EXHIBIT 4.4
SOLUTIA INC.
$223,000,000 11.25% SENIOR SECURED NOTES DUE 2009
REGISTRATION RIGHTS AGREEMENT
New York, New York
July 9, 2002
Xxxxxxx Xxxxx Xxxxxx Inc.
Banc of America Securities LLC
As Representatives of the several Initial
Purchasers named in Schedule I hereto
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
SOI Funding Corp., a corporation organized under the laws of Delaware
("FUNDING CORP."), proposes, among other things, to issue and sell to the
several initial purchasers named in SCHEDULE I hereto (the "INITIAL
PURCHASERS"), for whom you are acting as representatives (the
"REPRESENTATIVES"), $223,000,000 aggregate principal amount of its 11.25% Senior
Secured Notes due 2009 (the "NOTES") upon the terms set forth in a purchase
agreement dated July 2, 2002 (the "PURCHASE AGREEMENT") relating to the initial
placement of the Notes (the "INITIAL PLACEMENT"). In connection with the
consummation of the refinancing plan of Solutia Inc., a Delaware corporation
("SOLUTIA"), as described in the Final Memorandum (as defined herein), Solutia
will assume the obligations of Funding Corp. under, among other instruments, the
Notes and the Indenture (as defined herein) (the "SOLUTIA ASSUMPTION"). Upon
consummation of the Solutia Assumption, Solutia's obligations under the Notes
will be unconditionally guaranteed (the "GUARANTEES" and together with the
Notes, the "SECURITIES") by each of Solutia's domestic subsidiaries named in
SCHEDULE II hereto (the "GUARANTORS"). To induce the Initial Purchasers to enter
into the Purchase Agreement and to satisfy a condition of your obligations
thereunder, the Issuers hereby agree with you for your benefit and the benefit
of the holders from time to time of Securities and Exchange Securities (as
defined below) (including the Initial Purchasers) (each a "HOLDER" and,
together, the "HOLDERS"), as follows:
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1. DEFINITIONS. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following defined terms shall have the following
respective meanings:
"ACT" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"AFFILIATE" of, or person affiliated with, any specified Person shall
mean any Person that, directly or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person. For purposes of this definition, "control" of a Person shall mean the
possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of such Person, whether through the ownership of
voting securities, by contract or otherwise; and the terms "controlling" and
"controlled by" and "under common control with" shall have meanings correlative
to the foregoing.
"ASSUMPTION DATE" shall have the meaning set forth in the preamble
hereto.
"BROKER-DEALER" shall mean any broker or dealer registered as such
under the Exchange Act.
"BUSINESS DAY" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"COMMISSION" shall mean the Securities and Exchange Commission.
"CONDUCT RULES" shall have the meaning set forth in Section 4(u)
hereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"EXCHANGE OFFER REGISTRATION PERIOD" shall mean the 180-day period
following the issuance of the Exchange Securities, exclusive of any period
during which any stop order shall be in effect suspending the effectiveness of
the Exchange Offer Registration Statement.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean a registration
statement of the Issuers on an appropriate form under the Act with respect to
the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments thereto, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
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"EXCHANGE SECURITIES" shall mean debt securities of the Issuers
identical in all material respects to the Securities (except that the cash
interest and interest rate step-up provisions and the transfer restrictions
shall be modified or eliminated, as appropriate) and to be issued under the
Indenture.
"EXCHANGING DEALER" shall mean any Holder (which may include any
Initial Purchaser) that is a Broker-Dealer and elects to exchange any Securities
that it acquired for its own account as a result of market-making activities or
other trading activities (but not directly from any Issuer or any Affiliate of
any Issuer) for Exchange Securities.
"FINAL MEMORANDUM" shall have the meaning set forth in the Purchase
Agreement.
"FUNDING CORP." shall have the meaning set forth in the preamble
hereto.
"GUARANTEES" shall have the meaning set forth in the preamble hereto.
"GUARANTORS" shall have the meaning set forth in the preamble hereto.
"HOLDER" shall have the meaning set forth in the preamble hereto.
"INDENTURE" shall mean the Indenture relating to the Securities to be
dated as of the date of original issuance of the Notes between Funding Corp. and
HSBC Bank USA, as trustee, as amended or supplemented from time to time in
accordance with the terms thereof.
"INITIAL PLACEMENT" shall have the meaning set forth in the preamble
hereto.
"INITIAL PURCHASERS" shall have the meaning set forth in the preamble
hereto.
"ISSUERS" shall mean Solutia and the Guarantors.
"LOSSES" shall have the meaning set forth in Section 6(d) hereof.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the
aggregate principal amount of Securities and Exchange Securities registered
under a Registration Statement.
"MANAGING UNDERWRITERS" shall mean the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering.
"NOTES" shall have the meaning set forth in the preamble hereto.
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"PERSON" shall mean an individual, trustee, corporation, partnership,
limited liability company, joint stock company, trust, unincorporated
association, union, business association, firm or other legal entity.
"PROSPECTUS" shall mean the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Securities or the Exchange Securities covered by
such Registration Statement, and all amendments and supplements thereto and all
material incorporated by reference therein.
"PURCHASE AGREEMENT" shall have the meaning set forth in the preamble
hereto.
"REGISTERED EXCHANGE OFFER" shall mean the proposed offer of the
Issuers to the Holders of the Securities that are not prohibited by any law or
policy of the Commission from participating in such offer, to issue and deliver
a like aggregate principal amount of Exchange Securities in exchange for the
Securities.
"REGISTRATION STATEMENT" shall mean any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Securities or
the Exchange Securities pursuant to the provisions of this Agreement, any
amendments and supplements to such registration statement, including
post-effective amendments (in each case including the Prospectus contained
therein), all exhibits thereto and all material incorporated by reference
therein.
"REPRESENTATIVES" shall have the meaning set forth in the preamble
hereto.
"SECURITIES" shall mean the Notes and the Guarantees.
"SECURITY DOCUMENTS" shall have the meaning set forth in the
Indenture.
"SHELF REGISTRATION" shall mean a registration effected pursuant to
Section 3 hereof.
"SHELF REGISTRATION PERIOD" shall have the meaning set forth in
Section 3(b) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf" registration
statement of the Issuers pursuant to the provisions of Section 3 hereof which
covers some or all of the Securities or Exchange Securities, as applicable, on
an appropriate form under Rule 415 under the Act, or any similar rule that may
be adopted by the Commission, amendments and
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supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"SOLUTIA ASSUMPTION" shall have the meaning set forth in the preamble
hereto.
"TRUSTEE" shall mean the trustee with respect to the Securities under
the Indenture.
"UNDERWRITER" shall mean any Person deemed an "underwriter," under the
Act or the rules and regulations thereunder, of Securities or Exchange
Securities in connection with an offering thereof under a Shelf Registration
Statement.
2. REGISTERED EXCHANGE OFFER. (a) The Issuers shall prepare and,
not later than 60 days following the Assumption Date (or if such 60th day is not
a Business Day, the next succeeding Business Day), shall file with the
Commission the Exchange Offer Registration Statement with respect to the
Registered Exchange Offer. The Issuers shall use their respective best efforts
to cause the Exchange Offer Registration Statement to become effective under the
Act within 120 days of the Assumption Date (or if such 120th day is not a
Business Day, the next succeeding Business Day).
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Issuers shall promptly commence the Registered Exchange Offer and
shall keep the Registered Exchange Offer open for not less than 30 days (or
longer, if required by applicable law), it being the objective of such
Registered Exchange Offer to enable each Holder electing to exchange Securities
for Exchange Securities (assuming that such Holder is not an Affiliate of any
Issuer, acquires the Exchange Securities in the ordinary course of such Holder's
business, has no arrangements with any Person to participate in the distribution
of the Exchange Securities and is not prohibited by any law or policy of the
Commission from participating in the Registered Exchange Offer) to trade such
Exchange Securities from and after their receipt without any limitations or
restrictions under the Act and without material restrictions under the
securities laws of a substantial proportion of the several states of the United
States.
(c) In connection with the Registered Exchange Offer, the Issuers
shall:
(i) 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;
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(ii) keep the Registered Exchange Offer open for not less than 30
days after the date notice thereof is mailed to the Holders (or longer if
required by applicable law);
(iii) use their respective best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act, supplemented
and amended as required under the Act, to ensure that it is available for
sales of Exchange Securities by Exchanging Dealers during the Exchange
Offer Registration Period;
(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan in New York
City, which may be the Trustee or an Affiliate of the Trustee;
(v) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last Business Day on
which the Registered Exchange Offer is open;
(vi) if requested by the Commission, prior to effectiveness of the
Exchange Offer Registration Statement, provide a supplemental letter to the
Commission (A) stating that the Issuers are conducting the Registered
Exchange Offer in reliance on the position of the Commission in EXXON
CAPITAL HOLDINGS CORPORATION (pub. avail. May 13, 1988) and XXXXXX XXXXXXX
AND CO., INC. (pub. avail. June 5, 1991); and (B) including a
representation that the Issuers have not entered into any arrangement or
understanding with any Person to distribute the Exchange Securities to be
received in the Registered Exchange Offer and that, to the best of the
Issuers' information and belief, each Holder participating in the
Registered Exchange Offer is acquiring the Exchange Securities in the
ordinary course of business and has no arrangement or understanding with
any Person to participate in the distribution of the Exchange Securities;
and
(vii) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the Registered
Exchange Offer, the Issuers shall:
(i) accept for exchange all Securities tendered and not validly
withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation in accordance with
Section 4(s) hereof all Securities so accepted for exchange; and
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(iii) cause the Trustee promptly to authenticate and deliver to each
Holder of Securities a principal amount of Exchange Securities equal to the
principal amount of the Securities of such Holder so accepted for exchange.
(e) Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Registered Exchange Offer to
participate in a distribution of the Exchange Securities (x) could not under
Commission policy as in effect on the date of this Agreement rely on the
position of the Commission in XXXXXX XXXXXXX AND CO., INC. (pub. avail. June 5,
1991) and EXXON CAPITAL HOLDINGS CORPORATION (pub. avail. May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling dated July 2, 1993
and similar no-action letters; and (y) must comply with the registration and
prospectus delivery requirements of the Act in connection with any secondary
resale transaction and must be covered by an effective registration statement
containing the selling security holder information required by Item 507 or 508,
as applicable, of Regulation S-K under the Act if the resales are of Exchange
Securities obtained by such Holder in exchange for Securities acquired by such
Holder directly from any Issuer or one of its Affiliates. Accordingly, each
Holder participating in the Registered Exchange Offer shall be required to
represent to the Issuers that, at the time of the consummation of the Registered
Exchange Offer:
(i) any Exchange Securities received by such Holder will be
acquired in the ordinary course of business;
(ii) such Holder will have no arrangement or understanding with any
Person to participate in the distribution of the Securities or the Exchange
Securities within the meaning of the Act; and
(iii) such Holder is not an Affiliate of any Issuer.
(f) If any Initial Purchaser determines that it is not eligible to
participate in the Registered Exchange Offer with respect to the exchange of
Securities constituting any portion of an unsold allotment, at the request of
such Initial Purchaser, the Issuers shall issue and deliver to such Initial
Purchaser or the Person purchasing Exchange Securities registered under a Shelf
Registration Statement as contemplated by Section 3 hereof from such Initial
Purchaser, in exchange for such Securities, a like principal amount of Exchange
Securities. The Issuers shall use their respective best efforts to cause the
CUSIP Service Bureau to issue the same CUSIP number for such Exchange Securities
as for Exchange Securities issued pursuant to the Registered Exchange Offer.
3. SHELF REGISTRATION. (a) If (i) due to any change in law or
applicable interpretations thereof by the Commission's staff, the Issuers
determine upon advice of their outside counsel that they are not permitted to
effect the Registered Exchange Offer as contemplated by Section 2 hereof; (ii)
for any other reason the Registered Exchange Offer is
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not consummated within 150 days after the Assumption Date; (iii) prior to the
20th day following consummation of the Registered Exchange Offer (A) any Initial
Purchaser so requests with respect to Securities that are not eligible to be
exchanged for Securities in the Registered Exchange Offer and that are held by
it following consummation of the Registered Exchange Offer; (B) any Holder
(other than an Initial Purchaser) is not eligible to participate in the
Registered Exchange Offer; or (C) in the case of any Initial Purchaser that
participates in the Registered Exchange Offer or acquires Exchange Securities
pursuant to Section 2(f) hereof, such Initial Purchaser does not receive freely
tradeable Exchange Securities in exchange for Securities constituting any
portion of an unsold allotment (it being understood that (x) the requirement
that an Initial Purchaser deliver a Prospectus containing the information
required by Item 507 or 508 of Regulation S-K under the Act in connection with
sales of Exchange Securities acquired in exchange for such Securities shall
result in such Exchange Securities being not "freely tradeable"; and (y) the
requirement that an Exchanging Dealer deliver a Prospectus in connection with
sales of Exchange Securities acquired in the Registered Exchange Offer in
exchange for Securities acquired as a result of market-making activities or
other trading activities shall not result in such Exchange Securities being not
"freely tradeable"), the Issuers shall effect a Shelf Registration Statement in
accordance with Section 3(b) hereof.
(b) (i) The Issuers shall as promptly as practicable (but in no
event more than 60 days after so required or requested pursuant to this Section
3), file with the Commission, and thereafter shall use their respective best
efforts to cause to be declared effective under the Act (within 120 days after
so required or requested pursuant to this Section 3), a Shelf Registration
Statement relating to the offer and sale of the Securities or the Exchange
Securities, as applicable, by the Holders thereof from time to time in
accordance with the methods of distribution elected by such Holders and set
forth in such Shelf Registration Statement; PROVIDED, HOWEVER, that no Holder
(other than an Initial Purchaser) shall be entitled to have the Securities held
by it covered by such Shelf Registration Statement unless such Holder agrees in
writing to be bound by all of the provisions of this Agreement applicable to
such Holder; and PROVIDED, FURTHER, that with respect to Exchange Securities
received by an Initial Purchaser in exchange for Securities constituting any
portion of an unsold allotment, the Issuers may, if permitted by current
interpretations by the Commission's staff, file a post-effective amendment to
the Exchange Offer Registration Statement containing the information required by
Item 507 or 508 of Regulation S-K, as applicable, in satisfaction of their
obligations under this subsection with respect thereto, and any such Exchange
Offer Registration Statement, as so amended, shall be referred to herein as, and
governed by the provisions herein applicable to, a Shelf Registration Statement.
(ii) The Issuers shall use their respective best efforts to keep the
Shelf Registration Statement continuously effective, supplemented and amended as
required by the Act, in order to permit the Prospectus forming part thereof to
be usable by Holders until the
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earliest of (A) the time when the Securities or Exchange Securities, as
applicable, covered thereby can be sold pursuant to Rule 144 under the Act
without any limitations under clauses (c), (e), (f) and (h) of Rule 144, (B) a
period of two years from the effective date of the Shelf Registration Statement
(or one year from the effective date of the Shelf Registration Statement if the
Shelf Registration Statement is filed at the request of an Initial Purchaser) or
(C) such shorter period that will terminate when all the Securities or Exchange
Securities, as applicable, covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement (in any such case, such period
being called the "SHELF REGISTRATION PERIOD"). The Issuers shall be deemed not
to have used their respective best efforts to keep the Shelf Registration
Statement effective during the requisite period if any of them voluntarily takes
any action that would result in Holders of Securities or Exchange Securities
covered thereby not being able to offer and sell such Securities or Exchange
Securities during that period, unless (A) such action is required by applicable
law; or (B) such action is taken by such Issuer in good faith and for valid
business reasons (not including avoidance of its obligations hereunder),
including the acquisition or divestiture of assets, so long as the Issuers
thereafter comply with the requirements of Section 4(k) hereof, if applicable.
4. ADDITIONAL REGISTRATION PROCEDURES. In connection with any
Shelf Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Issuers shall:
(i) furnish to each of you, not less than five Business Days
prior to the filing thereof with the Commission, a copy of the
Exchange Offer Registration Statement and the Shelf Registration
Statement, as the case may be, and each amendment thereof and each
amendment or supplement, if any, to the Prospectus included therein
(including all documents incorporated by reference therein after the
initial filing) and shall use their reasonable best efforts to reflect
in each such document, when so filed with the Commission, such
comments as you reasonably propose;
(ii) in the case of an Exchange Offer Registration Statement,
to the extent permitted by the Act, include the information set forth
in ANNEX A hereto on the inside front cover of the Prospectus included
in the Exchange Offer Registration Statement, in ANNEX B hereto in the
forepart of the Exchange Offer Registration Statement in a section
setting forth details of the Exchange Offer, in ANNEX C hereto in the
underwriting or plan of distribution section of the Prospectus
contained in the Exchange Offer Registration Statement, and in ANNEX D
hereto in the letter of transmittal delivered pursuant to the
Registered Exchange Offer;
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(iii) in the case of an Exchange Offer Registration Statement,
if requested by an Initial Purchaser, include the information required
by Item 507 or 508 of Regulation S-K, as applicable, in the Prospectus
contained in the Exchange Offer Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include
the names of the Holders that propose to sell Securities or Exchange
Securities pursuant to the Shelf Registration Statement as selling
security holders.
(b) The Issuers shall advise you, the Holders of Securities or
Exchange Securities covered by any Shelf Registration Statement and any
Exchanging Dealer under any Exchange Offer Registration Statement that has
provided in writing to any Issuer a telephone or facsimile number and
address for notices, and, if requested by you or any such Holder or
Exchanging Dealer, shall confirm such advice in writing (which notice
pursuant to clauses (ii)-(v) hereof shall be accompanied by an instruction
to suspend the use of the Prospectus until the Issuers shall have remedied
the basis for such suspension):
(i) when a Registration Statement and any amendment thereto
has been filed with the Commission and when the Registration Statement
or any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for
additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by any Issuer of any notification with
respect to the suspension of the qualification of the securities
included therein for sale in any jurisdiction or the initiation of any
proceeding for such purpose; and
(v) of the happening of any event that requires any change
in the Registration Statement or the Prospectus so that, as of such
date, 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 (in the case of the Prospectus, in the
light of the circumstances under which they were made) not misleading.
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(c) The Issuers shall use their respective reasonable best efforts
to obtain the withdrawal of any order suspending the effectiveness of any
Registration Statement or the qualification of the securities therein for
sale in any jurisdiction at the earliest possible time.
(d) The Issuers shall furnish to each Holder of Securities or
Exchange Securities covered by any Shelf Registration Statement, without
charge, at least one copy of such Shelf Registration Statement and any
post-effective amendment thereto, including all material incorporated
therein by reference, and, if the Holder so requests in writing, all
exhibits thereto (including exhibits incorporated by reference therein).
(e) The Issuers shall, during the Shelf Registration Period,
deliver to each Holder of Securities or Exchange Securities covered by 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. The Issuers consent to the use of the
Prospectus or any amendment or supplement thereto by each of the selling
Holders of securities in connection with the offering and sale of the
securities covered by the Prospectus, or any amendment or supplement
thereto, included in the Shelf Registration Statement.
(f) The Issuers shall furnish to each Exchanging Dealer which so
requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including
all material incorporated by reference therein, and, if the Exchanging
Dealer so requests in writing, all exhibits thereto (including exhibits
incorporated by reference therein).
(g) The Issuers shall promptly deliver to each Initial Purchaser,
each Exchanging Dealer and each other Person required to deliver a
Prospectus during the Exchange Offer Registration Period, without charge,
as many copies of the Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as any such
Person may reasonably request. The Issuers consent to the use of the
Prospectus or any amendment or supplement thereto by any Initial Purchaser,
any Exchanging Dealer and any such other Person that may be required to
deliver a Prospectus following the Registered Exchange Offer in connection
with the offering and sale of the Exchange Securities covered by the
Prospectus, or any amendment or supplement thereto, included in the
Exchange Offer Registration Statement.
(h) Prior to the Registered Exchange Offer or any other offering of
Securities or Exchange Securities pursuant to any Registration Statement,
the Issuers shall arrange, if necessary, for the qualification of the
Securities or the Exchange
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Securities for sale under the laws of such jurisdictions as any Holder
shall reasonably request and will maintain such qualification in effect so
long as required; PROVIDED that in no event shall any Issuer be obligated
to qualify to do business in any jurisdiction where it is not then so
qualified or to take any action that would subject it to service of process
in suits, other than those arising out of the Initial Placement, the
Registered Exchange Offer or any offering pursuant to a Shelf Registration
Statement, in any such jurisdiction where it is not then so subject.
(i) The Issuers shall cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Exchange
Securities or Securities to be issued or sold pursuant to any Registration
Statement free of any restrictive legends and in such denominations and
registered in such names as Holders may request.
(j) Upon the occurrence of any event contemplated by subsections
(b)(ii) through (v) above, the Issuers shall promptly prepare a
post-effective amendment to the applicable Registration Statement or an
amendment or supplement to the related Prospectus or file any other
required document so that, as thereafter delivered to Initial Purchasers of
the Securities included therein, the Prospectus will not include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading. In such circumstances, the period of
effectiveness of the Exchange Offer Registration Statement provided for in
Section 2 hereof and the Shelf Registration Statement provided for in
Section 3(b) hereof shall each be extended by the number of days from and
including the date of the giving of a notice of suspension pursuant to
Section 4(b) hereof to and including the date when the Initial Purchasers,
the Holders and any known Exchanging Dealer shall have received such
amended or supplemented Prospectus pursuant to this Section 4.
(k) Not later than the effective date of any Registration
Statement, the Issuers shall provide a CUSIP number for the Securities or
the Exchange Securities, as the case may be, registered under such
Registration Statement and provide the Trustee with printed certificates
for such Securities or Exchange Securities, in a form eligible for deposit
with The Depository Trust Company.
(l) Solutia shall make generally available to its security holders
as soon as practicable after the effective date of the applicable
Registration Statement an earnings statement satisfying the provisions of
Section 11(a) of the Act.
(m) The Issuers shall cause the Indenture to be qualified under the
Trust Indenture Act in a timely manner.
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(n) The Issuers may require each Holder of securities to be sold
pursuant to any Shelf Registration Statement to furnish to the Issuers such
information regarding the Holder and the distribution of such securities as
the Issuers may from time to time reasonably require for inclusion in such
Registration Statement. The Issuers may exclude from such Shelf
Registration Statement the Securities or Exchange Securities of any Holder
that unreasonably fails to furnish such information within a reasonable
time after receiving such request and the Issuers shall be under no further
obligations to such Holder to include such Holder in a Shelf Registration
Statement.
(o) In the case of any Shelf Registration Statement, the Issuers
shall enter into such and take all other appropriate actions (including if
requested an underwriting agreement in customary form) in order to expedite
or facilitate the registration or the disposition of the Securities or
Exchange Securities, and in connection therewith, if an underwriting
agreement is entered into, cause the same to contain indemnification
provisions and procedures no less favorable than those set forth in Section
6 (or such other provisions and procedures acceptable to the Majority
Holders and the Managing Underwriters, if any, with respect to all parties
to be indemnified pursuant to Section 6.
(p) In the case of any Shelf Registration Statement, the Issuers
shall:
(i) subject to execution of a confidentiality agreement in
form and substance reasonably acceptable to the Issuers and the
Holders, make reasonably available for inspection by the Holders of
Securities or Exchange Securities to be registered thereunder, any
underwriter participating in any disposition pursuant to such Shelf
Registration Statement, and any attorney, accountant or other agent
retained by the Holders or any such underwriter all relevant financial
and other records, pertinent corporate documents and properties of
each Issuer;
(ii) cause the officers, directors and employees of each
Issuer to supply all relevant information reasonably requested by the
Holders or any such underwriter, attorney, accountant or agent in
connection with any such Shelf Registration Statement as is customary
for similar due diligence examinations; PROVIDED, HOWEVER, that any
information that is subject to the confidentiality agreement referred
to in Section 4(p)(i) above shall be kept confidential by the Holders
or any such underwriter, attorney, accountant or agent, unless such
disclosure is made in connection with a court proceeding or required
by law, or such information becomes available to the public generally
or through a third party without an accompanying obligation of
confidentiality;
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(iii) make such representations and warranties to the Holders
of Securities or Exchange Securities registered thereunder and the
underwriters, if any, in form, substance and scope as are customarily
made by issuers to underwriters in primary underwritten offerings and
covering matters including, but not limited to, those set forth in the
Purchase Agreement;
(iv) obtain opinions of counsel to the Issuers and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Managing Underwriters, if any)
addressed to each selling Holder and the underwriters, if any,
covering such matters as are customarily covered in opinions requested
in underwritten offerings and such other matters as may be reasonably
requested by such Holders and underwriters;
(v) obtain "cold comfort" letters and updates thereof from
the independent certified public accountants of Solutia (and, if
necessary, any other independent certified public accountants of any
Issuer or any subsidiary of any Issuer or of any business acquired by
any Issuer for which financial statements and financial data are, or
are required to be, included in the Shelf Registration Statement),
addressed to each selling Holder of securities registered thereunder
and the underwriters, if any, in customary form and covering matters
of the type customarily covered in "cold comfort" letters in
connection with primary underwritten offerings; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the Managing
Underwriters, if any, including those to evidence compliance with
Section 4(k) and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Issuers.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section
4(p) shall be performed at each closing under any underwriting or similar
agreement as and to the extent required thereunder.
(q) If a Registered Exchange Offer is to be consummated, upon
delivery of the Securities by Holders to Solutia (or to such other Person
as directed by Solutia) in exchange for the Exchange Securities, Solutia
shall xxxx, or caused to be marked, on the Securities so exchanged that
such Securities are being canceled in exchange for the Exchange Securities.
In no event shall the Securities be marked as paid or otherwise satisfied.
(r) The Issuers will use their respective reasonable best efforts
(i) if the Securities have been rated prior to the initial sale of such
Securities pursuant to the
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Purchase Agreement, to confirm such ratings will apply to the Securities or
the Exchange Securities, as the case may be, covered by a Exchange Offer
Registration Statement; or (ii) if the Securities were not previously
rated, to cause the Securities covered by a Registration Statement to be
rated with at least one nationally recognized statistical rating agency, if
so requested by Majority Holders with respect to the related Registration
Statement or by any Managing Underwriters.
(s) In the event that any Broker-Dealer shall underwrite any
Securities or Exchange Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the distribution"
(within the meaning of the Conduct Rules of the National Association of
Securities Dealers, Inc. (the "CONDUCT RULES")) thereof, whether as a
Holder or as an underwriter, a placement or sales agent or a broker or
dealer in respect thereof, or otherwise, the Issuers shall assist such
Broker-Dealer in complying with the requirements of such Conduct Rules,
including, without limitation, by:
(i) if such Conduct Rules shall so require, engaging a
"qualified independent underwriter" (as defined in such Rules) to
participate in the preparation of the Registration Statement, to
exercise usual standards of due diligence with respect thereto and, if
any portion of the offering contemplated by such Registration
Statement is an underwritten offering or is made through a placement
or sales agent, to recommend the yield of such Securities or Exchange
Securities;
(ii) indemnifying any such qualified independent underwriter
to the extent of the indemnification of underwriters provided in
Section 6 hereof; and
(iii) providing such information to such Broker-Dealer as may
be required in order for such Broker-Dealer to comply with the
requirements of such Conduct Rules.
(t) The Issuers shall use their respective reasonable best efforts
to take all other steps necessary to effect the registration of the
Securities or the Exchange Securities, as the case may be, covered by a
Registration Statement.
5. REGISTRATION EXPENSES. The Issuers shall bear all expenses
incurred in connection with the performance of their obligations under Sections
2, 3 and 4 hereof and, in the event of any Shelf Registration Statement, will
reimburse the Holders for the reasonable fees and disbursements of one firm or
counsel designated by the Majority Holders to act as counsel for the Holders in
connection therewith.
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6. INDEMNIFICATION AND CONTRIBUTION. (a) The Issuers jointly and
severally agree to indemnify and hold harmless each Holder of Securities or
Exchange Securities, as the case may be, covered by any Registration Statement
(including each Initial Purchaser and each Affiliate thereof and, with respect
to any Prospectus delivery as contemplated in Section 4(h) hereof, each
Exchanging Dealer), the directors, officers, employees and agents of each such
Holder and each Person who controls any such Holder within the meaning of either
the Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law 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 a material fact contained in
the Registration Statement as originally filed or in any amendment thereof, or
in any preliminary prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and jointly and
severally agree to reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
PROVIDED, HOWEVER, that the Issuers will not be liable in any case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Issuers by or on behalf of any such Holder
specifically for inclusion therein. This indemnity agreement will be in addition
to any liability which the Issuers may otherwise have; PROVIDED, FURTHER,
HOWEVER, that with respect to any untrue statement or omission of material fact
made in any 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 or liability purchased the securities
concerned, to the extent that any such loss, claim, damage or liability of such
Holder occurs under the circumstance where it shall have been determined by a
court of competent jurisdiction by final and nonappealable judgment that (w) the
Issuers had previously furnished copies of the Prospectus to the Holders, (x)
delivery of the Prospectus was required by the Act to be made to such person,
(y) the untrue statement of omission of a material fact contained in such
preliminary prospectus was corrected in the Prospectus and (z) there was not
sent or given to such person, at or prior to the written confirmation of the
sale of such securities to such person, a copy of the Prospectus.
The Issuers also jointly and severally agree to indemnify or
contribute as provided in Section 6(d) to Losses of each underwriter of
Securities or Exchange Securities, as the case may be, registered under a Shelf
Registration Statement, their directors, officers, employees or agents and each
Person who controls such underwriter on substantially the same basis as that of
the indemnification of the Initial Purchasers and the selling Holders provided
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in this Section 6(a) and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement, as provided in Section 4(p)
hereof.
(b) Each Holder of securities covered by a Registration Statement
(including each Initial Purchaser and each Affiliate thereof and, with respect
to any Prospectus delivery as contemplated in Section 4(h) hereof, each
Exchanging Dealer) severally agrees to indemnify and hold harmless the Issuers,
each of their respective directors, each of their respective officers who signs
such Registration Statement, and each Person who controls any Issuer within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Issuers to each such Holder, but only with
reference to written information relating to such Holder furnished to the
Issuers by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 6, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses;
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
PROVIDED, HOWEVER, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ (x) one separate counsel and (y) local counsel,
and the indemnifying party shall bear the reasonable fees, costs and expenses of
(x) such one separate counsel and (y) such local counsel if (i) the use of
counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest; (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party; (iii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the institution
of such action; or
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(iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An indemnifying party
will not, without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party shall
have a joint and several obligation to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively
"LOSSES") to which such indemnified party may be subject in such proportion as
is appropriate to reflect the relative benefits received by such indemnifying
party, on the one hand, and such indemnified party, on the other hand, from the
Initial Placement and the Registration Statement which resulted in such Losses;
PROVIDED, HOWEVER, that in no case shall any Initial Purchaser or any subsequent
Holder of any Security or New Security be responsible, in the aggregate, for any
amount in excess of the purchase discount or commission applicable to such
Security, or in the case of a New Security, applicable to the Security that was
exchangeable into such New Security, as set forth on the cover page of the Final
Memorandum, nor shall any underwriter be responsible for any amount in excess of
the underwriting discount or commission applicable to the securities purchased
by such underwriter under the Registration Statement which resulted in such
Losses. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the indemnifying party and the indemnified party
shall contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such indemnifying party, on the
one hand, and such indemnified party, on the other hand, in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Issuers shall be
deemed to be equal to the sum of the total net proceeds from the Initial
Placement (before deducting expenses) as set forth on the cover page of the
Final Memorandum. Benefits received by the Initial Purchasers shall be deemed to
be equal to the total purchase discounts and commissions as set forth on the
cover page of the Final Memorandum, and benefits received by any other Holders
shall be deemed to be equal to the value of receiving Securities or Exchange
Securities, as applicable, registered under the Act. Benefits received by any
underwriter shall be deemed to be equal to the total underwriting discounts and
commissions, as set forth on the cover page of the Prospectus forming a part of
the Registration Statement which resulted in such Losses. Relative fault shall
be determined by reference to, among other things, whether any alleged untrue
statement or omission relates to information provided by the indemnifying
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party, on the one hand, or by the indemnified party, on the other hand, 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
agree that it would not be just and equitable if contribution were determined by
pro rata allocation (even if the Holders were treated as one entity for such
purpose) or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 6, each Person who controls a Holder within the meaning of either
the Act or the Exchange Act and each director, officer, employee and agent of
such Holder shall have the same rights to contribution as such Holder, and each
Person who controls any Issuer within the meaning of either the Act or the
Exchange Act, each officer of any Issuer who shall have signed the Registration
Statement and each director of any Issuer shall have the same rights to
contribution as the Issuers, subject in each case to the applicable terms and
conditions of this paragraph (d).
(e) The provisions of this Section 6 will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or
the Issuers or any of the officers, directors or controlling Persons referred to
in this Section 6 hereof, and will survive the sale by a Holder of securities
covered by a Registration Statement.
7. UNDERWRITTEN REGISTRATIONS. (a) If any of the Securities or
Exchange Securities, as the case may be, covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the Managing Underwriters
shall be selected by the Majority Holders.
(b) No Person may participate in any underwritten offering pursuant
to any Shelf Registration Statement, unless such Person (i) agrees to sell such
Person's Securities or Exchange Securities, as the case may be, 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.
8. NO INCONSISTENT AGREEMENTS. No Issuer has, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
9. AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be
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given, unless the Issuers have obtained the written consent of the Majority
Holders; PROVIDED that, with respect to any matter that directly or indirectly
affects the rights of any Initial Purchaser hereunder, the Issuers shall obtain
the written consent of each the Initial Purchasers against which such amendment,
qualification, supplement, waiver or consent is to be effective. Notwithstanding
the foregoing (except the foregoing proviso), a waiver or consent to departure
from the provisions hereof with respect to a matter that relates exclusively to
the rights of Holders whose Securities or Exchange Securities, as the case may
be, are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other Holders may be given by the
Majority Holders, determined on the basis of Securities or Exchange Securities,
as the case may be, being sold rather than registered under such Registration
Statement.
10. NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such
holder to the Issuers in accordance with the provisions of this Section 10,
which address initially is, with respect to each Holder, the address of
such Holder maintained by the Registrar under the Indenture, with a copy in
like manner to Xxxxxxx Xxxxx Xxxxxx Inc.;
(b) if to you, initially at the respective addresses set forth in
the Purchase Agreement; and
(c) if to the Issuers, initially at their address set forth in the
Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received.
The Initial Purchasers or the Issuers by notice to the other parties
may designate additional or different addresses for subsequent notices or
communications.
11. SUCCESSORS. This Agreement shall inure to the benefit of and
be binding upon the successors and assigns of each of the parties hereto,
including, without the need for an express assignment or any consent by the
Issuers thereto, subsequent Holders of Securities and the Exchange Securities.
The Issuers hereby agree to extend the benefits of this Agreement to any Holder
of Securities or the Exchange Securities, and any such Holder may specifically
enforce the provisions of this Agreement as if an original party hereto.
12. COUNTERPARTS. This Agreement may be in signed counterparts,
each of which shall an original and all of which together shall constitute one
and the same agreement.
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13. HEADINGS. The headings used herein are for convenience only and
shall not affect the construction hereof.
14. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed in the State of New York.
15. SEVERABILITY. In the event that any one of more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
16. SECURITIES HELD BY THE ISSUERS, ETC. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
or Exchange Securities is required hereunder, Securities or Exchange Securities,
as applicable, held by any Issuers or its Affiliates (other than subsequent
Holders of Securities or Exchange Securities if such subsequent Holders are
deemed to be Affiliates solely by reason of their holdings of such Securities or
Exchange Securities) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
17. SUBMISSION TO JURISDICTION. By the execution and delivery of
this Agreement, each Issuer submits to the non-exclusive jurisdiction of any
federal or state court in the State of New York in any suit or proceeding
arising out of or relating to this Agreement or brought under federal or state
securities laws.
18. TERMINATION. This Agreement shall automatically terminate if
Funding Corp. completes a Special Mandatory Redemption (as defined in the
Indenture).
[Signature Page Follows]
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Issuers and the several Initial Purchasers.
Very truly yours,
SOLUTIA INC.
By /s/ Xxxxx Xxxxxx
-------------------------------------
Name: X.X. Xxxxxx
Title: Vice President and Treasurer
MONCHEM INTERNATIONAL, INC.
By /s/ Xxxxx Xxxxxx
-------------------------------------
Name: X.X. Xxxxxx
Title: President
MONCHEM, INC.
By /s/ Xxxxx Xxxxxx
-------------------------------------
Name: X.X. Xxxxxx
Title: President
SOLUTIA SYSTEMS, INC.
By /s/ Xxxxx Xxxxxx
-------------------------------------
Name: X.X. Xxxxxx
Title: President
CPFILMS INC.
By /s/ X. Xxxxxxx
-------------------------------------
Name: X. Xxxxxxx
Title: Vice President
S-1
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
XXXXXXX XXXXX BARNEY INC.
BANC OF AMERICA SECURITIES LLC
By: XXXXXXX XXXXX XXXXXX INC.
/s/ Xxxxx Xxxxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
By: BANC OF AMERICA SECURITIES LLC
/s/ Xxxx Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxx Xxxxx
Title: Vice President
As Representatives of the several Initial
Purchasers named in Schedule I hereto.
S-2
SCHEDULE I
INITIAL PURCHASERS:
Xxxxxxx Xxxxx Barney Inc.
Banc of America Securities LLC
X.X. Xxxxxx Securities Inc.
HSBC Securities (USA), Inc.
Banc One Capital Markets, Inc.
US Bancorp Xxxxx Xxxxxxx, Inc.
XX Xxxxx Securities Corporation
SCHEDULE II
GUARANTORS:
CPFilms Inc.
Monchem, Inc.
Solutia Systems, Inc.
Monchem International, Inc.
ANNEX A
Each Broker-Dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. 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 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
Exchange Securities received in exchange for Securities where such Securities
were acquired by such Broker-Dealer as a result of market-making activities or
other trading activities. The Issuers have agreed that, starting on the
Expiration Date (as defined herein) and ending on the close of business one year
after the Expiration Date, they will make this Prospectus available to any
Broker-Dealer for use in connection with any such resale. See "Plan of
Distribution."
ANNEX B
Each Broker-Dealer that receives Exchange Securities for its own
account in exchange for Securities, where such Securities 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 Exchange Securities. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. 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 Exchange Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Issuers have agreed
that, starting on the Expiration Date and ending on the close of business one
year after the Expiration Date, they will make this Prospectus, as amended or
supplemented, available to any Broker-Dealer for use in connection with any such
resale. In addition, until __________, 200__, all dealers effecting transactions
in the Exchange Securities may be required to deliver a prospectus.
The Issuers will not receive any proceeds from any sale of Exchange
Securities by Brokers-Dealers. Exchange Securities received by Broker-Dealers
for their own account pursuant to the 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 Exchange Securities 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 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 and/or the purchasers of any such
Exchange Securities. Any Broker-Dealer that resells Exchange Securities that
were received by it for its own account pursuant to the Exchange Offer and any
broker or dealer that participates in a distribution of such Exchange Securities
may be deemed to be an "underwriter" within the meaning of the Act and any
profit of any such resale of Exchange Securities and any commissions or
concessions received by any such Persons may be deemed to be underwriting
compensation under the 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 Act.
For a period of one year after the Expiration Date, the Issuers 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 Issuers have agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
holder of the Securities) other than commissions or concessions of any brokers
-2-
or dealers and will indemnify the holders of the Securities (including any
Broker-Dealers) against certain liabilities, including liabilities under the
Act.
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
acquired the Exchange Securities in the ordinary course of its business, it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities and it has no arrangements or understandings with any Person to
participate in a distribution of the Exchange Securities. If the undersigned is
a Broker-Dealer that will receive Exchange Securities for its own account in
exchange for Securities, it represents that the Securities to be exchanged for
Exchange Securities were acquired by it as a result of market-making activities
or other trading activities and acknowledges that it will deliver a prospectus
in connection with any resale of such Exchange Securities; 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 Act.
