EXHIBIT 10.1
AMENDED AND RESTATED
DEBT EXCHANGE AGREEMENT
BY AND AMONG
HUNTSMAN COMPANY LLC;
HUNTSMAN POLYMERS CORPORATION;
HUNTSMAN FAMILY HOLDINGS II COMPANY LLC;
HMP EQUITY HOLDINGS CORPORATION;
▇▇▇ ▇. ▇▇▇▇▇▇▇▇;
CERTAIN INDIVIDUAL INVESTORS (NAMED HEREIN);
MATLINPATTERSON GLOBAL OPPORTUNITIES PARTNERS L.P., BY ITS
INVESTMENT ADVISOR, MATLINPATTERSON GLOBAL ADVISERS LLC;
CONSOLIDATED PRESS HOLDINGS LIMITED
AND
CONSOLIDATED PRESS (FINANCE) LTD
DATED AS OF SEPTEMBER 17, 2002
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS....................................................................................2
1.1 Defined Terms................................................................................2
1.2 Interpretation...............................................................................7
ARTICLE II EXCHANGE AND CONTRIBUTION.....................................................................8
2.1 GOF Exchange Transactions....................................................................8
2.2 CPF Exchange Transactions....................................................................8
2.3 HH Preferred Member Exchange Transactions....................................................9
2.4 Investors Exchange Transactions.............................................................10
2.5 Family Holdings II Exchange Transactions....................................................10
2.6 SPV Contribution to HMP.....................................................................11
2.7 HMP Contribution to H Corp..................................................................11
2.8 Interest....................................................................................11
ARTICLE III CLOSING.....................................................................................12
3.1 Closing.....................................................................................12
3.2 Deliveries at Closing.......................................................................12
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE HUNTSMAN PARTIES.......................................21
4.1 Corporate Organization, Etc.................................................................21
4.2 Authority; No Violation.....................................................................21
4.3 Consents and Approvals......................................................................22
4.4 Capitalization of HMP; Ownership of New Stock...............................................23
4.5 No Other HMP, H Corp or H Poly Securities...................................................24
4.6 Australian Designee and Australian Contracts................................................24
4.7 Investment Representations and Warranties...................................................25
4.8 Family Holdings II and GOF Transactions.....................................................26
4.9 No Other Representations....................................................................26
ARTICLE V REPRESENTATIONS AND WARRANTIES OF CP PARTIES..................................................27
5.1 Corporate Organization, Etc.................................................................27
5.2 Authority; No Violation.....................................................................27
5.3 Consents and Approvals......................................................................28
5.4 Ownership of Bonds..........................................................................28
5.5 Investment Representations and Warranties...................................................28
5.6 No Other Representations....................................................................29
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF GOF........................................................29
6.1 Corporate Organization, Etc.................................................................30
6.2 Authority; No Violation.....................................................................30
6.3 Consents and Approvals......................................................................31
6.4 Ownership of Assets.........................................................................31
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6.5 Investment Representations and Warranties...................................................32
6.6 Family Holdings II and GOF Transactions.....................................................34
6.7 No Other Representations....................................................................34
ARTICLE VII REPRESENTATIONS AND WARRANTIES OF THE INVESTORS.............................................34
7.1 Authority; No Violation.....................................................................34
7.2 Consents and Approvals......................................................................35
7.3 Ownership of BNAC Shares....................................................................35
7.4 No Other Representations....................................................................35
ARTICLE VIII COVENANTS..................................................................................35
8.1 Consummation of Transactions................................................................35
8.2 Covenant of ▇▇. ▇▇▇▇▇▇▇▇....................................................................36
8.3 HMP Recapitalization........................................................................36
8.4 Formation of HH Preferred Member............................................................36
8.5 Additional HH Preferred Member Contribution.................................................37
8.6 Payment of GOF Transaction Fees.............................................................37
8.7 Payment of CPF Transaction Fees.............................................................38
8.8 Covenant of CPH.............................................................................38
ARTICLE IX ADDITIONAL AGREEMENTS........................................................................38
9.1 Regulatory Matters..........................................................................38
9.2 Huntsman Obligation to File.................................................................39
9.3 Legal Conditions to Debt Exchange Transactions..............................................39
9.4 Additional Agreements.......................................................................39
9.5 SPV Actions.................................................................................39
9.6 Proxy.......................................................................................40
9.7 Merger of BNAC..............................................................................40
ARTICLE X CONDITIONS PRECEDENT..........................................................................40
10.1 Conditions to Each Party's Obligation To Effect Debt Exchange Transactions..................40
10.2 Definitions.................................................................................42
ARTICLE XI TERMINATION AND AMENDMENT....................................................................43
11.1 Termination.................................................................................43
11.2 Effect of Termination.......................................................................44
11.3 Amendment...................................................................................44
11.4 Extension; Waiver...........................................................................44
ARTICLE XII LOCKUP COMMITMENTS AND SUPPORT COVENANTS....................................................44
12.1 GOF Lockup Commitments......................................................................44
12.2 CPF Lockup Commitments......................................................................45
12.3 Huntsman Party Lockup Commitments...........................................................45
12.4 GOF Support Covenants.......................................................................45
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12.5 CPF Support Covenants.......................................................................46
12.6 Huntsman Party Support Covenants............................................................48
12.7 Lockup Termination Dates....................................................................49
ARTICLE XIII GENERAL PROVISIONS.........................................................................50
13.1 Expenses....................................................................................50
13.2 Notices.....................................................................................50
13.3 Counterparts and Effectiveness..............................................................52
13.4 Entire Agreement............................................................................52
13.5 Governing Law...............................................................................53
13.6 Enforcement of Agreement....................................................................53
13.7 Severability................................................................................53
13.8 Publicity...................................................................................53
13.9 Assignment; No Third Party Beneficiaries....................................................53
13.10 B Note Covenant Letter......................................................................53
13.11 Nonsurvival of Representations and Warranties...............................................54
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DEFINED TERMS
Defined Term Page No.
------------ --------
1997 Indenture...........................................................................................1
1998 Indenture...........................................................................................1
1998 Notes...............................................................................................1
Administrative Agent....................................................................................25
Affiliate................................................................................................2
Agreement................................................................................................1
Amended and Restated H Corp Operating Agreement..........................................................3
Amended and Restated HMP Bylaws..........................................................................3
Australian Contracts.....................................................................................3
Australian Designee......................................................................................4
Australian Designee Units...............................................................................26
Australian Purchase Agreement............................................................................3
B Note Covenant Letter..................................................................................57
Bank Consent Condition..................................................................................44
Bank Group..............................................................................................44
Bankruptcy Code..........................................................................................4
Bankruptcy Court.........................................................................................4
Benchem.................................................................................................25
BNAC.....................................................................................................4
BNAC Common Stock.......................................................................................33
BNAC Interest............................................................................................4
BNAC Shares..............................................................................................4
Bonds....................................................................................................1
Cancer Foundation Shares................................................................................38
Case Commencement.......................................................................................45
Certificate of Amendment of H Corp.......................................................................4
Certificate of Amendment of HMP..........................................................................4
Chapter 11 Case.........................................................................................45
CINV....................................................................................................25
Class A Preferred.......................................................................................38
Class A Units............................................................................................5
Class B Units............................................................................................5
Closing.................................................................................................13
Closing Date............................................................................................13
Common Stock............................................................................................24
Confidentiality Agreement................................................................................5
Confirmation Order.......................................................................................5
Consent.................................................................................................24
Contributed HSCHC Interest..............................................................................12
Contributed JK Holdings Interest........................................................................12
CP Parties...............................................................................................1
CP Parties Disclosure Schedule..........................................................................28
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CPF......................................................................................................1
CPF Bond Position.......................................................................................30
CPF Lockup Termination Date.............................................................................53
CPF New Shares..........................................................................................10
CPF Optional Lockup Termination Date....................................................................53
CPF Transaction Fees.....................................................................................5
CPF/HH Preferred Member Contributed Bonds...............................................................10
CPH......................................................................................................1
Debt Exchange Transactions...............................................................................5
Direct Exchange CPF Bonds................................................................................9
Direct Exchange GOF Bonds................................................................................8
Direct Exchange HH Preferred Member Bonds...............................................................10
Earnout Agreement........................................................................................5
Encumbrance..............................................................................................5
Escrow Agreement........................................................................................15
Family Holdings..........................................................................................1
Family Holdings II.......................................................................................1
Family Holdings II New Shares...........................................................................11
Family Shares...........................................................................................48
Fast Track Pleadings.....................................................................................5
Fast Track Schedule.....................................................................................45
Fixed Rate Notes.........................................................................................1
Floating Rate Notes......................................................................................1
GOF......................................................................................................1
GOF BNAC Interest........................................................................................9
GOF BNAC Shares..........................................................................................9
GOF Bond Position.......................................................................................33
GOF Cash Contribution....................................................................................5
GOF Disclosure Schedule.................................................................................31
GOF Investment Amount...................................................................................34
GOF Lockup Termination Date.............................................................................52
GOF New Shares...........................................................................................9
GOF Optional Lockup Termination Date....................................................................52
GOF Transaction Fees.....................................................................................6
GOF/HH Preferred Member Contributed Bonds................................................................9
GOF/ICI Purchase Agreement...............................................................................5
GOF/ICI Purchase Documents..............................................................................34
Governmental Authority...................................................................................6
Guarantees...............................................................................................6
H Corp...................................................................................................1
H Corp Credit Facility...................................................................................6
H Corp Note.............................................................................................26
H Corp Notes.............................................................................................1
H Poly...................................................................................................1
H Poly Indenture.........................................................................................1
H Poly Notes.............................................................................................1
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HH BNAC Shares...........................................................................................6
HH Preferred Member......................................................................................9
HH Preferred Member New Shares..........................................................................10
HH Preferred Member Operating Agreement.................................................................39
HIH......................................................................................................6
HMP......................................................................................................1
HMP Recapitalization....................................................................................38
HMP/CPF Guarantee........................................................................................6
HMP/CPF Release..........................................................................................9
HMP/GOF Guarantee........................................................................................6
HMP/GOF Release..........................................................................................8
HPC.....................................................................................................12
HPC Preferred...........................................................................................12
HSCHC...................................................................................................12
HSR Act.................................................................................................24
Huntsman Contribution Asset Value........................................................................6
Huntsman Contribution Assets............................................................................12
Huntsman Disclosure Schedule............................................................................22
Huntsman Parties.........................................................................................1
ICI.....................................................................................................34
Indentures...............................................................................................1
Individual Investor......................................................................................1
Injunction..............................................................................................43
Interest.................................................................................................7
Interest Holders Agreement..............................................................................13
Investor BNAC Shares.....................................................................................6
Investor Disclosure Schedule............................................................................36
Investors................................................................................................1
Involuntary Proceeding..................................................................................44
JK Holdings.............................................................................................12
Laws.....................................................................................................7
Letter Agreement.........................................................................................7
Material Adverse Effect..................................................................................7
▇▇. ▇▇▇▇▇▇▇▇.............................................................................................1
New Common Stock........................................................................................11
New GOF Assets...........................................................................................7
New H Corp Managers.....................................................................................15
New HMP Directors.......................................................................................15
Notional HMP Common Equity Value.........................................................................7
Notional HMP Common Stock Price..........................................................................7
Notional Total HMP Value.................................................................................7
Original
Debt Exchange Agreement.........................................................................2
Person...................................................................................................7
Plan.....................................................................................................7
Plan Approval Condition.................................................................................44
Pre-Closing Paid Fees...................................................................................40
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Preferred Interest.......................................................................................8
Preferred Stock.........................................................................................24
Release Certificate.....................................................................................15
Remaining CPF Bonds.....................................................................................10
Remaining GOF Bonds......................................................................................9
Remaining HH Preferred Member Bonds.....................................................................11
Required Governmental Consents..........................................................................24
Restructured H Corp Facility.............................................................................2
Restructuring Plan.......................................................................................1
Rosgrove................................................................................................25
Securities Act..........................................................................................24
Series A Common.........................................................................................24
Series B Common.........................................................................................24
SPV......................................................................................................8
SPV Agreement...........................................................................................43
SPV New Shares..........................................................................................12
Subsidiary...............................................................................................8
Transfer Agreements.....................................................................................25
TS 1.....................................................................................................1
Voluntary Proceeding....................................................................................44
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AMENDED AND RESTATED
DEBT EXCHANGE AGREEMENT
This AMENDED AND RESTATED
DEBT EXCHANGE AGREEMENT, dated as of
September 17, 2002 (this "AGREEMENT"), by and among Huntsman Company LLC, a Utah
limited liability company formerly a Utah corporation known as Huntsman
Corporation ("H CORP"),
Huntsman Polymers Corporation, a Delaware corporation
("H POLY"), MatlinPatterson Global Opportunities Partners L.P., a Delaware
limited partnership, by its Investment Advisor, MatlinPatterson Global Advisers
LLC, a Delaware limited liability company (collectively, "GOF"), Huntsman Family
Holdings II Company LLC, a Utah limited liability company ("FAMILY HOLDINGS
II"), HMP Equity Holdings Corporation, a Delaware corporation ("HMP"), ▇▇▇ ▇.
▇▇▇▇▇▇▇▇, an individual ("▇▇. ▇▇▇▇▇▇▇▇," and together with Family Holdings II,
HMP, H Corp and H Poly, the "HUNTSMAN PARTIES"), Consolidated Press (Finance)
Ltd (ACN 001 557 035), a public company incorporated in the State of New South
Wales ("CPF"), Consolidated Press Holding Limited (ACN ▇▇▇ ▇▇▇ ▇▇▇), an
Australian corporation registered in the Australian Capital Territory ("CPH,"
and together with CPF, the "CP PARTIES"), and the individual investors named on
Exhibit 2.4 to this Agreement (each such individual, an "INDIVIDUAL INVESTOR,"
and collectively, the "INVESTORS").
WHEREAS, H Corp, H Poly, ▇▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Family Holdings
Company LLC, a Utah limited liability company that was merged with and into
Family Holdings II with Family Holdings II being the surviving company ("FAMILY
HOLDINGS"), and GOF have entered into the Term Sheet for Restructuring Plan
Support for H Corp and H Poly, dated as of June 14, 2002 ("TS 1"), which sets
forth a comprehensive debt restructuring plan (the "RESTRUCTURING PLAN") with
respect to (a) the following classes of debt securities: (i) $275,000,000 of
9.5% Senior Subordinated Notes due 2007 (the "FIXED RATE NOTES"), issued by H
Corp pursuant to the Indenture dated July 10, 1997, as amended from time to time
(the "1997 INDENTURE"), (ii) $200,000,000 of 9.5% Senior Subordinated Notes due
2007 (the "1998 NOTES"), issued by H Corp pursuant to the Indenture dated
December 2, 1998, as amended from time to time (the "1998 INDENTURE"), (iii)
$125,000,000 of Senior Subordinated Floating Rate Notes due 2007 (the "FLOATING
RATE NOTES," and together with the Fixed Rate Notes and the 1998 Notes, the "H
CORP NOTES"), issued by H Corp pursuant to the 1997 Indenture, and (iv)
$174,882,000 of 11.75% Senior Unsecured Notes due 2004 (individually, the "H
POLY NOTES," and together with the H Corp Notes, the "BONDS"), issued by H Poly
pursuant to the Indenture dated November 29, 1994 (the "H POLY INDENTURE," and
together with the 1997 Indenture and the 1998 Indenture, the "INDENTURES")
through the exchange of those Bonds held by GOF and those H Corp Notes held by
CPF (as a transferee of GOF) as provided in this Agreement; and (b) the H Corp
Credit Facility (as defined herein) through the consolidation of certain
tranches, amendment of certain terms and the provision of additional liquidity,
substantially as set forth in the term sheet attached hereto as Appendix A, with
such changes thereto as shall be reasonably acceptable to GOF and Family
Holdings II (thereafter, being referred to as the "RESTRUCTURED H CORP
FACILITY");
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WHEREAS, in order to implement the debt exchanges contemplated by TS
1, H Corp, H Poly, CSFB Global Opportunities Partners, L.P. by its investment
advisor, CSFB Global Opportunities Advisers, LLC (GOF's predecessor), Family
Holdings, Family Holdings II and ▇▇. ▇▇▇▇▇▇▇▇ entered into a
Debt Exchange
Agreement, dated as of July 15, 2002 (the "ORIGINAL
DEBT EXCHANGE AGREEMENT");
WHEREAS, subsequent to the execution of the Original
Debt Exchange
Agreement, the stockholders of H Corp formed HMP and contributed all of their
equity interests in H Corp to HMP in exchange for equity interests in HMP;
WHEREAS, HMP has guaranteed to each of GOF and CPF the payment of
principal and interest on the H Corp Notes held by GOF and CPF;
WHEREAS, in order to allow CPF and the Investors to participate in the
Restructuring Plan, as modified herein, and to set forth the terms governing
their participation, the Original
Debt Exchange Agreement is being amended and
restated by this Agreement; and
WHEREAS, the parties to this Agreement desire to make certain
representations, warranties and agreements in connection with the Debt Exchange
Transactions (as defined herein) and also to prescribe certain conditions to the
Debt Exchange Transactions.
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements contained herein, and intending to be
legally bound hereby, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINED TERMS. For all purposes of this Agreement, the following
terms shall have the respective meanings set forth in this Section 1.1 (such
definitions to be equally applicable to both the singular and plural forms of
the terms herein defined):
"AFFILIATE" means, as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such Person; and the term "control" (including, with correlative meaning,
the terms "controlled by" and "under common control with"), as applied to any
Person, means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such Person, whether
through the ownership of voting securities or other ownership interest, by
contract or otherwise.
"AMENDED AND RESTATED H CORP OPERATING AGREEMENT" means the amended
and restated limited liability company agreement of H Corp to be adopted by HMP,
as the sole member of H Corp, at or prior to the Closing, substantially in the
form attached hereto as EXHIBIT A, with such amendments or modifications thereto
as shall be reasonably acceptable to GOF and Family Holdings II; PROVIDED,
HOWEVER, that any such
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amendment or modification shall also be subject to the prior reasonable
acceptance of CPF where both (i) such amendment or modification would have a
material adverse effect on the rights attributable to the Interest of CPF (the
"affected CPF rights") and (ii) such material adverse effect would be
disproportionate (after taking into account any disproportionality in the
relative rights of CPF and GOF prior to any such amendment or modification) to
the effect such amendment or modification would have on the rights attributable
to the Interest of GOF.
"AMENDED AND RESTATED HMP BYLAWS" means the amended and restated
bylaws of HMP to be adopted by the Board of Directors of HMP at or prior to the
Closing, substantially in the form attached hereto as EXHIBIT B, with such
amendments or modifications thereto as shall be reasonably acceptable to GOF and
Family Holdings II; PROVIDED, HOWEVER, that any such amendment or modification
shall also be subject to the prior reasonable acceptance of CPF where both (i)
such amendment or modification would have a material adverse effect on the
rights attributable to the Interest of CPF (the "affected CPF rights") and (ii)
such material adverse effect would be disproportionate (after taking into
account any disproportionality in the relative rights of CPF and GOF prior to
any such amendment or modification) to the effect such amendment or modification
would have on the rights attributable to the Interest of GOF.
"AUSTRALIAN CONTRACTS" means all of ▇▇. ▇▇▇▇▇▇▇▇'▇ and/or Family
Holdings II's rights under the Purchase Agreement, dated as of June 26, 2002, by
and among ▇▇. ▇▇▇▇▇▇▇▇, Rosgrove Pty Limited (ACN 051 649 560), an Australian
corporation registered in the State of New South Wales, Conpress International
(Netherlands Antilles) N.V., a Bahamian company, and Benchem Pty Limited (ACN
072 167 527), an Australian corporation registered in the State of New South
Wales (the "AUSTRALIAN PURCHASE AGREEMENT"), with respect to (and including the
right to receive) (a) 1,600 shares of the common capital stock, no par value, of
Huntsman Surfactants Technology Corporation, a Utah corporation, (b) 2,006
shares of the Class B Ordinary Shares of HCPH Holdings Pty Limited (ACN 060 463
023), an Australian corporation, (c) the Australian Loans (as defined in the
Australian Purchase Agreement), and (d) 500,050 Class B Units of Huntsman
Chemical Australia Unit Trust, an Australian unit trust, as constituted by a
Trust Deed in respect thereof, with Huntsman Chemical Company Australia Pty
Limited (ACN 004 146 338) as trustee.
"AUSTRALIAN DESIGNEE" means ▇▇ ▇▇ Australia Holdings Company LLC, a
Utah limited liability company and wholly owned subsidiary of Family Holdings
II, which has been named the irrevocable designee by ▇▇. ▇▇▇▇▇▇▇▇ of the
Australian Contracts.
"BANKRUPTCY CODE" means title 11 of the United States Code Sections
101-1330.
"BANKRUPTCY COURT" means the United States Bankruptcy Court where the
Chapter 11 Cases are filed.
"BNAC" means BNAC, Inc., a Delaware corporation and a subsidiary of
GOF. BNAC is the owner of the New GOF Assets.
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"BNAC INTEREST" means, collectively, the GOF BNAC Interest, the HH
BNAC Shares and the Investor BNAC Shares.
"BNAC SHARES" means the shares of capital stock of BNAC.
"CERTIFICATE OF AMENDMENT OF H CORP " means the First Certificate of
Amendment to Articles of Organization of H Corp, which H Corp shall adopt and
cause to be filed with the Division of Corporations and Commercial Code of the
Utah Department of Commerce, substantially in the form attached hereto as
EXHIBIT C, with such amendments or modifications thereto as shall be reasonably
acceptable to GOF and Family Holdings II; PROVIDED, HOWEVER, that any such
amendment or modification shall also be subject to the prior reasonable
acceptance of CPF where both (i) such amendment or modification would have a
material adverse effect on the rights attributable to the Interest of CPF (the
"affected CPF rights") and (ii) such material adverse effect would be
disproportionate (after taking into account any disproportionality in the
relative rights of CPF and GOF prior to any such amendment or modification) to
the effect such amendment or modification would have on the rights attributable
to the Interest of GOF.
"CERTIFICATE OF AMENDMENT OF HMP " means the First Certificate of
Amendment of the Certificate of Incorporation of HMP, which HMP shall adopt and
cause to be filed with the Secretary of State of the State of Delaware,
substantially in the form attached hereto as EXHIBIT D, with such amendments or
modifications thereto as shall be reasonably acceptable to GOF and Family
Holdings II; PROVIDED, HOWEVER, that any such amendment or modification shall
also be subject to the prior reasonable acceptance of CPF where both (i) such
amendment or modification would have a material adverse effect on the rights
attributable to the Interest of CPF (the "affected CPF rights") and (ii) such
material adverse effect would be disproportionate (after taking into account any
disproportionality in the relative rights of CPF and GOF prior to any such
amendment or modification) to the effect such amendment or modification would
have on the rights attributable to the Interest of GOF.
"CLASS A UNITS" means the Class A Common Units of the SPV.
"CLASS B UNITS" means the Class B Common Units of the SPV.
"CONFIRMATION ORDER" means an order or orders of the Bankruptcy Court
approving the Plan under section 1129 of the Bankruptcy Code.
"CONFIDENTIALITY AGREEMENT" means the letter agreement with respect to
the confidential nature of the information relating to the GOF/ICI Purchase
Agreement delivered to and acknowledged by GOF, in the form attached hereto as
EXHIBIT E.
"CPF TRANSACTION FEES" means the reasonable, documented total fees and
expenses of third-party advisers and consultants incurred by CPF prior to the
Closing in connection with the Debt Exchange Transactions (including, without
limitation, reasonable legal, consulting and due diligence fees and expenses).
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"DEBT EXCHANGE TRANSACTIONS" means, collectively, the exchange
transactions and contributions contemplated by Article II hereof.
"EARNOUT AGREEMENT" means the Earnout Agreement, dated as of June 29,
2002, by and among CPH, Conpress International (Netherlands Antilles) N.V., a
Bahamian company, ▇▇. ▇▇▇▇▇▇▇▇ and Family Holdings II, as amended.
"ENCUMBRANCE" means any and all liens, charges, security interests,
options, claims, mortgages, pledges, proxies, voting trusts or agreements,
obligations, understandings or arrangements or other restrictions on title or
transfer of any nature whatsoever.
"FAST TRACK PLEADINGS" means, collectively, the pleadings set forth in
Part II of Appendix 10.2(b).
"GOF CASH CONTRIBUTION" means an amount in cash equal to $329,750,000
minus the GOF Investment Amount; PROVIDED, HOWEVER, that the GOF Cash
Contribution shall be reduced by the amount, if any, of the Pre-Closing Paid
Fees which are not paid by H Corp on the Closing Date as contemplated in Section
8.6(a).
"GOF/ICI PURCHASE AGREEMENT" means the Sale and Purchase Agreement,
dated June 14, 2002, by and among Imperial Chemical Industries PLC, ICI Alta
Inc., ICI Americas Inc., ICI Finance PLC, GOF and BNAC, a copy of which is
attached hereto with Schedule 2.1(b).
"GOF TRANSACTION FEES" means the reasonable, documented total fees and
expenses of third-party advisers and consultants incurred by GOF prior to the
Closing in connection with the transactions contemplated by this Agreement
(including, without limitation, reasonable legal, consulting and due diligence
fees and expenses).
"GOVERNMENTAL AUTHORITY" means any domestic or foreign national,
supernational, regional, state or local government, any political subdivision
thereof or any other governmental, quasi-governmental, regulatory,
administrative, judicial, public or statutory instrumentality, authority, body,
agency, court, department, bureau or entity.
"GUARANTEES" means, collectively, the HMP/CPF Guarantee and the
HMP/GOF Guarantee.
"H CORP CREDIT FACILITY" means, collectively, the following credit
facilities: (i) the Amended and Restated Credit Agreement dated as of January
29, 1996 and amended and restated as of February 23, 1996, by and among H Corp,
Bankers Trust Company, as Administrative Agent, and the other parties thereto,
as further amended; (ii) the Term Loan Agreement, dated as of October 23, 1996,
by and among H Corp, Bankers Trust Company, as Agent, and the other parties
thereto, as amended; and (iii) the Supplemental Accounts Receivable Credit
Agreement, dated as of December 20, 2001, by and among H Corp, Bankers Trust
Company, as administrative agent, and the financial institutions parties
thereto, as amended.
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"HH BNAC SHARES" means, collectively, the total number of BNAC Shares
received by the HH Preferred Member in respect of the Investors' contributions
contemplated in Section 2.4(b).
"HIH" means Huntsman International Holdings LLC, a Delaware limited
liability company.
"HMP/CPF GUARANTEE" means the guarantee, dated as of September 17,
2002, issued by HMP in favor of CPF with respect to the H Corp Notes held by CPF
on such date.
"HMP/GOF GUARANTEE" means the guarantee, dated as of September 17,
2002, issued by HMP in favor of GOF with respect to the H Corp Notes held by GOF
on such date.
"HUNTSMAN CONTRIBUTION ASSET VALUE" means the aggregate value of the
Huntsman Contribution Assets (as reasonably determined by the board of directors
of HMP).
"INVESTOR BNAC SHARES" means, collectively, the total number of BNAC
Shares received by the SPV in respect of the Investors' contributions
contemplated in Section 2.4(a).
"INTEREST" means, with respect to any Member (as such term is defined
in the SPV Agreement), such Member's (i) Interest (as defined in the SPV
Agreement) and (ii) rights and obligations under this Agreement.
"LAWS" means any supernational, regional, federal, state, local or
foreign law, statute, code, ordinance, rule, regulation, order, judgment, writ,
injunction or decree.
"LETTER AGREEMENT" means the letter agreement, dated June 20, 2002, by
and among ▇▇. ▇▇▇▇▇▇▇▇, CPH and GOF.
"MATERIAL ADVERSE EFFECT" means, with respect to any party to this
Agreement, a material adverse effect on the ability of such party to consummate
the transactions contemplated hereby.
"NEW GOF ASSETS" means the assets described on SCHEDULE 2.1(b).
"NOTIONAL HMP COMMON EQUITY VALUE" means the Notional Total HMP Value,
minus the aggregate liquidation preferences of all classes of preferred stock of
HMP outstanding as of the Closing.
"NOTIONAL HMP COMMON STOCK PRICE" means the number obtained by
dividing the Notional HMP Common Equity Value by the aggregate number of Family
Holdings II New Shares.
6
"NOTIONAL TOTAL HMP VALUE" means the total equity value of HMP as of
the Closing Date (as determined in good faith by the board of directors of HMP),
prior to giving effect to the debt exchange transactions contemplated in Article
II hereto or any other contributions to HMP contemplated hereby.
"PERSON" means an individual, partnership, limited partnership,
limited liability partnership, limited liability company, foreign limited
liability company, trust, estate, corporation, custodian, trustee, executor,
administrator, nominee or any other entity.
"PLAN" means the Plan of Reorganization substantially in the form
attached hereto as APPENDIX B, with such amendments or modifications thereto (a)
to include HMP as a debtor, to provide for the release of the Guarantees as
contemplated in this Agreement, and to conform the Plan to reflect the
transactions described in this Agreement and (b) as shall be reasonably
acceptable to GOF and Family Holdings II; PROVIDED, HOWEVER, that any such
amendment or modification shall also be subject to the prior reasonable
acceptance of CPF where both (i) such amendment or modification would have a
material adverse effect on the rights attributable to the Interest of CPF (the
"affected CPF rights") and (ii) such material adverse effect would be
disproportionate (after taking into account any disproportionality in the
relative rights of CPF and GOF prior to any such amendment or modification) to
the effect such amendment or modification would have on the rights attributable
to the Interest of GOF.
"PREFERRED INTEREST" means the interest in the SPV designated under
the SPV Agreement as the "Preferred Interest."
"SPV" means a special purpose vehicle formed by Family Holdings II and
GOF under the Delaware Limited Liability Company Act, which, among other things,
will directly own upon consummation of the Closing all of the capital stock of
HMP held by Family Holdings II, GOF, HH Preferred Member and CPF immediately
prior to the Closing.
"SUBSIDIARY" means, when used with respect to any Person, any
corporation, partnership, limited liability company, joint venture or other
legal entity, in which such Person (either directly or through or together with
other Subsidiaries) owns more than 50 percent of the voting securities of such
corporation, partnership, limited liability company, joint venture or other
legal entity.
1.2 INTERPRETATION. When a reference is made in this Agreement to
Sections, Exhibits, Appendices or Schedules, such reference shall be to a
Section of or Exhibit, Appendix or Schedule to this Agreement unless otherwise
indicated. The table of contents and headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation". The phrases "the date of this Agreement," "the
date hereof" and terms of similar import, unless the context otherwise requires,
shall be deemed to refer to September 17, 2002.
7
ARTICLE II
EXCHANGE AND CONTRIBUTION
2.1 GOF EXCHANGE TRANSACTIONS. In the event the conditions set forth
in Section 10.1 hereof are satisfied or waived by GOF, Family Holdings II, H
Corp, HMP and H Poly, upon the terms and subject to the conditions of this
Agreement, GOF and HMP shall, and GOF and Family Holdings II shall cause the SPV
to, take the following actions:
(a) DIRECT EXCHANGE WITH HMP. With respect to those H Corp
Notes, if any, that GOF has held for six months or less as of the Closing and
which are not GOF/HH Preferred Member Contributed Bonds (the "DIRECT EXCHANGE
GOF BONDS"), prior to making any contributions to the SPV, at the Closing, GOF
shall tender and deliver, or cause to be tendered and delivered, to HMP the
Direct Exchange GOF Bonds and a full and unconditional release of the HMP/GOF
Guarantee in the form attached hereto as EXHIBIT 2.1(a) (the "HMP/GOF RELEASE"),
and in exchange for the Direct Exchange GOF Bonds and the HMP/GOF Release, HMP
shall issue and deliver to GOF a number of fully paid and non-assessable shares
of New Common Stock (such common stock received by GOF, the "GOF NEW SHARES")
equal to the aggregate principal amount of the Direct Exchange GOF Bonds
delivered by GOF divided by the Notional HMP Common Stock Price. At the Closing,
HMP shall contribute the Direct Exchange GOF Bonds to H Corp and all of the
Direct Exchange GOF Bonds shall be canceled by H Corp and shall cease to exist.
(b) GOF CONTRIBUTION TO THE SPV. At the Closing, GOF shall
contribute, or cause to be contributed, to the SPV (i) the GOF New Shares, if
any, (ii) all of the Bonds (other than the Direct Exchange GOF Bonds and the
GOF/HH Preferred Member Contributed Bonds) held by GOF (the "REMAINING GOF
BONDS"), (iii) the BNAC Shares that it owns, beneficially or of record (the "GOF
BNAC SHARES"), together with all of GOF's and its Affiliates' rights with
respect to BNAC and the New GOF Assets (collectively with the GOF BNAC Shares,
the "GOF BNAC INTEREST"), and (iv) the GOF Cash Contribution, and in exchange
therefor, GOF and Family Holdings II shall cause the board of managers of the
SPV to issue and deliver to GOF 9,567,991 fully paid and non-assessable Class A
Units, in accordance with the terms of the SPV Agreement.
(c) GOF CONTRIBUTION TO HH PREFERRED MEMBER. At or prior to the
Closing, GOF shall (i) form Huntsman Holdings Preferred Member LLC, a Delaware
limited liability company ("HH PREFERRED MEMBER") in accordance with Section 8.4
and (ii) contribute $370,281,000 aggregate principal amount of H Corp Notes to
HH Preferred Member (the "GOF/HH PREFERRED MEMBER CONTRIBUTED BONDS") in
exchange for 370,281,241 fully paid and non-assessable membership units in HH
Preferred Member.
2.2 CPF EXCHANGE TRANSACTIONS. In the event the conditions set forth
in Section 10.1 hereof are satisfied or waived by GOF, Family Holdings II, H
Corp, HMP and H Poly and, in relation to the conditions contained in Sections
10.1(b) and 10.1(d),
8
by CPF, upon the terms and subject to the conditions of this Agreement, CPF and
HMP shall, and GOF and Family Holdings II shall cause the SPV to, take the
following actions:
(a) DIRECT EXCHANGE WITH HMP. With respect to those H Corp
Notes, if any, that CPF has purchased from GOF (other than the CPF/HH Preferred
Member Contributed Bonds) and which have been held by CPF for six months or less
as of the Closing (the "DIRECT EXCHANGE CPF BONDS"), prior to making any
contributions to the SPV, at the Closing, CPF shall tender and deliver, or cause
to be tendered and delivered, to HMP the Direct Exchange CPF Bonds and a full
and unconditional release of the HMP/CPF Guarantee in the form attached hereto
as EXHIBIT 2.2(a) (the "HMP/CPF RELEASE"), and in exchange for the Direct
Exchange CPF Bonds and the HMP/CPF Release, HMP shall issue and deliver to CPF a
number of fully paid and non-assessable shares of New Common Stock (such common
stock received by CPF, the "CPF NEW SHARES") equal to the aggregate principal
amount of the Direct Exchange CPF Bonds divided by the Notional HMP Common Stock
Price. At the Closing, HMP shall contribute the Direct Exchange CPF Bonds to H
Corp and all of the Direct Exchange CPF Bonds shall be canceled by H Corp and
shall cease to exist.
(b) CPF CONTRIBUTION TO THE SPV. At the Closing, CPF shall
contribute, or cause to be contributed, to the SPV (i) the CPF New Shares, if
any, and (ii) all of the H Corp Notes purchased from GOF (other than the Direct
Exchange CPF Bonds and the CPF/HH Preferred Member Contributed Bonds) held by
CPF (the "REMAINING CPF BONDS"), and in exchange therefor, GOF and Family
Holdings II shall cause the board of managers of the SPV to issue and deliver to
CPF 362,424 fully paid and non-assessable Class A Units, in accordance with the
terms of the SPV Agreement.
(c) CPF CONTRIBUTION TO HH PREFERRED MEMBER. At or prior to the
Closing, CPF shall contribute $14,026,000 aggregate principal amount of H Corp
Notes to HH Preferred Member (the "CPF/HH PREFERRED MEMBER CONTRIBUTED BONDS")
in exchange for 14,025,805 fully paid and non-assessable membership units in HH
Preferred Member.
2.3 HH PREFERRED MEMBER EXCHANGE TRANSACTIONS. In the event the
conditions set forth in Section 10.1 hereof are satisfied or waived by GOF,
Family Holdings II, H Corp, HMP and H Poly, upon the terms and subject to the
conditions of this Agreement, GOF and HMP shall, and GOF and Family Holdings II
shall cause the SPV to, take the following actions:
(a) DIRECT EXCHANGE WITH HMP. With respect to those H Corp
Notes, if any, that HH Preferred Member is treated for federal income tax
purposes as having held for six months or less as of the Closing (the "DIRECT
EXCHANGE HH PREFERRED MEMBER BONDS"), prior to making any contributions to the
SPV, at the Closing, GOF shall cause HH Preferred Member to tender and deliver,
or cause to be tendered and delivered, to HMP the Direct Exchange HH Preferred
Member Bonds, and in exchange for the Direct Exchange HH Preferred Member Bonds,
HMP shall issue and deliver to HH Preferred Member a number of fully paid and
non-assessable shares of New
9
Common Stock (such common stock received by HH Preferred Member, the "HH
PREFERRED MEMBER NEW SHARES") equal to the aggregate principal amount of the
Direct Exchange HH Preferred Member Bonds delivered by such party divided by the
Notional HMP Common Stock Price. At the Closing, HMP shall contribute the Direct
Exchange HH Preferred Member Bonds to H Corp and all of the Direct Exchange HH
Preferred Member Bonds shall be canceled by H Corp and shall cease to exist.
(b) HH PREFERRED MEMBER CONTRIBUTION TO THE SPV. At the
Closing, GOF shall cause HH Preferred Member to contribute, or cause to be
contributed, to the SPV (i) the HH Preferred Member New Shares, if any, (ii) all
of the Bonds (other than the Direct Exchange HH Preferred Member Bonds) held by
HH Preferred Member (the "REMAINING HH PREFERRED MEMBER BONDS") and (iii) the HH
BNAC Shares, and in exchange therefor, GOF and Family Holdings II shall cause
the board of managers of the SPV to issue and deliver to HH Preferred Member the
Preferred Interests, in accordance with the terms of the SPV Agreement.
2.4 INVESTORS EXCHANGE TRANSACTIONS. In the event the conditions set
forth in Section 10.1 hereof are satisfied or waived by GOF, Family Holdings II,
HMP, H Corp and H Poly, upon the terms and subject to the conditions of this
Agreement, each Individual Investor and HMP shall, and GOF and Family Holdings
II shall cause the SPV to, take the following actions:
(a) INVESTORS CONTRIBUTION TO THE SPV. At the Closing, each
Individual Investor shall contribute, or cause to be contributed, to the SPV
67.421% of the BNAC Shares that he or she owns, beneficially or of record (as
set forth in EXHIBIT 2.4), and in exchange therefor, GOF and Family Holdings II
shall cause the board of managers of the SPV to issue and deliver to each
Individual Investor the number of fully paid and non-assessable Class A Units
set forth in Exhibit 2.4 with respect to such Individual Investor, in accordance
with the terms of the SPV Agreement.
(b) INVESTORS CONTRIBUTION TO HH PREFERRED MEMBER. At or prior
to the Closing, each Individual Investor shall contribute to the HH Preferred
Member 32.579% of the BNAC Shares that he or she owns, beneficially or of
record, in exchange for the number of fully paid and non-assessable membership
units in HH Preferred Member set forth in Exhibit 2.4 with respect to such
Individual Investor.
2.5 FAMILY HOLDINGS II EXCHANGE TRANSACTIONS. In the event the
conditions set forth in Section 10.1 hereof are satisfied or waived by GOF,
Family Holdings II, HMP, H Corp and H Poly, upon the terms and subject to the
conditions of this Agreement, Family Holdings II and HMP shall, and GOF and
Family Holdings II shall cause the SPV to, take the following actions:
(a) DIRECT EXCHANGE WITH HMP. At the Closing, Family
Holdings II shall contribute, or cause to be contributed, to HMP, the (i)
13,153,117 shares of Series A Common of HMP and (ii) 4,843,475 shares of Series
B Common of HMP, and in exchange therefor, HMP shall issue and deliver to Family
Holdings II 16,174,600 fully paid and non-assessable shares of common stock, no
par value, of HMP ("NEW
10
COMMON STOCK"), authorized under the Certificate of Amendment of HMP (such
shares of New Common Stock that are issued to Family Holdings II are referred to
herein as the "FAMILY HOLDINGS II NEW SHARES").
(b) FAMILY HOLDINGS II CONTRIBUTION TO THE SPV. At the Closing,
Family Holdings II shall contribute, or cause to be contributed, to the SPV (i)
all of the Family Holdings II New Shares and all of the preferred stock of HMP
held by Family Holdings II, (ii) 9,949 shares of common stock (the "CONTRIBUTED
HSCHC INTEREST") of Huntsman Specialty Chemicals Holdings Corporation, a Utah
corporation ("HSCHC"), (iii) 500 shares of preferred stock, par value $0.01 (the
"HPC PREFERRED"), of Huntsman Petrochemical Corporation, a Delaware corporation
("HPC"), (iv) 250 shares of common stock, par value $0.01 (the "CONTRIBUTED JK
HOLDINGS INTEREST"), of JK Holdings Corporation, a Delaware corporation ("JK
HOLDINGS") and (v) all of the outstanding Australian Designee Units (the
Contributed HSCHC Interest, the HPC Preferred, the Contributed JK Holdings
Interest and the Australian Designee Units shall collectively be referred to
herein as the "HUNTSMAN CONTRIBUTION ASSETS"), and in exchange therefore, GOF
and Family Holdings II shall cause the board of managers of the SPV to issue and
deliver to Family Holdings II 10,000,000 fully paid and non-assessable Class B
Units, in accordance with the terms of the SPV Agreement.
2.6 SPV CONTRIBUTION TO HMP. At the Closing, GOF and Family Holdings
II shall cause the SPV to contribute to HMP (a) the Remaining GOF Bonds, the
Remaining CPF Bonds and the Remaining HH Preferred Member Bonds and (b) the
Huntsman Contribution Assets, and in exchange therefor, HMP shall issue and
deliver to the SPV a number of shares of fully paid and non-assessable New
Common Stock equal to (x) the sum of (i) the aggregate principal amount of the
Remaining GOF Bonds, the Remaining CPF Bonds and the Remaining HH Preferred
Member Bonds and (ii) the Huntsman Contribution Asset Value, divided by (y) the
Notional HMP Common Stock Price (such common stock issued to the SPV, the "SPV
NEW SHARES").
2.7 HMP CONTRIBUTION TO H CORP. At the Closing, HMP shall contribute
to H Corp (a) all of the Remaining GOF Bonds, the Remaining CPF Bonds and the
Remaining HH Preferred Member Bonds and (b) the Huntsman Contribution Assets,
and immediately after such contribution, all of the Remaining GOF Bonds, the
Remaining CPF Bonds and the Remaining HH Preferred Member Bonds shall be
cancelled by H Corp and H Poly, as the case may be, and shall cease to exist.
2.8 INTEREST. The parties hereto acknowledge and agree that the
accrued but unpaid interest on the Bonds exchanged pursuant to this Agreement
shall be cancelled and neither the holders of such Bonds nor the beneficiary
under either of the HMP/CPF Guarantee or the HMP/GOF Guarantee shall be entitled
to receive any payment or other consideration with respect to such cancelled
interest.
11
ARTICLE III
CLOSING
3.1 CLOSING. Subject to the terms and conditions of this Agreement,
the closing of the Debt Exchange Transactions (the "CLOSING") will take place at
the close of business,
New York City time, on the first day which is at least
two business days after the satisfaction or waiver (subject to applicable law)
of the latest to occur of the conditions set forth in Section 10.1 hereof (other
than those conditions which relate to actions to be taken at the Closing)(the
"CLOSING DATE"), at the offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP,
New
York,
New York, unless another time, date or place is agreed to by GOF and
Family Holdings II, provided that either GOF or Family Holdings II or either of
their respective representatives gives CPF or its counsel notice (whether oral
or written) of the Closing at least five days prior to the Closing Date.
3.2 DELIVERIES AT CLOSING.
(a) H CORP. At the Closing, H Corp shall deliver, or cause to
be delivered:
(i) to GOF, the Investors and CPF, a copy of (A) the
Amended and Restated H Corp Operating Agreement, duly executed by HMP as the
sole member of H Corp and (B) resolutions of the board of managers of H Corp
approving the consummation of the transactions contemplated under this
Agreement, each item certified by the Secretary of H Corp as in full force
and effect;
(ii) to GOF, the Investors and CPF, the certificate
of good standing for H Corp to the extent such certificate is issued by the
Division of Corporations and Commercial Code of the Utah Department of
Commerce;
(iii) to GOF, the Investors and CPF, the Certificate
of Amendment of H Corp stamped filed by the Division of Corporations and
Commercial Code of the Utah Department of Commerce as in full force and
effect;
(iv) to GOF, Family Holdings II and HMP, an executed
counterpart, signed by H Corp, to the interest holders agreement
substantially in the form attached hereto as EXHIBIT 3.3(c)(iii) with such
changes thereto as shall be reasonably acceptable to GOF and Family Holdings
II (the "INTEREST HOLDERS AGREEMENT");
(v) to CPF or its designee, if any, by wire transfer
of immediately available same day funds in United States dollars to an
account or accounts designated by CPF or its designee, if any, an amount
equal to the CPF Transaction Fees, such amount not to exceed $150,000; and
12
(vi) to GOF or its designee, if any, by wire transfer
of immediately available same day funds in United States dollars to an
account or accounts designated by GOF or its designee, if any, an amount
equal to the Pre-Closing Paid Fees.
(b) GOF. At the Closing, GOF shall deliver, or cause to be
delivered:
(i) to HMP, the Direct Exchange GOF Bonds, together
with all documents necessary to validly and duly tender, assign, convey the
Direct Exchange GOF Bonds to HMP, free and clear of any and all Encumbrances;
(ii) to HMP, the HMP/GOF Release, duly executed by
GOF;
(iii) to the SPV, in exchange for 9,567,991 Class A
Units, (A) one or more certificates representing all of the GOF New Shares,
duly executed in blank or accompanied by stock powers duly executed in blank,
in proper form for transfer, free and clear of any and all Encumbrances, (B)
the Remaining GOF Bonds, together with the documents necessary to validly and
duly tender, assign, convey and deliver the Remaining GOF Bonds to the SPV,
free and clear of any and all Encumbrances, (C) one or more certificates
representing all of the GOF BNAC Shares duly executed in blank or accompanied
by stock powers duly executed in blank, in proper form for transfer, together
with any other GOF BNAC Interest, together with all documents necessary to
validly tender, assign and convey such other GOF BNAC Interest to the SPV, in
each case, free and clear of any and all Encumbrances and in accordance with
the terms of the SPV Agreement and (D) by wire transfer of immediately
available same day funds in United States dollars to an account or accounts
designated by the SPV, an amount equal to the GOF Cash Contribution, in each
case in accordance with the SPV Agreement;
(iv) to HH Preferred Member, the GOF/HH Preferred
Member Contributed Bonds, together with all documents necessary to validly
and duly tender, assign, convey the GOF/HH Preferred Member Contributed Bonds
to HH Preferred Member, free and clear of any and all Encumbrances;
(v) to the SPV, (A) an executed counterpart, signed
by GOF, of an action by the members of the SPV directing the board of
managers of the SPV to cause the SPV to vote all the common stock of HMP so
as to increase the size of the HMP board of directors to 11 persons and
electing ▇▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇
13
and ▇▇▇▇▇ ▇▇▇▇▇▇▇ (collectively, the "NEW HMP DIRECTORS") as directors of HMP
and (B) a notice designating ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ as directors of
HMP, in each case in accordance with the terms of the SPV Agreement;
(vi) to the SPV, (A) an executed counterpart, signed
by GOF, of an action by the members of the SPV directing the board of
managers of the SPV to cause the SPV to cause HMP, as the sole member of H
Corp, to increase the size of the H Corp board of managers to 11 persons and
appoint ▇▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ (collectively, the
"NEW H CORP MANAGERS") as all of the members of the H Corp board of managers
and (B) a notice designating ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ as managers of H
Corp, in each case in accordance with the terms of the SPV Agreement;
(vii) to the SPV, an executed counterpart, signed by
members of the HMP board of directors designated by GOF, of a unanimous
consent of the board of directors of HMP to increase the size of the H Corp
board of managers to 11 persons and appoint the New H Corp Managers as all of
the members of the H Corp board of managers; and
(viii) to the trustee under the Escrow Agreement (as
defined below), an executed counterpart of a certificate signed by GOF
certifying the occurrence of execution and delivery by GOF and Family
Holdings II of the SPV Agreement (the "RELEASE CERTIFICATE"), as required in
Section 5 of the Escrow Agreement, dated as of June 14, 2002, by and among
GOF, Family Holdings II (as successor to Family Holdings), ▇▇. ▇▇▇▇▇▇▇▇ and
Mellon Investor Services LLC, a New Jersey limited liability company (the
"ESCROW AGREEMENT");
(ix) to the SPV, Family Holdings II, the Investors
and CPF, (A) a copy of the certificate of incorporation of BNAC certified by
the Secretary of State of the State of Delaware as in full force and effect,
(B) a copy of the bylaws of BNAC certified by the Secretary of BNAC as in
full force and effect, and (C) a certificate of good standing for BNAC issued
by the Secretary of State of the State of Delaware;
(x) to Family Holdings II, HH Preferred Member, the
Investors and CPF, an executed counterpart, signed by GOF, to the SPV
Agreement;
(xi) to Family Holdings II, HMP and H Corp, an
executed counterpart, signed by GOF, to the Interest Holders Agreement;
14
(xii) to CPF and the Investors, an executed
counterpart, signed by GOF, to the HH Preferred Member Operating Agreement;
and
(xiii) to CPF and the Investors, an executed
counterpart, signed by GOF, to the Confidentiality Agreement
(c) CPF. At the Closing, CPH shall cause CPF to, and CPF shall
deliver, or cause to be delivered:
(i) to HMP, in exchange for the CPF New Shares, the
Direct Exchange CPF Bonds, together with all documents necessary to validly
and duly tender, assign, convey and deliver the Direct Exchange CPF Bonds to
HMP, free and clear of any and all Encumbrances;
(ii) to HMP, the HMP/CPF Release, duly executed by
CPF;
(iii) to the SPV, in exchange for 362,424 Class A
Units, (A) one or more certificates representing all of the CPF New Shares,
duly executed in blank or accompanied by stock powers duly executed in blank,
in proper form for transfer, free and clear of any and all Encumbrances, and
(B) the Remaining CPF Bonds, together with the documents necessary to validly
and duly tender, assign, convey and deliver the Remaining CPF Bonds to the
SPV, free and clear of any and all Encumbrances, in each case in accordance
with the terms of the SPV Agreement;
(iv) to HH Preferred Member, the CPF/HH Preferred
Member Contributed Bonds, together with all documents necessary to validly
and duly tender, assign, convey the CPF/HH Preferred Member Contributed Bonds
to HH Preferred Member, free and clear of any and all Encumbrances;
(v) to Family Holdings II, HH Preferred Member, the
Investors and GOF, an executed counterpart, signed by CPF, to the SPV
Agreement;
(vi) to the SPV, Family Holdings II, the Investors
and GOF, a copy of the resolutions approving the consummation of the
transactions contemplated under this Agreement certified by the Secretary of
CPF as in full force and effect;
(vii) to GOF and the Investors, an executed
counterpart, signed by CPF, to the HH Preferred Member Operating Agreement;
and
15
(viii) to GOF, an executed counterpart, signed by CPF,
to the Confidentiality Agreement.
(d) HH PREFERRED MEMBER. At the Closing, GOF, CPF and the
Investors shall cause HH Preferred Member to deliver, or cause to be delivered:
(i) to HMP, the Direct Exchange HH Preferred Member
Bonds, together with all documents necessary to validly and duly tender,
assign, convey and deliver the Direct Exchange HH Preferred Member Bonds to
HMP, free and clear of any and all Encumbrances;
(ii) to the SPV, in exchange for the Preferred
Interest, (A) one or more certificates representing all of the HH Preferred
Member New Shares, duly executed in blank or accompanied by stock powers duly
executed in blank, in proper form for transfer, free and clear of any and all
Encumbrances, (B) the Remaining HH Preferred Member Bonds, together with the
documents necessary to validly and duly tender, assign, convey and deliver
the Remaining HH Preferred Member Bonds to the SPV, free and clear of any and
all Encumbrances, and (C) one or more certificates representing all of the HH
BNAC Shares, duly executed in blank or accompanied by stock powers duly
executed in blank, in proper form for transfer, free and clear of any and all
Encumbrances, in each case in accordance with the SPV Agreement;
(iii) to Family Holdings II, the Investors, GOF and
CPF, an executed counterpart, signed by HH Preferred Member, to the SPV
Agreement;
(iv) to GOF, 370,281,241 membership units in HH
Preferred Member;
(v) to CPF, 14,025,805 membership units in HH
Preferred Member;
(vi) to each Individual Investor, the number of
membership units in HH Preferred Member set forth in Exhibit 2.4; and
(vii) to the Investors, GOF and CPF, a copy of the
certificate of formation of HH Preferred Member certified by the Secretary of
State of the State of Delaware.
(e) FAMILY HOLDINGS II. At the Closing, ▇▇. ▇▇▇▇▇▇▇▇ shall
cause Family Holdings II to, and Family Holdings II shall deliver, or cause to
be delivered:
(i) to GOF, HH Preferred Member, the Investors and
CPF, an executed counterpart, signed by Family Holdings II, to the SPV
Agreement;
16
(ii) to GOF, HH Preferred Member, the Investors and
CPF, a copy of the resolutions of the board of managers of Family Holdings II
approving the consummation of the transactions contemplated under this
Agreement certified by the Secretary of Family Holdings II as in full force
and effect;
(iii) to the SPV, CPF, the Investors and GOF, (A) a
copy of the articles of organization of Australian Designee certified by the
Division of Corporations and Commercial Code of the Utah Department of
Commerce as in full force and effect, (B) a copy of the operating agreement
of Australian Designee certified by the Secretary of Australian Designee as
in full force and effect, and (C) a certificate of good standing for
Australian Designee to the extent such certificate is issued by the Division
of Corporations and Commercial Code of the Utah Department of Commerce;
(iv) to GOF, HMP and H Corp, an executed counterpart,
signed by Family Holdings II, to the Interest Holders Agreement;
(v) to HMP, (A) one or more certificates
representing 13,153,117 shares of Series A Common of HMP and (B) one or more
certificates representing 4,843,475 shares of Series B Common of HMP, in each
case together with the documents necessary to validly and duly tender,
assign, convey and deliver such shares to HMP, free and clear of any and all
Encumbrances, in exchange for the Family Holdings II New Shares;
(vi) to the SPV, in exchange for 10,000,000 fully
paid and non-assessable Class B Units in accordance with the terms of the SPV
Agreement, (A) the Huntsman Contribution Assets, together with the documents
necessary to validly and duly tender, assign, convey and deliver the Huntsman
Contribution Assets, free and clear of any and all Encumbrances and (B) the
Family Holdings II New Shares and all of the preferred stock of HMP held by
Family Holdings II, together with the documents necessary to validly and duly
tender, assign, convey and deliver such shares, free and clear of any and all
Encumbrances, in each case in accordance with the terms of the SPV Agreement;
(vii) to the SPV, as the holder of the Class B Units,
(A) an executed counterpart, signed by Family Holdings II, of an action by
the members of the SPV directing the board of managers of the SPV to cause
the SPV to vote all the common stock of HMP so as to increase the size of the
HMP board of directors to 11 persons and appoint the New Directors as all of
the members of the H Corp board of managers and (B) a notice designating ▇▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
17
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as directors of HMP,
in each case in accordance with the terms of the SPV Agreement;
(viii) to the SPV, an executed counterpart, signed by
members of the HMP board of directors designated by Family Holdings II, of a
unanimous consent of the board of directors of HMP to increase the size of
the H Corp board of managers to 11 persons and appoint the New H Corp
Managers as all of the members of the H Corp board of managers;
(ix) to the SPV, as the holder of the Class B Units,
(A) an executed counterpart, signed by Family Holdings II, of an action by
the members of the SPV directing the board of managers of the SPV to cause
the SPV to cause HMP, as the sole member of H Corp, to increase the size of
the H Corp board of managers to 11 persons and appoint the New H Corp
Managers as the members of the new board and (B) a notice designating ▇▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇ as managers of H Corp, in each case in accordance with the terms of
the SPV Agreement; and
(x) to the trustee under the Escrow Agreement, an
executed counterpart of the Release Certificate signed by Family Holdings II.
(f) SPV. At the Closing, GOF and Family Holdings II shall cause
the SPV to deliver, or cause to be delivered:
(i) to Family Holdings II, one or more certificates
representing 10,000,000 fully paid and non-assessable Class B Units, in
accordance with the terms of the SPV Agreement;
(ii) to GOF, one or more certificates representing
9,567,991 fully paid and non-assessable Class A Units, in accordance with the
terms of the SPV Agreement;
(iii) to CPF, one or more certificates representing
362,424 fully paid and non-assessable Class A Units, in accordance with the
terms of the SPV Agreement;
(iv) to each Individual Investor, one or more
certificates representing the number of fully paid and non-assessable Class A
Units set forth next to such Individual Investor's name in Exhibit 2.4, in
accordance with the terms of the SPV Agreement;
18
(v) to HH Preferred Member, one or more certificates
representing the Preferred Interest, in accordance with the terms of the SPV
Agreement;
(vi) to HMP, in exchange for the SPV New Shares, (A)
the Remaining GOF Bonds, the Remaining CPF Bonds and the Remaining HH
Preferred Member Bonds, together with the documents necessary to validly and
duly tender, assign, convey and deliver such bonds, free and clear of any and
all Encumbrances and (B) the Huntsman Contribution Assets, together with the
documents necessary to validly and duly tender, assign, convey and deliver
the Huntsman Contribution Assets, free and clear of any and all Encumbrances;
(vii) to HMP, an executed consent of the SPV, the sole
shareholder of HMP, increasing the size of the board of directors of HMP to
11 members and appointing the New HMP Directors to the board, in each case
effective as of the Closing;
(viii) to H Corp, an executed unanimous consent of the
board of directors of HMP to increase the size of the H Corp board of
managers to 11 persons and appoint the New H Corp Managers as all of the
members of the H Corp board of managers; and
(ix) to Family Holdings II, the Investors, HH
Preferred Member, GOF and CPF, a copy of the certificate of formation of the
SPV certified by the Secretary of State of the State of Delaware.
(g) INVESTORS. At the Closing, each Individual Investor shall
deliver, or cause to be delivered:
(i) to the SPV, in exchange for the number of Class
A Units set forth in Exhibit 2.4 with respect to such Individual Investor,
one or more certificates representing 67.421% of the BNAC Shares such
Individual Investor owns, beneficially or of record, as set forth in Exhibit
2.4, duly executed in blank or accompanied by stock powers duly executed in
blank, in proper form for transfer, free and clear of any and all
Encumbrances and in accordance with the terms of the SPV Agreement;
(ii) to HH Preferred Member, in exchange for the
number of HH Preferred Member membership units set forth in Exhibit 2.4 with
respect to such Individual Investor, one or more certificates representing
32.579% of the BNAC Shares such Individual Investor owns, beneficially or of
record, as set forth in Exhibit 2.4, duly executed in blank or accompanied by
stock powers duly executed in blank, in proper form for transfer, free and
clear of any and all Encumbrances;
19
(iii) to Family Holdings II, HH Preferred Member, CPF
and GOF, an executed counterpart, signed by such Individual Investor, to the
SPV Agreement;
(iv) to GOF and CPF, an executed counterpart, signed
by such Individual Investor, to the HH Preferred Member Operating Agreement;
and
(v) to GOF, an executed counterpart, signed by such
Individual Investor, to the Confidentiality Agreement.
(h) HMP. At the Closing, HMP shall deliver, or cause to be
delivered:
(i) to Family Holdings II, one or more certificates
representing the Family Holdings II New Shares;
(ii) to GOF, one or more certificates representing
the GOF New Shares;
(iii) to HH Preferred Member, one or more certificates
representing the HH Preferred Member New Shares;
(iv) to CPF, one or more certificates representing
the CPF New Shares;
(v) to the SPV, one or more certificates
representing the SPV New Shares;
(vi) to GOF, the Investors and CPF, a copy of (A) the
Amended and Restated HMP Bylaws and (B) resolutions of the board of directors
of HMP approving the consummation of the transactions contemplated under this
Agreement, each item certified by the Secretary of HMP as in full force and
effect;
(vii) to GOF and Family Holdings II, an action as the
sole member of H Corp, increasing the size of the board of managers of H Corp
to 11 persons and electing New H Corp Managers as members of the board of
managers of H Corp;
(viii) to GOF, the Investors and CPF, a copy of the
Certificate of Amendment of HMP certified by the Secretary of State of the
State of Delaware as in full force and effect;
(ix) to GOF, the Investors and CPF, a certificate of
good standing for HMP issued by the Secretary of State of the State of
Delaware;
20
(x) to GOF and Family Holdings II, an action by the
shareholders of HMP increasing the size of the board of directors of HMP to
11 persons and electing New HMP Directors as all of the members of the board
of directors of HMP;
(xi) to GOF, an executed counterpart, signed by HMP,
to the Interest Holders Agreement;
(xii) to H Corp, as a capital contribution, the
Huntsman Contribution Assets, together with the documents necessary to
validly and duly tender, assign, convey and deliver the Huntsman Contribution
Assets, free and clear of any and all Encumbrances; and
(xiii) to H Corp as a capital contribution, the
Remaining GOF Bonds, the Remaining CPF Bonds and the Remaining HH Preferred
Member Bonds, together with the documents necessary to validly and duly
tender, assign, convey and deliver such bonds to H Corp, free and clear of
any and all Encumbrances.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE HUNTSMAN PARTIES
Except as set forth in the Disclosure Schedule that is being delivered
to the Investors, GOF and the CP Parties concurrently herewith (the "HUNTSMAN
DISCLOSURE SCHEDULE"), if any, and subject in the event of the filing of a
Chapter 11 Case to compliance with applicable provisions of the Bankruptcy Code
and the entry by the Bankruptcy Court of the Confirmation Order in the event of
the filing of a Chapter 11 Case, each of the Huntsman Parties hereby represents
and warrants to the Investors, GOF and the CP Parties, as of the date of this
Agreement and as of the Closing Date, as follows solely with respect to itself:
4.1 CORPORATE ORGANIZATION, ETC. If such Huntsman Party is a
corporation or limited liability company, it is duly organized, validly existing
and in good standing under the Laws of the state of its organization, and
Australian Designee is a limited liability company duly organized, validly
existing and in good standing under the Laws of the State of Utah. Such Huntsman
Party has the corporate or other organizational power and authority to own or
lease all of its properties and assets and to carry on its business as it is now
being conducted.
4.2 AUTHORITY; NO VIOLATION.
(a) (i) Such Huntsman Party has full corporate or other
organizational power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby, (ii) if such Huntsman Party is
a corporation or limited liability company, the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly and validly approved by its Board of Directors or similar governing body,
and no other
21
corporate proceedings or limited liability company proceedings, as the case may
be, on the part of such Huntsman Party are necessary to approve this Agreement
and to consummate the transactions contemplated hereby and (iii) this Agreement
has been duly and validly executed and delivered by such Huntsman Party and
(assuming due authorization, execution and delivery by the other parties to this
Agreement) this Agreement constitutes a valid and binding obligation of such
Huntsman Party, enforceable against such Huntsman Party in accordance with its
terms, except as enforcement may be limited by general principles of equity
whether applied in a court of law or a court of equity and by bankruptcy,
insolvency and similar Laws affecting creditors' rights and remedies generally.
(b) Neither the execution and delivery of this Agreement by
such Huntsman Party, nor the consummation by such Huntsman Party of the
transactions contemplated hereby, nor compliance by such Huntsman Party with any
of the terms or provisions hereof, will (i) violate any provision of the
articles of incorporation or bylaws or other organizational documents, as
applicable, of such Huntsman Party, Australian Designee, HSCHC, HPC or JK
Holdings or (ii) assuming that the consents and approvals referred to in Section
4.3 hereof are duly obtained, (x) violate any Laws applicable to such Huntsman
Party, Australian Designee, HSCHC, HPC or JK Holdings, or any of their
respective properties or assets, or (y) violate, conflict with, result in a
breach of any provision of or the loss of any benefit under, constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, result in the termination of or a right of
termination or cancellation under, accelerate the performance required by, or
result in the creation of any Encumbrance (other than Encumbrances created by
this Agreement and the other documents contemplated hereby and the Letter
Agreement) upon any of the respective properties or assets of such Huntsman
Party, Australian Designee, HSCHC, HPC or JK Holdings under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, deed of trust,
license, lease, agreement or other instrument or obligation to which such
Huntsman Party, Australian Designee, HSCHC, HPC or JK Holdings is a party, or by
which such Huntsman Party, Australian Designee, HSCHC, HPC or JK Holdings or any
of their respective properties or assets may be bound or affected, except, in
the case of clause (ii), for such violations, conflicts, defaults, terminations,
accelerations and Encumbrances which would not have, individually or in the
aggregate, a Material Adverse Effect.
4.3 CONSENTS AND APPROVALS. Except as required by the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR
ACT"), European Union Competition Laws, and any other similar federal, state,
local or foreign Laws (together with the Consents, notices and filings referred
to in Section 5.3 of the CP Parties Disclosure Schedule or 6.3 of the GOF
Disclosure Schedule, if any, the "REQUIRED GOVERNMENTAL CONSENTS"), no consent,
waiver, approval, authorization, exemption, registration or declaration
("CONSENT") is required to be obtained by such Huntsman Party from, and no
notice or filing is required to be given by such Huntsman Party to or made by
such Huntsman Party with, any Governmental Authority in connection with the
execution, delivery and performance by such Huntsman Party of this Agreement,
other than in all cases where the failure to obtain such Consent or to give or
make such notice or filing would not, individually or in the aggregate,
reasonably be expected to result in a
22
Material Adverse Effect. The offer sale and issuance of the common stock of HMP
under the terms of this Agreement do not require registration under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), or any applicable
state securities laws.
4.4 CAPITALIZATION OF HMP; OWNERSHIP OF NEW STOCK. As of the date of
this Agreement, the authorized capital stock of HMP consists of 35,000,000
shares of Series A Common Stock, no par value ("SERIES A COMMON"), 15,000,000
shares of Series B Common Stock, each having a par value of $0.01 per share
("SERIES B COMMON" and, together with the Series A Common, the "COMMON STOCK"),
and 30,000,000 shares of preferred stock, each having a par value of $0.01 per
share (the "PREFERRED STOCK"), 7,500,000 shares of which have been designated
Class A Preferred, 7,500,000 shares of which have been designated Class B
Preferred, 7,500,000 shares of which have been designated Class C Preferred and
7,500,000 shares of which have been designated Class D Preferred. As of the date
of this Agreement, there were (a) 13,153,117 shares of Series A Common
outstanding, all of which are owned, beneficially or of record, by Family
Holdings II, (b) 4,843,475 shares of Series B Common outstanding, all of which
is owned, beneficially or of record, by Family Holdings II, (c) 30,869 shares of
Class A Preferred outstanding, of which Huntsman Cancer Foundation owns,
beneficially or of record, 5,043 shares and Family Holdings II owns,
beneficially or of record, 25,826 shares, (d) 72,000 shares of Class B Preferred
outstanding, all of which is owned, beneficially or of record, by Family
Holdings II, (e) 8,000 shares of Class C Preferred outstanding, all of which is
owned, beneficially or of record, by Family Holdings II, (f) 3,504 shares of
Class D Preferred outstanding, all of which is owned, beneficially or of record,
by Family Holdings II, and (g) no shares of Common Stock or Preferred Stock
reserved for issuance upon exercise of outstanding stock options or otherwise.
All of the issued and outstanding shares of Common Stock and Preferred Stock
have been duly authorized and validly issued and are fully paid, nonassessable
and free of preemptive rights, with no personal liability attaching to the
ownership thereof. The shares of Common Stock and Preferred Stock to be
delivered by Family Holdings II pursuant to Section 3.2(e) as of the Closing
Date will be held free and clear of any and all Encumbrances, except such as
arise under this Agreement, the Letter Agreement, the SPV Agreement, the letter
agreement, dated September 6, 2002, by and among HMP, Rosgrove PTY Limited (ACN
051 649 560) ("ROSGROVE"), Conpress International (Netherlands Antilles) N.V.
("CINV") and Benchem Pty Limited (ACN 072 167 527) ("BENCHEM"), the Australian
Purchase Agreement and the documents contemplated thereby, the Earnout Agreement
and the Escrow Agreement. Except as reflected in Schedule 4.4 of this Agreement
and other than as required by this Agreement or the SPV Agreement, HMP does not
have and is not bound by any outstanding subscriptions, options, warrants,
calls, commitments or agreements of any character calling for the purchase or
issuance of any shares of Common Stock or Preferred Stock or any other equity
security of HMP or any securities representing the right to purchase or
otherwise receive any shares of Common Stock or any other equity security of
HMP. As of the Closing Date, the Family Holdings II New Shares, the GOF New
Shares, the HH Preferred Member New Shares, the CPF New Shares, the SPV New
Shares and the Cancer Foundation Shares will represent 100% of the issued and
outstanding equity securities of HMP. As of the Closing, the membership units of
H Corp held by HMP will represent 100% of the authorized, issued and outstanding
equity securities of H Corp and
23
will be held free and clear of any and all Encumbrances, except such as arise
under this Agreement, the Letter Agreement, the Earnout Agreement, the SPV
Agreement, the letter agreement, dated June 29, 2002, by and among H Corp,
Rosgrove, CINV and Benchem, the Australian Purchase Agreement and the documents
contemplated thereby, the Escrow Agreement and, in respect only of 3,504 shares
of Class D Preferred, three Transfer Restriction Agreements (collectively, the
"TRANSFER AGREEMENTS"), the first one dated December 20, 2001, the second one
dated July 1, 2002 and the third one dated September 6, 2002, in favor of
Bankers Trust Company, in its capacity as administrative agent under a certain
Credit Agreement and as agent under a certain Term Loan Agreement, and, except
such as may arise under the SPV Agreement, H Corp will not have and will not be
bound by any outstanding subscriptions, options, warrants, calls, commitments or
agreements of any character calling for the purchase or issuance.
4.5 NO OTHER HMP, H CORP OR H POLY SECURITIES. Except for the
Amended and Restated Promissory Note, dated July 2, 2001, in the aggregate
principal amount of $25,000,000 issued by H Corp in favor of Horizon Ventures
L.C., a Utah limited liability company (which shall continue to be enforceable
against H Corp after the Closing, subject to the terms of the Amended and
Restated Subordination Agreement, dated December 20, 2001, by and among H Corp,
Horizon Ventures, L.C. and Bankers Trust Company (Agent), in its capacity as
administrative agent (the "ADMINISTRATIVE AGENT") for lenders under certain
credit agreements and certain term loan agreements, and which is pledged to
Rosgrove, CINV and Benchem, subject to the consent of the Administrative Agent)
(the "H CORP NOTE"), none of ▇▇. ▇▇▇▇▇▇▇▇, his spouse, any of his direct
descendents or any trust for the benefit of the foregoing or any entity
controlled by any of the foregoing (other than Family Holdings II, H Corp, HMP
or any of their respective Subsidiaries) owns, beneficially or of record, any
equity or debt securities of H Corp or HMP or any of their respective
Subsidiaries, other than (a) their interests in Family Holdings II and (b) the
equity interests to be contributed to the SPV pursuant to Section 3.2(e). Family
Holdings II owns, or will own at the Closing, beneficially or of record, the
Huntsman Contribution Assets free and clear of any and all Encumbrances, other
than this Agreement, the letter agreement, dated September 6, 2002, by and among
HMP, Rosgrove, CINV and Benchem, the Australian Purchase Agreement and the
documents contemplated thereby, the Escrow Agreement, the Earnout Agreement and
the Transfer Agreements.
4.6 AUSTRALIAN DESIGNEE AND AUSTRALIAN CONTRACTS.
(a) The authorized capital of Australian Designee consists of
1,000 Common Units (the "AUSTRALIAN DESIGNEE UNITS"). There are 1,000 Australian
Designee Units issued and outstanding, all of which Family Holdings II owns,
beneficially and of record. All of the issued and outstanding units of
Australian Designee Units have been duly authorized and validly issued and are
fully paid, nonassessable and free of preemptive rights, with no personal
liability attaching to the ownership thereof. The Australian Designee Units to
be delivered by Family Holdings II to the SPV pursuant to Section 3.2(e)(vi) as
of the Closing Date will be held free and clear of any and all Encumbrances,
except such as arise under this Agreement and the Australian Purchase Agreement
and the other documents contemplated thereby. Other than as required by this
24
Agreement, Australian Designee does not have and is not bound by any outstanding
subscriptions, options, warrants, calls, commitments or agreements of any
character calling for the purchase or issuance of any units of Australian
Designee Units or any other equity security of Australian Designee or any
securities representing the right to purchase or otherwise receive any units of
Australian Designee Units or any other equity security of Australian Designee.
(b) Except for this Agreement, the SPV Agreement, the Letter
Agreement, the Earnout Agreement and the Australian Purchase Agreement and the
other documents contemplated thereby, there are no agreements, arrangements,
commitments or understandings, whether oral or in writing, of any nature,
relating to the Australian Contracts between or among: (x) Family Holdings II
and/or its Subsidiaries and/or Affiliates, on the one hand; and (y) the other
parties to the Australian Purchase Agreement and/or their respective
Subsidiaries and/or Affiliates, on the other hand.
(c) Australian Designee is the irrevocable designee of the
Australian Contracts, which are free and clear of any and all Encumbrances,
except such as arise under this Agreement, the Earnout Agreement and the
Australian Purchase Agreement and the other documents contemplated thereby.
4.7 INVESTMENT REPRESENTATIONS AND WARRANTIES.
(a) Family Holdings II is acquiring the Family Holdings II New
Shares for investment purposes for its own account only, subject to its
obligation to contribute the Family Holdings II New Shares to the SPV as
contemplated in this Agreement.
(b) Family Holdings II is financially able to bear the economic
risk of an investment in the Family Holdings II New Shares, has adequate means
for providing for its current needs and personal contingencies, and has such
knowledge and experience in financial and business matters that it is capable of
evaluating the merits and risks of the investment in Family Holdings II New
Shares, as the case may be, and can afford a complete loss of its investment.
(c) Family Holdings II acknowledges that (i) the Family
Holdings II New Shares have not been registered under the Securities Act or
qualified under any applicable blue sky laws in reliance, in part, on its
representations, warranties, and agreements herein (including, without
limitation, the representations and warranties with respect to the bona fide
nature of the investment intent); (ii) HMP and its board of directors are under
no obligation to register or qualify the Family Holdings II New Shares under the
Securities Act or under any state securities law, or to assist Family Holdings
II in complying with any exemption from registration and qualification; (iii)
the Family Holdings II New Shares are "restricted securities" under the
Securities Act in that the Family Holdings II New Shares will be acquired from
HMP in a transaction not involving a public offering, and that the Family
Holdings II New Shares may not be sold, transferred, or otherwise disposed of
without registration under the Securities Act or an exemption therefrom, and
that in the absence of an effective registration statement
25
covering the Family Holdings II New Shares or an available exemption from
registration under the Securities Act, such securities must be held
indefinitely; (iv) there are substantial restrictions on the transferability of
the Family Holdings II New Shares pursuant to this Agreement, there is no public
market for the Family Holdings II New Shares and none is expected to develop,
and, accordingly, it may not be possible to liquidate its investment in HMP; and
(v) the Family Holdings II New Shares are speculative investments which involve
a substantial degree of risk of loss of an entire investment in HMP, that it
understands and takes full cognizance of the risks related to the purchase of
the Family Holdings II New Shares.
(d) Family Holdings II has been provided an opportunity for a
reasonable time prior to the date hereof to obtain information concerning the
offering of the Family Holdings II New Shares, HMP and all other information to
the extent HMP possesses such information or can acquire it without unreasonable
effort or expense. Family Holdings II has been given the opportunity for a
reasonable time prior to the date hereof to ask questions of, and receive
answers from, HMP or its representatives concerning the terms and conditions of
the offering of the Family Holdings II New Shares and other matters pertaining
to this investment. Family Holdings II has not been furnished with any oral
representation or oral information in connection with the offering of the Family
Holdings II New Shares and Family Holdings II is not relying on HMP or its
affiliates with respect to economic considerations involved in this investment.
(e) Without limiting the representations set forth above, and
without limiting Article XII of this Agreement, Family Holdings II will not make
any sale, transfer, gift, pledge or other disposition of all or any part of the
Family Holdings II New Shares which will result in the violation by it or by HMP
of the Securities Act, the Delaware General Corporation Law, or any other
applicable securities laws.
4.8 FAMILY HOLDINGS II AND GOF TRANSACTIONS. Except as set out in or
contemplated by this Agreement, the Interest Holders Agreement, the SPV
Agreement, TS 1, TS 2, the Irrevocable Designation Agreement, dated as of August
23, 2002, by and among ▇▇. ▇▇▇▇▇▇▇▇, Family Holdings II, Australian Designee and
GOF, the Consent and Waiver Agreement, dated as of June 27, 2002, by and among
▇▇. ▇▇▇▇▇▇▇▇, Family Holdings II (as successor to Family Holdings) and GOF, and
the Consent and Waiver Agreement, dated as of August 8, 2002, by and among
Family Holdings, Family Holdings II and GOF, or as otherwise disclosed to CPF in
writing, there are no agreements between Family Holdings II and its Affiliates
and/or any member of the Huntsman Family (as defined in the SPV Agreement), on
one hand, and GOF and its Affiliates, on the other hand, related to the
transactions contemplated by this Agreement and the SPV Agreement.
4.9 NO OTHER REPRESENTATIONS. Except for the representations and
warranties contained in this Article IV or set forth in the SPV Agreement, no
Huntsman Party or any other person or entity makes any representation or
warranty, express or implied, on behalf of any Huntsman Party.
26
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF CP PARTIES
Except as set forth in the Disclosure Schedule that is being delivered
to the Investors, the Huntsman Parties and GOF concurrently herewith (the "CP
PARTIES DISCLOSURE SCHEDULE"), if any, each CP Party hereby represents and
warrants to the Huntsman Parties, the Investors and GOF, as of the date of this
Agreement and as of the Closing Date, as follows:
5.1 CORPORATE ORGANIZATION, ETC. Such CP Party is an Australian
corporation duly organized and validly existing under the Laws of Australia.
Such CP Party has the corporate power and authority to own or lease all of its
properties and assets and to carry on its business as it is now being conducted.
5.2 AUTHORITY; NO VIOLATION.
(a) Such CP Party has full corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
approved by such CP Party, and no other corporate proceedings on the part of
such CP Party are necessary to approve this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by such CP Party and (assuming due authorization,
execution and delivery by the other parties to this Agreement) this Agreement
constitutes a valid and binding obligation of such CP Party, enforceable against
such CP Party in accordance with its terms, except as enforcement may be limited
by general principles of equity whether applied in a court of law or a court of
equity and by bankruptcy, insolvency and similar Laws affecting creditors'
rights and remedies generally.
(b) Neither the execution and delivery of this Agreement by
such CP Party, nor the consummation by such CP Party of the transactions
contemplated hereby, nor compliance by such CP Party with any of the terms or
provisions hereof, will (i) violate any provision of the organizational
documents of such CP Party, or (ii) assuming that the consents and approvals
referred to in Section 5.3 hereof are duly obtained, (x) violate any Laws
applicable to such CP Party, or any of its properties or assets, or (y) violate,
conflict with, result in a breach of any provision of or the loss of any benefit
under, constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, result in the termination of or a right
of termination or cancellation under, accelerate the performance required by, or
result in the creation of any Encumbrance (other than Encumbrances created by
this Agreement, the SPV Agreement, the HH Preferred Member Operating Agreement
and the Letter Agreement) upon any of the respective properties or assets of
such CP Party under, any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, deed of trust, license, lease, agreement or other
instrument or obligation to which such CP Party is a party, or by which it or
any of its respective properties or assets may be bound or
27
affected, except, in the case of clause (ii), for such violations, conflicts,
defaults, terminations, accelerations and Encumbrances which would not have,
individually or in the aggregate, a Material Adverse Effect.
5.3 CONSENTS AND APPROVALS. Except as set forth in Section 5.3 of
the CP Parties Disclosure Schedule and except for the Required Governmental
Consents, no Consent is required to be obtained by such CP Party from, and no
notice or filing is required to be given by such CP Party to or made by such CP
Party with, any Governmental Authority in connection with the execution,
delivery and performance by such CP Party of this Agreement, other than in all
cases where the failure to obtain such Consent or to give or make such notice or
filing would not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect.
5.4 OWNERSHIP OF BONDS. CPF beneficially owns (i) $11,000,000
aggregate principal amount of Fixed Rate Notes, (ii) $9,000,000 aggregate
principal amount of Floating Rate Notes, (iii) $20,000,000 aggregate principal
amount of 1998 Notes, and (iv) no H Poly Notes (collectively, the "CPF BOND
POSITION"). CPF paid an aggregate of $12,500,000 for the CPF Bond Position. CPF
owns the CPF Bond Position free and clear of any and all Encumbrances, except
such as arise under this Agreement or the Letter Agreement, and, other than its
security interest in the H Corp Note, neither CPH nor CPF owns, beneficially or
of record, any other debt securities issued by H Corp or H Poly.
5.5 INVESTMENT REPRESENTATIONS AND WARRANTIES.
(a) CPF is acquiring the CPF New Shares for investment purposes
for its own account only, subject to its obligation to contribute the CPF New
Shares to the SPV as contemplated in this Agreement.
(b) CPF is financially able to bear the economic risk of an
investment in the CPF New Shares, has adequate means for providing for its
current needs and personal contingencies, and has such knowledge and experience
in financial and business matters that it is capable of evaluating the merits
and risks of the investment in CPF New Shares, as the case may be, and can
afford a complete loss of its investment.
(c) CPF acknowledges on its own behalf, and, as of the Closing,
as a minority member of HH Preferred Member, that (i) the CPF New Shares and/or
the HH Preferred Member New Shares have not been registered under the Securities
Act or qualified under any applicable blue sky laws in reliance, in part, on its
representations, warranties, and agreements herein (including, without
limitation, the representations and warranties with respect to the bona fide
nature of the investment intent); (ii) HMP and its board of directors are under
no obligation to register or qualify the CPF New Shares and/or the HH Preferred
Member New Shares under the Securities Act or under any state securities law, or
to assist CPF in complying with any exemption from registration and
qualification; (iii) both the CPF New Shares and/or the HH Preferred Member New
Shares are "restricted securities" under the Securities Act in that the CPF New
Shares and/or the HH Preferred Member New Shares will be acquired from HMP in a
28
transaction not involving a public offering, and that neither the CPF New Shares
nor the HH Preferred Member New Shares may be sold, transferred, or otherwise
disposed of without registration under the Securities Act or an exemption
therefrom, and that in the absence of an effective registration statement
covering the CPF New Shares and/or the HH Preferred Member New Shares or an
available exemption from registration under the Securities Act, such securities
must be held indefinitely; (iv) there are substantial restrictions on the
transferability of the CPF New Shares and/or the HH Preferred Member New Shares
pursuant to this Agreement, that there is no public market for the CPF New
Shares and/or the HH Preferred Member New Shares and none is expected to
develop, and that, accordingly, it may not be possible to liquidate its
investment in HMP; and (v) the CPF New Shares and/or the HH Preferred Member New
Shares are speculative investments which involve a substantial degree of risk of
loss of an entire investment in HMP, that it understands and takes full
cognizance of the risks related to the purchase of the CPF New Shares and/or the
HH Preferred Member New Shares.
(d) CPF has been provided an opportunity for a reasonable time
prior to the date hereof to obtain information concerning the offering of the
CPF New Shares and/or the HH Preferred Member New Shares, HMP and all other
information to the extent HMP possesses such information or can acquire it
without unreasonable effort or expense. CPF has been given the opportunity for a
reasonable time prior to the date hereof to ask questions of, and receive
answers from, HMP or its representatives concerning the terms and conditions of
the offering of the CPF New Shares and/or the HH Preferred Member New Shares and
other matters pertaining to this investment. CPF has not been furnished with any
oral representation or oral information in connection with the offering of the
CPF New Shares and/or the HH Preferred Member New Shares and CPF is not relying
on HMP or its affiliates with respect to economic considerations involved in
this investment.
(e) Without limiting the representations set forth above, and
without limiting Article XII of this Agreement, CPF will not make any sale,
transfer, gift, pledge or other disposition of all or any part of the CPF New
Shares which will result in the violation by it or by HMP of the Securities Act,
the Delaware General Corporation Law, or any other applicable securities laws.
5.6 NO OTHER REPRESENTATIONS. Except for the representations and
warranties contained in this Article V or set forth in the SPV Agreement,
neither CP Party nor any other person or entity makes any representation or
warranty, express or implied, on behalf of any CP Party.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF GOF
Except as set forth in the Disclosure Schedule that is being delivered
to the Investors, the Huntsman Parties and the CP Parties concurrently herewith
(the "GOF DISCLOSURE SCHEDULE"), if any, GOF hereby represents and warrants to
the Huntsman
29
Parties, the Investors and the CP Parties, as of the date of this Agreement and
as of the Closing Date, as follows:
6.1 CORPORATE ORGANIZATION, ETC. GOF is a limited partnership duly
organized, validly existing and in good standing under the Laws of the State of
Delaware, and BNAC is a corporation duly organized, validly existing and in good
standing under the Laws of the State of Delaware. GOF has the power and
authority to own or lease all of its properties and assets and to carry on its
business as it is now being conducted. Upon its organization, and in any event
as of the Closing, HH Preferred Member (x) will be a limited liability company
duly organized, validly existing and in good standing under the Laws of the
State of Delaware, and (y) will have the power and authority to own or lease all
of its properties and assets and to carry on its business as it is now being
conducted.
6.2 AUTHORITY; NO VIOLATION.
(a) GOF has full power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby and upon
its organization and in any event as of the Closing Date, HH Preferred Member
will have full power and authority to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby are within GOF's partnership powers and have
been duly and validly approved, if necessary, by the General Partner of GOF, and
no other proceedings on the part of GOF are necessary to approve this Agreement
and to consummate the transactions contemplated hereby. As of the Closing, the
consummation of the transactions contemplated hereby will have been duly and
validly approved by the Board of Managers of HH Preferred Member, and no other
proceedings on the part of HH Preferred Member will be necessary to consummate
the transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by GOF and (assuming due authorization, execution and
delivery by the other parties to this Agreement) this Agreement constitutes a
valid and binding obligation of GOF, enforceable against GOF in accordance with
its terms, except as enforcement may be limited by general principles of equity
whether applied in a court of law or a court of equity and by bankruptcy,
insolvency and similar Laws affecting creditors' rights and remedies generally.
(b) Neither the execution and delivery of this Agreement by
GOF, nor the consummation by GOF or HH Preferred Member of the transactions
contemplated hereby, nor compliance by GOF or HH Preferred Member with any of
the terms or provisions hereof, will (i) violate any provision of the
certificate of formation and limited partnership agreement or other organization
documents of GOF, HH Preferred Member or BNAC, or (ii) assuming that the
consents and approvals referred to in Section 6.3 hereof are duly obtained, (x)
violate any Laws applicable to GOF, HH Preferred Member or BNAC, or any of their
respective properties or assets, or (y) violate, conflict with, result in a
breach of any provision of or the loss of any benefit under, constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, result in the termination of or a right of
termination or
30
cancellation under, accelerate the performance required by, or result in the
creation of any Encumbrance (other than Encumbrances created by this Agreement,
the SPV Agreement, the HH Preferred Member Operating Agreement and the Letter
Agreement) upon any of the properties or assets of GOF, HH Preferred Member or
BNAC under, any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, deed of trust, license, lease, agreement or other
instrument or obligation to which GOF, HH Preferred Member or BNAC is a party,
or by which GOF, HH Preferred Member or BNAC or any of their respective
properties or assets may be bound or affected, except, in the case of clause
(ii), for such violations, conflicts, defaults, terminations, accelerations and
Encumbrances which would not have, individually or in the aggregate, a Material
Adverse Effect or, with respect to BNAC, a material adverse effect on its
ownership interest in, or its rights or obligations under, the New GOF Assets.
6.3 CONSENTS AND APPROVALS. Except as set forth in Section 6.3 of
the GOF Disclosure Schedule and except for the Required Governmental Consents,
no Consent is required to be obtained by GOF or HH Preferred Member from, and no
notice or filing is required to be given by GOF or HH Preferred Member to or
made by GOF or HH Preferred Member with, any Governmental Authority in
connection with the execution, delivery and performance by GOF of this Agreement
or the performance by HH Preferred Member of this Agreement, other than in all
cases where the failure to obtain such Consent or to give or make such notice or
filing would not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect.
6.4 OWNERSHIP OF ASSETS.
(a) BOND POSITION. GOF owns beneficially and of record (i)
$224,045,000 aggregate principal amount of Fixed Rate Notes, (ii) $100,910,000
aggregate principal amount of Floating Rate Notes, (iii) $175,780,000 aggregate
principal amount of 1998 Notes, and (iv) $138,080,000 aggregate principal amount
of H Poly Notes (collectively, the "GOF BOND POSITION"), except that with
respect to Bonds with an aggregate principal amount of $25,186,000 which
constitute part of the GOF Bond Position, GOF is the sole beneficial owner but
not the record holder of such Bonds, provided that as of the Closing GOF will
have transferred to HH Preferred Member, and HH Preferred Member will
beneficially own, and HH Preferred Member or GOF will own of record, the GOF/HH
Preferred Member Contributed Bonds. GOF owns the GOF Bond Position free and
clear of any and all Encumbrances, except such as arise under the Escrow
Agreement or this Agreement, and GOF does not own, beneficially or of record,
any other debt securities issued by H Corp or H Poly. Except for the GOF/HH
Preferred Member Contributed Bonds and the CPF/HH Preferred Member Contributed
Bonds, HH Preferred Member will not own, beneficially or of record, any other
debt securities issued by H Corp or H Poly.
(b) GOF NEW ASSETS.
(i) The authorized capital of BNAC consists of
1,000,000 shares of common stock, par value $0.01 per share (the "BNAC COMMON
STOCK"). There are 1,000,000 shares of BNAC Common Stock
31
issued and outstanding, of which GOF owns, beneficially and of record,
985,222 shares free and clear of any and all Encumbrances. Except as
reflected in Schedule 6.4(b)(i): (a) all of the issued and outstanding shares
of BNAC Common Stock have been duly authorized and validly issued and are
fully paid, nonassessable and free of preemptive rights, with no personal
liability attaching to the ownership thereof; (b) the shares of BNAC Common
Stock to be delivered by GOF to the SPV pursuant to Section 3.2(b)(iii) as of
the Closing Date will be held free and clear of any and all Encumbrances,
except such as arise under this Agreement; and (c) BNAC does not have and is
not bound by any outstanding subscriptions, options, warrants, calls,
commitments or agreements of any character calling for the purchase or
issuance of any shares of BNAC Common Stock or any other equity security of
BNAC or any securities representing the right to purchase or otherwise
receive any shares of BNAC Common Stock or any other equity security of BNAC.
(ii) BNAC owns the New GOF Assets free and clear of
any and all Encumbrances, except for the Encumbrances contemplated in the
GOF/ICI Purchase Agreement or any other GOF/ICI Purchase Documents.
(iii) Attached hereto as part of EXHIBIT 2.1 is a
true, correct and complete copy of the GOF/ICI Purchase Agreement and all
ancillary agreements between GOF or any of its Affiliates and Imperial
Chemical Industries PLC ("ICI") or any of its Affiliates, entered into in
connection with the GOF/ICI Purchase Agreement (the collectively, "GOF/ICI
PURCHASE DOCUMENTS").
(iv) Except for the GOF/ICI Purchase Documents, there
are no agreements, arrangements, commitments or understandings, whether oral
or in writing, of any nature, between or among: (x) GOF and/or its
Subsidiaries and/or Affiliates (including without limitation BNAC); and (y)
ICI and/or its Subsidiaries and/or Affiliates.
(c) GOF paid an aggregate of $327,969,315 for the GOF Bond
Position and the New GOF Assets (the "GOF INVESTMENT AMOUNT").
6.5 INVESTMENT REPRESENTATIONS AND WARRANTIES.
(a) GOF is acquiring the GOF New Shares for investment purposes
for its own account only, and HH Preferred Member will be acquiring the HH
Preferred Member New Shares for investment purposes for its own account only, in
each case subject to its obligation to contribute such shares to the SPV as
contemplated in this Agreement.
(b) GOF is financially able to bear the economic risk of an
investment in the GOF New Shares, has adequate means for providing for its
current
32
needs and personal contingencies, and has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of the investment in GOF New Shares, as the case may be, and can afford a
complete loss of its investment.
(c) HH Preferred Member will be financially able to bear the
economic risk of an investment in the HH Preferred Member New Shares, will have
adequate means for providing for its current needs and personal contingencies,
and will have such knowledge and experience in financial and business matters
that it is capable of evaluating the merits and risks of the investment in HH
Preferred Member New Shares, as the case may be, and can afford a complete loss
of its investment.
(d) GOF acknowledges on its own behalf, and, as of the Closing,
as the majority member of HH Preferred Member, that (i) the GOF New Shares and
the HH Preferred Member New Shares have not been registered under the Securities
Act or qualified under any applicable blue sky laws in reliance, in part, on its
representations, warranties, and agreements herein (including, without
limitation, the representations and warranties with respect to the bona fide
nature of the investment intent); (ii) HMP and its board of directors are under
no obligation to register or qualify the GOF New Shares or the HH Preferred
Member New Shares under the Securities Act or under any state securities law, or
to assist GOF or HH Preferred Member, as the case may be, in complying with any
exemption from registration and qualification; (iii) both the GOF New Shares and
the HH Preferred Member New Shares are "restricted securities" under the
Securities Act in that both the GOF New Shares and/or the HH Preferred Member
New Shares will be acquired from HMP in a transaction not involving a public
offering, and that neither the GOF New Shares nor the HH Preferred Member New
Shares may be sold, transferred, or otherwise disposed of without registration
under the Securities Act or an exemption therefrom, and that in the absence of
an effective registration statement covering the GOF New Shares and/or the HH
Preferred Member New Shares or an available exemption from registration under
the Securities Act, such securities must be held indefinitely; (iv) there are
substantial restrictions on the transferability of both the GOF New Shares and
the HH Preferred Member New Shares pursuant to this Agreement, that there is no
public market for either the GOF New Shares or the HH Preferred Member New
Shares and none is expected to develop, and that, accordingly, it may not be
possible to liquidate its investment in HMP; and (v) the GOF New Shares and the
HH Preferred Member New Shares are speculative investments which involve a
substantial degree of risk of loss of an entire investment in HMP, that it
understands and takes full cognizance of the risks related to the purchase of
the GOF New Shares and the HH Preferred Member New Shares.
(e) GOF has been provided an opportunity for a reasonable time
prior to the date hereof to obtain information concerning the offering of the
GOF New Shares and/or the HH Preferred Member New Shares, HMP and all other
information to the extent HMP possesses such information or can acquire it
without unreasonable effort or expense. GOF has been given the opportunity for a
reasonable time prior to the date hereof to ask questions of, and receive
answers from, HMP or its representatives concerning the terms and conditions of
the offering of the GOF New Shares and/or the HH Preferred Member New Shares and
other matters pertaining to this investment. GOF
33
has not been furnished with any oral representation or oral information in
connection with the offering of the GOF New Shares and/or the HH Preferred
Member New Shares and GOF is not relying on HMP or its affiliates with respect
to economic considerations involved in this investment.
(f) Without limiting the representations set forth above, and
without limiting Article XI of this Agreement, neither GOF nor HH Preferred
Member will make any sale, transfer, gift, pledge or other disposition of all or
any part of the GOF New Shares or the HH Preferred Member New Shares, as the
case may be, which will result in the violation by it or by HMP of the
Securities Act, the Delaware General Corporation Law, or any other applicable
securities laws.
6.6 FAMILY HOLDINGS II AND GOF TRANSACTIONS. Except as set out in or
contemplated by this Agreement, the Interest Holders Agreement and the SPV
Agreement, or as otherwise disclosed to CPF in writing, there are no agreements
between Family Holdings II and its Affiliates, on one hand, and GOF and its
Affiliates, on the other hand, related to the transactions contemplated by this
Agreement and the SPV Agreement.
6.7 NO OTHER REPRESENTATIONS. Except for the representations and
warranties contained in this Article VI or set forth in the SPV Agreement,
neither GOF nor any other person or entity makes any representation or warranty,
express or implied, on behalf of GOF.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF THE INVESTORS
Except as set forth in the Disclosure Schedule that is being delivered
to the Huntsman Parties, GOF and the CP Parties concurrently herewith (the
"INVESTOR DISCLOSURE SCHEDULE"), if any, each of the Investors hereby represents
and warrants to the Huntsman Parties, GOF and the CP Parties, as of the date of
this Agreement and as of the Closing Date, as follows solely with respect to
itself:
7.1 AUTHORITY; NO VIOLATION.
(a) (i) such Individual Investor has full power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby, and (ii) this Agreement has been duly and validly executed
and delivered by such Individual Investor and (assuming due authorization,
execution and delivery by the other parties to this Agreement) this Agreement
constitutes a valid and binding obligation of such Individual Investor,
enforceable against such Individual Investor in accordance with its terms,
except as enforcement may be limited by general principles of equity whether
applied in a court of law or a court of equity and by bankruptcy, insolvency and
similar Laws affecting creditors' rights and remedies generally.
(b) Neither the execution and delivery of this Agreement by
such Individual Investor, nor the consummation by such Individual Investor of
the transactions
34
contemplated hereby, nor compliance by such Individual Investor with any of the
terms or provisions hereof, will (i) assuming that the consents and approvals
referred to in Section 7.2 hereof are duly obtained, (x) violate any Laws
applicable to such Individual Investor, or any of his or her respective
properties or assets, or (y) violate, conflict with, result in a breach of any
provision of or the loss of any benefit under, constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default) under,
result in the termination of or a right of termination or cancellation under,
accelerate the performance required by, or result in the creation of any
Encumbrance (other than Encumbrances created by this Agreement, the SPV
Agreement and the HH Preferred Member Operating Agreement) upon any of the
respective properties or assets of such Individual Investor under, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, deed of
trust, license, lease, agreement or other instrument or obligation to which such
Individual Investor is a party, or by which such Individual Investor or any of
his or her respective properties or assets may be bound or affected, except, in
the case of clause (ii), for such violations, conflicts, defaults, terminations,
accelerations and Encumbrances which would not have, individually or in the
aggregate, a Material Adverse Effect.
7.2 CONSENTS AND APPROVALS. Except as set forth in Section 7.2 of
the Investor Disclosure Schedule and except for the Required Governmental
Consents, no Consent is required to be obtained by such Individual Investor
from, and no notice or filing is required to be given by such Individual
Investor to or made by such Individual Investor with, any Governmental Authority
in connection with the execution, delivery and performance by such Individual
Investor of this Agreement, other than in all cases where the failure to obtain
such Consent or to give or make such notice or filing would not, individually or
in the aggregate, reasonably be expected to result in a Material Adverse Effect.
7.3 OWNERSHIP OF BNAC SHARES. Such Individual Investor owns,
beneficially and of record, the number of BNAC Shares set forth opposite such
Individual Investor's name in Exhibit 2.4 free and clear of any and all
Encumbrances.
7.4 NO OTHER REPRESENTATIONS. Except for the representations and
warranties contained in this Article VII or set forth in the SPV Agreement, no
Individual Investor or any other person or entity makes any representation or
warranty, express or implied, on behalf of any Individual Investor.
ARTICLE VIII
COVENANTS
8.1 CONSUMMATION OF TRANSACTIONS. Subject to the terms and
conditions of this Agreement, CPF agrees to use reasonable efforts at GOF's,
Huntsman Family II's or their respective representative's request (written or
oral), and each other party to this Agreement agrees to use reasonable best
efforts, to take, or cause to be taken, all action and to do, or cause to be
done, all things reasonably necessary, proper or advisable under applicable Laws
to consummate the Debt Exchange Transactions and the
35
other transactions contemplated under this Agreement, including, without
limitation, using reasonable efforts, with respect to CPF, and reasonable best
efforts, with respect to the other parties to this Agreement, to effectuate the
Restructuring Plan so that it will not result in an "ownership change" (within
the meaning of IRC Sec. 382). No party to this Agreement shall knowingly take
any action that is in contravention of, or that is inconsistent with, the Debt
Exchange Transactions or the other transactions contemplated by this Agreement
or that could jeopardize or materially delay the consummation of the Debt
Exchange Transactions or the other transactions contemplated by this Agreement.
8.2 COVENANT OF ▇▇. ▇▇▇▇▇▇▇▇. ▇▇. ▇▇▇▇▇▇▇▇ shall take all actions
necessary to cause each of H Corp, H Poly, HMP and Family Holdings II and its
respective Affiliates to perform its respective obligations under this
Agreement.
8.3 HMP RECAPITALIZATION.
(a) As soon as reasonably practicable following the Closing,
GOF and Family Holdings II shall cause the SPV to take, or cause to be taken,
all actions necessary to recapitalize HMP's capital stock to (a) reclassify each
share of each class of preferred stock of HMP issued and outstanding immediately
prior to the recapitalization (other than the 5,043 shares of Class A Preferred
Stock, no par value (the "CLASS A PREFERRED"), of HMP held by the Huntsman
Cancer Foundation (the "CANCER FOUNDATION SHARES"), if any) as shares of validly
issued, fully paid and non-assessable New Common Stock (the number of shares of
New Common Stock into which such preferred stock shall be converted shall be a
number of shares reasonably acceptable to HMP, GOF and Family Holdings II), and
(b) eliminate each series of preferred stock of HMP (other than the Cancer
Foundation Shares, if any) (the transactions contemplated by this Section 8.3
are referred to herein as the "HMP RECAPITALIZATION").
(b) Each certificate for any shares of the stock issued by HMP
in connection with the Debt Exchange Transaction and the HMP Recapitalization
shall contain a legend substantially in the form of the following: "The
securities represented by this Certificate have been acquired for investment and
have not been registered under the Securities Act of 1933, as amended, nor
registered nor qualified under any state securities laws. Such securities may
not be offered for sale, sold, delivered after sale, transferred, pledged, or
hypothecated unless qualified and registered under applicable state and federal
securities laws or unless, in the opinion of counsel satisfactory to the
Company, such qualification and registration is not required. Any transfer of
the securities represented by this Certificate is further subject to other
restrictions, terms and conditions that are set forth in the Limited Liability
Company Agreement of Huntsman Holdings, LLC, a Delaware limited liability
company, dated _____, 2002, as amended, the relevant provisions of which may be
reviewed at the Company's head office during business hours, and any purported
transfer of such security shall be invalid if not in compliance with the terms
of such agreement."
8.4 FORMATION OF HH PREFERRED MEMBER. GOF shall duly file a
certificate of formation for HH Preferred Member with the Secretary of State of
the State of Delaware in accordance with the Delaware Limited Liability Company
Act, and GOF,
36
each Individual Investor and CPF shall take all such other actions as shall be
necessary, appropriate or advisable to duly form HH Preferred Member and to
cause HH Preferred Member to duly authorize all actions that GOF is required to
cause HH Preferred Member to take under this Agreement or which are otherwise
necessary, appropriate or advisable in connection therewith. Each of GOF, CPF
and each Individual Investor and any other Persons who become members of HH
Preferred Member shall enter into a limited liability company agreement for HH
Preferred Member, in form and substance reasonably acceptable to GOF and CPF
(the "HH PREFERRED MEMBER OPERATING AGREEMENT"). Neither CPF nor any Individual
Investor shall take any action that interferes with GOF's ability to cause HH
Preferred Member to perform its obligations under this Agreement.
8.5 ADDITIONAL HH PREFERRED MEMBER CONTRIBUTION. If at any time
after the Closing, GOF and Family Holdings II determine to offer the Huntsman
Cancer Foundation the opportunity to invest in the SPV and the Huntsman Cancer
Foundation accepts such offer, then GOF shall cause HH Preferred Member to issue
to the Huntsman Cancer Foundation in exchange for the Cancer Foundation Shares
an indirect interest in the Preferred Interest (in the form of membership
interests in HH Preferred Member) with a value equivalent to such Class A
Preferred. Immediately upon receipt of the Cancer Foundation Shares by HH
Preferred Member, GOF shall cause HH Preferred Member to contribute to the SPV
the Cancer Foundation Shares, and GOF shall cause HH Preferred Member to deliver
to the SPV a certificate or certificates representing the Cancer Foundation
Shares, duly executed in blank or accompanied by stock powers duly executed in
blank, in proper form for transfer, free and clear of any and all Encumbrances.
In exchange for its contribution of the Cancer Foundation Shares, HH Preferred
Member shall be entitled to receive from the SPV, and the SPV shall deliver to
HH Preferred Member, additional Preferred Interest with a value equivalent to
such Class A Preferred.
8.6 PAYMENT OF GOF TRANSACTION FEES. H Corp hereby covenants and
agrees to reimburse GOF for all of the documented GOF Transaction Fees in
accordance with this Section 8.6; PROVIDED, HOWEVER, that H Corp and GOF shall
each bear 50 percent of any transfer taxes or similar taxes or fees incurred by
either of them or by HH Preferred Member or the SPV in connection with the
transactions contemplated by this Agreement.
(a) At the Closing, H Corp shall reimburse GOF for any
documented GOF Transaction Fees paid by GOF prior to the Closing Date of this
Agreement ("PRE-CLOSING PAID FEES").
(b) In addition to reimbursing GOF for the Pre-Closing Paid
Fees as contemplated in clause (a), after the Closing, promptly upon receipt
from GOF of any invoice for any documented GOF Transaction Fees which have not
previously been paid, H Corp shall pay to the Persons named on such invoices for
such unpaid GOF Transaction Fees promptly upon receipt thereof.
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8.7 PAYMENT OF CPF TRANSACTION FEES. At the Closing, H Corp hereby
covenants and agrees to reimburse CPF for the documented CPF Transaction Fees,
provided that H Corp shall not be required to reimburse CPF for documented CPF
Transaction Fees in excess of $150,000.
8.8 COVENANT OF CPH. CPH shall take all actions necessary to cause
CPF and its Affiliates to perform their respective obligations under this
Agreement.
ARTICLE IX
ADDITIONAL AGREEMENTS
9.1 REGULATORY MATTERS.
(a) The parties to this Agreement shall cooperate with each
other and CPF shall use its reasonable efforts at GOF's, Family Holdings II's or
their respective representative's request (written or oral), and the other
parties to this Agreement shall use their reasonable best efforts, to promptly
prepare and file all necessary documentation, to effect all applications,
notices, petitions and filings, and to obtain as promptly as practicable all
Consents of all Governmental Authorities which are necessary or advisable to
consummate the Debt Exchange Transactions and the other transactions
contemplated by this Agreement (including without limitation filings required
under the HSR Act, if any). Each party to this Agreement shall have the right to
review in advance, and to the extent practicable each will consult the other on,
in each case subject to applicable Laws relating to the exchange of information,
all the information relating to each respective party to this Agreement, and any
of their respective Subsidiaries, as the case may be, which appears in any
filing made with, or written materials submitted to, any Governmental Authority
in connection with the transactions contemplated by this Agreement. In
exercising the foregoing right, each of the parties to this Agreement shall act
reasonably and as promptly as practicable. The parties to this Agreement agree
that they will consult with each other with respect to the obtaining of all
Consents of all Governmental Authorities necessary or advisable to consummate
the transactions contemplated by this Agreement and each party will keep the
other apprised of the status of matters relating to completion of the
transactions contemplated herein.
(b) Each party to this Agreement shall, upon request, furnish
the other parties with all information concerning itself, its respective
Subsidiaries, if any, directors, officers and stockholders and such other
matters as may be reasonably necessary or advisable in connection with any
statement, filing, notice or application made by or on behalf of the parties to
this Agreement or any of their respective Subsidiaries to any Governmental
Authority in connection with the Debt Exchange Transactions and the other
transactions contemplated by this Agreement.
(c) Each party to this Agreement shall promptly furnish the
other parties with copies of written communications received by the party, or
any of its respective Subsidiaries or Affiliates from, or delivered by any of
the foregoing to, any Governmental Authority in respect of the transactions
contemplated hereby.
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9.2 HUNTSMAN OBLIGATION TO FILE. If (a) the Closing does not occur
on or before October 15, 2002 and (b) if on or after such date, both a majority
in number of the members of the Bank Group and members of the Bank Group holding
at least 66-2/3 percent in principal amount of indebtedness outstanding under
the H Corp Credit Facility have irrevocably consented to the Restructured H Corp
Facility and irrevocably voted in favor of the Plan, then each of H Corp and H
Poly shall be required to, and HMP shall be required to cause them to, file a
Voluntary Proceeding and implement the Plan in accordance with, and in the
manner contemplated by, this Agreement (including, without limitation, the Fast
Track Schedule and Appendix 10.2(b)), which shall include as an essential
feature thereof, the payment of trade creditors in full with respect to their
pre-petition claims in the ordinary course of the respective businesses of HMP,
H Corp and H Poly. For purposes of the foregoing, (a) a person shall be deemed
to have irrevocably consented or irrevocably voted if such person cannot
unilaterally withdraw, terminate or revoke such consent or vote prior to the
date on which the Plan must be confirmed pursuant to the Fast Track Schedule and
(b) any consent and/or vote given by a Person that has executed a lockup
agreement substantially in the form of EXHIBIT 9.2 shall be deemed irrevocable
so long as such lockup agreement is in full force and effect as of the date that
the obligation to file arises under this Section 9.2.
9.3 LEGAL CONDITIONS TO DEBT EXCHANGE TRANSACTIONS. CPF shall use
its reasonable efforts at GOF's, Family Holdings II's or their respective
representative's request (written or oral) and each other party to this
Agreement shall use its reasonable best efforts (a) to take, or cause to be
taken, all actions necessary, proper or advisable to comply promptly with all
legal requirements that may be imposed on such party with respect to the Debt
Exchange Transactions and, subject to the conditions set forth in Section 10.1
of this Agreement, as applicable, to consummate the transactions contemplated by
this Agreement and (b) to obtain (and to cooperate with the other parties to
obtain) any Consent of any third party (other than a Governmental Authority)
which is required to be obtained by each of the parties to this Agreement or any
of their respective Affiliates in connection with the Debt Exchange Transactions
and the other transactions contemplated by this Agreement, and to comply with
the terms and conditions of such Consent; PROVIDED, HOWEVER, that no party to
this Agreement shall be obligated to pay any consideration therefor to any such
third party from whom any such Consent is requested.
9.4 ADDITIONAL AGREEMENTS. In case at any time after the Closing any
further action is necessary or desirable to carry out the purposes of this
Agreement, the proper officers and directors of each party to this Agreement and
its respective Subsidiaries shall take all such necessary action as may be
reasonably requested by the other parties.
9.5 SPV ACTIONS. From and after the Closing, GOF and Family Holdings
II hereby agree to cause the SPV to take, or to cause to be taken, the actions
described on APPENDIX 9.5, and, without limiting the generality of the
foregoing, each of GOF and Family Holdings II agrees that it will not exercise
any of its rights under the SPV Agreement or the Interest Holders Agreement to
prevent the SPV from taking, or causing to be taken, any such actions.
39
9.6 PROXY. Until the CPF Lockup Termination Date, CPF hereby grants
to GOF an irrevocable proxy (which by the terms hereof is coupled with an
interest and cannot be revoked) to be exercised by GOF to vote the CPF Bond
Position in favor of the Plan and its confirmation and consummation, provided
GOF concurrently votes the GOF Bond Position in the same manner.
9.7 MERGER OF BNAC. At or as soon as reasonably practicable
following the Closing, Family Holdings II and GOF hereby agree to cause the SPV
to merge, or to cause to be merged, BNAC with and into HMP, with HMP being the
surviving corporation.
ARTICLE X
CONDITIONS PRECEDENT
10.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT DEBT EXCHANGE
TRANSACTIONS. The respective obligation of each party to effect the Debt
Exchange Transactions shall be subject to the satisfaction at or prior to the
Closing of the following conditions:
(a) REQUIRED GOVERNMENTAL CONSENTS. All filings under the HSR
Act and other similar Laws applicable to the transactions contemplated by this
Agreement (if required to be made prior to the Closing) shall have been made and
any required waiting period under such Laws applicable to the transactions
contemplated by this Agreement shall have expired or been earlier terminated,
and all Required Governmental Consents shall have been obtained.
(b) NO INJUNCTIONS OR RESTRAINTS; ILLEGALITY. No order,
injunction or decree issued by any court or agency of competent jurisdiction or
other legal restraint or prohibition (an "INJUNCTION") preventing the
consummation of the Debt Exchange Transactions shall be in effect. No statute,
rule, regulation, order, injunction or decree shall have been enacted, entered,
promulgated or enforced by any Governmental Authority which prohibits, restricts
or makes illegal consummation of the Debt Exchange Transactions.
(c) LOCKUP COMMITMENTS. The obligations of GOF and CPF under
Section 12.4 and Section 12.5, respectively, shall not have terminated or, if
such obligations shall have terminated, neither the GOF Lockup Termination Date
nor the CPF Lockup Termination Date shall have occurred.
(d) FORMATION OF THE SPV. (i) GOF and Family Holdings II shall
have established, or shall have caused to be established, the SPV under the
Delaware Limited Liability Company Act by filing a certificate of formation with
the Secretary of State of the State of Delaware and (ii) GOF, HH Preferred
Member, CPF, the Investors and Family Holdings II shall have executed and
delivered the Limited Liability Company Agreement substantially in the form
attached hereto as Exhibit 10.1(d), with such changes thereto as shall be
reasonably acceptable to GOF and Family Holdings II;
40
provided, however, that any such amendment or modification shall also be subject
to the prior reasonable acceptance of CPF where both (A) such amendment or
modification would have a material adverse effect on the rights attributable to
the Interest of CPF (the "affected CPF rights") and (B) such material adverse
effect would be disproportionate (after taking into account any
disproportionality in the relative rights of CPF and GOF prior to any such
amendment or modification) to the effect such amendment or modification would
have on the rights attributable to the Interest of GOF; provided, further,
however, that (x) any amendments or modifications to the rights, privileges and
preferences of the Preferred Interest (as defined in the SPV Agreement) under
Section 3.2 of the SPV Agreement and Section 6.6 of the SPV Agreement, where
such amendment or modification is adverse to the rights attributable to the
Interest of CPF, shall require CPF's consent, and (y) any amendments or
modifications to Section 1.130(a) or (e), 7.1, 7.3, 7.5(b), 7.6(b), or 7.7 of
the SPV Agreement or Articles XI and XII of the SPV Agreement shall require
CPF's consent, which shall not be unreasonably withheld, conditioned or delayed
(the "SPV AGREEMENT").
(e) AMENDED AND RESTATED HMP BYLAWS. HMP shall have duly
adopted the Amended and Restated HMP Bylaws.
(f) CERTIFICATE OF AMENDMENT OF HMP. HMP shall have adopted
and filed with the Secretary of State of the State of Delaware the Certificate
of Amendment of HMP.
(g) HMP, H CORP AND H POLY ACTIONS. HMP, H Corp and H Poly
shall not have and shall not have authorized or committed or agreed to: (a)
declare, set aside or pay any cash dividends on any of the capital stock of H
Corp or HMP or any of their respective Subsidiaries held by Family Holdings II;
(b) purchase, redeem or otherwise acquire any of the Family Shares; (c) merge,
consolidate or enter into any other business combination transaction with any
Person not an Affiliate or Subsidiary of H Corp, in any event where such
transaction is material to H Corp and its respective Subsidiaries, taken as a
whole; (d) acquire (by merger, consolidation or acquisition) any corporation,
partnership or other entity; or (e) purchase any equity interest in or all or
substantially all of the assets of, any Person or any division or business
thereof, in any event where such transaction is material to either H Corp and
its Subsidiaries or HMP and its Subsidiaries, in each case, taken as a whole;
PROVIDED, HOWEVER, that the foregoing restrictions shall not apply to any
transaction between H Corp or any of its Subsidiaries and any other Subsidiary
or Subsidiaries of H Corp.
(h) AMENDED AND RESTATED H CORP OPERATING AGREEMENT. H Corp
shall have duly adopted the Amended and Restated H Corp Operating Agreement.
(i) CERTIFICATE OF AMENDMENT OF H CORP. H Corp shall have
adopted and filed with the Division of Corporations and Commercial Code of the
Utah Department of Commerce the Certificate of Amendment of H Corp.
41
(j) BANK CONSENT. The Bank Consent Condition shall have been
satisfied or, if the Bank Consent Condition shall not be satisfied, the Plan
Approval Condition shall have been satisfied.
(k) INTEREST HOLDERS AGREEMENT. The Interest Holders Agreement
shall have been executed and delivered by all of the parties thereto.
10.2 DEFINITIONS.
(a) The "BANK CONSENT CONDITION" means (i) the Restructured H
Corp Credit Facility shall have received the requisite approval of the lenders
under the H Corp Credit Facility (collectively, the "BANK GROUP") and (ii) the
Restructured H Corp Credit Facility shall have been duly executed and delivered
and shall continue to be in effect by its terms.
(b) The "PLAN APPROVAL CONDITION" means:
(i) CHAPTER 11 CASE. A voluntary bankruptcy case
shall have been filed under Chapter 11 of the United States Bankruptcy Code
with respect to HMP, H Corp and H Poly (a "VOLUNTARY PROCEEDING"), or an
involuntary bankruptcy case shall have been filed under Chapter 11 of the
United States Bankruptcy Code with respect to HMP, H Corp and/or H Poly (an
"INVOLUNTARY PROCEEDING"). As used in this Agreement, "CHAPTER 11 CASE" shall
refer to a Voluntary Proceeding or an Involuntary Proceeding;
(ii) PROTECTION ORDER. With respect to its Chapter 11
Case, HMP, H Corp and/or H Poly shall have used its reasonable best efforts
to incorporate in any adequate protection order entered in such Chapter 11
Case in favor of the Bank Group, provisions requiring HMP, H Corp and/or H
Poly, as the case may be, to materially comply with the terms set forth in
APPENDIX 10.2(b) attached hereto;
(iii) FAST TRACK. Within 15 business days after (x)
the filing of the petition with respect to a Voluntary Proceeding or (y) the
entry of an order for relief in an Involuntary Proceeding (the date of filing
of such petition or entry of such order is referred to herein as "CASE
COMMENCEMENT"), HMP, H Corp and/or H Poly shall have filed the Plan and a
disclosure statement or a prepetition disclosure document with respect
thereto and a motion seeking an order confirming the Plan and approving the
prepetition solicitation of consents thereto at a hearing to be commenced
within 60 days after the filing of such motion, which pleadings shall conform
to Part II of Appendix 10.2(b); and
(iv) PLAN CONFIRMATION. The Plan shall have been
confirmed by an order entered no later than 180 days from Case Commencement
(together with the deadlines set forth in 10.2(b)(iii) above, the "FAST TRACK
SCHEDULE").
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ARTICLE XI
TERMINATION AND AMENDMENT
11.1 TERMINATION. This Agreement may be terminated at any time prior
to the Closing:
(a) by mutual written consent of GOF and Family Holdings II;
(b) by any party to this Agreement if there shall be any Law
or regulation that makes the consummation of the transactions contemplated by
this Agreement illegal or otherwise prohibited or if consummation of the
transactions contemplated by this Agreement would violate any nonappealable
final order, decree or judgment of any court or governmental body having
competent jurisdiction;
(c) by GOF (i) (provided that neither GOF nor HH Preferred
Member is then in material breach of any representation, warranty, covenant or
other agreement contained herein) if there shall have been a material breach of
any of the covenants or agreements set forth in this Agreement on the part of
any of the Huntsman Parties, the Investors or the CP Parties, which breach shall
not have been cured within 30 days following receipt by the breaching party of
written notice of such breach from any of the other party hereto or prior to the
Closing, if sooner, or which breach, by its nature, cannot be cured prior to the
Closing, or (ii) if GOF's obligations under Sections 12.4(a) and 12.4(b) shall
have been terminated;
(d) by Family Holdings II (i) (provided that none of the
Huntsman Parties is then in material breach of any representation, warranty,
covenant or other agreement contained herein) if there shall have been a
material breach of any of the covenants or agreements set forth in this
Agreement on the part of the CP Parties, GOF or the Investors, which breach
shall not have been cured within 30 days following receipt by the breaching
party of written notice of such breach from any of the other party hereto or
prior to the Closing, if sooner, or which breach, by its nature, cannot be cured
prior to the Closing or (ii) if GOF's obligations under Sections 12.4(a) and
12.4(b) shall have been terminated; and
(e) by CPF, but such termination shall be effective only with
respect to the rights and obligations of the CP Parties under this Agreement and
shall not otherwise affect the rights and obligations of any other party to this
Agreement, (i) (provided that none of the CP Parties is then in material breach
of any representation, warranty, covenant or other agreement contained herein)
if there shall have been a material breach of any of the material covenants or
agreements set forth in this Agreement on the part of any of the Huntsman
Parties, the Investors or GOF, which breach shall not have been cured within 30
days following receipt by the breaching party of written notice of such breach
from any of the other party hereto or prior to the Closing, if sooner, or which
breach, by its nature, cannot be cured prior to the Closing, (ii) if GOF's
obligations under Sections 12.4(a) and 12.4(b) shall have been terminated, (iii)
if
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CPF's obligations under Sections 12.5(a) and 12.5(c) shall have been
terminated, or (iv) if a Chapter 11 Case has not been filed on or before July
15, 2003.
11.2 EFFECT OF TERMINATION. In the event of termination of this
Agreement by any party to this Agreement as provided in Section 11.1, this
Agreement shall forthwith become void and have no effect except (a) Sections
11.2 and 13.1 shall survive any termination of this Agreement and (b) that
notwithstanding anything to the contrary contained in this Agreement, no party
shall be relieved or released from any liabilities or damages arising out of its
breach of any provision of this Agreement.
11.3 AMENDMENT. Subject to compliance with applicable law, this
Agreement may be amended as provided herein. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of GOF, Family
Holdings II, CPF, HMP, H Corp and H Poly, and any such amendment shall be
binding on all parties hereto, and CPF agrees that its written approval of such
amendment(s) shall not be unreasonably withheld, conditioned or delayed.
Notwithstanding the foregoing, following the Closing, this Agreement may not be
amended except by an instrument in writing signed on behalf of each of GOF,
Family Holdings II, HMP, H Corp and H Poly, and any such amendment shall be
binding on all parties hereto; PROVIDED, HOWEVER, that any such amendment shall
also be subject to the prior reasonable acceptance of CPF where both (i) such
amendment would have a material adverse effect on the rights attributable to the
Interest of CPF (the "affected CPF rights") and (ii) such material adverse
effect would be disproportionate (after taking into account any
disproportionality in the relative rights of any CP Party and GOF prior to any
such amendment) to the effect such amendment would have on the rights
attributable to the Interest of GOF.
11.4 EXTENSION; WAIVER. At any time prior to the Closing, the
parties to this Agreement may, to the extent legally allowed, (a) extend the
time for the performance of any of the obligations or other acts of any other
party hereto, (b) waive any inaccuracies in the representations and warranties
of any other party contained herein or in any document delivered pursuant hereto
and (c) waive compliance with any of the agreements or conditions of any other
party contained herein. Any agreement on the part of a party to this Agreement
to any such extension or waiver shall be valid only if set forth in a written
instrument signed on behalf of such party, but such extension or waiver or
failure to insist on strict compliance with an obligation, covenant, agreement
or condition shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure.
ARTICLE XII
LOCKUP COMMITMENTS AND SUPPORT COVENANTS
12.1 GOF LOCKUP COMMITMENTS. GOF hereby covenants and agrees that,
until the GOF Lockup Termination Date (as defined below), other than in
accordance with this Agreement and the Escrow Agreement, GOF shall not, and
shall cause HH Preferred Member not to (a) sell, grant any option or other right
to acquire, acquire any option to dispose of, assign, donate, gift, pledge or
otherwise transfer or
44
dispose of any of the GOF Bond Position, (b) enter into any contract, option or
other agreement, arrangement or understanding with respect to the foregoing, or
(c) directly or indirectly solicit, initiate, entertain or encourage any
proposal or offer from any third party relating to any such sale, transfer or
exchange of any of the GOF Bond Position.
12.2 CPF LOCKUP COMMITMENTS. CPF hereby covenants and agrees that,
until the earlier of the GOF Lockup Termination Date and the CPF Lockup
Termination Date, other than in accordance with this Agreement, CPF shall not
(a) sell, grant any option or other right to acquire, acquire any option to
dispose of, assign, donate, gift, pledge or otherwise transfer or dispose of any
of the CPF Bond Position, (b) enter into any contract, option or other
agreement, arrangement or understanding with respect to the foregoing, or (c)
directly or indirectly solicit, initiate, entertain or encourage any proposal or
offer from any third party relating to any such sale, transfer or exchange of
any of the CPF Bond Position; PROVIDED, HOWEVER, that it is agreed by the
parties to this Agreement that CPF may transfer, convey or assign its CPF Bond
Position to any Subsidiary of CPF provided that (i) CPF shall not and shall not
permit any of its direct or indirect Subsidiaries to, directly or indirectly
transfer, pledge, convey or assign the capital stock of such Subsidiary to any
Person not a Subsidiary of CPF and (ii) such Subsidiary shall agree in writing
to lockup obligations and a proxy with respect to such CPF Bond Position which
are the same as CPF's obligations under this Agreement.
12.3 HUNTSMAN PARTY LOCKUP COMMITMENTS. Each of H Corp, H Poly, HMP
and Family Holdings II hereby covenants and agrees that, until the GOF Lockup
Termination Date, other than in accordance with this Agreement and the Escrow
Agreement, H Corp, H Poly, HMP and Family Holdings II shall not (a) sell, grant
any option or other right to acquire, acquire any option to dispose of, assign,
donate, gift, pledge or otherwise transfer or dispose of any of the shares of
common or preferred stock and other equity interests of HMP, H Corp or H Poly
held by Family Holdings II or HMP (the "FAMILY SHARES"), (b) enter into any
contract, option or other agreement, arrangement or understanding with respect
to the foregoing, or (c) directly or indirectly solicit, initiate, entertain or
encourage any proposal or offer from any third party relating to any such sale,
transfer or exchange of any of the Family Shares.
12.4 GOF SUPPORT COVENANTS.
(a) GOF hereby covenants and agrees that it will not, and will
cause HH Preferred Member not to, take any action inconsistent in any material
respect with HMP's, H Corp's and H Poly's efforts to effectuate the
Restructuring Plan (including the Debt Exchange Transactions) without filing a
Chapter 11 Case, and will use, and will cause HH Preferred Member to use, its
reasonable best efforts, including in its capacity as holder of the GOF Bond
Position, to consummate, or cause the consummation of, the Debt Exchange
Transactions and the other transactions contemplated hereby without the filing
of a Chapter 11 Case; PROVIDED, HOWEVER, that the obligations of GOF under this
Section 12.4(a) shall terminate (i) at GOF's option, upon the earlier to occur
of (x) 10 days after the delivery and continued effectiveness of any Financial
Institution Notice pursuant to Section 7 of the Collateral Account Control
Agreement, and (y) October 15, 2002, and (ii) upon the entry of an order for
relief for or against HMP, H Corp and/or H
45
Poly under either of Sections 301 or 303(h) of title 11 of the United States
Code (or any successor provisions thereto). Without limiting the generality of
the foregoing, until the obligations of GOF under this Section 12.4(a)
terminate, GOF shall not, and shall cause HH Preferred Member not to, pursue or
enforce, or direct or authorize any trustee to pursue or enforce, any remedies
otherwise available to it under any of the Indentures or any of the Bonds or
under the HMP/GOF Guarantee, including in each case declaring any obligation
thereunder to be due and payable.
(b) In the event that the Restructuring Plan is implemented by
means of a Chapter 11 Case, GOF hereby covenants and agrees that until the GOF
Lockup Termination Date:
(i) GOF will not, and will cause HH Preferred Member
not to, take any action inconsistent in any material respect with the Plan
and the Debt Exchange Transactions and will use, and will cause HH Preferred
Member to use, its reasonable best efforts, including in its capacity as
holder of the GOF Bond Position, to consummate, or cause the consummation of,
the transactions contemplated by the Plan, including the Debt Exchange
Transactions; and
(ii) GOF shall, and shall cause HH Preferred Member
to (A) support, timely vote in favor of and take all reasonable actions
required on its part to support confirmation and consummation of the Plan,
(B) not directly or indirectly seek, support, encourage or solicit any
exchange offer or restructuring proposal, plan, offer or any other
restructuring or other reorganization, merger, liquidation, dissolution or
effort, other than the Plan, (C) not vote for, consent to, support, or
participate, directly, or indirectly, in the negotiations, formulation, or
motions regarding any plan of restructuring or liquidation, other than the
Plan, (D) use commercially reasonable efforts (which will not be interpreted
to require a party to this Agreement to pay any amount other than its own
attorneys' fees) to provide its unqualified support of the Plan, (E) not
oppose or object to confirmation or consummation of the Plan or otherwise
commence any legal proceeding to oppose or alter the Plan or any other
restructuring documents containing terms and conditions materially consistent
with the transactions specified in the Plan, and (F) not take any other
action that is inconsistent with, or that would obstruct or hinder
consummation of, the Plan, or challenge H Corp's or H Poly's rights under the
Bankruptcy Code to exclusivity or any extension of exclusivity relating to
the Plan.
12.5 CPF SUPPORT COVENANTS.
(a) CPF hereby covenants and agrees that until the obligations
of GOF under Section 12.4(a) terminate, it will not take any action inconsistent
in any material respect with HMP's, H Corp's and H Poly's efforts to effectuate
the Restructuring Plan (including the Debt Exchange Transactions) without filing
a Chapter 11 Case, and
46
will use its reasonable efforts, including in its capacity as holder of the CPF
Bond Position, to consummate, or cause the consummation of, the Debt Exchange
Transactions and the other transactions contemplated hereby without the filing
of a Chapter 11 Case; PROVIDED, HOWEVER, that if GOF has not exercised its
option to terminate its obligations under Section 12.4(a), the obligations of
CPF under this Section 12.5(a) shall terminate, at CPF's option, on July 15,
2003. Without limiting the generality of the foregoing, until the obligations of
CPF under this Section 12.5(a) terminate, CPF shall not pursue or enforce, or
direct or authorize any trustee to pursue or enforce, any remedies otherwise
available to it under any of the Indentures or any of the H Corp Notes or under
the HMP/CPF Guarantee, including in each case declaring any obligation
thereunder to be due and payable.
(b) Until the obligations of CPF under Sections 12.5(a) and
12.5(c) terminate, in its capacity as the current controlling stockholder of
CPF, CPH shall take all actions necessary to cause CPF to fulfill its respective
obligations under this Agreement relating to the Debt Exchange Transactions.
(c) In the event that the Restructuring Plan is implemented by
means of a Chapter 11 Case filed on or before July 15, 2003, CPF hereby
covenants and agrees that until the earlier to occur of the GOF Lockup
Termination Date and CPF Lockup Termination Date:
(i) CPF will not take any action inconsistent in any
material respect with the Plan and the Debt Exchange Transactions and will
use its reasonable efforts, including in its capacity as holder of the CPF
Bond Position, to consummate, or cause the consummation of, the transactions
contemplated by the Plan, including the Debt Exchange Transactions;
(ii) CPF shall (A) support, timely vote in favor of
and take such reasonable actions required on its part to support confirmation
and consummation of the Plan, (B) not directly or indirectly seek, support,
encourage or solicit any exchange offer or restructuring proposal, plan,
offer or any other restructuring or other reorganization, merger,
liquidation, dissolution or effort, other than the Plan, (C) not vote for,
consent to, support, or participate, directly, or indirectly, in the
negotiations, formulation, or motions regarding any plan of restructuring or
liquidation, other than the Plan, (D) use commercially reasonable efforts
(which will not be interpreted to require a party to this Agreement to pay
any amount other than its own attorneys' fees) to provide its unqualified
support of the Plan, (E) not oppose or object to confirmation or consummation
of the Plan or otherwise commence any legal proceeding to oppose or alter the
Plan or any other restructuring documents containing terms and conditions
materially consistent with the transactions specified in the Plan, and (F)
not take any other action that is inconsistent with, or that would obstruct
or hinder consummation of, the Plan, or challenge
47
HMP's, H Corp's or H Poly's rights under the Bankruptcy Code to exclusivity
or any extension of exclusivity relating to the Plan; and
(iii) In its capacity as the current controlling
stockholder of CPF, CPH shall take all actions necessary to cause CPF to
fulfill its obligations under the terms of this Agreement relating to the
Plan and the Debt Exchange Transactions, including filing Fast Track
Pleadings in accordance with the Fast Track Schedule.
12.6 HUNTSMAN PARTY SUPPORT COVENANTS.
(a) Until the obligations of GOF under Sections 12.4(a) and
12.4(b) terminate, each of H Corp, HMP and H Poly shall take all steps necessary
to implement the Debt Exchange Transactions.
(b) Until the obligations of GOF under Sections 12.4(a) and
12.4(b) terminate, in its capacity as the current controlling stockholder of
HMP, Family Holdings II shall take all actions necessary to cause HMP to fulfill
its respective obligations under this Agreement relating to the Debt Exchange
Transactions.
(c) Until the obligations of GOF under Sections 12.4(a) and
12.4(b) terminate, in its capacity as the current controlling stockholder of H
Corp and H Poly, HMP shall take all actions necessary to cause each of H Corp
and H Poly to fulfill its respective obligations under this Agreement relating
to the Debt Exchange Transactions.
(d) Until the obligations of GOF under Sections 12.4(a) and
12.4(b) terminate, in his capacity as the controlling member of Family Holdings
II, ▇▇. ▇▇▇▇▇▇▇▇ shall take all actions necessary to cause Family Holdings II to
fulfill its obligations under this Agreement relating to the Debt Exchange
Transactions.
(e) In the event that the Restructuring Plan is implemented by
means of a Chapter 11 Case, until the Lockup Termination Date:
(i) HMP, H Corp and H Poly shall take all steps
necessary to implement the Plan and the Debt Exchange Transactions, including
filing the Plan and the Fast Track Pleadings in accordance with the Fast
Track Schedule and the Plan;
(ii) Absent unforeseen or extraordinary
circumstances, neither H Corp nor H Poly shall, and HMP shall not permit
either of them to, seek any adjournments or other forms of delay in respect
of any material element of the Fast Track Schedule without the written
consent of GOF, and each of HMP, H Corp and H Poly shall use its reasonable
best efforts to expedite the Chapter 11 Case whenever possible, and to obtain
confirmation and consummation of the Plan as soon as reasonably practicable;
48
(iii) Each of HMP and Family Holdings II agrees to (A)
support, timely vote in favor of and take all reasonable actions required on
its part to support confirmation and consummation of the Plan, (B) not
directly or indirectly seek, support, encourage or solicit any exchange offer
or restructuring proposal, plan, offer or any other restructuring or other
reorganization, merger or liquidation, dissolution or effort, other than the
Plan, (C) not vote for, consent to, support, or participate, directly, or
indirectly, in the negotiations, formulation, or motions regarding, any plan
of restructuring or liquidation, other than the Plan, (D) use commercially
reasonable efforts (which will not be interpreted to require a party to this
Agreement to pay any amount other than its own attorneys' fees) to provide
its unqualified support of the Plan, (E) not oppose or object to confirmation
or consummation of the Plan or otherwise commence any legal proceeding to
oppose or alter the Plan or any other restructuring documents containing
terms and conditions materially consistent with the transactions specified in
the Plan, and (F) not take any other action that is inconsistent with, or
that would obstruct or hinder consummation of, the Plan, or challenge the
rights of HMP, H Corp or H Poly under the Bankruptcy Code to exclusivity (or
any extension of exclusivity) relating to the Plan;
(iv) In its capacity as the current controlling
stockholder of HMP, Family Holdings II shall take all actions necessary to
cause each of HMP, H Corp and H Poly to fulfill its obligations under the
terms of this Agreement relating to the Plan and the Debt Exchange
Transactions, including filing Fast Track Pleadings in accordance with the
Fast Track Schedule; and
(v) In its capacity as the current controlling
stockholder of H Corp and H Poly, HMP shall take all actions necessary to
cause each of H Corp and H Poly to fulfill its obligations under the terms of
this Agreement relating to the Plan and the Debt Exchange Transactions,
including filing Fast Track Pleadings in accordance with the Fast Track
Schedule.
12.7 LOCKUP TERMINATION DATES.
(a) GOF's Obligations pursuant to Section 12.4(b), at GOF's
option, shall terminate upon the date that is (a) in the event of a Voluntary
Proceeding, 180 days after the filing thereof, and (b) in the event of an
Involuntary Proceeding, upon the earlier to occur of (i) 180 days after the
entry of an order for relief therein and (ii) 270 days after the filing thereof
(the date of any such termination at GOF's option being referred to as the "GOF
OPTIONAL LOCKUP TERMINATION DATE"). Additionally, if no Voluntary Proceeding or
Involuntary Proceeding has been filed, GOF, CPF and Family Holdings II may, by
mutual consent, terminate each of their respective obligations pursuant to
Sections 12.4 and 12.6 (the date of any such termination being referred to
49
collectively with the term GOF Optional Lockup Termination Date as the "GOF
LOCKUP TERMINATION DATE").
(b) CPH's obligations pursuant to Section 12.5 and CPF's
Obligations pursuant to Section 12.5(c), at CPF's option, shall terminate upon
the date that is (a) in the event of a Voluntary Proceeding, 270 days after the
filing thereof, and (b) in the event of an Involuntary Proceeding, upon the
earlier to occur of (i) 270 days after the entry of an order for relief therein
and (ii) 360 days after the filing thereof (the date of any such termination at
CPF's option being referred to herein as the "CPF OPTIONAL LOCKUP TERMINATION
DATE"). Additionally, if no Voluntary Proceeding or Involuntary Proceeding has
been filed, CPF, GOF and Family Holdings II may, by mutual consent, terminate
each of their respective obligations (and in the case of CPF, the obligations of
CPH) pursuant to Sections 12.5 and 12.6 (the date of any such termination being
referred to collectively with the term CPF Optional Lockup Termination Date as
the "CPF LOCKUP TERMINATION DATE").
ARTICLE XIII
GENERAL PROVISIONS
13.1 EXPENSES. Except as provided in Sections 8.7 and 8.8, all costs
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such costs and
expenses.
13.2 NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally, telecopied
(with confirmation), mailed by registered or certified mail (return receipt
requested) or delivered by an express courier (with confirmation) to the parties
at the following addresses (or at such other address for a party as shall be
specified by like notice):
(a) if to HMP, H Corp or H Poly, to:
c/o Huntsman Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
with copies to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇
& ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇
50
and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇
and
(b) if to Family Holdings II, to:
Huntsman Family Holdings Company II LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
with copies to:
Huntsman Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
and
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
and
(c) if to GOF, to:
Matlin ▇▇▇▇▇▇▇▇▇ Global Opportunities
Partners L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
51
with a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
and
(d) if to CPF or CPH, to:
Consolidated Press Holdings Limited
Third Level, ▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copies to:
▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
and
Debevoise & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
(e) if to an Individual Investor, to the respective address
set forth under each Individual Investor's name on Exhibit 2.4.
13.3 COUNTERPARTS AND EFFECTIVENESS. This Agreement may be executed
in counterparts, all of which shall be considered one and the same agreement, it
being understood that all parties need not sign the same counterpart. This
Agreement shall become effective upon the execution hereof by each of the
parties hereto, and the delivery hereof to each party executing this Agreement.
13.4 ENTIRE AGREEMENT. This Agreement (including the documents and
the instruments referred to herein) constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof (including, but not
limited to, the Original Debt
52
Exchange Agreement, the Letter Agreement, TS 1), other than the Confidentiality
Agreement, executed in February 2002 by H Corp and GOF, and TS 2; provided,
however, that upon receipt of any required consent of, or the completion of any
required review by, the Administrative Agent with respect to the SPV Agreement
under that certain Lock-Up and Voting Agreement by and among H Corp and certain
of the lenders under the H Corp Credit Facility, this Agreement shall supersede
TS 2.
13.5 GOVERNING LAW. This Agreement shall be governed and construed
in accordance with the Laws of the State of
New York, without regard to any
applicable conflicts of law provisions thereof.
13.6 ENFORCEMENT OF AGREEMENT. The parties to this Agreement agree
that irreparable damage would occur in the event that the provisions contained
in this Agreement were not performed in accordance with its specific terms or
were otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions hereof in any court of the
United States or any state having jurisdiction, this being in addition to any
other remedy to which they are entitled at law or in equity.
13.7 SEVERABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
13.8 PUBLICITY. Except as otherwise required by law or the rules of
the
New York Stock Exchange, so long as this Agreement is in effect, no party to
this Agreement shall, or shall permit any of its Subsidiaries to, issue or cause
the publication of any press release or other public announcement with respect
to, or otherwise make any public statement concerning, the transactions
contemplated by this Agreement without the consent of the other parties.
13.9 ASSIGNMENT; NO THIRD PARTY BENEFICIARIES. Except as expressly
contemplated under Article II hereof with respect to the SPV, neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by any of the parties hereto (whether by operation of law or otherwise)
without the prior written consent of the other parties. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and assigns. Except
as otherwise expressly provided herein, this Agreement (including the documents
and instruments referred to herein) is not intended to confer upon any person
other than the parties hereto any rights or remedies hereunder.
13.10 B NOTE COVENANT LETTER. Each of GOF and H Corp hereby
acknowledges and agrees that for purposes of Section 4 of the letter agreement,
dated June 14, 2002 (the "B NOTE COVENANT LETTER"), among GOF, BNAC, Inc. and H
Corp, (a)
53
the reference to the "Option A Lockup Commitments" shall mean the obligations of
GOF under Section 12.4(a) hereof, and (b) the reference to the "Option B Lockup
Commitments" shall mean the obligations of GOF under Section 12.4(b) hereof.
13.11 NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES. None of the
representations and warranties in this Agreement shall survive the Closing.
54
IN WITNESS WHEREOF, the parties to this Agreement have caused this
Agreement to be executed by their respective officers thereunto duly authorized
as of the date first above written.
HUNTSMAN COMPANY LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
HUNTSMAN POLYMERS CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
HUNTSMAN FAMILY HOLDINGS II COMPANY LLC
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
HMP EQUITY HOLDINGS CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
[Counterpart signature page to
Debt Exchange Agreement]
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇
[Counterpart signature page to
Debt Exchange Agreement]
INVESTORS
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
[Counterpart signature page to Debt Exchange Agreement]
CONSOLIDATED PRESS HOLDINGS LIMITED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
CONSOLIDATED PRESS (FINANCIAL) LTD
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
[Counterpart signature page to Debt Exchange Agreement]
MATLIN ▇▇▇▇▇▇▇▇▇ GLOBAL
OPPORTUNITIES PARTNERS L.P.
By: Matlin ▇▇▇▇▇▇▇▇▇ Global Advisers LLC,
its Investment Advisor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
APPENDIX A
RESTRUCTURED CREDIT FACILITY TERM SHEET
EXHIBIT A
AMENDED AND RESTATED OPERATING AGREEMENT OF H CORP
EXHIBIT B
AMENDED AND RESTATED BYLAWS OF HMP
EXHIBIT C
CERTIFICATE OF AMENDMENT OF H CORP
EXHIBIT D
CERTIFICATE OF AMENDMENT OF HMP
EXHIBIT E
CONFIDENTIALITY AGREEMENT
APPENDIX B
FORM OF PLAN OF REORGANIZATION
EXHIBIT 2.1(a)
HMP/GOF RELEASE
SCHEDULE 2.1(b)
NEW GOF ASSETS
- GOF/ICI Purchase Agreement and all GOF's rights and obligations thereunder,
whether directly by GOF or through a wholly owned Subsidiary of GOF in the
form attached hereto as Exhibit 2.1-1
- Private Sale Letter in the form attached hereto as Exhibit 2.1-2
- B Note Covenant Letter in the form attached hereto as Exhibit 2.1-3
- All outstanding 8% Senior Subordinated Reset Discount Notes, due 2009, of
HIH, which are subject to that certain Pledge Agreement, dated June 14,
2002, among BNAC, ICI Americas Inc. and ICI Finance PLC.
- HIH Representation Letter in the form attached hereto as Exhibit 2.1-4
- All ancillary agreements between GOF or any of its affiliates and ICI or
any of its affiliates, entered into in connection with the Sale and
Purchase Agreement (unless HMP otherwise determines that any such ancillary
agreement shall not constitute a New Asset)
- US$2,400,000
EXHIBIT 2.2(a)
HMP/CPF RELEASE
EXHIBIT 2.4
INDIVIDUAL INVESTOR INFORMATION
INDIVIDUAL INVESTOR BNAC SHARES HH PREFERRED
NAME AND ADDRESS OWNED CLASS A UNITS MEMBER UNITS
-------------------- -------------------- ------------------- -------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 6,156 28,993 1,122,065
▇▇▇▇ ▇▇▇▇▇▇ 3,079 14,497 561,032
▇▇▇ ▇▇▇▇▇▇▇ 3,079 14,497 561,032
▇▇▇▇▇ ▇▇▇▇▇▇ 924 4,349 168,310
▇▇▇▇▇▇▇ ▇▇▇▇▇ 616 2,899 112,206
▇▇▇▇ ▇▇▇▇▇▇▇ 308 1,450 56,103
▇▇▇▇ ▇▇▇▇▇▇▇ 308 1,450 56,103
▇▇▇▇▇ ▇▇▇▇▇▇▇ 308 1,450 56,103
EXHIBIT 3.3(c)(iii)
INTEREST HOLDERS AGREEMENT
SCHEDULE 4.4
Shares of Class, A, B, and C Preferred Stock are convertible into shares of
Series A Common Stock in accordance with the provisions of the HMP Equity
Holdings Corporation's Certificate of Incorporation.
SCHEDULE 6.4(b)(i)
On August 7, 2002, BNAC offered and sold to the Investors the BNAC shares set
forth on Exhibit 2.4 to this Agreement. No registration statement, qualification
or other filing has been made, or is anticipated to be made by BNAC in Utah or
Texas with respect to such offer and sale.
Pursuant to the Stockholders Agreement, dated as of August 7, 2002, by and among
BNAC, GOF and each of the Investors, the Investors (a) have preemptive rights
with respect to the issuance of securities by BNAC, tag-along rights with
respect to the transfer of securities by GOF and certain other rights; and (b)
are subject to voting agreements, a proxy and take-along rights in favor of GOF
with respect to their BNAC Shares.
EXHIBIT 9.2
FORM OF LOCKUP AGREEMENT
APPENDIX 9.5
SPV ACTIONS
1. Upon consummation of the purchase of the Alta Interests (as defined in the
GOF/ICI Purchase Agreement), the SPV shall cause ICI Alta and HSCC to
terminate the MIOA (as defined in the GOF/ICI Purchase Agreement).
2. The SPV shall take, or shall cause its Subsidiaries to take, all such other
actions as shall be reasonably necessary to satisfy the Bank Consent
Condition.
EXHIBIT 10.1(d)
THE SPV AGREEMENT
APPENDIX 10.2(b)
PART I - PLAN PARAMETERS (ESSENTIAL FEATURES)
1. Satisfactory exit refinancing arrangements with the Bank Group.
2. Payment of trade creditors in full with respect to their pre-petition
claims in the ordinary course of the business of H Corp or H Poly.
3. The exchange of the entire GOF Bond Position (defined in the Plan to
include the CPF Bond Position) into New Common Stock and the release of the
Guarantees.
4. Accrued and unpaid interest due on Bonds held by persons other than GOF,
CPF or the HH Preferred Member shall be paid in full, and such Bonds shall
be treated as unimpaired under the Plan.
5. The continuation of management in their pre-bankruptcy positions in H Corp
and H Poly.
PART II - PLEADINGS TO IMPLEMENT THE FAST TRACK REORGANIZATION TO BE FILED BY H
CORP AND H POLY
1. Voluntary petition for HMP, H Corp and/or H Poly, all other Affiliates that
have guaranteed bank debt and such other Subsidiaries and/or Affiliates as
to which H Corp and/or H Poly and GOF agree in writing, the standard
attachments thereto (such as Exhibit A to the voluntary petition and a copy
of the appropriate board resolutions) and related pleadings including but
not limited to the list of the 20 largest creditors and a creditors'
matrix.
2. Standard first-day pleadings including but not limited to applications to
retain professionals and motions re: cash management of bank accounts and
to honor pre-petition payroll and employee benefits obligations in the
ordinary course of business.
3. A motion and related declarations and memoranda seeking an order permitting
H Corp and H Poly to pay its vendor and other unsecured debt in the
ordinary course of business in light of the pre-pack nature of the Plan and
in light of the Plan's treatment of such debt as unimpaired.
4. Debtor-in-possession financing documents. A motion and related documents
and memoranda seeking an emergency order authorizing H Corp and/or H Poly
to enter into debtor-in-possession financing arrangements with the Bank
Group or any other lender reasonably acceptable to H Corp and/or H Poly and
GOF on terms reasonably acceptable to H Corp and/or H Poly and GOF (or a
cash collateral motion reasonably acceptable to the H Corp and/or H Poly
and GOF if debtor-in-possession financing is unnecessary).
Appendix 10.2(b) Page 1 of 2
5. The Plan and a motion seeking an order confirming the Plan and approving
prepetition solicitation of consents thereto at a hearing to be commenced
within sixty (60) days after the filing of such motion.
Appendix 10.2(b) Page 2 of 2