EXHIBIT A
FORM OF REGISTRATION
RIGHTS AGREEMENT FOR
RULE 144A TRANSACTION
REGISTRATION RIGHTS AGREEMENT
Dated as of o
among
HUNTSMAN INTERNATIONAL HOLDINGS LLC
and
THE INITIAL PURCHASERS
named herein
------------------------------
$604,557,000
8% SENIOR SUBORDINATED RESET DISCOUNT NOTES DUE 2009
TABLE OF CONTENTS
Definitions ............................ 1
Exchange Offer Registration ............ 4
Shelf Registration ..................... 7
Additional Interest .................... 8
Registration Procedures ................ 10
Registration Expenses .................. 17
Indemnification ........................ 18
Rule 144 and Rule 144A ................. 20
Miscellaneous .......................... 21
ii
REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement (the "AGREEMENT") is made and entered
into as of o, by and among
Huntsman International Holdings LLC (the "ISSUER"), a
Delaware limited liability company, and the initial purchasers of the Notes (as
defined below) whose signatures appear on the execution pages of this Agreement
(the "INITIAL PURCHASERS").
The parties hereby agree as follows:
1. DEFINITIONS
Capitalized terms used herein without definition shall have the respective
meanings set forth in the Amended and Restated Indenture dated as of o, 2001 (as
amended or supplemented from time to time, the "INDENTURE"), between the Issuer
and Bank One, N.A., as trustee, pursuant to which the Notes (as defined below)
are being issued, as amended or supplemented from time to time in accordance
with the terms thereof. As used in this Agreement, the following terms shall
have the following meanings:
ACCRETED VALUE: Has the meaning given to such term in the Indenture.
ADDITIONAL INTEREST: See Section 4(a).
ADDITIONAL INTEREST PAYMENT DATE: See Section 4(b).
ADVICE: See the last paragraph of Section 5.
AGREEMENT: See the first introductory paragraph to this Agreement.
APPLICABLE PERIOD: See Section 2(b).
BUSINESS DAY: Any day other than a Saturday, Sunday or any day on which any
or all of the commercial banks in
New York City, the
New York Stock Exchange or
the SEC is authorized or required by law to close.
DEMAND
REGISTRATION RIGHTS AGREEMENT: The
Registration Rights Agreement
dated as of o (as amended or supplemented from time to time) between the Issuer
and the holders named therein with respect to the Notes.
EXCHANGE ACT: The Securities Exchange Act of 1934 as amended, and the rules
and regulations of the SEC promulgated thereunder.
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EXCHANGE EFFECTIVENESS DATE: The 120th day after the Exchange Filing Date.
EXCHANGE FILING DATE: See Section 2(a).
EXCHANGE FILING DEADLINE: Such date that is 60 days after the sale of the
Registrable Notes by the Initial Purchaser pursuant to Rule 144A as described in
the 144A Notice or such date thereafter to which the Exchange Filing Deadline
may be extended pursuant to Section 2(a) hereof.
EXCHANGE NOTES: See Section 2(a).
EXCHANGE OFFER REGISTRATION STATEMENT: See Section 2(a).
HOLDERS: Any holder of a Note or a Registrable Note.
INDEMNIFIED PERSON: See Section 7(c).
INDEMNIFYING PERSON: See Section 7(c).
INITIAL PURCHASERS: See the first introductory paragraph to this Agreement.
INITIAL SHELF REGISTRATION: See Section 3(a).
INDENTURE: See the first paragraph of Section 1.
INSPECTORS: See Section 5(p).
ISSUER: See the first introductory paragraph to this Agreement.
INTEREST PERIOD: See Section 4(b).
NASD: See Section 5(n).
NOTES: The $604,557,000 aggregate principal amount at maturity of 8% Senior
Subordinated Reset Discount Notes due 2009 of the Issuer issued pursuant to the
Indenture and any Reset Notes (as defined in the Indenture) issued in exchange
therefor.
PARTICIPANT: See Section 7(a).
PROSPECTUS: The prospectus included the Registration Statement (including,
without limitation, any prospectus subject to completion and a prospectus that
includes any information previously omitted from a prospectus filed as part of
an effective registration statement in
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reliance upon Rule 430A promulgated under the Securities Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Notes covered by such Registration
Statement, and all other amendments and supplements to the Prospectus, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
REGISTRABLE NOTES: The Notes upon original issuance thereof and at all
times subsequent thereto, until in the case of any such Note (i) a Registration
Statement covering such Note has been declared effective and such Note has been
disposed of in accordance with such effective Registration Statement, (ii) it is
sold in compliance with, or may be sold without restriction pursuant to, Rule
144, (iii) it shall have been otherwise transferred and a new certificate for
any such Note not bearing a legend restricting further transfer shall have been
delivered by the Issuer, or (iv) it ceases to be outstanding.
REGISTRATION STATEMENT: An Exchange Offer Registration Statement or a Shelf
Registration Statement filed pursuant to this Agreement, including the
Prospectus, amendments and supplements to such registration statement, including
post-effective amendments, all exhibits and all material incorporated by
reference or deemed to be incorporated by reference in such Exchange Offer
Registration Statement or Shelf Registration Statement.
RULE 144: Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or any similar rule (other than Rule 144A) or regulation
hereafter adopted by the SEC.
RULE 144A: Rule 144A under the Securities Act, as such Rule may be amended
from time to time, or any similar rule (other than Rule 144) or regulation
hereafter adopted by the SEC.
RULE 144A NOTICE: Has the meaning given to such term in the Demand
Registration Rights Agreement.
RULE 174: Rule 174 under the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by the
SEC.
RULE 415: Rule 415 under the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by the
SEC.
SEC: The Securities and Exchange Commission.
SECURITIES ACT: The Securities Act of 1933 as amended, and the rules and
regulations of the SEC promulgated thereunder.
SHELF EFFECTIVENESS DATE: The 120th day after the Shelf Filing Date or such
date thereafter
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to which the Shelf Effectiveness Date may be extended pursuant to Section 2(a)
hereof. For the purposes of calculating the Shelf Effectiveness Date, the Shelf
Filing Date shall be deemed to be 45 days after the Issuer obtains knowledge of
such changes in law or in currently prevailing interpretations of the SEC that
do not permit the Issuer to effect the Exchange Offer Registration, as set forth
in Section 2(c).
SHELF EFFECTIVENESS PERIOD: See Section 3(a).
SHELF FILING DATE: The 45th day after the date on which the Issuer sent the
Shelf Notice or such date thereafter to which the Exchange Filing Deadline may
be extended pursuant to Section 2(a) hereof.
SHELF NOTICE: See Section 2(c).
SUBSEQUENT SHELF REGISTRATION: See Section 3(b).
TIA: The Trust Indenture Act of 1939, as amended.
TRUSTEE: The trustee under the Indenture.
2. EXCHANGE OFFER REGISTRATION
(a) The Issuer shall file with the SEC, on or before the Exchange Filing
Deadline, a Registration Statement (the "EXCHANGE OFFER REGISTRATION STATEMENT")
on an appropriate registration form under the Securities Act with respect to a
registered offer (the "EXCHANGE OFFER") to exchange any or all of the
Registrable Notes for a like aggregate principal amount of notes of the Issuer
that are identical in all material respects to the Notes, except that the
Exchange Notes shall have been registered, contain no restrictive legend thereon
and omit provisions relating to Additional Interest (the "EXCHANGE NOTES"), and
which are entitled to the benefits of the Indenture or a trust indenture which
is identical in all material respects to the Indenture (other than such changes
to the Indenture or any such identical trust indenture as are necessary to
comply with the TIA) and which, in either case, has been qualified under the
TIA. The Exchange Offer shall comply with all applicable tender offer rules and
regulations under the Exchange Act and other applicable law. The Issuer shall
use its reasonable best efforts to: (x) cause the Exchange Offer Registration
Statement to be declared effective under the Securities Act as soon as
practicable after the date on which it was filed (the "EXCHANGE FILING DATE"),
but not later than the Exchange Effectiveness Date; (y) keep the Exchange Offer
open for at least 20 Business Days (or longer if required by applicable law)
after the date that notice of the Exchange Offer is mailed to Holders; and (z)
consummate the Exchange Offer on or prior to the 60th day following the date on
which the Exchange Offer Registration Statement is declared effective by the
SEC. If, after the Exchange Offer Registration Statement is initially declared
effective by the SEC, the Exchange Offer or the issuance of the Exchange Notes
thereunder is prevented by any
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stop order, injunction or other order or requirement of the SEC or any other
governmental agency or court, the Exchange Offer Registration Statement shall be
deemed not to have become effective for purposes of this Agreement.
Notwithstanding anything to the contrary in this Agreement, at any time, the
Issuer may delay the filing of any Registration Statement or delay or suspend
the effectiveness thereof, for a reasonable period of time, but not in excess of
an aggregate of 90 days in any consecutive twelve month period, if the Board of
Managers of the Issuer determine in good faith that the filing of any such
Registration Statement (or the effectiveness or continuing effectiveness
thereof) would require the disclosure of non-public material information that,
in the reasonable judgment of the Board of Managers of the Issuer, would be
detrimental to the Issuer if so disclosed or would otherwise materially
adversely affect a financing, acquisition, disposition, merger or other material
transaction.
Each Holder that participates in the Exchange Offer will be required, as a
condition to its participation in the Exchange Offer, to represent to the Issuer
in writing (which may be contained in the applicable letter of transmittal) (i)
that any Exchange Notes to be received by it will be acquired in the ordinary
course of its business, (ii) that at the time of the commencement of the
Exchange Offer it has no arrangement or understanding with any person to
participate in the distribution (within the meaning of the Securities Act) of
the Exchange Notes in violation of the Securities Act, (iii) that it is not an
affiliate of the Issuer within the meaning of the Securities Act, (iv) if such
Holder is not a broker-dealer, that it is not engaged in, and does not intend to
engage in, the distribution of the Exchange Notes, and (v) if such Holder is a
Participating Broker-Dealer (as defined below) that will receive Exchange Notes
for its own account in exchange for Notes that were acquired as a result of
market-making or other trading activities, that it will deliver a Prospectus in
connection with any resale of such Exchange Notes.
Upon consummation of the Exchange Offer in accordance with this Section 2,
the provisions of this Agreement shall continue to apply, MUTATIS MUTANDIS,
solely with respect to Exchange Notes held by Participating Broker-Dealers, and
the Issuer shall have no further obligation to register Registrable Notes. No
securities other than the Exchange Notes shall be included in the Exchange Offer
Registration Statement.
(b) The Issuer shall include within the Prospectus contained 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 SEC with respect to the potential "underwriter" status of
any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under
the Exchange Act) of Exchange Notes received by such broker-dealer in the
Exchange Offer (a "PARTICIPATING BROKER-DEALER"), which have been publicly
disseminated by the staff of the SEC. Such "Plan of Distribution" section shall
also expressly permit, to the extent permitted by applicable policies and
regulations of the SEC, the use of the Prospectus by all Persons subject to the
prospectus delivery requirements of the Securities Act, including, to the extent
permitted by applicable policies and regulations of the SEC, all Participating
Broker-Dealers, and include a statement describing the means by which
Participating Broker-Dealers
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may resell the Exchange Notes in compliance with the Securities Act.
The Issuer shall use its reasonable best efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement the Prospectus
contained therein in order to permit such Prospectus to be lawfully delivered by
all Persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as is necessary to comply with applicable law in
connection with any resale of the Exchange Notes covered thereby; PROVIDED,
HOWEVER, that such period shall not exceed 60 days after such Exchange Offer
Registration Statement is declared effective (or such longer period if extended
pursuant to the terms hereof) or such time as such broker-dealers no longer hold
any Notes (the "APPLICABLE PERIOD").
In connection with the Exchange Offer, the Issuer shall:
(1) mail, or cause to be mailed, to each Holder entitled to participate in
the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate letter of transmittal and
related documents;
(2) utilize the services of a depositary for the Exchange Offer with an
address in the Borough of Manhattan, The City of
New York;
(3) 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 Exchange
Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws,
rules and regulations.
As soon as practicable after the close of the Exchange Offer, the Issuer,
shall:
(1) accept for exchange all Registrable Notes validly tendered and not
validly withdrawn pursuant to the Exchange Offer;
(2) deliver to the Trustee for cancellation all Registrable Notes so
accepted for exchange; and
(3) 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 shall be issued under (i) the Indenture or (ii) an
indenture identical in all material respects to the Indenture and which, in
either case, has been qualified under the TIA or is exempt from such
qualification and shall provide that the Exchange Notes
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shall not be subject to the transfer restrictions set forth in the Indenture.
(c) If, because of any change in law or in currently prevailing
interpretations of the staff of the SEC, the Issuer is not permitted to effect
an Exchange Offer, then the Issuer shall (x) promptly deliver to the Holders and
the Trustee written notice thereof (the "SHELF NOTICE") and (y) shall file a
Shelf Registration pursuant to Section 3 hereof.
3. SHELF REGISTRATION
If at any time a Shelf Notice is delivered as required by Section 2(c)
hereof, then:
(a) SHELF REGISTRATION. The Issuer shall file, no later than the Shelf
Filing Date, with the SEC a Registration Statement for an offering to be made on
a continuous basis pursuant to Rule 415 covering all of the Registrable Notes
not exchanged in the Exchange Offer (the "INITIAL SHELF REGISTRATION"). The
Initial Shelf Registration shall be on Form S-1 or another appropriate form
permitting registration of such Registrable Notes for resale by Holders in the
manner or manners designated by them (including, without limitation, one or more
underwritten offerings). No securities other than the Registrable Notes shall be
included in the Initial Shelf Registration.
The Issuer shall use its reasonable best efforts to cause the Initial Shelf
Registration to be declared effective under the Securities Act on or prior to
the Shelf Effectiveness Date and to keep the Initial Shelf Registration
continuously effective under the Securities Act until the date which is 90 days
from the Shelf Effectiveness Date (the "SHELF EFFECTIVENESS PERIOD"), or such
shorter period ending when (i) all Registrable Notes covered by the Initial
Shelf Registration have been sold in the manner set forth and as contemplated in
the Initial Shelf Registration or (ii) a Subsequent Shelf Registration covering
all of the Registrable Notes covered by and not sold under the Initial Shelf
Registration or an earlier Subsequent Shelf Registration has been declared
effective under the Securities Act; PROVIDED, HOWEVER, that the Effectiveness
Period in respect of the Initial Shelf Registration shall be extended to the
extent required to permit dealers to comply with the applicable prospectus
delivery requirements of Rule 174 and as otherwise provided herein.
Notwithstanding anything to the contrary in this Agreement, at any time, the
Issuer may delay the filing of any Registration Statement or delay or suspend
the effectiveness thereof, for a reasonable period of time, but not in excess of
an aggregate of 90 days in any consecutive twelve month period, if the Managers
of the Issuer determine in good faith that the filing of any such Registration
Statement or the continuing effectiveness thereof would require the disclosure
of non-public material information that, in the reasonable judgment of the
Managers of the Issuer, would be detrimental to the Issuer if so disclosed or
would otherwise materially adversely affect a financing, acquisition,
disposition, merger or other material transaction.
(b) SUBSEQUENT SHELF REGISTRATIONS. If the Initial Shelf Registration or
any
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Subsequent Shelf Registration ceases to be effective for any reason during the
Shelf Effectiveness Period (other than because of the sale of all of the
securities registered thereunder), the Issuer shall use its reasonable best
efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within 45 days of such cessation
of effectiveness amend the Initial Shelf Registration in a manner to obtain the
withdrawal of the order suspending the effectiveness thereof, or file an
additional "shelf" Registration Statement pursuant to Rule 415 covering all of
the Registrable Notes covered by and not sold under the Initial Shelf
Registration or an earlier Subsequent Shelf Registration (each, a "SUBSEQUENT
SHELF REGISTRATION"). If a Subsequent Shelf Registration is filed, the Issuer
shall use its reasonable best efforts to cause the Subsequent Shelf Registration
to be declared effective under the Securities Act as soon as practicable after
such filing and to keep such Subsequent Shelf Registrations continuously
effective for a period equal to the number of days in the Effectiveness Period
Less the aggregate number of days during which the Initial Shelf Registration
was previously continuously effective. As used herein the term "SHELF
REGISTRATION" means the Initial Shelf Registration and any Subsequent Shelf
Registration.
(c) SUPPLEMENTS AND AMENDMENTS. The Issuer shall promptly supplement and
amend any Shelf Registration if required by the rules, regulations or
instructions applicable to the registration form used for such Shelf
Registration, if required by the Securities Act.
4. ADDITIONAL INTEREST
(a) The Issuer and the Initial Purchasers agree that the Holders of
Registrable Notes will suffer damages if the Issuer fails to fulfill its
obligations under Section 2 or Section 3 hereof (except as a result of the
failure of the Initial Purchasers, Holders or any underwriters to fulfill their
obligations hereunder) and that it would not be feasible to ascertain the extent
of such damages with precision. Accordingly, the Issuer agrees to pay, as
liquidated damages, additional interest on the Registrable Notes ("ADDITIONAL
INTEREST") under the circumstances and to the extent set forth below (each of
which shall be given independent effect):
(i) if (A) the Exchange Offer Registration Statement has not been
filed on or prior to the Exchange Filing Deadline or (B) the Company is
required to file the Initial Shelf Registration Statement and such Initial
Shelf Registration Statement has not been filed on or before the Shelf
Filing Date, then commencing on the day after (x) the Exchange Filing
Deadline in the case of clause (A), and (y) the Shelf Filing Date in the
case of clause (B), Additional Interest shall be accrued on the Registrable
Notes to be covered by such Registration Statement over and above the
accrued interest at a rate of .25% per annum on the Accreted Value of such
Registrable Notes for the first 90 days immediately following (a) the
Exchange Filing Deadline in the case of clause (A), and (b) the Shelf
Filing Date in the case of clause (B), such Additional Interest rate
increasing by an additional .25% per annum on the Accreted Value of such
Registrable Notes at the
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beginning of each subsequent 90-day period;
(ii) if neither (A) the Exchange Offer Registration Statement nor (B)
the Initial Shelf Registration Statement has been declared effective on or
prior to (x) the Exchange Effectiveness Date in the case of (A) or (y) the
Shelf Effectiveness Date in the case of (B), then commencing on the day
after (a) the Exchange Effectiveness Date in the case of clause (A) and (b)
the Shelf Effectiveness Date in the case of clause (B), Additional Interest
shall be accrued on the Registrable Notes included in such Registration
Statement over and above the accrued interest at a rate of .25% per annum
on the Accreted Value of such Notes for the first 90 days immediately
following the day after (X) the Exchange Effectiveness Date in the case of
clause (A), and (Y) the Shelf Effectiveness Date in the case of clause (B),
such Additional Interest rate increasing by an additional .25% per annum on
the Accreted Value of such Registrable Notes at the beginning of each
subsequent 90-day period; and
(iii) if (A) the Issuer has not delivered Exchange Notes for all Notes
validly tendered in accordance with the terms of the Exchange Offer on or
prior to 60 days after the date on which the Exchange Offer Registration
Statement was declared effective or (B) any Registration Statement ceases
to be effective at any time prior to (x) the time that the Exchange Offer
is consummated in case of an Exchange Offer Registration Statement or (y)
the expiration of the Shelf Effectiveness Period in the case of a Shelf
Registration Statement, then Additional Interest shall be accrued on the
Registrable Notes affected thereby over and above any other accrued
interest at a rate of .25% per annum on the Accreted Value of such Notes
for the first 90 days commencing on the (a) 60th day after such effective
date, in the case of (A) above, or (b) the day the Registration Statement
ceases to be effective in the case of (B) above, such Additional Interest
rate increasing by an additional .25% per annum on the Accreted Value of
such Registrable Notes at the beginning of each such subsequent 90-day
period;
PROVIDED, HOWEVER, that the Additional Interest rate on any Note may not exceed
at any one time in the aggregate 1.0% per annum on the Accreted Value of such
Registrable Notes; PROVIDED, HOWEVER, that Additional Interest shall not accrue
if the failure of the Issuer to comply with its obligations hereunder is a
result of the failure of Holders, underwriters, initial purchasers or placement
agents to fulfill their respective obligations hereunder; and PROVIDED, FURTHER,
that (1) upon the filing of the Registration Statement (in the case of (i)
above), (2) upon the effectiveness of the Registration Statement (in the case of
(ii) above), or (3) upon the exchange of Exchange Notes for all Registrable
Notes validly tendered (in the case of (iii)(A) above), or upon the
effectiveness of a substitute Exchange Offer Registration Statement or
Subsequent Shelf Registration Statement, as the case may be (in the case of
(iii)(B) above), Additional Interest on such Registrable Notes as a result of
such clause (or the relevant subclause thereof), as the case may be, shall cease
to accrue.
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(b) The Issuer shall notify the Trustee within one Business Day after each
and every date on which an event occurs in respect of which Additional Interest
is required to be paid. Any amounts of Additional Interest due pursuant to
Section 4(a) will accrue semi-annually on each July 1 and January 1 (each an
"ADDITIONAL INTEREST PAYMENT DATE"), commencing with the first such date
occurring after any such Additional Interest commences to accrue. The amount of
Additional Interest will be determined on the basis of a 360-day year comprised
of twelve 30-day months.
On any Additional Interest Payment Date, to the extent any Additional
Interest shall have accrued during the period from the previous Additional
Interest Payment Date (the "INTEREST PERIOD") due to the occurrence during such
Interest Period of an event described in Section 4(a), the Issuer shall issue a
note or notes to the Holders on the Interest Payment Date substantially in the
form of Exhibit A to the Indenture. The Accreted Value of such notes shall be
equal to the Additional Interest accrued during such Interest Period and shall
otherwise have the same terms as the Notes.
5. REGISTRATION PROCEDURES
In connection with the obligations of the Issuer pursuant to Section 2 or
Section 3 hereof, the Issuer shall use its reasonable best efforts to cause a
Registration Statement to become effective and remain effective as provided
herein and, without limiting the generality of the foregoing, the Issuer shall
use its reasonable best efforts to, as expeditiously as possible:
(a) If such Registration Statement is being filed pursuant to Section 3
hereof or if a Prospectus contained in an Exchange Offer Registration Statement
is required to be delivered by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, then before filing the Exchange
Offer Registration Statement or Prospectus or any amendments or supplements
thereto (not including documents that would be incorporated or deemed to be
incorporated therein by reference), afford the Holders of the Registrable Notes
covered by such Shelf Registration Statement and each such Participating
Broker-Dealer, as the case may be, upon their written request, an opportunity to
review, promptly, copies of all such documents proposed to be filed, and the
Holders of the Registrable Notes covered by such Shelf Registration Statement
and such Participating Broker-Dealers, as the case may be, shall have the
opportunity to object to any information pertaining to such Persons and their
plan of distribution that is contained therein and the Issuer will make the
corrections reasonably requested by such Persons prior to filing any such
Registration Statement, Prospectus or any amendment or supplement thereto;
PROVIDED, HOWEVER, that the Issuer shall not be required to afford any such
Person an opportunity to review a copy of (i) any such document that has not
been materially changed from a copy of such document that such person was
previously afforded an opportunity to review and (ii) any amendments or
supplements to the Registration Statement or Prospectus which are made solely as
a result of any filing by the Issuer of reports required to be filed pursuant to
the Exchange Act.
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(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep each such
Registration Statement continuously effective for the time periods prescribed
hereby; cause the related Prospectus to be supplemented by any Prospectus
supplement required by applicable law, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) promulgated under
the Securities Act; and comply with the provisions of the Securities Act and the
Exchange Act and the rules and regulations of the SEC promulgated thereunder
applicable to it with respect to the disposition of all securities covered by
such Registration Statement as so amended or in such Prospectus as so
supplemented and with respect to the subsequent resale of any securities being
sold by a Participating Broker-Dealer covered by such Prospectus.
(c) If (i) a Shelf Registration Statement is filed pursuant to Section 3,
or (ii) a Prospectus contained in the Exchange Offer Registration Statement is
required to be delivered by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period from whom the Issuer has received
written notice that it will be a Participating Broker-Dealer in the Exchange
Offer, then notify the selling Holders of Registrable Notes, or each
Participating Broker-Dealer, as the case may be, promptly (but in any event
within two Business Days after becoming aware thereof) (i) when a Prospectus or
any Prospectus supplement or post-effective amendment has been filed, and, with
respect to a Registration Statement or any post-effective amendment, when the
same has become effective (including in such notice a written statement that any
Holder may, upon request, obtain, without charge, as many conformed copies of
such Registration Statement or post-effective amendment including financial
statements and schedules including any documents incorporated or deemed to be
incorporated by reference and exhibits), as they may reasonably request, (ii) of
the issuance by the SEC of any stop order suspending the effectiveness of such
Registration Statement or of any order preventing or suspending the use of any
preliminary Prospectus or the initiation of any proceedings for that purpose,
(iii) of the receipt by the Issuer of any notification with respect to the
suspension of the qualification or exemption from qualification of the
Registration Statement or any of the Registrable Notes or the Exchange Notes to
be sold by any Participating Broker-Dealer for offer or sale in any
jurisdiction, or with respect to the initiation or threatening of any proceeding
for such purpose, (iv) of the happening of any event, the existence of any
condition or any information becoming known that makes any statement made in
such Registration Statement or related Prospectus or any document incorporated
or deemed to be incorporated therein by reference untrue in any material respect
or that requires the making of any changes in such Registration Statement,
Prospectus or documents so that, in the case of such Registration Statement, it
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, not misleading, and that in the case of the Prospectus, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
and (vi) of the Issuer's reasonable determination that a post-effective
amendment to such Registration Statement would be appropriate.
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(d) If (i) a Shelf Registration is filed pursuant to Section 3 or (ii) a
Prospectus contained in the Exchange Offer Registration Statement is required to
be delivered by any Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period, use its reasonable best efforts to prevent the
issuance of any order suspending the effectiveness of a Registration Statement
or of any order preventing or suspending the use of a Prospectus or suspending
the qualification (or exemption from qualification) of any of the Registrable
Notes or Exchange Notes for sale in any jurisdiction, and, if any such order is
issued, to obtain the withdrawal of any such order at the earliest possible
moment.
(e) If (i) a Shelf Registration is filed pursuant to Section 3 or (ii) a
Prospectus contained in the Exchange Offer Registration Statement is required to
be delivered by any Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period, furnish to each such Person who so requests and
without charge, as many conformed copies of the Registration Statement and each
post-effective amendment thereto, including financial statements and schedules,
and, if requested, all documents incorporated or deemed to be incorporated
therein by reference and all exhibits, as they may reasonably request.
(f) If (i) a Shelf Registration is filed pursuant to Section 3 or (ii) a
Prospectus contained in the Exchange Offer Registration Statement is required to
be delivered by any Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period, deliver to each such Person without charge, as
many copies of each Prospectus (including each form of preliminary prospectus)
and each amendment or supplement thereto and any documents incorporated by
reference therein as such Persons may reasonably request; and, subject to the
last paragraph of this Section 5, the Issuer hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each such selling Holders
of Registrable Notes and each such Participating Broker-Dealer in connection
with the sale of the Exchange Notes pursuant to such Prospectus and any
amendment or supplement thereto.
(g) Prior to any public offering of Registrable Notes pursuant to a Shelf
Registration Statement or any delivery of a Prospectus contained in the Exchange
Offer Registration Statement by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, use its reasonable best
efforts to register or qualify, and to cooperate with such Holders of
Registrable Notes and each such Participating Broker-Dealer in connection with
the registration or qualification (or exemption from such registration or
qualification) of such Registrable Notes for offer and sale under the securities
or Blue Sky laws of such jurisdictions within the United States as any such
Holder or Participating Broker-Dealer may reasonably request in writing;
PROVIDED that where Registrable Notes are offered other than through an
underwritten offering, the Issuer agrees to cause its counsel to perform Blue
Sky investigations and file registrations and qualifications required to be
filed pursuant to this Section 5(g); keep each such registration or
qualification (or exemption therefrom) effective during the period the
Registration Statement is required to be kept effective and do any and all other
acts or things reasonably necessary or advisable to enable the disposition in
such
12
jurisdictions of the Exchange Notes held by the Participating Broker-Dealers or
the Registrable Notes held by the Holders covered by the applicable Registration
Statement; PROVIDED, HOWEVER, that the Issuer shall not be required to (A)
qualify generally to do business in any jurisdiction where it is not then so
qualified, (B) take any action that would subject it to general service of
process in any such jurisdiction where it is not then so subject or (C) become
subject to taxation in any such jurisdiction where it is not then so subject.
(h) If a Shelf Registration is filed pursuant to Section 3, cooperate with
the selling Holders of Registrable Notes and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Notes to be sold, which certificates shall
not bear any restrictive legends and shall be in a form eligible for deposit
with The Depository Trust Company; and enable such Registrable Notes to be in
such denominations and registered in such names as the managing underwriter or
underwriters, if any, or Holders of such Registrable Notes may request.
(i) Use its reasonable best efforts to cause the Registrable Notes covered
by a Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable selling
Holders or the Participating Broker-Dealers, if any, to consummate the
disposition of Registrable Notes, except as may be required solely as a
consequence of the nature of such selling Holder's business, in which case the
Issuers will cooperate in all reasonable respects with the filing of such
Registration Statement and the granting of such approvals.
(j) If (i) a Shelf Registration is filed pursuant to Section 3 or (ii) a
Prospectus contained in the Exchange Offer Registration Statement is required to
be delivered by any Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period, upon the occurrence of any event contemplated by
paragraph 5(c)(v) or 5(c)(vi), as promptly as practicable prepare and file with
the SEC, at the expense of the Issuer, a supplement or post-effective amendment
to the Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference, or file
any other required document so that, as thereafter delivered to the purchasers
of the Registrable Notes being sold thereunder or to the purchasers of the
Exchange Notes to whom such Prospectus will be delivered by a Participating
Broker-Dealer, such Prospectus will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(l) Use its reasonable best efforts to cause the Registrable Notes covered
by a Registration Statement or the Exchange Notes to be rated with the
appropriate rating agencies, if so requested by the Holders of a majority in
aggregate principal amount at maturity of Registrable Notes covered by the
Registration Statement or the Exchange Notes, as the case may be, or the
managing underwriters, if any.
13
(m) Prior to the actual effective date of the Registration Statement, (i)
provide the Trustee with printed certificates for the Registrable Notes covered
by such Registration Statement in a form eligible for deposit with The
Depository Trust Company and (ii) provide a CUSIP number for the Registrable
Notes.
(n) Cooperate with each selling Holder of Registrable Notes covered by a
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Notes and their respective counsel in connection
with any filings required to be made with the National Association of Securities
Dealers, Inc. (the "NASD").
(o) In the event a Shelf Registration is filed, and if requested by
Holders of a majority in aggregate principal amount at maturity of Registrable
Notes covered by such Shelf Registration Statement, enter into an underwriting
agreement in form, scope and substance as is customary in underwritten offerings
and take all such other actions as are reasonably requested by the managing
underwriters in order to expedite or facilitate the registration or the
disposition of such Registrable Notes, and in such connection, (i) make such
representations and warranties to the underwriters, with respect to the business
of the Issuer and its subsidiaries, and the Shelf Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, in form, substance and scope as are customarily
made by issuers to underwriters in underwritten offerings of debt securities
similar to the Registrable Notes, and confirm the same if and when requested;
(ii) obtain opinions of counsel to the Issuer and updates thereof in form, scope
and substance reasonably satisfactory to the managing underwriters, addressed to
the underwriters covering the matters customarily covered in opinions requested
in underwritten offerings and such other matters as may be reasonably requested
by underwriters; (iii) obtain "cold comfort" letters and updates thereof in form
and substance reasonably satisfactory to the managing underwriter or
underwriters from the independent certified public accountants of the Issuer
(and, if necessary, any other independent certified public accountants of any
subsidiary the Issuer or of any business acquired by the Issuer for which
financial statements and financial data are, or are required to be, included in
the Registration Statement), addressed to each of the underwriters such letters
to be in customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with underwritten offerings of debt
securities similar to the Registrable Notes; (iv) if an underwriting agreement
is entered into, the same shall contain indemnification provisions and
procedures no less favorable to the Participants than those set forth in Section
7(a) (or such other less favorable provisions and procedures acceptable to
Holders of a majority in aggregate principal amount at maturity of Registrable
Notes covered by such Registration Statement and the managing underwriters or
agents) with respect to all parties to be indemnified pursuant to said Section;
and (v) if required by the Holders party to the Demand
Registration Rights
Agreement pursuant to Section 5(o)(v) thereof, and subject to the limitations
and qualifications set forth therein, assist with the marketing of the
Registrable Notes included in the Registration Statement. The above shall be
done at each closing under such underwriting agreement, or as and to the extent
required thereunder.
14
(p) If (i) a Shelf Registration Statement is filed pursuant to Section 3
hereof or (ii) a Prospectus contained in the Exchange Offer Registration
Statement is required to be delivered by any Participating Broker-Dealer who
seeks to sell Exchange Notes during the Applicable Period, make available for
inspection by any selling Holder of such Registrable Notes being sold, or a
representative of the Participating Broker-Dealer and any attorney or accountant
or other agent retained by any such representative of such Participating
Broker-Dealer, as the case may be (collectively, the "INSPECTORS"), at the
offices where normally kept, during reasonable business hours, all financial and
other records, pertinent corporate documents and properties of the Issuer and
its subsidiaries, and cause the officers, directors and employees of the Issuer
and its subsidiaries to supply all information, in each case reasonably
requested by any such Inspector in connection with the Registration Statement;
PROVIDED, HOWEVER, that any information that is designated in writing by the
Issuer, in good faith, as confidential at the time of delivery of such
information, shall be kept confidential by such Inspector unless (i) disclosure
of such information is required by court or administrative order, (ii)
disclosure of such information, in the opinion of counsel to such Inspector, is
necessary to avoid or correct a misstatement or omission of a material fact in
the Registration Statement, Prospectus or any supplement or post-effective
amendment thereto or disclosure is otherwise required by law, (iii) disclosure
of such information is, in the opinion of counsel for any Inspector, necessary
or advisable in connection with any action, claim, suit or proceeding, directly
or indirectly, involving or potentially involving such Inspector and arising out
of, based upon, relating to, or involving this Agreement, or any transactions
contemplated hereby or arising hereunder, or (iv) such information becomes
generally available to the public other than as a result of a disclosure or
failure to safeguard by such Inspector. Each selling Holder, each Participating
Broker-Dealer and each other Inspector will be required to agree that
information obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any market
transactions in the securities of the Issuer unless and until such is made
generally available to the public. Each selling Holder, each Participating
Broker-Dealer and each other Inspector will be required to further agree that it
will, upon learning that disclosure of any such information is sought in a court
of competent jurisdiction, give notice to the Issuer and allow the Issuer to
undertake appropriate action to prevent disclosure of the information deemed
confidential at their expense.
(q) Provide an indenture trustee for the Registrable Notes or the Exchange
Notes, as the case may be, and cause the Indenture or the trust indenture
provided for in Section 2(a) to be qualified under the TIA not later than the
effective date of the Registration Statement relating to such Registrable Notes;
and in connection therewith, cooperate with the Trustee under any such indenture
and the Holders of the Registrable Notes, to effect such changes to such
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 reasonable best efforts to
cause such 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 SEC to
enable such indenture to be so qualified in a timely manner.
(r) Comply with all applicable rules and regulations of the SEC and make
15
generally available to its securityholders earnings statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or
any similar rule promulgated under the Securities Act) no later than 45 days
after the end of any fiscal quarter (or 90 days after the end of any 12-month
period if such period is a fiscal year) commencing on the first day of the first
fiscal quarter of the Issuer after the effective date of the Exchange Offer
Registration Statement, which statements cover said 12-month period.
(s) If an Exchange Offer is to be consummated, upon delivery of the
Registrable Notes by Holders to the Issuer (or to such other Person as directed
by the Issuer) in exchange for the Exchange Notes, the Issuer shall ▇▇▇▇, or
caused to be marked, on such Registrable Notes that such Registrable Notes are
being cancelled in exchange for the Exchange Notes; in no event shall such
Registrable Notes be marked as paid or otherwise satisfied.
(t) Use its reasonable best efforts to take all other steps reasonably
necessary to effect the registration of the Registrable Notes covered by the
Exchange Offer Registration Statement contemplated hereby.
The Issuer may require each selling Holder of Registrable Notes as to which
any registration is being effected to furnish to the Issuer such information
regarding such selling Holder and the distribution of such Registrable Notes as
the Issuer may, from time to time, reasonably request. The Issuer may exclude
from such registration the Registrable Notes of any selling Holder so long as
such selling Holder fails to furnish such information within a reasonable time
after receiving such request. If the identity of a selling Holder of Registrable
Notes is to be disclosed in the Registration Statement, such selling Holder
shall be permitted to include all information regarding such selling Holder as
it shall reasonably request.
Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by its acquisition of such Registrable Notes or Exchange Notes to be sold
by such Participating Broker-Dealer, as the case may be, that upon receipt of
any notice from the Issuer of the happening of any event of the kind described
in Section 5(c), will forthwith discontinue disposition of such Registrable
Notes covered by such Registration Statement or Prospectus or Exchange Notes to
be sold by such Holder or Participating Broker-Dealer, as the case may be, until
such Holder's or Participating Broker-Dealer's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 5(c), or until it is
advised in writing (the "ADVICE") by the Issuer that the use of the applicable
Prospectus may be resumed. In the event the Issuer shall give any such notice,
the Applicable Period shall be extended by the number of days during such
periods from and including the date of the giving of such notice to and
including the date when each seller of Registrable Notes covered by such
Registration Statement or Exchange Notes to be sold by such Participating
Broker-Dealer, as the case may be, shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 5(c) or the Advice.
16
6. REGISTRATION EXPENSES
Except as provided below, all fees and expenses (including any underwriting
discounts and commissions) incident to the performance of or compliance with
this Agreement by the Issuer shall be borne by the Holders, and shall constitute
a joint and several obligation of each of them, whether or not a Registration
Statement is filed or becomes effective (except with respect to any particular
Registration Statement where the Issuer failed to use its reasonable best
efforts to fulfill its obligations under the first paragraph of Section 5 with
respect to such Registration Statement), including, without limitation, (i) all
registration and filing fees (including, without limitation, (A) fees with
respect to filings required to be made with the NASD in connection with an
underwritten offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation, reasonable fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Notes and determination of the eligibility of the Registrable Notes
for investment under the laws of such jurisdictions as provided in Section 5(h)
hereof), (ii) the expenses relating to printing, word processing and
distributing such Registration Statements, Offering Memoranda, Prospectuses,
underwriting agreements, indentures and any other documents necessary in order
to comply with this Agreement, (iii) fees and disbursements of counsel for the
Holders and counsel for the underwriters, if any, (iv) reasonable fees and
disbursements of any independent certified public accountants retained by the
Holders for services in connection with this Agreement and in connection with
the preparation of Registration Statements and Offering Memoranda required
hereby (including, without limitation, the expenses of any special audit and
"cold comfort" letters required by or incident to such performance), (v) the
reasonable fees and expenses of any special experts retained by the Issuer in
connection with a Registration Statement or Offering Memorandum, (vi) the fees
and expenses of any "qualified independent underwriter" or other independent
appraiser participating in an offering pursuant to Schedule E to the By-laws of
the NASD, (vii) 50% of any and all rating agency fees, (viii) any fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange, (ix) any fees and disbursements of KPMG
with respect to the historical financial information of the businesses acquired
by the Issuer from Imperial Chemical Industries PLC and its affiliates,
including without limitation any fees and disbursements resulting from the
inclusion of such information in any disclosure document and any cold comfort or
similar letter obtained with respect thereto and of any independent certified
public accountants retained by a Holder and (x) all other fees and expenses of
any Holder, underwriter, initial purchaser or placement agent, PROVIDED that the
following expenses shall be borne by the Issuer: (A) any and all internal costs
and expenses of the Issuer and any of its affiliates (other than ICI Finance plc
and its affiliates), (B) fees and disbursements of any counsel retained by the
Issuer and any of its affiliates (other than ICI Finance plc and its
affiliates), (C) any and all fees and disbursements of any independent certified
public accountants retained by the Issuer (other than any fees and disbursements
of KPMG with respect to the historical financial information of the businesses
acquired by the Issuer from Imperial Chemical Industries PLC and its affiliates,
including without limitation any fees and disbursements resulting from the
inclusion of such information in any disclosure
17
document and any cold comfort or similar letter obtained with respect thereto),
and (D) 50% of any and all rating agency fees.
7. INDEMNIFICATION
(a) The Issuer agrees to indemnify and hold harmless each Holder of
Registrable Notes and each Participating Broker-Dealer selling Exchange Notes,
the affiliates, officers, directors, representatives, employees and agents of
each such Person, and each Person, if any, who controls any such Person within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act (each, a "PARTICIPANT"), from and against any and all losses,
claims, damages, judgments, liabilities and reasonable expenses (including,
without limitation, the reasonable legal fees and other expenses actually
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in such Registration
Statement (or any amendment thereto) or Prospectus (as amended or supplemented
if the Issuer shall have furnished any amendments or supplements thereto) or any
preliminary Prospectus, or caused by, 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, in the case of the
Prospectus in light of the circumstances under which they were made, not
misleading; PROVIDED, HOWEVER, that the Issuer will not be liable for any untrue
statement or omission or alleged untrue statement or omission in a Registration
Statement or Prospectus that was (i) made by the Issuer in reliance upon and in
conformity with information furnished to the Issuer by a Participant for use in
such Registration Statement or Prospectus, or (ii) corrected by the Issuer in an
amended or supplemented Registration Statement or Prospectus if the Person
asserting any such loss, claim, damage or liability purchased Registrable Notes
or Exchange Notes which are the subject thereof from such Participant in
reliance upon such inaccurate Prospectus but was not sent or given a copy of the
corrected Prospectus (as amended or supplemented) at or prior to the written
confirmation of the sale of such Registrable Notes or Exchange Notes, as the
case may be, to such Person, unless such failure to deliver such corrected
Prospectus (as amended or supplemented) was a result of noncompliance by the
Issuer with Section 5 of this Agreement or (iii) contained in any Prospectus
that the Participant delivered and was not permitted to use in accordance with
the last paragraph of Section 5.
(b) Each Participant agrees, severally and not jointly, to indemnify and
hold harmless the Issuer, its affiliates, officers, directors, representatives,
employees and agents of the Issuer and each Person who controls the Issuer
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent (but on a several, and not joint, basis) as the
foregoing indemnity from the Issuer to each Participant, but only with reference
to information relating to such Participant furnished to the Issuer in writing
by such Participant expressly for use in the Registration Statement or
Prospectus, any amendment or supplement thereto, or any preliminary Prospectus.
The liability of any Participant under this paragraph shall in no event exceed
the proceeds received by such Participant from sales of Registrable Notes or
18
Exchange Notes giving rise to such obligations.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such Person (the "INDEMNIFIED PERSON") shall promptly
notify the Person against whom such indemnity may be sought (the "INDEMNIFYING
PERSON") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may reasonably designate in such proceeding and shall pay
the fees and expenses actually incurred by such counsel related to such
proceeding; PROVIDED, HOWEVER, that the failure to so notify the Indemnifying
Person (i) shall not relieve it of any obligation or liability which it may have
hereunder or otherwise (unless and only to the extent that such failure directly
results in the loss or compromise of any material rights or defenses by the
Indemnifying Person). In any such proceeding, any Indemnified Person shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person unless (i) the Indemnifying
Person and the Indemnified Person shall have mutually agreed in writing to the
contrary, (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
Indemnifying Person shall not, in connection with any proceeding or separate but
substantially similar related proceeding in the same jurisdiction arising out of
the same general allegations, be liable for the fees and expenses of more than
one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm for the Participants and such control Persons
of Participants shall be designated in writing by Participants who sold a
majority in interest of Registrable Notes sold by all such Participants in the
related registration and any such separate firm for the Issuer, its directors,
its officers and such control Persons of the Issuer shall be designated in
writing by the Issuer. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final non-appealable judgment for the
plaintiff, the Indemnifying Person agrees to indemnify any Indemnified Person
from and against any loss or liability by reason of such settlement or judgment.
No Indemnifying Person shall, without the prior written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such
proceeding.
(d) If the indemnification provided for in the first and second paragraphs
of this
19
Section 7 is for any reason unavailable to, or insufficient to hold harmless, an
Indemnified Person in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such paragraphs, in
lieu of indemnifying such Indemnified Person thereunder and in order to provide
for just and equitable contribution, shall contribute to the amount paid or
payable by such Indemnified Person as a result of such losses, claims, damages
or liabilities in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Person or Persons on the one hand and the Indemnified
Person or Persons on the other in connection with the 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 omission to state a material fact
relates to information supplied by the Issuer on the one hand or such
Participants or such other Indemnified Person, as the case may be, on the other,
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission and any other equitable
considerations appropriate under the circumstances.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by PRO RATA allocation
(even if the Participants were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages, judgments, liabilities and expenses referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any reasonable legal or other expenses actually incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Registrable Notes or
Exchange Notes, as the case may be, exceeds the amount of any damages that such
Participant has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in this Section 7
will be in addition to any liability which the Indemnifying Persons may
otherwise have to the Indemnified Persons referred to above.
8. RULE 144 AND RULE 144A
The Issuer covenants and agrees that it will file the reports required to
be filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder in a timely manner and, if at any time
the Issuer is not required to file such
20
reports, such Issuer will, upon the request of any Holder or beneficial owner of
Registrable Notes, make publicly available annual reports and such information,
documents and other reports of the type specified in Sections 13 and 15(d) of
the Exchange Act. The Issuer further covenants and agrees, for so long as any
Registrable Notes remain outstanding, to make available to any Holder or
beneficial owner of Registrable Notes in connection with any sale thereof and
any prospective purchaser of such Registrable Notes from such Holder or
beneficial owner, the information required by Rule 144A(d)(4) under the Act in
order to permit resales of such Registrable Notes pursuant to Rule 144A.
9. MISCELLANEOUS
(a) NO INCONSISTENT AGREEMENTS. The Issuer has not, as of the date hereof,
and the Issuer shall not, after the date of this Agreement, enter into any
agreement with respect to any of its securities that is inconsistent with the
rights granted to the Holders of Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof. The Issuer has not entered and
shall not, enter into any agreement with respect to any of its securities which
will grant to any Person piggy-back rights with respect to a Registration
Statement.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the Issuer has obtained the
written consent of Holders of at least a majority of the then outstanding
aggregate principal amount at maturity of Registrable Notes. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders of Registrable
Notes whose securities are being sold pursuant to a Registration Statement and
that does not directly or indirectly affect, impair, limit or compromise the
rights of other Holders of Registrable Notes may be given by Holders of at least
a majority in aggregate principal amount at maturity of the Registrable Notes
being sold by such Holders pursuant to such Registration Statement; PROVIDED
that the provisions of this sentence may not be amended, modified or
supplemented except in accordance with the provisions of the immediately
preceding sentence.
(c) NOTICES. All notices and other communications (including without
limitation any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or facsimile:
(i) if to a Holder of the Registrable Notes, at the most current
address given by such Holder to the Issuer in accordance with the
provisions of this Section 9(c), with a copy in like manner to the Holders
as follows:
[COMPANY]
[ADDRESS]
[CITY] [STATE] [ZIP]
21
Facsimile No.: [________]
Attention: Corporate Finance Department
with a copy to: o
Facsimile No.: o
Attention: o
(ii) if to the Issuer at the address as follows:
Huntsman International Holdings LLC
c/o Huntsman Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Secretary
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇
Facsimile No: ▇▇▇-▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; one Business Day after
being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in such Indenture.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties hereto and
the Holders.
(e) 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.
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(f) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED ENTIRELY WITHIN THE STATE OF
NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(h) SEVERABILITY. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their best efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(i) SECURITIES HELD BY THE ISSUER OR ITS AFFILIATES. Whenever the consent
or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Issuer or its affiliates (as
such term is defined in Rule 405 under the Securities Act) shall not be counted
in determining whether such consent or approval was given by the Holders of such
required percentage.
(j) BUSINESS DAY. If any date or deadline set forth in this Agreement
shall fall on a day other than a Business Day, then such date or deadline shall
be deemed to refer to the next succeeding Business Day thereafter.
(SIGNATURE PAGE FOLLOWS.)
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S-1
SIGNATURES
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
HUNTSMAN INTERNATIONAL HOLDINGS LLC
By:
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Name:
Title:
INITIAL PURCHASERS
By:
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Name:
Title: