EXHIBIT 4.21
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
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entered into as of December 2, 1997, by and among Trans World Airlines, Inc., a
Delaware corporation (the "Company"), and Lazard Freres & Co. LLC and
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PaineWebber Incorporated (together, the "Initial Purchasers"), who have (i)
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purchased 1,500,000 shares of 9 1/4% Cumulative Convertible Exchangeable
Preferred Stock, par value $.01 per share of the Company (the "9 1/4% Preferred
Stock") exchangeable for 9 1/4% Convertible Subordinated Debentures due 2007
(the "Debentures") of the Company and (ii) been granted the right to acquire an
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additional 225,000 shares of 9 1/4% Preferred Stock (the "Option Shares"), in
each case pursuant to the Purchase Agreement dated as of November 25, 1997 (the
"Purchase Agreement"), among the Company and the Initial Purchasers.
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This Agreement is made pursuant to the Purchase Agreement. In order
to induce the Initial Purchasers to enter into the Purchase Agreement, the
Company has agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to the
closing of the Purchase Agreement. All capitalized terms used but not defined
herein shall have the meanings ascribed to them in the Indenture (as defined
below) governing the Debentures.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Act: The Securities Act of 1933, as amended.
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Closing Date: The date on which the initial closing of the sale of
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shares of 9 1/4% Preferred Stock to the Initial Purchasers is consummated.
Commission: The United States Securities and Exchange Commission and
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any successor federal agency having similar powers.
Common Stock: Includes any stock of any class of the Company which
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has no preference in respect of dividends or of amounts payable in the event of
any voluntary or involuntary liquidation, dissolution or winding up of the
Company and which is not subject to redemption by the Company. Unless the
context otherwise requires, all references to Common Stock shall include the
associated Rights.
Damages Payment Date: With respect to the 9 1/4% Preferred Stock, the
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Damages Payment Date shall be each dividend payment date and each Redemption
Date (as defined in the Designation of the Preferred). With respect to the
Debentures, the Damages Payment Date shall
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be each interest payment date, each Repurchase Date (as defined in the
Indenture) and each redemption date under the Indenture. In the event the 9 1/4%
Preferred Stock or the Debentures are called for redemption on a redemption date
falling between a dividend payment record date or an interest payment record
date and the dividend payment date or interest payment date, holders of shares
of 9 1/4% Preferred Stock or Debentures shall in lieu of receiving liquidated
damages on the dividend payment date or interest payment date receive such
liquidated damages on the date fixed for redemption (unless such holders convert
such shares or Debentures in accordance with the Designation of the Preferred or
the Indenture, in which case such holders will receive such payment on the
corresponding dividend payment date or interest payment date). With respect to
Common Stock issuable upon conversion of the 9 1/4% Preferred Stock or the
Debentures, the Damages Payment Date shall be the dividend payment date
applicable to the 9 1/4% Preferred Stock (unless all of the shares of 9 1/4%
Preferred Stock have been exchanged for Debentures, in which case the Damages
Payment Date will be the interest payment date applicable to the Debentures).
Designation of the Preferred: The Certificate of Designations,
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Preferences and Rights Relating to the 9 1/4% Preferred Stock.
Effectiveness Target Date: As defined in Section 3.
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Exchange Act: The Securities Exchange Act of 1934, as amended.
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Exempt Resales: The transactions in which the Initial Purchasers
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propose to sell the 9 1/4% Preferred Stock (i) inside the United States to (A)
certain "qualified institutional buyers" (as such term is defined in Rule 144A
under the Act) and (B) certain institutional "accredited investors" (as defined
in Rule 501 of Regulation D under the Act), and (ii) outside the United States
in reliance on Regulation S under the Act.
Holder: As defined in Section 2(b) hereof.
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Indenture: The Indenture, dated as of the Exchange Date (as defined
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in the Designation of the Preferred), between the Company and a trustee selected
by the Company and reasonably satisfactory to the Initial Purchasers (the
"Trustee"), pursuant to which the Debentures are to be issued, as such Indenture
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is amended or supplemented from time to time in accordance with the terms
thereof.
NASD: National Association of Securities Dealers, Inc.
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Offering Memorandum: The Offering Memorandum, dated November 25,
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1997, and all amendments and supplements thereto, relating to the 9 1/4%
Preferred Stock and prepared by the Company pursuant to the Purchase Agreement.
Option Closing Date: The date on which the closing of the sale of the
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Option Shares to the Initial Purchasers is consummated.
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Person: An individual, partnership, corporation, limited liability
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company, trust or unincorporated organization or other entity, or a government
or agency or political subdivision thereof.
9 1/4% Preferred Stock: 9 1/4% Cumulative Convertible Exchangeable
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Preferred Stock, par value $.01 per share, of the Company.
Prospectus: The prospectus included in the Shelf Registration
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Statement, as amended or supplemented by any prospectus supplement and by all
other amendments and supplements to the prospectus included in the Shelf
Registration Statement, including post-effective amendments, and all material
which may be incorporated by reference into such prospectus.
Record Holder: (i) With respect to any Damages Payment Date relating
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to the 9 1/4% Preferred Stock, each Person who is a Holder of 9 1/4% Preferred
Stock on the record date with respect to the dividend payment date on which such
Damages Payment Date shall occur, (ii) with respect to any Damages Payment Date
relating to the Debentures, each Person who is a Holder of Debentures on the
record date with respect to the interest payment date on which such Damages
Payment Date shall occur and (iii) with respect to any Damages Payment Date
relating to the Common Stock, each Person who is a Holder of Common Stock issued
upon conversion of 9 1/4% Preferred Stock or Debentures on the record date with
respect to the dividend payment date on which such Damages Payment Date shall
occur (unless all of the shares of 9 1/4% Preferred Stock have been exchanged
for Debentures, in which case the Record Holder shall be each Person who is a
Holder of Common Stock on the record date with respect to the interest payment
date on which such Damages Payment Date shall occur).
Registrar: As defined in the Indenture.
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Registration Default: As defined in Section 4 hereof.
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Rights: The Rights of the Company entitling the holder to purchase
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one one-hundredth of a share of the Company's Series A Participating Preferred
Stock, par value $.01 per share, under certain circumstances issued pursuant to
the Rights Agreement dated as of December 19, 1995 between the Company and
American Stock Transfer & Trust Company, as Rights Agent, supplemented as of
March 18, 1996 and as it may be further amended or supplemented from time to
time.
Securities Act: The Securities Act of 1933, as amended.
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Shelf Registration Statement: As defined in Section 3(a) hereof.
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TIA: The Trust Indenture Act of 1939, as amended, as in effect on the
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date of the Indenture.
Transfer Restricted Securities: Each share of 9 1/4% Preferred Stock,
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each Debenture issued upon exchange thereof, and each share of Common Stock
issued upon
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conversion of the 9 1/4% Preferred Stock or the Debentures, until the date on
which each such share of 9 1/4% Preferred Stock, Debenture or share of Common
Stock (i) has been effectively registered under the Act and disposed of in
accordance with the Shelf Registration Statement or (ii) is distributed to the
public pursuant to Rule 144 under the Act or is saleable pursuant to Rule 144(k)
under the Act (or similar provisions then in force).
Usable: Complies with the applicable rules and regulations of the
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Securities Act of 1933, as amended, including, without limitation, Rule 3-12 of
Regulation S-X and Item 512 of Regulation S-K.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities entitled to the
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benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to
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be a holder of record of Transfer Restricted Securities (each, a "Holder")
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whenever such Person owns Transfer Restricted Securities.
SECTION 3. SHELF REGISTRATION
(a) The Company shall file with the Commission, as soon as practicable
after the Closing Date, but in any event on or prior to the date 60 days after
the Closing Date, a shelf registration statement pursuant to Rule 415 under the
Act (the "Shelf Registration Statement") on Form X-0, Xxxx X-0 or Form S-3, as
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determined by the Company, if the use of such form is then available, to cover
resales of all Transfer Restricted Securities by the Holders thereof who have
provided the information required by Section 3(b) hereof. The Company will use
its reasonable best efforts to cause such Shelf Registration Statement to be
declared effective by the Commission within 150 days after the Closing Date (the
"Effectiveness Target Date"). The Company shall use its reasonable best efforts
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to keep such Shelf Registration Statement continuously effective, subject to the
provisions of Section 5 hereof, until the earlier of (i) the sale of all
Transfer Restricted Securities covered by the Shelf Registration Statement, and
(ii) the expiration of two years after the date of original issuance of the 9
1/4% Preferred Stock or, if the period applicable under Rule 144(k) under the
Securities Act, or any successor provision for such securities is shortened,
such shorter period. Subject to the right of the Company to have the Shelf
Registration Statement not be effective for periods of time set forth in Section
5 hereof, the Company further agrees to use its reasonable best efforts to
prevent the happening of any event that would cause the Shelf Registration
Statement to contain a material misstatement or omission or to be not effective
and usable for resale of the Transfer Restricted Securities during the period
that such Shelf Registration Statement is required to be effective and usable.
Upon the occurrence of any event that would cause the Shelf Registration
Statement (i) to contain a material misstatement or omission or (ii) to not be
effective or usable for resale of Transfer Restricted Securities during the
period that such Shelf Registration Statement is required to be effective and
usable, the Company shall promptly file an amendment to the Shelf Registration
Statement, in the case of clause (i), correcting any such misstatement or
omission, and in the case of either clause (i) or (ii), use its reasonable best
efforts to cause such amendment to be declared
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effective and such Shelf Registration Statement to become usable as soon as
practicable thereafter.
(b) No Holder of Transfer Restricted Securities may include any of its
Transfer Restricted Securities in any Shelf Registration Statement pursuant to
this Agreement unless such Holder furnishes to the Company in writing, within 10
business days after receipt of a request therefor (which initial request shall
be made within 40 days after the Closing to the Holders of record on a date not
more than 5 days prior to such request), such information and representations
and warranties as the Company may reasonably request for use in connection with
any Shelf Registration Statement or Prospectus or preliminary Prospectus
included therein. No Holder of Transfer Restricted Securities shall be entitled
to liquidated damages pursuant to Section 4 hereof if such Holder's Transfer
Restricted Securities are excluded from a Shelf Registration Statement because
such Holder failed to furnish the Company in writing such information and
representations and warranties reasonably requested by the Company for use in
connection with such Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. Each Holder as to which any Shelf Registration
Statement is being effected agrees to furnish promptly to the Company all
information required to be disclosed in order to make the information previously
provided to the Company by such Holder not materially misleading.
SECTION 4. LIQUIDATED DAMAGES
Each of the Company and the Initial Purchasers (on behalf of
themselves and each subsequent Holder of Transfer Restricted Securities) agrees
that (a) the Holders of Transfer Restricted Securities will suffer damages if
the Shelf Registration Statement is not filed with and declared effective by,
the Commission and maintained in the manner and within the time periods
contemplated by Section 3 hereof and (b) it would not be feasible to ascertain
the extent of such damages with precision. Accordingly, if (i) the Shelf
Registration Statement is not filed with the Commission on or prior to the date
60 days after the Closing Date, (ii) the Shelf Registration Statement has not
been declared effective by the Commission on or prior to the Effectiveness
Target Date or (iii) the Shelf Registration Statement is filed and declared
effective but shall thereafter cease to be effective (without being succeeded
immediately by an additional Shelf Registration Statement filed and declared
effective) or usable for a period of time which shall exceed 90 days in the
aggregate during any year (defined as any period of 365 days commencing on or
after the date the Shelf Registration Statement is declared effective or the
Effectiveness Target Date, as the case may be) (each such event referred to in
clauses (i) through (iii), a "Registration Default"), the Company shall pay
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liquidated damages to each Holder of Transfer Restricted Securities who has
complied with such Holder's obligations hereunder, during the first 90-day
period immediately following the occurrence of such Registration Default in an
amount equal to $0.0025 per week per share of
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9 1/4% Preferred Stock (subject to adjustment in the event of stock splits,
stock recombinations, stock dividends and the like), and, if applicable, $0.05
per week per $1,000 principal amount of Debentures and, if applicable, $0.01 per
week per share (subject to adjustment in the event of stock splits, stock
recombinations, stock dividends and the like) of Common Stock constituting
Transfer Restricted Securities held by such Holder. The amount of the liquidated
damages will increase by an additional $0.0025 per week per share of 9 1/4%
Preferred Stock (subject to adjustment as set forth above), $0.05 per week per
$1,000 principal amount of Debentures or $0.01 per week per share (subject to
adjustment as set forth above) of Common Stock constituting Transfer Restricted
Securities held by such Holder for each subsequent 90-day period until the Shelf
Registration Statement is filed, declared effective or again becomes effective
and usable, as the case may be, up to a maximum amount of liquidated damages
with respect to any such Registration Default of $0.0125 per week per share of 9
1/4% Preferred Stock (subject to adjustment as set forth above), $0.25 per week
per $1,000 principal amount of Debentures or $0.05 per week per share (subject
to adjustment as set forth above) of Common Stock constituting Transfer
Restricted Securities. All accrued and unpaid liquidated damages shall be paid
to Record Holders by wire transfer of immediately available funds or by federal
funds check by the Company on each Damages Payment Date. Following the cure of a
Registration Default, liquidated damages will cease to accrue with respect to
such Registration Default.
All of the Company's obligations to pay accrued but unpaid liquidated
damages set forth in the preceding paragraph which are outstanding with respect
to any Transfer Restricted Security at the time such security ceases to be a
Transfer Restricted Security shall survive until such time as all such
obligations with respect to such security shall have been satisfied in full.
The parties hereto agree that the liquidated damages provided in this
Section 4 constitute a reasonable estimate of the damages that will be incurred
by Holders of Transfer Restricted Securities by reason of the failure of the
Shelf Registration Statement to be filed, declared effective or to remain
effective, as the case may be.
SECTION 5. REGISTRATION PROCEDURES
In connection with the Shelf Registration Statement, the Company will
use its reasonable best efforts to effect such registration to permit the sale
of the Transfer Restricted Securities being sold in accordance with the intended
method or methods of distribution or disposition thereof, and pursuant thereto
the Company will as expeditiously as possible:
(a) on or prior to the date 60 days after the Closing Date, prepare
and file with the Commission a Shelf Registration Statement relating to the
registration on any appropriate form under the Act, as selected by the Company,
which form shall be available for the sale of the Transfer Restricted Securities
in accordance with the intended method or methods of distribution thereof and
shall include or incorporate all required financial statements, reports,
schedules, exhibits and other documents; cooperate and assist in any filings
required to be made with the NASD and use its reasonable best efforts to cause
such Shelf Registration Statement to become effective and approved on or prior
to the Target Effectiveness Date by such governmental agencies or authorities as
may be necessary to enable the selling Holders to consummate the disposition of
such Transfer Restricted Securities; provided that before filing a Shelf
Registration Statement or any Prospectus, or any amendments or supplements
thereto, including documents incorporated by reference after the initial filing
of the Shelf Registration Statement, the Company shall furnish to such Holders
and underwriters, if any, copies of all such documents proposed to
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be filed, which documents shall be subject to the review of such Holders, and
the Company shall not file any Shelf Registration Statement or amendment thereto
or any Prospectus or any supplement thereto (including such documents
incorporated by reference) to which the Holders of the Transfer Restricted
Securities covered by such Shelf Registration Statement or the underwriters, if
any, shall reasonably object on the grounds that such Shelf Registration
Statement, Prospectus, amendment or supplement does not comply in all material
respects with the requirements of the Act or the rules and regulations
thereunder in writing within four business days after the receipt thereof;
(b) prepare and file with the Commission such amendments and post-
effective amendments to the Shelf Registration Statement as may be necessary to
keep the Shelf Registration Statement effective for the applicable period set
forth in Section 3(a) hereof; cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Act, and to comply fully with the applicable provisions of
Rule 424 under the Act in a timely manner; and comply with the provisions of the
Act with respect to the disposition of all securities covered by such Shelf
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set forth in
such Shelf Registration Statement or supplement to the Prospectus;
(c) advise the selling Holders promptly and, if requested by such
Persons, to confirm such advice in writing, (i) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and, with
respect to the Shelf Registration Statement or any post-effective amendment
thereto, when the same has become effective, (ii) of any request by the
Commission for amendments to the Shelf Registration Statement or amendments or
supplements to the Prospectus or for additional information relating thereto,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Shelf Registration Statement under the Act or of the
suspension by any state securities commission of the qualification of the
Transfer Restricted Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes, (iv) if at any
time the representations and warranties of the Company contemplated by paragraph
(l)(i) below cease to be true and correct, and (v) of the existence of any fact
and the happening of any event that makes any statement of a material fact made
in the Shelf Registration Statement, the Prospectus, any amendment or supplement
thereto, or any document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the Shelf Registration
Statement or the Prospectus, any amendment or supplement thereto, or any
document incorporated by reference therein in order to make the statements
therein not misleading in the light of the circumstances then existing. If at
any time the Commission shall issue any stop order suspending the effectiveness
of the Shelf Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or
exemption from qualification of the Transfer Restricted Securities under state
securities or Blue Sky laws, the Company shall use its best efforts to obtain
the withdrawal or lifting of such order at the earliest possible time;
(d) promptly prior to the filing of any document that is to be
incorporated by reference into the Shelf Registration Statement or the
Prospectus (after the initial filing of the
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Shelf Registration Statement), provide copies of such document to the selling
Holders and underwriters, if any, make the Company's representatives available
at reasonable times for discussion of such document and include such information
in such document prior to the filing thereof as such selling Holders or
underwriters may reasonably and timely request;
(e) furnish to each selling Holder and underwriter, if any, without
charge, at least one copy of the Shelf Registration Statement, as first filed
with the Commission, and of each amendment thereto, including all documents
incorporated by reference therein and all exhibits (including exhibits
incorporated therein by reference);
(f) deliver to each selling Holder and underwriter, if any, without
charge, as many copies of the Prospectus (including each preliminary Prospectus)
and any amendment or supplement thereto as such Persons may reasonably request;
the Company consents to the use of the Prospectus and any amendment or
supplement thereto by each of the selling Holders and underwriters, if any, in
connection with the public offering and sale of the Transfer Restricted
Securities covered by the Prospectus or any amendment or supplement thereto;
(g) prior to any public offering of Transfer Restricted Securities,
cooperate with the selling Holders and underwriters, if any, and their
respective counsel in connection with the registration and qualification of the
Transfer Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders and underwriters, if any, may reasonably
request and do any and all other acts or things necessary or advisable to enable
the disposition in such jurisdictions of the Transfer Restricted Securities
covered by the Shelf Registration Statement; provided, however, that the Company
shall be required neither to register or qualify as a foreign corporation where
it is not now so qualified nor to take any action that would subject it to the
service of process in suits or to taxation, other than as to matters and
transactions relating to the Shelf Registration Statement, in any jurisdiction
where it is not now so subject;
(h) in connection with any sale of Transfer Restricted Securities that
will result in such securities no longer being Transfer Restricted Securities,
cooperate with the selling Holders to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities to be sold
and not bearing any restrictive legends; and enable such Transfer Restricted
Securities to be in such denominations and registered in such names as the
Holders may request at least two business days prior to any sale of Transfer
Restricted Securities made by such Holders;
(i) use its best efforts to cause the Transfer Restricted Securities
covered by the Shelf Registration Statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in clause (g) above;
(j) if any fact or event contemplated by clause (v) of paragraph (c)
above shall exist or have occurred, as promptly as practicable thereafter,
prepare a supplement or post-effective amendment to the Shelf Registration
Statement or related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
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delivered to the purchasers of Transfer Restricted Securities, 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 not misleading;
(k) provide CUSIP numbers for all Transfer Restricted Securities not
later than the effective date of the Shelf Registration Statement and provide
the Trustee under the Indenture and the transfer agent for the 9 1/4% Preferred
Stock and Common Stock with printed certificates for the Transfer Restricted
Securities which are in a form eligible for deposit with the Depositary Trust
Company;
(l) enter into such agreements and take all such other actions
consistent with its obligations hereunder in connection therewith and as may be
reasonably required in order to expedite or facilitate the disposition of the
Transfer Restricted Securities pursuant to the Shelf Registration Agreement, and
in such connection the Company shall (i) make such representations and
warranties to the Holders and 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; (ii) obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope and substance) shall
be reasonably satisfactory to the Holders of the Transfer Restricted Securities
being sold and underwriters, if any) addressed to each selling Holder requesting
the same and covering such matters as are customarily covered in company counsel
opinions to underwriters in primary underwritten offerings; (iii) obtain "cold
comfort" letters and updates thereof from the Company's independent certified
public accountants addressed to the selling Holders of Transfer Restricted
Securities and underwriters, if any, requesting the same, such letters to be in
customary form and covering matters of the type customarily covered in "cold
comfort" letters to underwriters in connection with primary underwritten
offerings; and (iv) deliver such documents and certificates as may be reasonably
requested by the Holders of the Transfer Restricted Securities being sold and
underwriters, if any, to evidence compliance with clause (i) above and with any
customary conditions contained in the underwriting agreement or other agreement
entered into by the Company pursuant to this clause (1);
(m) subject to appropriate confidentiality arrangements being entered
into, make available at reasonable times for inspection by the Holders of the
Transfer Restricted Securities participating in any disposition pursuant to such
Shelf Registration Statement, any underwriters and any attorney or accountant
retained by such selling Holders or underwriters, all financial and other
records, pertinent corporate documents and properties of the Company and cause
the Company's officers, directors and employees to supply all information
reasonably requested by any such Holder, underwriter, attorney or accountant at
reasonable times in connection with such Shelf Registration Statement subsequent
to the filing thereof and prior to its effectiveness;
(n) otherwise use its best efforts to comply with all applicable rules
and regulations of the Commission, and make generally available to its security
holders, as soon as reasonably practicable, a consolidated earnings statement
(which need not be audited) for the
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twelve-month period, beginning with the first month of the Company's first
fiscal quarter commencing after the effective date of the Shelf Registration
Statement;
(o) cause the Indenture to be qualified under the TIA, and, in
connection therewith, cooperate with the Trustee and the Holders to effect such
changes to the Indenture as may be required for such Indenture to be so
qualified in accordance with the terms of the TIA; and execute and use its best
efforts to cause the Trustee to execute, all documents as may be required to
effect such changes and all other forms and documents required to be filed with
the Commission to enable such Indenture to be so qualified in a timely manner;
(p) use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of the Shelf Registration Statement at the
earliest possible moment; use its reasonable best efforts (i) to prevent the
entry of any stop order affecting the Registration Statement and (ii) to remove
any such stop order if entered;
(q) cause all Transfer Restricted Securities which are Common Stock
covered by the Shelf Registration Statement to be listed on each securities
exchange or quotation system on which the Company's Common Stock is then listed
no later than the date the Shelf Registration Statement is declared effective;
(r) cooperate and assist in any filings required to be made with the
NASD; and
(s) use its best efforts to cause the Transfer Restricted Securities
to be eligible for inclusion in the National Association of Securities Dealers,
Inc. Private Offerings, Resales and Trading through Automated Linkages
("PORTAL") trading system.
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The Company agrees that it will not include in the registration
contemplated by the Shelf Registration Statement any securities other than the
Transfer Restricted Securities. The Company represents and warrants to the
Initial Purchasers that they will not be required to include under the Shelf
Registration Statement the securities required to be registered by the Company
pursuant to the Registration Rights Agreement, dated as of August 23, 1995, by
and among the Company, American National Bank and Trust Company of Chicago as
Settlement Trustee under the Settlement Fund Agreement dated as of January 5,
1993, as amended, by and among the Company and American National Bank and Trust
Company of Chicago, the Pension Benefit Guaranty Corporation and Pichin Corp.
The Initial Purchasers on behalf of themselves and each subsequent
Holder of Transfer Restricted Securities agree by acquisition of such Transfer
Restricted Securities that, upon receipt of any notice from the Company of the
existence of any fact or the happening of any event of the kind described in
clause (v) of Section 5(c) hereof, such Holder will forthwith discontinue
disposition of Transfer Restricted Securities pursuant to the Shelf Registration
Statement until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(j) hereof, or until it is advised
in writing (the "Advice") by the Company that the use of the Prospectus may be
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resumed, and has received copies of any additional or supplemental filings which
are incorporated by reference in the Prospectus. If so
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directed by the Company, each Holder will, or will request the managing
underwriter or underwriters, if any, to deliver to the Company (at the Company's
expense) all copies, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Transfer Restricted Securities
current at the time of receipt of such notice.
SECTION 6. REGISTRATION EXPENSES
All expenses incident to the Company's performance of or compliance
with this Agreement will be borne by the Company, regardless whether a Shelf
Registration Statement becomes effective, including without limitation:
(i) all registration and filing fees and expenses;
(ii) fees and expenses of compliance with federal securities or
state blue sky laws (including reasonable fees and disbursements of counsel
to the Holders and the underwriters, if any, in connection with blue sky
qualifications of the Transfer Restricted Securities);
(iii) expenses of printing (including, without limitation,
expenses of printing or engraving certificates for the Transfer Restricted
Securities in a form eligible for deposit with Depository Trust Company,
expenses of printing or engraving certificates for the Common Stock, the
Debentures and the 9 1/4% Preferred Stock and expenses of printing
prospectuses), messenger and delivery services and telephone;
(iv) fees and disbursements of counsel for the Company and
reasonable fees and disbursements of one counsel for the Holders of the
Transfer Restricted Securities chosen by the Holders of a majority of the
outstanding Transfer Restricted Securities (determined as provided in
Section 10(d));
(v) fees and disbursements of all independent certified public
accountants of the Company (including the expenses of any special audit and
"cold comfort" letters required by or incident to such performance);
(vi) filing fees associated with any NASD filing required to be
made in connection with the Shelf Registration Statement;
(vii) fees and expenses of listing the Transfer Restricted
Securities on any securities exchange or quotation system in accordance
with Section 5(q) hereof or on PORTAL pursuant to Section 5(s); and
(viii) securities acts liability insurance, if the Company
desires such insurance.
All such expenses, including without limitation those described in the
foregoing clauses (i) to (viii) are referred to herein as "Registration
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Expenses."
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The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit, and the
fees and expenses of any Person, including special experts, retained by the
Company. The Holders of Transfer Restricted Securities shall bear the expense
of any broker's commission or underwriters' discount or commission.
SECTION 7. UNDERWRITING
If any of the Transfer Restricted Securities covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
investment banker(s) and manager(s) that will manage the offering will be
selected by the Holders of a majority of the then outstanding Transfer
Restricted Securities (determined in accordance with Section 10(d)) included in
such offering (after consultation with the Company as to such selection and upon
the written consent of the Company, which consent shall not be unreasonably
withheld or delayed). If requested by the underwriters, the Company will
promptly enter into an underwriting agreement reasonably acceptable to the
Company with such underwriters for such offering, such agreement to contain such
representations and warranties by the Company and such other terms and
conditions as are customary for underwriting agreements with respect to
secondary offerings, including without limitation, indemnities to the effect and
to the extent provided in Section 8 hereof. The Holders of Transfer Restricted
Securities on whose behalf such securities are being distributed shall be party
to any such underwriting agreement. Such Holders shall not be required by the
Company to make any representations or warranties to the underwriters with
respect to the Company or the Transfer Restricted Securities (other than that
the Holders are conveying such securities free and clear of all pledges,
security interests, liens, charges, encumbrances, agreements, equities, claims
and options of whatever nature), and the Holders shall not be required to
indemnify the Company or the underwriters (other than with respect to the
matters, and to the extent, provided in Section 8). Furthermore, the Company
shall make available for inspection by the Holders, any underwriter
participating in any disposition pursuant to such Shelf Registration Statement,
and any attorney, accountant or other agent retained by the Holders or
underwriter, all financial and other records and other information, pertinent
corporate documents and properties of the Company as shall be reasonably
necessary to enable them to exercise their due diligence responsibilities.
No Holder of Transfer Restricted Securities may participate in any
underwritten distribution hereunder unless such Holder (a) agrees to sell such
Holder's Transfer Restricted Securities on the basis provided in any
underwriting arrangements approved in accordance with the terms hereof, and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
SECTION 8. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless each Holder
(each such Holder an "Indemnified Holder") and each person that controls each
------------------
Indemnified Holder within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, and the agents,
13
employees, officers and directors of any such Indemnified Holder or any such
controlling person of any Indemnified Holder from and against any and all
losses, claims, damages, judgments, liabilities and expenses (including the
reasonable fees and expenses of counsel and other expenses in connection with
investigating, defending or settling any such action or claim), joint or
several, as they are incurred arising out of or based upon any untrue statement
or alleged untrue statement of a material fact contained in the Prospectus or
Shelf Registration Statement or any supplement or amendment thereto, or arising
out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except the Company shall not be liable to any
Indemnified Holder in any such case insofar as such losses, claims, damages,
judgments, liabilities or expenses arise out of, or are based upon, any such
untrue statement or omission or alleged untrue statement or omission made in
reliance on and in conformity with information relating to such Indemnified
Holder furnished in writing by such Indemnified Holder to the Company expressly
for use therein; provided, however, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage, liability or expense
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made on any preliminary Prospectus if (i) such
Holder failed to send or deliver a copy of the Prospectus with or prior to the
delivery of written confirmation of the sale of Transfer Restricted Securities
if the Company furnished the Holder with sufficient copies thereof, and (ii) the
Prospectus would have corrected such untrue statement or omission; and provided
further, that the Company shall not be liable in any case to the extent that any
loss, claim, damage, liability or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission in
the Prospectus, if such untrue statement or alleged untrue statement or omission
or alleged omission is corrected in an amendment or supplement to the Prospectus
if, having previously been furnished by or on behalf of the Company with copies
of the Prospectus as so amended or supplemented, such Holder thereafter fails to
deliver such Prospectus as so amended or supplemented, prior to or concurrently
with the sale of a Transfer Restricted Security to the person asserting such
loss, claim, damage, liability or expense who purchased such Transfer Restricted
Security which is the subject thereof from such Holder.
(b) If any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted against any
Indemnified Holder with respect to which indemnity may be sought against the
Company pursuant to this Section 8, such Indemnified Holder shall promptly
notify the Company in writing, and the Company shall have the right to assume
the defense thereof, including the employment of counsel reasonably satisfactory
to such Indemnified Holder and payment of all fees and expenses; provided, that
the omission so to notify the Company shall not relieve the Company from any
liability that it may have to any Indemnified Holder (except to the extent that
the Company is actually materially prejudiced or otherwise forfeited material
substantive rights or defenses by reason of such failure). An Indemnified
Holder shall have the right to employ separate counsel in any such action or
proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Holder unless (i)
the employment of such counsel has been specifically authorized in writing by
the Company, which authorization shall not be unreasonably withheld, (ii) the
Company has failed promptly to assume the defense and employ counsel reasonably
satisfactory to the Indemnified Holder, (iii) the named parties to any
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such action or proceeding (including any impleaded parties) include both the
Indemnified Holder and the Company and such Indemnified Holder shall have been
advised by its counsel that there may be one or more legal defenses available to
it that are different from or additional to those available to the Company (in
which case the Company shall not have the right to assume the defense of such
action on behalf of such Indemnified Holder) or (iv) a conflict or potential
conflict exists (based on advice of counsel to the Indemnified Holder) between
the Indemnified Holder and the Company (in which case the Company will not have
the right to direct the defense of such action on behalf of the Indemnified
Holder). It is understood that the Company shall not, in connection with any one
such action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) at any time for such Indemnified Holder, which
firm shall be designated in writing by the Indemnified Holder, and that all such
fees and expenses shall be reimbursed promptly following receipt of invoices
therefor as they are incurred. The Company shall not be liable for any
settlement of any such action effected without the written consent of the
Company, such consent not to be unreasonably withheld or delayed, but if settled
with the written consent of the Company, or if there is a final judgment with
respect thereto, the Company agrees to indemnify and hold harmless each
Indemnified Holder from and against any loss or liability by reason of such
settlement or judgment. The Company shall not, without the prior written consent
of each Indemnified Holder affected thereby, effect any settlement of any
pending or threatened proceeding in which such Indemnified Holder has sought
indemnity hereunder, which (x) does not include an unconditional release of such
Indemnified Holder from all liability arising out of such action, claim,
litigation or proceeding and/or (y) would impose injunctive relief on such
Indemnified Holder.
(c) Each Indemnified Holder is hereby deemed to have agreed to
indemnify and hold harmless the Company, its directors, any person controlling
the Company and such person's agents, employees, officers and directors
(collectively, the "Company Indemnified Parties") to the same extent as the
---------------------------
foregoing indemnity from the Company to any Indemnified Holder, but only with
respect to information relating to each Indemnified Holder furnished to the
Company in writing by each Indemnified Holder, respectively, expressly for use
in a Prospectus, the Shelf Registration Statement or any supplement or amendment
thereto. In case any action shall be brought against any Company Indemnified
Party based on a Prospectus, Shelf Registration Statement or any supplement or
amendment thereto and in respect of which indemnity may be sought against each
Indemnified Holder pursuant to this Section 8(c), each Indemnified Holder shall
have the rights and duties given to the Company by Section 8(b) (except that if
the Company shall have assumed the defense thereof, each Indemnified Holder may,
but shall not be required to employ separate counsel therein and participate in
the defense thereof and the fees and expenses of such counsel shall be at the
expense of the Indemnified Holder) and the Company Indemnified Parties shall
have the rights and duties given to the Indemnified Holders by Section 8(b).
(d) If the indemnification provided for in this Section 8 is
unavailable to any party entitled to indemnification pursuant to Section 8(a) or
8(c), or is insufficient to hold any party entitled to indemnification pursuant
to 8(a) or 8(c) harmless with respect to any losses,
15
claims, damages, judgments, liabilities and expenses referred to in Section 8(a)
or 8(c), then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, judgments, liabilities and expenses
(including any investigative, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted, but after deducting any contribution received
by the Company from persons other than the Indemnified Holders, such as persons
who control the Company within the meaning of the Act or the Exchange Act and
officers and directors of the Company, who also may be liable for contribution)
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and each Indemnified Holder on the other
from the offering of the Transfer Restricted Securities pursuant to the Shelf
Registration Statement or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and each Indemnified Holder on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages, judgments, liabilities or expenses, as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and each Indemnified Holder on the other shall be deemed
to be in the same proportions as the total net proceeds from the initial sale of
9 1/4% Preferred Stock to the Initial Purchasers (before deducting expenses)
received by the Company bear to the total proceeds (before expenses) to the
applicable Indemnified Holder from the offering of the Transfer Restricted
Securities pursuant to the Shelf Registration Statement, in the case of an
Indemnified Holder. The relative fault of the Company on the one hand and each
Indemnified Holder on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or by each Indemnified Holder on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Company and each Indemnified Holder agree that it would not be
just and equitable if contributions pursuant to Section 8(d) were determined by
pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in Section 8(d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities or expenses referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim. No
person found 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 found guilty of such fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in this
Section 8 are in addition to any liability that any indemnifying party may
otherwise have to any indemnified party.
16
SECTION 9. RULE 144 AND RULE 144A
The Company shall use its reasonable best efforts to file on a timely
basis all such reports required to be filed under the Exchange Act as, and
endeavor in good faith to take such other actions as, are reasonably necessary
to enable Holders to sell Transfer Restricted Securities without registration
under the Act within the limitation of the exemptions provided by (a) Rule 144
under the Act, as such Rule may be amended from time to time, (b) Rule 144A
under the Act, as such Rule may be amended from time to time, and (c) any
similar rules or regulations hereafter adopted by the Commission. Upon request
of any Holder of Transfer Restricted Securities, the Company will deliver a
written statement as to whether it has complied with such requirements and will,
at its expense, forthwith upon the request of the Initial Purchasers, deliver to
the Initial Purchasers a certificate, signed by the Company's principal
financial officer, stating (a) the Company's name, address and telephone number
(including area code), (b) the Company's Internal Revenue Service identification
number, (c) the Company's Commission file number, (d) the number of shares of
each class of capital stock outstanding as shown by the most recent report or
statement published by the Company, and (e) whether the Company has filed the
reports required to be filed under the Exchange Act for a period of at least
ninety (90) days prior to the date of such certificate and in addition has filed
the most recent annual report required to be filed thereunder.
SECTION 10. MISCELLANEOUS
(a) Remedies. Each Holder of Transfer Restricted Securities, in
--------
addition to being entitled to exercise all rights provided herein, and as
provided in the Purchase Agreement and granted by law, including the recovery of
damages, shall be entitled to specific performance of such Holder's rights under
this Agreement. Except with respect to the payment of Liquidated Damages in the
event of the occurrence of a Registration Default, the Company agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agrees
in any action for specific performance to waive the defense that a remedy at law
would be adequate.
(b) No Inconsistent Agreements. The Company has not and shall not on
--------------------------
or after the date of this Agreement enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders of
Transfer Restricted Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders of Transfer Restricted
Securities hereunder do not and will not in any way conflict with and are not
and will not be inconsistent with the rights granted to the Holders of the
Company's securities under any other agreements. No holder of securities of the
Company has rights to the registration of any securities of the Company because
of the execution, delivery or performance by the Company of this Agreement or as
a result of the filing of the Shelf Registration Statement.
(c) No Adverse Action Affecting the Transfer Restricted Securities.
--------------------------------------------------------------
The Company has not taken and will not take, any action, or permit any change to
occur with respect to the Transfer Restricted Securities which would adversely
affect the ability of any of the
17
Holders of Transfer Restricted Securities to include such Transfer Restricted
Securities in a registration undertaken pursuant to this Agreement.
(d) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of Holders
of a majority of the outstanding shares of 9 1/4% Preferred Stock, principal
amount of Debentures and shares of Common Stock constituting Transfer Restricted
Securities, as the case may be (with Holders of shares of 9 1/4% Preferred Stock
or Debentures deemed to be Holders of the Common Stock into which such
securities may be converted for purposes of such calculation). Notwithstanding
the foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of Holders of Transfer Restricted Securities
whose securities are being sold pursuant to the Shelf Registration Statement and
that does not directly or indirectly affect the rights of other Holders of
Transfer Restricted Securities may be given by the Holders of a majority of the
Transfer Restricted Securities being sold.
(e) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight deliver:
(i) if to a Holder of Transfer Restricted Securities, at the
address set forth on the records of the Company or the Registrar under the
Indenture, with a copy to the Registrar, and if to each of the Initial
Purchasers, at the addresses set forth in the Purchase Agreement; and
(ii) if to the Company, initially at its address set forth in the
Purchase Agreement and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next business day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders of Transfer Restricted Securities.
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(g) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
CONFLICT OF LAWS PRINCIPLES OF SUCH STATE.
(j) Severability. In the event that any one or more of the provisions
------------
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.
(k) Entire Agreement. This Agreement is intended by the parties as a
----------------
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company with respect to
the securities sold pursuant to the Purchase Agreement except as provided in the
Designation of the Preferred or the Indenture and in the Purchase Agreement.
This Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
TRANS WORLD AIRLINES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: V.P., Corp. Finance
LAZARD FRERES & CO. LLC
PAINEWEBBER INCORPORATED
By: Lazard Freres & Co. LLC
--- -----------------------
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director