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 Exchange Notes) and to trade such Senior 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 Notes, acquired for its own
account as a result of market-making activities or other trading activities, for
Senior 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 Exchange Notes received by such Exchanging Dealer
pursuant to the Registered Exchange Offer.
If, prior to the consummation of the Registered Exchange Offer, any
Holder holds any Senior 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
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such Holder, simultaneously with the delivery of the Senior Exchange Notes in
the Registered Exchange Offer, issue and deliver to any such Holder, in exchange
for the Senior Notes held by such Holder (the "Private Exchange"), a like
aggregate principal amount of debt securities of the Company (the "Private
Senior Exchange Notes") that are identical in all material respects to the
Senior Exchange Notes, except for the transfer restrictions relating to such
Private Senior Exchange Notes. The Private Senior Exchange Notes will be issued
under the same indenture as the Senior Exchange Notes, and the Company shall use
its reasonable best efforts to cause the Private Senior Exchange Notes to bear
the same CUSIP number as the Senior 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 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 Notes tendered and not validly
withdrawn pursuant to the Registered Exchange Offer and the Private
Exchange;
(b) deliver to the Senior Notes Trustee for cancellation all Senior
Notes so accepted for exchange; and
(c) cause the Senior Notes Trustee or the Senior Exchange Notes
Trustee, as the case may be, promptly to authenticate and deliver to each
Holder, Senior Ex-
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change Notes or Private Senior Exchange Notes, as the case may be, equal
in principal amount to the Senior 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 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 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 Exchange Notes for a period of not less than 180 days
after the consummation of the Registered Exchange Offer.
The Senior Notes Indenture or the Senior Exchange Notes Indenture,
as the case may be, shall provide that the Senior Notes, the Senior Exchange
Notes and the Private Senior Exchange Notes shall vote and consent together on
all matters as one class and that none of the Senior Notes, the Senior Exchange
Notes or the Private Senior Exchange Notes will have the right to vote or
consent as a separate class on any matter.
Interest on each Senior Exchange Note and Private Senior Exchange
Note issued pursuant to the Registered Exchange Offer and in the Private
Exchange will accrue in the manner provided in the Senior 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 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 Notes or the Senior 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.
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 pro-
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spectus 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 Notes validly tendered pursuant to the Registered
Exchange Offer are not exchanged for Senior Exchange Notes within 180 days after
the Issue Date, or (iii) any Initial Purchaser so requests with respect to
Senior Notes or Private Senior Exchange Notes not eligible to be exchanged for
Senior 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 Exchange Notes in exchange for
Senior 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 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.
(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 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 Notes become eligible for resale
without volume restrictions pursuant to Rule 144 under the Securities Act (in
any such case,
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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
Notes covered thereby not being able to offer and sell such Transfer Restricted
Senior 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 Notes and Senior 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 Notes and Senior Exchange Notes and shall end on the date when each
Holder of Senior Notes and Senior 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' Information")) 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.
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3. Liquidated Damages. (a) The parties hereto agree that the Holders
of Transfer Restricted Senior 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 to each Holder of Transfer
Restricted Senior 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 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 Notes" means (i) each Senior Note
until the date on which such Senior Note has been exchanged for a freely
transferable Senior Exchange Note in the Registered Notes Offer, (ii) each
Senior Note or Private Senior 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 or (iii) each Senior Note or Private
Senior 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 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.
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(b) The Company shall notify the Senior Notes Trustee and the Paying
Agent under the Senior 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 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 Notes Indenture and the Senior
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 Notes Indenture and the Senior 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 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 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):
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(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
Exchange Notes or the Private Senior 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 Notes included within the coverage of any Shelf Registration Statement,
without charge, at least one conformed copy of such Shelf Registration Statement
and any 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 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 Notes in connection with the offer and sale of the
Transfer Restricted Senior Notes covered by such prospectus or any amendment or
supplement thereto.
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(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 Notes, Senior Exchange Notes or Private
Senior Exchange Notes included therein and their respective counsel in
connection with the registration or qualification of, such Senior Notes, Senior
Exchange Notes or Private Senior 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
Notes, Senior Exchange Notes or Private Senior Exchange Notes covered by such
Registration Statement; provided, however, that the Company 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 Notes,
Senior Exchange Notes or Private Senior Exchange Notes to facilitate the timely
preparation and delivery of certificates representing Senior Notes, Senior
Exchange Notes or Private Senior 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 Notes, Senior Exchange Notes or Private Senior 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
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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 Notes, Senior Exchange Notes or Private Senior 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 Notes, the
Senior Exchange Notes and the Private Senior Exchange Notes, as the case may be,
and provide the applicable trustee with certificates for the Senior Notes, the
Senior Exchange Notes or the Private Senior 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.
(m) The Company will cause the Senior Notes Indenture or the Senior
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 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 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 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 Notes to be registered pursuant thereto agrees by
acquisition of such Transfer Restricted Senior 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 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
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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 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 Notes, Senior Exchange Notes and Private Senior 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 Notes, Senior Exchange Notes and
Private Senior Exchange Notes being sold or the managing underwriters (if any)
shall reasonably request in order to facilitate any disposition of Senior Notes,
Senior Exchange Notes or Private Senior Exchange Notes pursuant to such Shelf
Registration Statement.
(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 Notes, Senior Exchange Notes and Private Senior
Exchange Notes being sold and any underwriter participating in any disposition
of Senior Notes, Senior Exchange Notes or Private Senior 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 Notes, Senior Exchange Notes and Private Senior 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 Notes, Senior Exchange Notes or Private Senior 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 princi-
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pal amount of the Senior Notes, Senior Exchange Notes and Private Senior
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 Notes, the Senior Exchange Notes and the Private Senior 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,
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 Notes, Senior
Exchange Notes or Private Senior 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
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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 Notes, Senior
Exchange Notes or Private Senior 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 Notes, Senior Exchange Notes or Private Senior 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 Company 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 Notes, Senior
Exchange Notes or Private Senior 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 ac-
15
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tion; 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, (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 threat-
16
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ened 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 Notes
, on the one hand, and a Holder with respect to the sale by such Holder of
Senior Notes, Senior Exchange Notes or Private Senior 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, 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 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 Notes, Senior Exchange Notes or Private Senior 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 Notes, Senior Exchange Notes or
Private Senior Exchange Notes shall not be required to contribute any amount in
excess of the amount by which the total price at which the Senior Notes, Senior
Exchange Notes or Private Senior Exchange Notes
17
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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 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 Notes may reasonably request, all to
the extent required from time to time to enable such Holder to sell Transfer
Restricted Senior Notes without registration under the Securities Act within the
limitation of the exemptions 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 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 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
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
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 Notes, Senior Exchange Notes and Private Senior
Exchange Notes, taken as a single class. Notwith-
18
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standing 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 Notes, Senior Exchange Notes or Private Senior 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 Notes, Senior Exchange
Notes and Private Senior 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:
(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 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
19
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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 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 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 Notes in
such capacity and the holders of Transfer Restricted Senior Discount Notes in
such capacity (as defined in the Senior Discount 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 Notes and the Transfer Restricted Senior Discount Notes.
20
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(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: 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, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By: /s/ Xxxxx Xxxxx
---------------------------
Authorized Signatory
22
ANNEX A
Each broker-dealer that receives Senior 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 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 Exchange Notes received in
exchange for Senior Notes where such Senior 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 use in connection with any such resale. See "Plan of
Distribution."
23
ANNEX B
Each broker-dealer that receives Senior Exchange Notes for its own
account in exchange for Senior Notes, where such Senior 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 Exchange Notes. See "Plan of Distribution."
24
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Senior 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 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 Exchange
Notes received in exchange for Senior Notes where such Senior 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 Exchange Notes may be
required to deliver a prospectus.
The Company will not receive any proceeds from any sale of Senior
Exchange Notes by broker-dealers. Senior 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 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 Exchange Notes. Any
broker-dealer that resells Senior 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 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 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 expenses of one counsel
for the Holders of the Senior Notes) other than commissions or conces-
25
sions of any broker-dealers and will indemnify the Holders of the Senior 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
Exchange Notes. If the undersigned is a broker-dealer that will receive Senior
Exchange Notes for its own account in exchange for Senior 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 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.
