Exhibit 4.3
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REGISTRATION RIGHTS AGREEMENT
Dated November 14, 2000
between
RESOLUTION PERFORMANCE PRODUCTS LLC
RPP CAPITAL CORPORATION
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of November 14, 2000, between RESOLUTION PERFORMANCE PRODUCTS
LLC (formerly known as Shell Epoxy Resins, LLC), a Delaware limited liability
company ("RPP LLC"), and RPP CAPITAL CORPORATION, a Delaware corporation and
wholly-owned subsidiary of RPP LLC ("RPP Capital" and together with RPP LLC,
collectively the "Companies", and each individually a "Company"), and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & CO. INCORPORATED, ▇.▇. ▇▇▇▇▇▇ SECURITIES INC. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
INC. (collectively, the "Placement Agents").
This Agreement is made pursuant to the Placement Agreement dated
November 8, 2000, as amended by the Amended and Restated Placement Agreement
dated November 14, 2000 among the Companies, RPP Holdings, LLC and the Placement
Agents (as so amended and restated, the "Placement Agreement"), which provides
for the sale by the Companies to the Placement Agents of an aggregate of
$200,000,000 principal amount of the Companies' 13 1/2% Senior Subordinated
Notes Due 2010 (the "Securities"). In order to induce the Placement Agents to
enter into the Placement Agreement, the Companies have agreed to provide to the
Placement Agents and their direct and indirect transferees the registration
rights set forth in this Agreement. The execution of this Agreement is a
condition to the closing under the Placement Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time
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to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended
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from time to time.
"Additional Interest" shall have the meaning set forth in Section
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2(d).
"Closing Date" shall mean the Closing Date as defined in the Placement
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Agreement.
"Company" shall have the meaning set forth in the preamble and shall
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also include the Company's successors.
"Companies" shall have the meaning set forth in the preamble and shall
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also include the Companies' respective successors.
"Exchange Dates" shall have the meaning set forth in Section 2(a)(ii).
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"Exchange Offer" shall mean the exchange offer by the Companies of
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Exchange Securities for Registrable Securities pursuant to Section 2(a)
hereof.
"Exchange Offer Registration" shall mean a registration under the 1933
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Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
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registration statement on Form S-4 (or, if applicable, on another
appropriate form) and all amendments and supplements to such registration
statement, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Exchange Securities" shall mean securities issued by the Companies
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under the Indenture containing terms identical to the Securities (except
that the Exchange Securities will not contain restrictions on transfer) and
to be offered to Holders of Securities in exchange for Securities pursuant
to the Exchange Offer.
"Filing Date" means (i) with respect to an Exchange Offer Registration
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Statement or the Shelf Registration Statement required to be filed pursuant
to Section 2(b)(i) or (ii), the earlier of the date of the filing thereof
with the SEC and the 120/th/ day after the Closing Date and (ii) with
respect to the Shelf Registration Statement required to be filed pursuant
to Section 2(b)(iii), the 60/th/ day after the delivery of a notice
pursuant to Section 2(b)(iii).
"Holder" shall mean the Placement Agents, for so long as they own any
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Registrable Securities, and each of their successors, assigns and direct
and indirect transferees who become registered owners of Registrable
Securities under the Indenture or who become beneficial owners of
Registrable Securities, so long as in the case of beneficial owners, such
owners have so notified the Companies in writing; provided that for
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purposes of Sections 4 and 5 of this Agreement, the term "Holder" shall
include Participating Broker-Dealers.
"Indenture" shall mean the Indenture relating to the Securities dated
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as of November 14, 2000 among the Companies and United States Trust Company
of New York, as trustee, and as the same may be amended from time to time
in accordance with the terms thereof.
"Majority Holders" shall mean the Holders of a majority of the
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aggregate principal amount of outstanding Registrable Securities; provided
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that whenever the consent or approval of Holders of a specified percentage
of Registrable Securities is required hereunder, Registrable Securities
held by the Companies or any of their affiliates (as such term is defined
in Rule 405 under the ▇▇▇▇ ▇▇▇) (other than the Placement Agents or
subsequent Holders of Registrable Securities if such subsequent holders are
deemed to be such affiliates solely by reason of their holding of such
Registrable Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage or
amount.
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"Participating Broker-Dealer" shall have the meaning set forth in
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Section 4(a).
"Person" shall mean an individual, partnership, limited liability
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company, corporation, trust or unincorporated organization, or a government
or agency or political subdivision thereof.
"Placement Agents" shall have the meaning set forth in the preamble.
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"Placement Agreement" shall have the meaning set forth in the
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preamble.
"Prospectus" shall mean the prospectus included in a Registration
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Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration
Statement, and by all other amendments and supplements to such prospectus,
and in each case including all material incorporated by reference therein.
"Registrable Securities" shall mean the Securities; provided, however,
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that the Securities shall cease to be Registrable Securities (i) when an
Exchange Offer Registration Statement with respect to such Securities shall
have been declared effective under the 1933 Act and such Securities shall
have been exchanged pursuant to the Exchange Offer for Exchange Securities,
(ii) when a Shelf Registration Statement with respect to such Securities
shall have been declared effective under the 1933 Act and such Securities
shall have been disposed of pursuant to such Shelf Registration Statement,
(iii) when such Securities have been sold to the public pursuant to Rule
144(k) (or any similar provision then in force, but not Rule 144A) under
the 1933 Act or (iv) when such Securities shall have ceased to be
outstanding.
"Registration Expenses" shall mean any and all expenses incident to
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performance of or compliance by the Companies with this Agreement,
including, without limitation: (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. registration and filing fees, (ii)
all fees and expenses incurred in connection with compliance with state
securities or blue sky laws (including reasonable fees and disbursements of
counsel for any underwriters or Holders in connection with blue sky
qualification of any of the Exchange Securities or Registrable Securities)
within the United States (x) where the Holders are located, in the case of
the Exchange Securities, or (y) as provided in Section 3(d) hereof, in the
case of Registrable Securities to be sold by a Holder pursuant to a Shelf
Registration Statement, (iii) all expenses of any Persons in preparing or
assisting in preparing, word processing, printing and distributing any
Registration Statement, any Prospectus, any amendments or supplements
thereto, any underwriting agreements, securities sales agreements and other
documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) all fees and disbursements
relating to the qualification of the Indenture under applicable securities
laws, (vi) the fees and disbursements of the Trustee and its counsel, (vii)
the fees and disbursements of counsel for the Companies and, in the case of
a Shelf Registration Statement, the fees and disbursements of one counsel
for the Holders (which counsel shall be selected by the Majority Holders
and which counsel may also be counsel
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for the Placement Agents) and (viii) the fees and disbursements of the
independent public accountants of the Companies, including the expenses of
any special audits or "cold comfort" letters required by or incident to
such performance and compliance, but excluding fees and expenses of counsel
to the underwriters (other than fees and expenses set forth in clause (ii)
above) or the Holders and underwriting discounts and commissions and
out-of-pocket expenses incurred by the Holders and transfer taxes, if any,
relating to the sale or disposition of Registrable Securities by a Holder.
"Registration Statement" shall mean any registration statement of the
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Companies that covers any of the Exchange Securities or Registrable
Securities pursuant to the provisions of this Agreement and all amendments
and supplements to any such Registration Statement, including post-
effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"SEC" shall mean the Securities and Exchange Commission.
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"Securities" shall have the meaning set forth in the preamble.
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"Shelf Registration" shall mean a registration effected pursuant to
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Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
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statement of the Companies pursuant to the provisions of Section 2(b) of
this Agreement which covers all of the Registrable Securities (but no other
securities unless approved by the Holders whose Registrable Securities are
covered by such Shelf Registration Statement) on an appropriate form under
Rule 415 under the 1933 Act, or any similar rule that may be adopted by the
SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Trustee" shall mean the trustee with respect to the Securities under
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the Indenture.
"Underwriter" shall have the meaning set forth in Section 3 hereof.
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"Underwritten Registration" or "Underwritten Offering" shall mean a
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registration in which Registrable Securities are sold to an Underwriter for
reoffering to the public.
2. Registration Under the 1933 Act.
(a) To the extent not prohibited by any applicable law or applicable
interpretation of the Staff of the SEC, the Companies shall file an Exchange
Offer Registration Statement covering the offer by the Companies to the Holders
to exchange all of the Registrable Securities for Exchange Securities and to use
their commercially reasonable efforts to cause the Exchange Offer Registration
Statement to be declared effective and to have such Registration Statement
remain effective until the closing of the Exchange Offer. The Companies shall
commence the Exchange Offer promptly after the Exchange Offer Registration
Statement has been declared
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effective by the SEC and use their best efforts to have the Exchange Offer
consummated not later than 35 days after such effective date.
The Companies shall commence the Exchange Offer by mailing the related
exchange offer Prospectus and accompanying documents to each Holder stating, in
addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this
Registration Rights Agreement and that all Registrable Securities validly
tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period
of at least 20 business days from the date such notice is mailed) (the
"Exchange Dates");
(iii) that any Registrable Security not tendered will remain
outstanding and continue to accrue interest, but will not retain any rights
under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged
pursuant to the Exchange Offer will be required to surrender such
Registrable Security, together with the enclosed letters of transmittal, to
the institution and at the address (located in the Borough of Manhattan,
The City of New York) specified in the notice prior to the close of
business on the last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not
later than the close of business, New York City time, on the last Exchange
Date, by sending to the institution and at the address (located in the
Borough of Manhattan, The City of New York) specified in the notice a
telegram, telex, facsimile transmission or letter setting forth the name of
such Holder, the principal amount of Registrable Securities delivered for
exchange and a statement that such Holder is withdrawing his election to
have such Securities exchanged.
As soon as practicable after the last Exchange Date, the Companies
shall:
(i) accept for exchange Registrable Securities or portions thereof
validly tendered and not validly withdrawn pursuant to the Exchange Offer;
and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities or portions thereof so accepted for
exchange by the Companies and issue, and cause the Trustee to promptly
authenticate and mail to each Holder, an Exchange Security equal in
principal amount to the principal amount of the Registrable Securities
surrendered by such Holder; provided, that in the case of any Registrable
Securities held in global form by a depositary, authentication and delivery
to such depositary of one or more Exchange Securities in global form in an
equivalent principal amount thereto for the account of such Holders in
accordance with the Indenture shall satisfy such authentication and
delivery requirement.
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Each Holder (including, without limitation, each Participating Broker-
Dealer (as defined)) who participates in the Exchange Offer will be required to
represent to the Companies, in writing (which may be contained in the applicable
letter of transmittal) that: (i) any Exchange Securities acquired in exchange
for Registrable Securities tendered are being acquired in the ordinary course of
business of the Person receiving such Exchange Securities, whether or not such
recipient is a Holder of Registrable Securities, (ii) at the time of the
commencement of the Exchange Offer, neither such Holder nor, to the actual
knowledge of such Holder, any other Person receiving Exchange Securities from
such Holder has an arrangement or understanding with any Person to participate
in the distribution of the Exchange Securities in violation of the provisions of
the 1933 Act, (iii) the Holder is not an affiliate of either of the Companies,
(iv) if such Holder is not a Participating Broker-Dealer, that it has not
engaged in, and does not intend to engage in, the distribution of Exchange
Securities, and (v) if such Holder is a Participating Broker-Dealer, such Holder
acquired the Registrable Securities as a result of market-making activities or
other trading activities and that it will comply with the applicable provisions
of the Securities Act with respect to resale of any Exchange Securities.
The Companies shall comply with the applicable requirements of the 1933
Act, the 1934 Act and other applicable laws and regulations in connection with
the Exchange Offer. The Exchange Offer shall not be subject to any conditions,
other than (i) that the Exchange Offer does not violate applicable law or any
applicable interpretation of the Staff of the SEC, (ii) no action or proceeding
shall have been instituted or threatened in any court or by any governmental
agency with respect to the Exchange Offer and no material adverse development
shall have occurred with respect to the Companies, (iii) all governmental
approvals shall have been obtained, which approvals the Companies deem necessary
for the consummation of the Exchange Offer, (iv) the conditions precedent to the
Companies' obligations under this Agreement shall have been fulfilled and (v)
such other conditions as shall be agreed upon by the Companies and the Placement
Agents. The Companies shall, if requested, inform the Placement Agents of the
names and addresses of the Holders to whom the Exchange Offer is made, and the
Placement Agents shall have the right, subject to applicable law, to contact
such Holders and otherwise facilitate the tender of Registrable Securities in
the Exchange Offer.
(b) In the event that (i) either of the Companies determine that the
Exchange Offer Registration provided for in Section 2(a) above is not available
or may not be consummated as soon as practicable after the last Exchange Date
because it would violate applicable law or the applicable interpretations of the
Staff of the SEC, (ii) the Exchange Offer is not for any other reason
consummated by the 210/th/ day after the Closing Date or (iii) if (A) any
Placement Agent holds any Securities acquired by it that have, or that are
reasonably likely to be determined to have, the status of an unsold allotment in
an initial distribution, or (B) any Holder is not entitled to participate in the
Exchange Offer, and any such Holder or Placement Agent so requests in writing on
or prior to the 60/th/ day after the consummation of the Exchange Offer, the
Companies shall cause to be filed as soon as practicable after receipt of such
notice a Shelf Registration Statement providing for the sale by the Holders of
all of the Registrable Securities and shall use their commercially reasonable
efforts to have such Shelf Registration Statement declared effective by the SEC.
In the event the Companies are required to file a Shelf Registration Statement
solely as a result of the matters referred to in clause (iii) of the preceding
sentence, the Companies shall file and use their commercially reasonable efforts
to have declared effective by the SEC both an Exchange Offer Registration
Statement pursuant to Section 2(a)
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with respect to all Registrable Securities and a Shelf Registration Statement
(which may be a combined Registration Statement with the Exchange Offer
Registration Statement) with respect to offers and sales of Registrable
Securities held by the Placement Agents or such other Holders after completion
of the Exchange Offer. The Companies agree to use their commercially reasonable
efforts to keep the Shelf Registration Statement continuously effective until
the expiration of the period referred to in Rule 144(k) (or any successor rule
that permits the Registrable Securities to be eligible for resale without
registration and without being subject to volume restrictions, but not Rule
144A) with respect to the Registrable Securities or such shorter period that
will terminate when all of the Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement. The Companies further agree to supplement or amend the Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used by the Companies for such Shelf
Registration Statement or by the 1933 Act or by any other rules and regulations
thereunder for shelf registration or if reasonably requested by a Holder with
respect to information relating to such Holder, and to use their best efforts to
cause any such amendment to become effective and such Shelf Registration
Statement to become usable as soon as thereafter practicable. The Companies
agree to furnish to the Holders of Registrable Securities copies of any such
supplement or amendment promptly after its being used or filed with the SEC.
(c) The Companies shall pay all Registration Expenses in connection
with the registration pursuant to Section 2(a) or Section 2(b). Each Holder
shall pay all underwriting discounts and commissions and transfer taxes, if any,
relating to the registration of such Holder's Registrable Securities pursuant to
the Exchange Offer Registration Statement or the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will
not be deemed to have become effective unless it has been declared effective by
the SEC; provided, however, that, if, after it has been declared effective, the
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offering of Registrable Securities pursuant to a Shelf Registration Statement is
interfered with by any stop order, injunction or other order or requirement of
the SEC or any other governmental agency or court, such Registration Statement
will be deemed not to have become effective during the period of such
interference until the offering of Registrable Securities pursuant to such
Registration Statement may legally resume. As provided for in the Indenture, in
the event the Exchange Offer is not consummated and the Shelf Registration
Statement is not declared effective as set forth below, then, the interest rate
on the Securities will be increased (the "Additional Interest") as follows:
(i) if (A) neither the Exchange Offer Registration Statement nor
a Shelf Registration Statement has been filed with the SEC on or prior
to the120th day after the Closing Date or (B) the Companies are
required to file a Shelf Registration Statement pursuant to Section
2(b) (iii) hereof and such Shelf Registration Statement is not filed
on or prior to the Filing Date applicable thereto then, commencing on
the day after either such 120/th/ day in the case of clause (A) or
such Filing Date in the case of clause (B), Additional Interest shall
accrue on the principal amount of the Registrable Securities at a rate
of 0.25% per annum for the first 90 days immediately following
thereafter, and such Additional
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Interest rate shall increase by an additional 0.25% per annum at the
beginning of each subsequent 90-day period; or
(ii) if (A) neither the Exchange Offer Registration Statement
nor a Shelf Registration Statement is declared effective by the SEC on
or prior to the 180/th/ day after the Closing Date or (B) the
Companies are required to file a Shelf Registration Statement pursuant
to Section 2(b) (iii) hereof and such Shelf Registration Statement is
not declared effective by the SEC on or prior to the 60/th/ day
following the Filing Date applicable thereto then, commencing on the
day after either such 180/th/ day in the case of Clause (A) or Filing
Date in the case of Clause (B), Additional Interest shall accrue on
the principal amount of the Registrable Securities at a rate of 0.25%
per annum for the first 90 days immediately following thereafter, and
such Additional Interest rate shall increase by an additional 0.25%
per annum at the beginning of each subsequent 90-day period; or
(iii) subject to Sections 2(f) and 2(g) if (A) the Companies
have not exchanged Exchange Securities for all Securities validly
tendered in accordance with the terms of the Exchange Offer on or
prior to the 210th day after the Closing Date or (B) if applicable,
the Shelf Registration Statement has been declared effective and such
Shelf Registration Statement ceases to be effective at any time prior
to the second anniversary of the Closing Date or, if earlier, the date
when all Securities have been disposed of thereunder), then Additional
Interest shall accrue on the principal amount of the Registrable
Securities at a rate of .25% per annum for the first 90 days
commencing on (x) the 211th day after the Closing Date, in the case of
(A) above, or (y) the day such Shelf Registration Statement ceases to
be effective in the case of (B) above, and such Additional Interest
rate shall increase by an additional .25% per annum at the beginning
of each subsequent 90-day period (it being understood and agreed that,
notwithstanding any provision to the contrary, so long as any
Securities not registered under an Exchange Offer Registration
Statement are then covered by an effective Shelf Registration, no
Additional Interest shall accrue on such Securities);
provided, however, that the Additional Interest rate on the Securities
may not exceed in the aggregate 1.0% per annum; provided further, however, that
in no event shall the Companies be obligated to pay Additional Interest under
more than one of the clauses in this Section 2(d) at any one time); provided
further, however, that (1) upon the filing of the Exchange Offer Registration
Statement or a Shelf Registration Statement (in the case of clause (i)(A) above)
or a Shelf Registration Statement (in the case of clause (ii)(B) above), (2)
upon the effectiveness of the Exchange Offer Registration or a Shelf
Registration Statement (in the case of clause (ii)(A) above) or a Shelf
Registration Statement (in the case of clause (i)(B) above), or (3) upon the
exchange of Exchange Securities for all Securities tendered (in the case of
clause (iii)(A) above), or upon the effectiveness of the Shelf Registration
Statement which had ceased to remain effective (in the case of clause (iii)(B)
above), Additional Interest on the Securities as a result of such clause (or the
relevant subclause thereof), as the case may be, shall cease to accrue.
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(e) Without limiting the remedies available to the Placement Agents
and the Holders, the Companies acknowledge that any failure by either Company to
comply with its obligations under Section 2(a) and Section 2(b) hereof may
result in material irreparable injury to the Placement Agents or the Holders for
which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, the Placement Agents or any Holder may obtain such relief as may be
required to specifically enforce either Company's obligations under Section 2(a)
and Section 2(b) hereof.
(f) No Holder of Registrable Securities may include any of its
Registrable Securities in any Shelf Registration unless and until such Holder
furnishes to the Companies, in writing within 30 days after receipt of a request
therefor, the information with respect to such Holder specified in Items 507 and
508 (as applicable) of Regulation S-K under the 1933 Act and any other
applicable rules, regulations or policies of the SEC for use in connection with
any Shelf Registration or Prospectus included therein, on a form to be provided
by the Companies. No Holder of Registrable Securities shall be entitled to
Additional Interest pursuant to Section 2(d) hereof unless and until such Holder
shall have provided all such information. Each selling Holder agrees to furnish
promptly to the Companies additional information to be disclosed so that the
information previously furnished to the Companies by such Holder does not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading.
(g) Additional Interest shall not accrue with respect to an event
listed in Sections 2(d)(i)(B), 2(d)(ii)(B) and 2(d)(iii)(B) hereof (each, a
"Registration Default") if (i) such Registration Default under Section
2(d)(iii)(B) hereof occurs because of the filing of a post-effective amendment
to such Registration Statement to incorporate annual audited financial
information with respect to the Companies where such post-effective amendment is
not yet effective and needs to be declared effective to permit Holders to use
the related Prospectus, (ii) such Registration Default occurs because of the
occurrence of other material events or developments with respect to the
Companies that would need to be described in such Registration Statement or the
related Prospectus, and the effectiveness of such Registration Statement is
reasonably required to be suspended while such Registration Statement and
related Prospectus are amended or supplemented to reflect such events or
developments, (iii) such Registration Default results from the suspension of the
effectiveness of such Registration Statement because of the existence of
material events or developments with respect to the Companies or any of their
affiliates, the disclosure of which the Companies determine in good faith would
have a material adverse effect on the business, operations or prospects of the
Companies, or (iv) such Registration Default results from the suspension of the
effectiveness of such Registration Statement because the Companies do not wish
to disclose publicly a pending material business transaction that has not yet
been publicly disclosed; provided, however, that if any such Registration
Default exists and continues on more than an aggregate of 60 days in any twelve
month period, Additional Interest shall accrue and be payable in accordance with
Section 2(d) hereof from the 61st day on which any such Registration Default
exists, and shall continue to accrue until the date on which such Registration
Default is cured.
3. Registration Procedures.
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In connection with the obligations of the Companies with respect to
the Registration Statements pursuant to Section 2(a) and Section 2(b) hereof,
the Companies shall:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the 1933 Act, which form (x) shall be selected by
the Companies and (y) shall, in the case of a Shelf Registration, be
available for the sale of the Registrable Securities by the selling Holders
thereof and (z) shall comply as to form in all material respects with the
requirements of the applicable form and include all financial statements
required by the SEC to be filed therewith, and use its commercially
reasonable efforts to cause such Registration Statement to become effective
and remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period and, except for
such periods as to which Additional Interest does not accrue pursuant to
Section 2(g) hereof, cause each Prospectus to be supplemented by any
prospectus supplement required by applicable law and, as so supplemented,
to be filed pursuant to Rule 424 under the 1933 Act; to keep each
Prospectus current during the period described under Section 4(3) and Rule
174 under the 1933 Act that is applicable to transactions by brokers or
dealers with respect to the Registrable Securities or Exchange Securities;
(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, to counsel for the Placement Agents, to counsel for
the Holders and to each Underwriter of an Underwritten Offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder or Underwriter
may reasonably request, in order to facilitate the public sale or other
disposition of the Registrable Securities; and the Companies consent to the
use of such Prospectus and any amendment or supplement thereto in
accordance with applicable law by each of the selling Holders of
Registrable Securities and any such Underwriters in connection with the
offering and sale of the Registrable Securities covered by and in the
manner described in such Prospectus or any amendment or supplement thereto
in accordance with applicable law;
(d) use its commercially reasonable efforts to register or qualify
the Registrable Securities under all applicable state securities or "blue
sky" laws of such jurisdictions as any Holder of Registrable Securities
covered by a Registration Statement shall reasonably request in writing by
the time the applicable Registration Statement is declared effective by the
SEC, to cooperate with such Holders in connection with any filings required
to be made with the National Association of Securities Dealers, Inc. and do
any and all other acts and things which may be reasonably necessary or
advisable to enable such Holder to consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such Holder; provided,
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however, that the Companies shall not be required to (i) qualify as a
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foreign corporation or as a dealer in securities in any jurisdiction where
it would not otherwise be required to qualify but for this
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Section 3(d), (ii) file any general consent to service of process or (iii)
subject itself to taxation in any such jurisdiction if it is not so
subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities, counsel for the Holders and counsel for the
Placement Agents promptly and, if requested by any such Holder or counsel,
confirm such advice in writing (i) when a Registration Statement has become
effective and when any post-effective amendment thereto has been filed and
becomes effective, (ii) of any request by the SEC or any state securities
authority for amendments and supplements to a Registration Statement and
Prospectus or for additional information after the Registration Statement
has become effective, (iii) of the issuance by the SEC or any state
securities authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that
purpose, (iv) if, between the effective date of a Registration Statement
and the closing of any sale of Registrable Securities covered thereby, the
representations and warranties of the Companies contained in any
underwriting agreement, securities sales agreement or other similar
agreement, if any, relating to the offering cease to be true and correct in
all material respects or if the Companies receive any notification with
respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation of any proceeding
for such purpose, (v) of the happening of any event during the period a
Shelf Registration Statement is effective which makes any statement made in
such Registration Statement or the related Prospectus untrue in any
material respect or which requires the making of any changes in such
Registration Statement or Prospectus in order to make the statements
therein not misleading and (vi) of any determination by either Company that
a post-effective amendment to a Registration Statement would be appropriate
except, in the case of clauses (iv), (v) and (vi), with respect to any
event, development or transaction permitted to be kept confidential without
the accrual of Additional Interest under Section 2(g) hereof, the Companies
shall not be required to describe such event, development or transaction in
the written notice provided;
(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the
earliest possible moment and provide immediate notice to each Holder of the
withdrawal of any such order;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends and enable such Registrable Securities
to be in such denominations (consistent with the provisions of the
Indenture) and registered in such names as the selling Holders may
reasonably request at least one business day prior to the closing of any
sale of Registrable Securities;
11
(i) in the case of a Shelf Registration, upon the occurrence of any
event contemplated by Section 3(e)(v) hereof, as promptly as practicable
prepare and file with the SEC a supplement or post-effective amendment to a
Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of the Registrable
Securities, such Prospectus will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; the Companies agree to notify the Holders to suspend
use of the Prospectus as promptly as practicable after the occurrence of
such an event, and the Holders hereby agree to suspend use of the
Prospectus until the Companies have amended or supplemented the Prospectus
to correct such misstatement or omission and expressly agree to maintain
the information contained in such notice confidential (except that such
information may be disclosed to its counsel) until it has been publicly
disclosed by the Companies; notwithstanding the foregoing, the Companies
shall not be required to amend or supplement a Registration Statement, any
related Prospectus or any document incorporated or deemed to be
incorporated therein by reference in the event that, and for a period not
to exceed an aggregate of 60 days in any twelve month period if (i) an
event occurs and is continuing as a result of which the Shelf Registration,
any related Prospectus or any document incorporated or deemed to be
incorporated therein by reference, would, in the Companies' good faith
judgment, contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not
misleading (with respect to such a Prospectus only, in the light of the
circumstances under which they were made), and (ii) (a) the Companies
determine in their good faith judgment that the disclosure of such event at
such time would have a material adverse effect on the business, operations
or prospects of the Companies, or (b) the disclosure otherwise relates to a
pending material business transaction that has not yet been publicly
disclosed;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or any document which is to be
incorporated by reference into a Registration Statement or a Prospectus
after initial filing of a Registration Statement, provide copies of such
document to the Placement Agents and their counsel (and, in the case of a
Shelf Registration Statement, the Holders and their counsel) and make such
of the representatives of the Companies as shall be reasonably requested by
the Placement Agents or their counsel (and, in the case of a Shelf
Registration Statement, the Holders or their counsel) available for
discussion of such document, and shall not at any time file or make any
amendment to the Registration Statement, any Prospectus or any amendment of
or supplement to a Registration Statement or a Prospectus or any document
which is to be incorporated by reference into a Registration Statement or a
Prospectus, of which the Placement Agents and their counsel (and, in the
case of a Shelf Registration Statement, the Holders and their counsel)
shall not have previously been advised and furnished a copy or to which the
Placement Agents or their counsel (and, in the case of a Shelf Registration
Statement, the Holders or their counsel) shall reasonably object on a
timely basis, except for any Registration Statement or amendment thereto or
related Prospectus or supplement thereto (a copy of which has been
previously furnished as provided in the
12
preceding sentence) which counsel to the Companies has advised the
Companies in writing is required to be filed in order to comply with
applicable law;
(k) obtain a CUSIP number for all Exchange Securities or Registrable
Securities, as the case may be, not later than the effective date of a
Registration Statement;
(l) cause the Indenture to be qualified under the Trust Indenture Act
of 1939, as amended (the "TIA"), in connection with the registration of the
Exchange Securities or Registrable Securities, as the case may be,
cooperate with the Trustee and the Holders to effect such changes to the
Indenture as may be required for the Indenture to be so qualified in
accordance with the terms of the TIA and execute, and use their
commercially reasonable 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 SEC to enable the Indenture to be
so qualified in a timely manner;
(m) in the case of a Shelf Registration, make available for
inspection upon written request by a representative of the Holders of the
Registrable Securities, any Underwriter participating in any disposition
pursuant to such Shelf Registration Statement, and attorneys and
accountants designated by the Holders, at reasonable times and in a
reasonable manner, all pertinent financial and other records, pertinent
documents and properties of either of the Companies as shall be reasonably
necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the respective officers, directors and
employees of the Companies to supply all information reasonably requested
by any such representative, Underwriter, attorney or accountant in
connection with their due diligence responsibilities under a Shelf
Registration Statement provided, that each such representative,
Underwriter, attorney or accountant shall agree in writing that it will
keep such information confidential and that it will not disclose any of the
information that the Companies determine, in good faith, to be confidential
and notifies them in writing are confidential unless (i) the disclosure of
such information is necessary to avoid or correct a material misstatement
or material omission in such Registration Statement or Prospectus, (ii) the
release of such information is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction, or (iii) the information in
has been made generally available to the public other than by any of such
persons or their affiliates; provided, however that prior notice shall be
provided as soon as practicable to the Companies of the potential
disclosure of any information by such person pursuant to clause (i) or (ii)
of this sentence in order to permit the Companies to obtain a protective
order (or waive the provisions of this paragraph (m);
(n) if reasonably requested by any Holder of Registrable Securities
covered by a Registration Statement, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment such information with
respect to such Holder as such Holder reasonably requests to be included
therein and (ii) make all required filings of such Prospectus supplement or
such post-effective amendment as soon as the Companies have received
notification of the matters to be incorporated in such filing;
13
(o) in the case of an Underwritten Offering pursuant to a Shelf
Registration, enter into such customary agreements and take all such other
actions in connection therewith (including those requested by the Holders
of a majority of the Registrable Securities being sold) in order to
expedite or facilitate the disposition of such Registrable Securities and
in such connection, (i) to the extent possible, make such representations
and warranties to the Holders and any Underwriters of such Registrable
Securities with respect to the business of either of the Companies and
their subsidiaries, the Registration Statement, Prospectus and documents
incorporated by reference or deemed incorporated by reference, if any, in
each case, in form, substance and scope as are customarily made by issuers
to underwriters in underwritten offerings and confirm the same in writing
if and when requested, (ii) obtain opinions of counsel to the Companies
(which counsel and opinions, in form, scope and substance, shall be
reasonably satisfactory to the Holders and such Underwriters and their
respective counsel) addressed to each selling Holder and Underwriter of
Registrable Securities, covering the matters customarily covered in
opinions requested in underwritten offerings, (iii) obtain "cold comfort"
letters from the independent certified public accountants of the Companies
(and, if necessary, any other certified public accountant of any subsidiary
of the Companies, or of any business acquired by either of the Companies
for which financial statements and financial data are or are required to be
included in the Registration Statement) addressed to each selling Holder
and Underwriter of Registrable Securities, such letters to be in customary
form and covering matters of the type customarily covered in "cold comfort"
letters in connection with underwritten offerings, (iv) if an underwriting
agreement is entered into, include in such underwriting agreement
indemnification provisions and procedures no less favorable to the selling
Holders and underwriters, if any, than those set forth in Section 5 hereof
(or such other provisions and procedures acceptable to Holders of a
majority in aggregate principal amount of Registrable Securities covered by
such Registration Statement and the underwriters (if any), and (v) deliver
such documents and certificates as may be reasonably requested by the
Underwriters, and which are customarily delivered in underwritten
offerings, to evidence the continued validity of the representations and
warranties of the Companies made pursuant to clause (i) above and to
evidence compliance with any customary conditions contained in an
underwriting agreement; and
(p) in the case of a Shelf Registration pursuant to Section
2(b)(iii)(A), cause to be delivered only one, if any, "cold comfort" letter
with respect to the Prospectus in the form existing on the last Exchange
Date and with respect to each subsequent amendment or supplement, if any,
effected during the period ending on the 180th day following the last
Exchange Date (as such period may be extended pursuant to the penultimate
paragraph of Section 3 of this Agreement).
In the case of a Shelf Registration Statement, the Companies may
require each Holder of Registrable Securities to furnish to the Companies such
information regarding the Holder and the proposed distribution by such Holder of
such Registrable Securities as the Companies may from time to time reasonably
request in writing. The Companies may exclude from such registration the
Registrable Securities of any seller so long as such seller fails to furnish
such information within a reasonable time after receiving such request. Each
seller as to which any Shelf Registration is being effected agrees to furnish
promptly to the Companies all
14
information required to be disclosed in order to make the information previously
furnished to the Companies by such seller not materially misleading.
In the case of a Shelf Registration Statement, each Holder agrees
that, upon receipt of any notice from the Companies of the happening of any
event of the kind described in Section 3(e)(v) hereof, such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to a
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) hereof, and, if
so directed by the Companies, such Holder will deliver to the Companies (at its
expense) all copies in its possession, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice. If the Companies shall give any
such notice to suspend the disposition of Registrable Securities pursuant to a
Registration Statement, the Companies shall extend the period during which the
Registration Statement shall be maintained effective pursuant to this Agreement
by the number of days during the period from and including the date of the
giving of such notice to and including the date when the Holders shall have
received copies of the supplemented or amended Prospectus necessary to resume
such dispositions. The Companies agree that no suspension shall exist or
continue for more than an aggregate of 60 days in any twelve month period.
The Holders of Registrable Securities covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Securities in an
Underwritten Offering. In any such Underwritten Offering, the investment banker
or investment bankers and manager or managers (the "Underwriters") that will
administer the offering will be selected by the Majority Holders of the
Registrable Securities included in such offering.
4. Participation of Broker-Dealers in Exchange Offer.
--------------------------------------------------
(a) The Staff of the SEC has taken the position that any broker-
dealer that receives Exchange Securities for its own account in the Exchange
Offer in exchange for Securities that were acquired by such broker-dealer as a
result of market-making or other trading activities (a "Participating Broker-
Dealer"), may be deemed to be an "underwriter" within the meaning of the 1933
Act and must deliver a prospectus meeting the requirements of the 1933 Act in
connection with any resale of such Exchange Securities.
The Companies understand that it is the Staff's position that if the
Prospectus contained in the Exchange Offer Registration Statement includes a
plan of distribution containing a statement to the above effect and the means by
which Participating Broker-Dealers may resell the Exchange Securities, without
naming the Participating Broker-Dealers or specifying the amount of Exchange
Securities owned by them, such Prospectus may be delivered by Participating
Broker-Dealers to satisfy their prospectus delivery obligation under the 1933
Act in connection with resales of Exchange Securities for their own accounts, so
long as the Prospectus otherwise meets the requirements of the 1933 Act.
(b) In light of the above, notwithstanding the other provisions of
this Agreement, the Companies agree that the provisions of this Agreement as
they relate to a Shelf Registration shall also apply to an Exchange Offer
Registration to the extent, and with such reasonable modifications thereto as
may be, reasonably requested by the Placement Agents or by
15
one or more Participating Broker-Dealers, in each case as provided in clause
(ii) below, in order to expedite or facilitate the disposition of any Exchange
Securities by Participating Broker-Dealers consistent with the positions of the
Staff recited in Section 4(a) above; provided that:
--------
(i) neither Company shall be required to amend or supplement the
Prospectus contained in the Exchange Offer Registration Statement, as would
otherwise be contemplated by Section 3(i), for a period exceeding 180 days
after the last Exchange Date (as such period may be extended pursuant to
the penultimate paragraph of Section 3 of this Agreement) and Participating
Broker-Dealers shall not be authorized by the Companies to deliver and
shall not deliver such Prospectus after such period in connection with the
resales contemplated by this Section 4; and
(ii) the application of the Shelf Registration procedures set forth in
Section 3 of this Agreement to an Exchange Offer Registration, to the
extent not required by the positions of the Staff of the SEC or the 1933
Act and the rules and regulations thereunder, will be in conformity with
the reasonable request to the Companies by the Placement Agents or with the
reasonable request in writing to the Companies by one or more broker-
dealers who certify to the Placement Agents and the Companies in writing
that they anticipate that they will be Participating Broker-Dealers; and
provided further that, in connection with such application of the Shelf
-------- -------
Registration procedures set forth in Section 3 to an Exchange Offer
Registration, the Companies shall be obligated (x) to deal only with one
entity representing the Participating Broker-Dealers, which shall be ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated unless it elects not to act as such
representative and (y) to pay the fees and expenses of only one counsel
representing the Participating Broker-Dealers, which shall be counsel to
the Placement Agents unless such counsel elects not to so act.
(c) The Placement Agents shall have no liability to the Companies or
any Holder with respect to any request that it may make pursuant to Section 4(b)
above.
5. Indemnification and Contribution.
(a) The Companies agree to indemnify and hold harmless the Placement
Agents, each Holder and each Person, if any, who controls any Placement Agent or
any Holder within the meaning of either Section 15 of the 1933 Act or Section 20
of the 1934 Act, or is under common control with, or is controlled by, any
Placement Agent or any Holder, from and against all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred by the Placement Agent, any Holder or any such controlling
or affiliated Person in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement (or any amendment thereto)
pursuant to which Exchange Securities or Registrable Securities were registered
under the 1933 Act, including all documents incorporated therein by reference,
or caused by any omission or alleged omission to state
16
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, or caused by any untrue statement or alleged
untrue statement of a material fact contained in any Prospectus (as amended or
supplemented if either Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, except (i) insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to the Placement Agents or any Holder furnished to the
Companies in writing through ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated or any selling
Holder expressly for use therein or (ii) insofar as such losses, claims, damages
or liabilities were caused by an untrue statement or omission that was contained
or made in any preliminary or final Prospectus and corrected in the Prospectus
or any amendment or supplement to the Prospectus if (x) the Prospectus does not
contain any other untrue statement or omission of a material fact that was the
subject matter of the related proceeding, (y) any such losses, claims, damages
or liabilities resulted from an action, claim or suit by any Person who
purchased Registrable Securities or Exchange Securities which are the subject
thereof from the indemnified party (as defined) and (z) it is established in the
related proceeding that such indemnified party failed to deliver or provide a
copy of the Prospectus (as so amended or supplemented, if applicable) to such
Person with or prior to the confirmation of the sale of such Registrable
Securities or Exchange Securities to such Person if required by applicable law,
unless such failure to deliver or provide a copy of such Prospectus (as so
amended or supplemented, if applicable) was a result of non-compliance by the
Companies with Section 3 hereof. In connection with any Underwritten Offering
permitted by Section 3, the Companies will also indemnify the Underwriters, if
any, selling brokers, dealers and similar securities industry professionals
participating in the distribution, their officers and directors and each Person
who controls such Persons (within the meaning of the 1933 Act and the ▇▇▇▇ ▇▇▇)
to the same extent as provided above with respect to the indemnification of the
Holders, if requested in connection with any Registration Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Companies, the Placement Agents and the other selling Holders,
and each of their respective directors, officers who sign the Registration
Statement and each Person, if any, who controls either Company, any Placement
Agent and any other selling Holder within the meaning of either Section 15 of
the 1933 Act or Section 20 of the 1934 Act to the same extent as the foregoing
indemnity from the Companies to the Placement Agents and the Holders, but only
with reference to information relating to such Holder furnished to the Companies
in writing by such Holder expressly for use in any Registration Statement (or
any amendment thereto) or any Prospectus (or any amendment or supplement
thereto).
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any Person in respect of which indemnity may be
sought pursuant to either paragraph (a) or paragraph (b) above, such Person (the
"indemnified party") shall promptly notify the Person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party 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 party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the
17
indemnifying party and the indemnified party 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 party shall not,
in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for (a) the fees and expenses of more than one separate
firm engaged in accordance with clause (ii) of the preceding sentence (in
addition to any local counsel) for all indemnified parties, and that all such
fees and expenses shall be reimbursed as they are incurred upon written request
and presentation of invoices. In any other case involving the Placement Agents
and Persons who control the Placement Agents, such firm shall be designated in
writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated. In any other case involving the
Holders and such Persons who control Holders, such firm shall be designated in
writing by the Majority Holders. In all other cases, such firm shall be
designated by the Companies. The indemnifying party 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 judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party for such fees and expenses of counsel in accordance with such
request prior to the date of such settlement. Notwithstanding the immediately
preceding sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, an indemnifying party shall not be liable for any settlement of the
nature contemplated by this Section 5(c) effected without its consent if such
indemnifying party (i) reimburses such indemnified party in accordance with such
request to the extent that it in good faith considers such request to be
reasonable and (ii) provides written notice to the indemnified party
substantiating the unpaid balance as unreasonable, in each case prior to the
date of settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which such indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) If the indemnification provided for in paragraph (a) or paragraph
(b) of this Section 5 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party or parties on the one hand and of the indemnified party or parties on the
other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Companies and the Holders 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 Companies or by the
Holders and the parties' relative intent,
18
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Holders' respective obligations to contribute
pursuant to this Section 5(d) are several in proportion to the respective
principal amount of Registrable Securities of such Holder that were registered
pursuant to a Registration Statement.
(e) The Companies and each Holder agree that it would not be just or
equitable if contribution pursuant to this Section 5 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 paragraph (d) above. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages
and liabilities referred to in paragraph (d) above 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. Notwithstanding the provisions of this
Section 5, no Holder shall be required to indemnify or contribute any amount in
excess of the amount by which the total price at which Registrable Securities
were sold by such Holder exceeds the amount of any damages that such Holder 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 ▇▇▇▇ ▇▇▇) shall be
entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 5 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section 5
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Placement Agents, any Holder or any Person controlling any Placement Agent
or any Holder, or by or on behalf of the Companies, their officers or directors
or any Person controlling the Companies, (iii) acceptance of any of the Exchange
Securities and (iv) any sale of Registrable Securities pursuant to a Shelf
Registration Statement.
6. Miscellaneous.
(a) No Inconsistent Agreements. Neither Company has entered into, and
--------------------------
on or after the date of this Agreement will not enter into, any agreement which
is inconsistent with the rights granted to the Holders of Registrable Securities
in this Agreement or otherwise conflicts with the provisions hereof. The rights
granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Companies' other
issued and outstanding securities under any such agreements.
(b) 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 Companies have obtained the written consent of
Holders of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or consent; provided, however, that no amendment, modification,
-------- -------
supplement, waiver or consent to any departure from the provisions of Section 5
hereof shall be effective as against any Holder of Registrable Securities unless
consented to in writing by such Holder. Notwithstanding
19
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 Securities 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 Securities may be
given by Holders of at least a majority in aggregate principal amount of the
Registrable Securities being sold pursuant to such Registration Statement.
(c) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, telex, telecopier, or any courier guaranteeing overnight delivery
(i) if to a Holder, at the most current address given by such Holder to the
Companies by means of a notice given in accordance with the provisions of this
Section 6(c), which address initially is, with respect to the Placement Agents,
the address set forth in the Placement Agreement; and (ii) if to the Companies,
initially at the Companies' addresses set forth in the Placement Agreement and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 6(c).
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 is 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, at the
address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
--------
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Placement Agreement. If any transferee of any
Holder shall acquire Registrable Securities, in any manner, whether by operation
of law or otherwise, such Registrable Securities shall be held subject to all of
the terms of this Agreement, and by taking and holding such Registrable
Securities such Person shall be conclusively deemed to have agreed to be bound
by and to perform all of the terms and provisions of this Agreement and such
Person shall be entitled to receive the benefits hereof. The Placement Agents
(in their capacity as Placement Agents) shall have no liability or obligation to
the Companies with respect to any failure by a Holder to comply with, or any
breach by any Holder of, any of the obligations of such Holder under this
Agreement.
(e) Purchases and Sales of Securities. During the period of two years
---------------------------------
after the Closing Date, the Companies will not, and will not permit any of their
affiliates (as defined in Rule 144 under the Securities Act) to resell any of
the Securities which constitute "restricted securities" under Rule 144 that have
been reacquired by any of them, unless such Securities are resold in a
transaction registered under the 1933 Act.
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(f) Third Party Beneficiary. The Holders shall be third party
-----------------------
beneficiaries to the agreements made hereunder between the Companies, on the one
hand, and the Placement Agents, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights or the rights of Holders hereunder.
(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 the laws of
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the State of New York.
(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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
RESOLUTION PERFORMANCE PRODUCTS LLC
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
RPP CAPITAL CORPORATION
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
Confirmed and accepted as of
the date first above written:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Principal
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