EXHIBIT 4.4
ISP HOLDINGS INC.
9% Senior Notes due 2003
REGISTRATION RIGHTS AGREEMENT
October 18, 1996
Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
ISP Holdings Inc., a Delaware corporation (the "Com-
pany"), proposes to issue and sell to you (the "Initial Pur-
chaser") upon the terms set forth in a purchase agreement dated
October 15, 1996 (the "Purchase Agreement"), $325,000,000
aggregate principal amount at maturity of its 9% Senior Notes
due 2003 (the "Notes"). The Notes will be issued pursuant to
an indenture (the "Indenture") dated the date hereof between
the Company and The Bank of New York, as trustee (the "Trus-
tee"). As an inducement to the Initial Purchaser, the Company
agrees with the Purchaser, for the benefit of the holders (the
"Holders") of the Notes, including, without limitation, the
Initial Purchaser, as follows:
1. Registered Exchange Offer. The Company shall
prepare and, not later than the date (the "Filing Deadline")
which is 60 days after the date of original issuance of the
Notes (the "Issue Date"), file with the Securities and Exchange
Commission (the "Commission") a registration statement (the
"Exchange Offer Registration Statement") on an appropriate form
under the Securities Act of 1933, as amended (the "Securities
Act"), with respect to a proposed offer (the "Registered
Exchange Offer") to the Holders of the Notes to issue and
deliver to such Holders, in exchange for the Notes, a like
principal amount of debt securities of the Company identical in
all material respects to the Notes (the "Exchange Notes"),
except for the transfer restrictions relating to the Notes.
The Company shall use its best efforts to cause such Exchange
Offer Registration Statement to become effective under the
Securities Act within 120 days after the Issue Date. Following
the declaration of the effectiveness of the Exchange Offer Reg-
istration Statement, the Company shall promptly commence the
Registered Exchange Offer, it being the objective of such Reg-
istered Exchange Offer to enable each Holder of the Notes
electing to exchange the Notes for Exchange Notes and (assuming
that such Holder is not an affiliate of the Company within the
meaning of the Securities Act, acquires the Exchange Notes in
the ordinary course of such Holder's business and has no
arrangements with any person to participate in the distribution
of the Exchange Notes) to trade such Exchange Notes from and
after their receipt without any limitations or restrictions
under the Securities Act and the securities laws of the several
states of the United States. In connection with such Regis-
tered Exchange Offer, the Company shall take such further
action, including, without limitation, appropriate filings
under state securities laws, as may be necessary to realize the
foregoing objective subject to the proviso of Section 3(h).
The Company shall include within the prospectus con-
tained in the Exchange Offer Registration Statement a section
entitled "Plan of Distribution", which shall contain a summary
statement of the positions taken or policies made by the staff
of the Commission with respect to the potential "underwriter"
status of any broker-dealer that is the beneficial owner (as
defined in Rule 13d-3 under the Securities Exchange Act of
1934, as amended (the "Exchange Act")) of Exchange Notes
received by such broker-dealer in the Registered Exchange Offer
(a "Participating Broker-Dealer"), whether such positions or
policies have been publicly disseminated by the staff of the
Commission or such positions or policies represent the prevail-
ing views of the staff of the Commission. Such "Plan of Dis-
tribution" section shall also allow the use of the prospectus
by all persons subject to the prospectus delivery requirements
of the Securities Act, including Participating Broker-Dealers,
and include a statement describing the means by which Partici-
pating Broker-Dealers may resell the Exchange Notes.
The Company shall use its 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 lawfully delivered by all persons
subject to the prospectus delivery requirements of the Securi-
ties Act for such period of time as such persons must comply
with such requirements in order to resell the Exchange Notes;
provided that such period shall not exceed 180 days (or such
longer period if extended pursuant to Section 3(j) below).
If, upon consummation of the Exchange Offer, the Ini-
tial Purchaser holds Notes acquired by it as part of its ini-
tial distribution, the Company upon the request of the Initial
Purchaser shall simultaneously with the delivery of the
Exchange Notes pursuant to the Registered Exchange Offer issue
and deliver to the Initial Purchaser, in exchange (the "Private
Exchange") for the Notes held by the Initial Purchaser, a like
principal amount of debt securities of the Company identical in
all material respects to the Notes (the "Private Exchange
Notes"). The Private Exchange Notes shall bear the same CUSIP
number as the 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 after the date notice thereof
is mailed to the Holders (or longer if required by appli-
cable law);
(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 Notes at any
time prior to the close of business, New York time, on the
last business day on which the Registered Exchange Offer
shall remain open; and
(e) otherwise comply in all respects with all appli-
cable laws.
As soon as practicable after the close of the Regis-
tered Exchange Offer the Company shall:
(i) accept for exchange all the Notes tendered and
not validly withdrawn pursuant to the Registered Exchange
Offer;
(ii) deliver to The Bank of New York, as trustee (the
"Trustee") for cancellation all the Notes so accepted for
exchange; and
(iii) cause the Trustee to authenticate and deliver
promptly to each Holder, Exchange Notes equal in principal
amount to the Notes of such Holder so accepted for
exchange.
The Exchange Notes and the Private Exchange Notes may
be issued under (i) the Indenture (the "Indenture"), dated as
of October 18, 1996, between the Company and the Trustee or
(ii) an indenture substantially similar to the Indenture, which
in either event will provide that the Exchange Notes will not
be subject to the transfer restrictions set forth in the
Indenture and that the Exchange Notes, the Private Exchange
Notes and the Notes will vote and consent together on all mat-
ters as one class and that none of the Exchange Notes, the Pri-
vate Exchange Notes or the Notes will have the right to vote or
consent as a separate class on any matter.
2. Shelf Registration. If, (i) because of any
change in law or in currently prevailing interpretations of the
staff of the Commission, the Company is not permitted to effect
a Registered Exchange Offer, as contemplated by Section 1
hereof, (ii) the Registered Exchange Offer is not completed
within 180 days of the Issue Date (the "Completion Deadline"),
(iii) the Initial Purchaser so requests with respect to the
Notes or the Private Exchange Notes held by them following con-
summation of the Registered Exchange Offer or (iv) any Holder
is not eligible to participate in the Registered Exchange Offer
or the Private Exchange or, in the case of any Holder that par-
ticipates in the Registered Exchange Offer, such Holder does
not receive freely tradeable Exchange Notes on the date of the
exchange, the Company shall take the following actions:
(a) The Company shall as promptly as reasonably
practicable file with the Commission and thereafter shall
use its best efforts to cause to be declared effective a
registration statement (the "Shelf Registration Statement"
and, together with the Exchange Offer Registration State-
ment, "Registration Statements" and each a "Registration
Statement") on an appropriate form under the Securities
Act relating to the offer and sale of the Notes or, if
applicable, the Private Exchange Notes by the Holders
thereof from time to time in accordance with the methods
of distribution set forth in the Shelf Registration State-
ment and Rule 415 under the Securities Act (hereafter, the
"Shelf Registration").
(b) The Company shall use its best efforts to keep
the Shelf Registration Statement continuously effective in
order to permit the prospectus included therein to be law-
fully delivered by the Holders of the Notes or, if appli-
cable, the Private Exchange Notes for a period of three
years (or for such longer period if extended pursuant to
Section 3(j) below) from the Issue Date or such shorter
period that will terminate when all the Notes or, if
applicable, the Private Exchange Notes covered by the
Shelf Registration Statement have been sold pursuant
thereto; provided that the Company shall be deemed not to
have used its best efforts to keep the Shelf Registration
Statement effective during the requisite period if it vol-
untarily takes any action that would result in Holders of
the Notes or, if applicable, the Private Exchange Notes
covered thereby not being able to offer and sell the Notes
or, if applicable, the Private Exchange Notes during that
period, unless such action is required by applicable law.
(c) Notwithstanding any other provisions hereof to
the contrary, the Company shall cause the Shelf Registra-
tion Statement and the related prospectus and any amend-
ment or supplement thereto, as of the effective date of
the Shelf Registration Statement, amendment or supplement,
(i) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regu-
lations of the Commission and (ii) not to contain any
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary
in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
3. Registration Procedures. In connection with any
Shelf Registration contemplated by Section 2 hereof and, to the
extent applicable, any Registered Exchange Offer contemplated
by Section 1 hereof, the following provisions shall apply:
(a) The Company shall furnish to the Initial Pur-
chaser, 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 obtain the consent of the Ini-
tial Purchaser to any such filing, which shall not be
unreasonably withheld.
(b) The Company shall give written notice to the
Initial Purchaser, the Holders of the Notes and any Par-
ticipating Broker-Dealer from whom the Company has
received prior written notice that it will be a Partici-
pating Broker-Dealer in the Registered Exchange Offer:
(i) when the Registration Statement or 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 amend-
ments or supplements to the Registration Statement or
the prospectus included therein or for additional
information, provided that the contents need only be
disclosed to the Initial Purchaser and one counsel
appointed by and on behalf of the Holders of the
Notes as described in Section 4;
(iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Regis-
tration Statement or the initiation of any proceed-
ings for that purpose;
(iv) of the receipt by the Company or its legal
counsel of any notification with respect to the sus-
pension of the qualification of the Notes or, if
applicable, the Private 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 Company to make changes in the Registration
Statement or the prospectus in order to make the
statements therein not misleading (which notice shall
be accompanied by an instruction to suspend the use
of the prospectus until the requisite changes have
been made).
(c) The Company shall use its best efforts to pre-
vent the issuance or obtain the withdrawal of any order
suspending the effectiveness of the Registration Statement
at the earliest possible time.
(d) The Company shall furnish to each Holder of the
Notes or, if applicable, the Private Exchange Notes
included within the coverage of the Shelf Registration,
without charge, at least one copy of the Registration
Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if the
Holder so requests in writing, all exhibits (including
those, if any, incorporated by reference).
(e) The Company shall deliver to the Initial Pur-
chaser and to any other Holder who so requests, without
charge, at least one copy of the Exchange Offer Registra-
tion Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if the
Initial Purchaser or any such Holder requests, all exhib-
its (including those incorporated by reference).
(f) The Company shall deliver to the Initial Pur-
chaser and to each Holder of the Notes included within the
coverage of the Shelf Registration, without charge, as
many copies of the prospectus (including each preliminary
prospectus) included in the Shelf Registration Statement
and any amendment or supplement thereto as such person may
reasonably request. The Company consents, subject to the
provisions hereof, to the use of the prospectus or any
amendment or supplement thereto by the Initial Purchaser
and each of the selling Holders of the Notes in connection
with the offering and sale of the Notes or, if applicable,
the Private Exchange Notes covered by the prospectus, or
any amendment or supplement thereto, included in the Shelf
Registration Statement.
(g) The Company shall deliver to the Initial Pur-
chaser, any Participating Broker-Dealer and such other
persons 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 and any amendment or supplement
thereto as such persons may reasonably request. The Com-
pany consents, subject to the provisions hereof, to the
use of the prospectus or any amendment or supplement
thereto by the Initial Purchaser and, if necessary, any
Participating Broker-Dealer and such other persons
required to deliver a prospectus following the Registered
Exchange Offer in connection with the offering and sale of
the Exchange Notes covered by the prospectus, or any
amendment or supplement thereto, included in such Exchange
Offer Registration Statement.
(h) Prior to any public offering of the Notes or, if
applicable, the Private Exchange Notes, pursuant to the
Shelf Registration, the Company shall register or qualify
or cooperate with the Initial Purchaser and the Holders of
the Notes or, if applicable, the Private Exchange Notes
included therein and their respective counsel in connec-
tion with the registration or qualification of the Notes
or, if applicable, the Private Exchange Notes for offer
and sale under the securities or blue sky laws of such
jurisdictions as any Holder of the Notes 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 Notes or, if applicable, the
Private Exchange Notes covered by the Shelf Registration;
provided that the Company shall not be required to
(i) qualify generally to do business in any jurisdiction
where it is not then so qualified or (ii) take any action
which would subject it to general service of process or to
taxation in any jurisdiction where it is not then so
subject.
(i) The Company shall cooperate with the Holders of
the Notes or, if applicable, the Private Exchange Notes to
facilitate the timely preparation and delivery of certifi-
xxxxx representing the Notes to be sold in the Shelf Reg-
istration free of any restrictive legends and in such
denominations and registered in such names as the Holders
may request a reasonable period of time prior to sales of
the Notes or, if applicable, the Private Exchange Notes
pursuant to the Shelf Registration.
(j) Upon the occurrence of any event contemplated by
Section 3(b)(v) above, the Company shall promptly prepare
a post-effective amendment to the Registration Statement
or a supplement to the related prospectus or file any
other required document so that, as thereafter delivered
to Holders of the Notes, the Exchange Notes or, if appli-
cable, the Private Exchange Notes, the prospectus will not
contain an untrue statement of a material fact or omit to
state any material fact necessary to make the statements
therein, in light of the circumstances under which they
were made, not misleading. If the Company notifies the
Initial Purchaser, the Holders of the Notes and any known
Participating Broker-Dealer in accordance with Section
3(b)(v) above to suspend the use of the prospectus until
the requisite changes to the prospectus have been made,
then the Initial Purchaser, the Holders of the Notes and
any such Participating Broker-Dealers shall suspend use of
such prospectus, and the period of effectiveness of the
Shelf Registration Statement provided for in Section 2(b)
above and the Exchange Offer Registration Statement pro-
vided for in Section 1 above shall each be extended by the
number of days from and including the date of the giving
of such notice to and including the date when the Initial
Purchaser, the Holders of the Notes and any known Partici-
pating Broker-Dealer shall have received such amended or
supplemented prospectus pursuant to this Section 3(j).
(k) Not later than the effective date of the appli-
cable Registration Statement, the Company will provide a
CUSIP number for the Notes or Exchange Notes, as the case
may be, and provide the applicable trustee with printed
certificates for the Notes or 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 rules and regu-
lations of the Commission to the extent and so long as
they are applicable to the Registered Exchange Offer or
the Shelf Registration and will make generally available
to its securities holders (or otherwise provide in accor-
dance with Section 11(a) of the Securities Act) an earn-
ings statement satisfying the provisions of Section 11(a)
of the Securities Act, no later than 45 days after the end
of a 12-month period (or 90 days, if such period is a fis-
cal year) beginning with the first month of the Company's
first fiscal quarter commencing after the effective date
of the Shelf Registration, which statement shall cover
such 12-month period.
(m) The Company shall cause the Indenture (or an
indenture substantially identical to the Indenture in the
case of a Registered Exchange Offer) to be qualified under
the Trust Indenture Act of 1939, as amended.
(n) The Company may require each Holder of the Notes
to be sold pursuant to the Shelf Registration Statement to
furnish to the Company such information regarding the
Holder and the distribution of the Notes as the Company
may from time to time reasonably require for inclusion in
the Shelf Registration Statement.
(o) The Company shall enter into such customary
agreements (including if requested an underwriting agree-
ment in customary form) and take all such other action, if
any, as any Holder of the Notes shall reasonably request
in order to facilitate the disposition of the Notes pursu-
ant to any Shelf Registration.
(p) In the case of any Shelf Registration, the Com-
pany shall (i) make reasonably available for inspection by
the Holders of the Notes, any underwriter participating in
any disposition pursuant to the Shelf Registration State-
ment and any attorney, accountant or other agent retained
by the Holders of the Notes or any such underwriter all
relevant financial and other records, pertinent corporate
documents and properties of the Company and (ii) cause the
Company's officers, directors and employees to supply all
relevant information reasonably requested by the Holders
of the Notes or any such underwriter, attorney, accountant
or agent in connection with the Shelf Registration State-
ment; provided that the foregoing inspection and informa-
tion gathering shall be coordinated on behalf of the par-
ties (other than the Initial Purchaser), by one counsel
designated by and on behalf of such parties as described
in Section 4.
(q) In the case of the Registered Exchange Offer,
the Company shall (i) make reasonably available for
inspection by the Initial Purchaser, any known Partici-
pating Broker-Dealer and any attorney, accountant or other
agent retained by the Initial Purchaser, such Partici-
pating Broker-Dealer all relevant financial and other
records, pertinent corporate documents and properties of
the Company and (ii) cause the Company's officers, direc-
tors and employees to supply all relevant information rea-
sonably requested by the Initial Purchaser, such Partici-
pating Broker-Dealer or any such attorney, accountant or
agent in connection with the Exchange Offer Registration
Statement; provided that the foregoing inspection and
information gathering shall be coordinated on behalf of
the parties (other than the Initial Purchaser), by one
counsel designated by and on behalf of such parties as
described in Section 4.
(r) In the case of any Shelf Registration, the Com-
pany, if requested by any Holder of the Notes or, if
applicable, the Private Exchange Notes, shall cause its
counsel to deliver an opinion relating to the Notes or, if
applicable, the Private Exchange Notes, in customary form,
cause its officers to execute and deliver all customary
documents and certificates requested by any underwriters
of the Notes or, if applicable, the Private Exchange
Notes, and cause its independent public accountants to
provide to the selling Holders of the Notes or, if appli-
cable, the Private Exchange Notes, and any underwriter
therefor a comfort letter in customary form.
(s) In the case of the Registered Exchange Offer, if
requested by the Initial Purchaser or any known Partici-
pating Broker-Dealer, the Company shall cause its outside
counsel to deliver to the Initial Purchaser or such Par-
ticipating Broker-Dealer a signed opinion in the form set
forth in Section 5(c)(A) of the Purchase Agreement with
such changes as are customary in connection with the prep-
aration of a registration statement and shall cause its
independent public accountants to deliver to the Initial
Purchaser or such Participating Broker-Dealer a comfort
letter in customary form.
4. Registration Expenses. The Company shall bear
all expenses incurred in connection with the performance of its
obligations under Sections 1 through 3 hereof (including the
reasonable fees and expenses of Xxxxxx Xxxxxx & Xxxxxxx, coun-
sel to the Initial Purchaser, incurred in connection with the
Registered Exchange Offer) and, in the event of a Shelf Regis-
tration, shall bear or reimburse the Holders of the Notes or,
if applicable, the Private Exchange Notes for the reasonable
fees and disbursements of one firm of counsel designated by the
Holders of a majority in principal amount of the Notes and, if
applicable, the Private Exchange Notes to act as counsel for
the Holders of the Notes and, if applicable, the Private
Exchange Notes in connection therewith, which counsel shall be
reasonably satisfactory to the Company.
5. Indemnification. (a) The Company agrees to
indemnify and hold harmless each Holder of the Notes, or, if
applicable, the Private Exchange Notes and each person, if any,
who controls such Holder within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act and each
director, officer, employee or agent of such Holder and each
director, officer, employee or agent of each such controlling
person (each Holder, such controlling persons and each such
director, officer, employee and agent are referred to collec-
tively as the "Indemnified Parties") from and against any
losses, claims, damages or liabilities, joint or several, or
any actions in respect thereof (including, but not limited to,
any losses, claims, damages, liabilities or actions relating to
purchases and sales of the Notes, or, if applicable, the Pri-
vate Exchange Notes), to which each Indemnified Party may
become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages, liabilities
or actions arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in a
Registration Statement or prospectus or in any amendment or
supplement thereto, or arise out of, or are based upon, the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the state-
ments therein not misleading, and shall reimburse, as incurred,
the Indemnified Parties for any legal or other expenses reason-
ably incurred by them 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 in respect thereof; provided, how-
ever, that the Company shall not be liable in any such case to
the extent that such loss, claim, damage or liability arises
out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in a Registra-
tion Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to a Shelf
Registration in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such
Holder specifically for inclusion therein; provided, further,
that (A) the Company shall not be obligated to indemnify or
hold harmless any Indemnified Party in respect of any loss,
claim, damage, liability or action 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 or
omission or alleged omission made in a preliminary Registration
Statement or preliminary prospectus if the applicable Holder or
the Initial Purchaser failed to deliver a copy of a final pro-
spectus or an amended or supplemented Registration Statement or
prospectus that was made available by the Company to such
Indemnified Party prior to the applicable sale to the person or
persons asserting the claim which is the basis of indemnifica-
tion and such final prospectus or amended or supplemented Reg-
istration Statement or prospectus cured such defect and
(B) this indemnity agreement will be in addition to any lia-
bility which the Company may otherwise have to such Indemnified
Party. The Company will not settle or compromise or consent to
the entry of any judgment in any pending or threatened claim,
action, suit or proceeding in respect of which indemnification
may be sought hereunder (whether or not such Indemnified Party
or any person who controls such Indemnified Party within the
meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act is a party to such claim, action, suit or pro-
ceeding) without the prior written consent of such Indemnified
Party, which consent shall not be unreasonably withheld, unless
such settlement, compromise or consent includes an uncondi-
tional release of such Indemnified Party and each such control-
ling person from all liability arising out of such claim,
action, suit or proceeding. No Indemnified Party will settle
or compromise or consent to the entry or any judgment in any
pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought without the
prior written consent of the Company (which consent will not be
unreasonably withheld). The Company shall also indemnify
underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distri-
bution (as described in such Registration Statement), their
officers and directors and each person who controls such per-
sons (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) to the same extent as provided
above with respect to the indemnification of the Holders of the
Notes if requested by such Holders.
(b) The Company agrees to indemnify and hold harm-
less the Initial Purchaser, any Participating Broker-Dealer and
each person, if any, who controls the Initial Purchaser or such
Participating Broker-Dealer within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act and each
director, officer, employee or agent of the Initial Purchaser
or such Participating Broker-Dealer and each director, officer,
employee or agent of each such controlling person (the Initial
Purchaser,any Participating Broker-Dealer, such controlling
persons and each such director, officer, employee and agent of
such Participating Broker-Dealer or such controlling person are
referred to collectively as the "Exchange Offer Indemnified
Parties") from and against any losses, claims, damages or lia-
bilities, joint or several, or any actions in respect thereof
(including, but not limited to, any losses, claims, damages,
liabilities or actions relating to purchases and sales of
Exchange Notes), to which each Exchange Offer Indemnified Party
may become subject under the Securities Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages, liabili-
ties or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact con-
tained in the Exchange Offer Registration Statement or prospec-
tus contained therein or in any amendment or supplement
thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein
not misleading, and shall reimburse, as incurred, the Exchange
Offer Indemnified Parties for any legal or other expenses rea-
sonably incurred by them 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 in respect thereof; provided, how-
ever, that the Company shall not be liable in any such case to
the extent that such loss, claim, damage or liability arises
out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in any Exchange
Offer Registration Statement or prospectus contained therein or
in any amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by
or on behalf of the Initial Purchaser, such Participating
Broker-Dealer specifically for inclusion therein; provided,
further, that (A) the Company shall not be obligated to indem-
nify or hold harmless any Exchange Offer Indemnified Party in
respect of any loss, claim, damage, liability or action to the
extent that any such loss, claim, damages, liability or action
arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in a pre-
liminary Registration Statement or preliminary prospectus if
the Initial Purchaser or applicable Participating Broker-Dealer
failed to deliver a copy of, a final prospectus or an amended
or supplemented Registration Statement or prospectus that was
made available by the Company to such Exchange Offer Indem-
nified Party prior to the applicable sale to the person or per-
sons asserting the claim which is the basis of indemnification
and such final prospectus or amended or supplemented Registra-
tion Statement or prospectus cured such defect and (B) this
indemnity agreement will be in addition to any liability which
the Company may otherwise have to such Exchange Offer Indem-
nified Party. The Company will not settle or compromise or
consent to the entry of any judgment in any pending or threat-
ened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not such
Exchange Offer Indemnified Party or any person who controls
such Exchange Offer Indemnified Party within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange
Act is a party to such claim, action, suit or proceeding) with-
out the prior written consent of such Exchange Offer Indem-
nified Party, which consent shall not be unreasonably withheld,
unless such settlement, compromise or consent includes an
unconditional release of such Exchange Offer Indemnified Party
and each such controlling person from all liability arising out
of such claim, action, suit or proceeding. No Exchange Offer
Indemnified Party will settle or compromise or consent to the
entry of any judgment in any pending or threatened claim,
action, suit or proceeding in respect of which indemnification
may be sought without the prior written consent of the Company
(which will not be unreasonably withheld).
(c) Each Holder of the Notes or, if applicable, Pri-
vate Exchange Notes, severally and not jointly, will indemnify
and hold harmless the Company, each director and officer of the
Company and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Sec-
tion 20 of the Exchange Act from and against any losses,
claims, damages or liabilities or any actions in respect
thereof, to which the Company or any such director, officer or
controlling person may become subject under the Securities Act,
the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon
any untrue statement or alleged untrue statement of a material
fact contained in a Registration Statement or prospectus or in
any amendment or supplement thereto or in any preliminary pro-
spectus relating to a Shelf Registration, or arise out of or
are based upon the omission or alleged omission to state
therein a material fact necessary to make the statements
therein not misleading, but in each case only to the extent
that the untrue statement or alleged untrue statement or omis-
sion or alleged omission was made in reliance upon and in con-
formity with written information furnished to the Company by or
on behalf of such Holder specifically for inclusion therein;
and, subject to the limitation set forth immediately preceding
this clause, shall reimburse, as incurred, the Company for any
legal or other expenses reasonably incurred by the Company or
any such director, officer or controlling person in connection
with the investigating or defending or preparing to defend
against or appearing as a third-party witness in connection
with any loss, claim, damage, liability or action in respect
thereof. This indemnity agreement will be in addition to any
liability which such Holder may otherwise have to the Company
or any of its directors, officers or controlling persons.
(d) Promptly after receipt by an indemnified party
under this Section 5 of notice of the commencement of any
action or proceeding (including a governmental investigation),
such indemnified party will, if a claim in respect thereof is
to be made against the indemnifying party under this Section 5,
notify the indemnifying party of the commencement thereof; but
the omission so to notify the indemnifying party (i) will not
relieve it from any liability under paragraph (a), (b) or (c)
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 or 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), (b) or
(c) above. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be enti-
tled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly noti-
fied, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided, however, that
if the defendants in any such action include both the indem-
nified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be one or
more legal defenses available to it and/or other indemnified
parties which are different from or additional to those avail-
able to the indemnifying party, the indemnifying party shall
not have the right to direct the defense of such action on
behalf of such indemnified party or parties and such indem-
nified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified
party or parties. After notice from the indemnifying party to
such indemnified party of its election so to assume the defense
thereof and approval by such indemnified party of counsel
appointed to defend such action, which approval shall not be
unreasonably withheld, the indemnifying party will not be lia-
ble to such indemnified party under this Section 5 for any
legal or other expenses, other than reasonable costs of inves-
tigation, subsequently incurred by such indemnified party in
connection with the defense thereof, unless (i) the indemnified
party shall have employed separate counsel in accordance with
the proviso to the next preceding sentence (it being under-
stood, however, that in connection with such action the indem-
nifying party shall not be liable for the expenses of more than
one separate counsel (in addition to local counsel) in any one
action or separate but substantially similar actions in the
same jurisdiction arising out of the same general allegations
or circumstances) or (ii) the indemnifying party has authorized
the employment of counsel for the indemnified party at the
expense of the indemnifying party.
(e) In circumstances in which the indemnity agree-
ment provided for in the preceding paragraphs of this Section 5
is unavailable or insufficient to hold harmless an indemnified
party in respect of any losses, claims, damages or liabilities
(or actions in respect thereof) (other than by reason of excep-
tions provided in such Section 5), each indemnifying party, in
order to provide for just and equitable contribution, shall
contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabili-
ties (or actions in respect thereof), in such proportion as is
appropriate to reflect (i) the relative benefits received by
the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Notes
or (ii) if the allocation provided by the foregoing clause (i)
is not permitted by applicable law, not only such relative ben-
efits but also the relative fault of the indemnifying party or
parties on the one hand and the indemnified party on the other
in connection with the statements or omissions or alleged
statements or omissions that resulted in such losses, claims,
damages or liabilities (or actions in respect thereof). The
relative fault of the parties 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 omis-
sion to state a material fact relates to information supplied
by the Company on the one hand or such Holder or such other
indemnified person, as the case may be, on the other, the par-
ties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission,
and any other equitable considerations appropriate in the cir-
cumstances. The Company and each indemnified party agrees that
it would not be equitable if the amount of such contribution
were determined by pro rata or per capita allocation or by any
other method of allocation that does not take into account the
equitable considerations referred to in the first sentence of
this paragraph (e). Notwithstanding any other provision of
this Section 5(e), the Holders of the Notes or, if applicable,
the Private Exchange Notes shall not be required to contribute
any amount in excess of the amount by which the net proceeds
received by such Holders from the sale of the Notes or the Pri-
vate Exchange Notes, as the case may be, pursuant to a Regis-
tration Statement exceeds the amount of damages which such
Holders have otherwise been required to pay in respect of the
same or a similar claim, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any per-
son who was not guilty of such fraudulent misrepresentation.
For purposes of this paragraph (e), each director, officer,
employee and agent of any indemnified party and each person, if
any, who controls such indemnified party within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange
Act shall have the same rights to contribution as such indem-
nified party and each director and officer of the Company, and
each person, if any, who controls the Company within the mean-
ing of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall have the same rights to contribution as the
Company.
(f) The agreements contained in this Section 5 shall
survive the sale of the Notes, the Exchange Notes or, if appli-
cable, the Private Exchange Notes pursuant to a Registration
Statement and shall remain in full force and effect, regardless
of any termination or cancellation of the Indenture or any
investigation made by or on behalf of any indemnified party.
6. Additional Interest Under Certain Circumstances.
(a) Additional interest at a rate of 0.5% per annum of the
principal amount of the Notes (the "Additional Interest") shall
be assessed as follows:
(i) if the Exchange Offer Registration Statement is
not filed with the Commission by the Filing Deadline,
then, commencing on the Filing Deadline, Additional Inter-
est shall be assessed on the Notes;
(ii) if the Registered Exchange Offer is not com-
pleted or a Shelf Registration is not declared effective
by the Commission by the Completion Deadline, then, com-
mencing on the Completion Deadline, Additional Interest
shall be assessed on the Notes; and
(iii) if (A) the Company has not exchanged Exchange
Notes for all the Notes validly tendered in accordance
with the terms of the Registered Exchange Offer on or
prior to 30 business days after the date on which the
Exchange Offer Registration Statement was declared
effective, or (B) if applicable, the Shelf Registration
Statement has been declared effective and it ceases to be
effective prior to three years (or such later date if such
three-year period is extended pursuant to Section 3(j)
above or such shorter period as is provided in
Section 2(b)) from the Issue Date, then Additional Inter-
est shall be assessed on the Notes commencing on (x) the
31st business day after such effective date in the case of
(A) above, or (y) the day such Shelf Registration State-
ment ceases to be effective in the case of (B) above;
provided, however, that (1) upon the filing of the Exchange
Offer Registration Statement or the Completion Deadline in the
case of (i) above, (2) upon completion of the Registered
Exchange Offer or the effectiveness of the Shelf Registration
Statement in the case of (ii) above, or (3) upon the exchange
of Exchange Notes for all the Notes validly tendered in accor-
dance with the terms of the Registered Exchange Offer, or upon
the effectiveness of the Shelf Registration Statement which has
ceased to remain effective prior to three years (or such later
date if extended pursuant to Section 3(j) above or such shorter
period as is provided in Section 2(b)) from the date of origi-
nal issuance of the Notes in the case of (iii) above, Addi-
tional Interest on the Notes as a result of such clause (i),
(ii) or (iii) shall immediately cease to accrue.
(b) Any amount of Additional Interest due pursuant
to clauses (i), (ii) or (iii) of Section 6(a) above will be
payable in cash semiannually in arrears on each Interest Pay-
ment Date (as defined in the Notes), commencing with the first
such Interest Payment Date occurring after any such Additional
Interest commences to accrue. The amount of Additional Inter-
est will be determined by multiplying the Additional Interest
by a fraction, the numerator of which is the number of days
such Additional Interest rate was applicable during such period
determined on the basis of a 360-day year comprised of twelve
30-day months, and the denominator of which is 360.
(c) If the Company effects the Registered Exchange
Offer, the Company will be entitled to close the Registered
Exchange Offer provided that the Company has accepted all the
Notes theretofore validly tendered in accordance with the terms
of the Registered Exchange Offer.
7. Miscellaneous.
(a) Amendments and Waivers. The provisions hereof
may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be
given, except by the Company and the written consent of Holders
of a majority in aggregate principal amount of the Notes,
determined in accordance with the terms of the Indenture.
(b) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand delivery, first-class mail, telex, telecopy, or air cou-
rier which guarantees overnight delivery:
(1) if to a Holder of the Notes, in accordance with
Section 10.02 of the Indenture, with a copy to the Initial
Purchaser as follows:
Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention : Xxxxxxx X. Xxxxxx, Esq.
(2) if to the Initial Purchaser, at the addresses
specified in Section 7(b)(1);
(3) if to the Company, at its address as follows:
c/o ISP Management Company Inc.
0000 Xxxx Xxxx
Xxxxx, Xxx Xxxxxx 00000
Attention: General Counsel
All such notices and communications to the Company
shall be deemed to have been duly given: at the time delivered
by hand, if personally delivered; three business days after
being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged by recipi-
ent's telecopy operator, if telecopied; and on the day deliv-
ered, if sent by overnight air courier guaranteeing next day
delivery. All such notices and communications to the Holders
shall be deemed to have been duly given if given as provided in
Section 10.02 of the Indenture.
(c) Successors and Assigns. The provisions hereof
shall be binding upon the Company and its successors and
assigns.
(d) Headings. The headings herein are for conve-
nience of reference only and shall not limit or otherwise
affect the meaning hereof.
(e) Severability. If any one or more of the provi-
sions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
If the foregoing is in accordance with your under-
standing of our agreement, please sign and return to the Com-
pany a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement between
the Initial Purchaser and the Company in accordance with its
terms.
Very truly yours
ISP HOLDINGS INC.
By:/s/ Xxxxx X. Xxxxxx
-----------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
Confirmed and accepted as of
the date first above written:
BEAR, XXXXXXX & CO. INC.
By:/s/ J. Xxxxxx Xxxxx
----------------------
Name: J. Xxxxxx Xxxxx
Title: Senior Managing Director
