Exhibit 4.2
CORE-MARK INTERNATIONAL, INC.
$75,000,000
11-3/8% SENIOR SUBORDINATED NOTES DUE 2003
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
September 27, 1996
CHASE SECURITIES INC.
270 Park Avenue
New York, New York 10017
DONALDSON, LUFKIN, & JENRETTE
SECURITIES CORPORATION
277 Park Avenue
New York, NY 10072
Dear Sirs:
Core-Mark International Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to certain purchasers (the "Initial Purchasers"),
upon the terms set forth in a purchase agreement dated September 24, 1996 (the
"Purchase Agreement"), $75,000,000 principal amount of its Senior Subordinated
Notes due 2003 (the "Notes"). The Notes are to be issued pursuant to an
Indenture dated as of September 27, 1996 (the "Indenture"), between the Company
and Bankers Trust Company, as trustee (the "Trustee"). Capitalized terms used
but not specifically defined herein are defined in the Purchase Agreement. As
an inducement to the Initial Purchasers to enter into the Purchase Agreement and
in satisfaction of a condition to your obligations thereunder, the Company
agrees with you, for the benefit of the holders of the Notes (including the
Initial Purchasers) (the "Holders"), as follows:
1. REGISTERED EXCHANGE OFFER. The Company shall prepare and, not
later than 45 days following the Closing Date, shall file with the Commission a
registration
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statement (the "Exchange Offer Registration Statement") on an appropriate form
under the Securities Act with respect to a proposed offer (the "Registered
Exchange Offer") to the Holders to issue and deliver to such Holders, in
exchange for the Notes, a like aggregate principal amount of debt securities of
the Company (the "Exchange Notes") identical in all material respects to the
Notes, except for the transfer restrictions relating to the Notes, shall use its
best efforts to cause the Exchange Offer Registration Statement to become
effective under the Securities Act within 105 days of the Closing Date and shall
keep the Exchange Offer Registration Statement effective for not less than
30 days (or longer, if required by applicable law) after the date notice of the
Exchange Offer is mailed to the Holders (such period being called the "Exchange
Offer Registration Period"). The Exchange Notes will be issued under the
Indenture or an indenture (the "Exchange Notes Indenture") between the Company
and the Trustee or such other bank or trust company reasonably satisfactory to
you, as trustee (the "Exchange Notes Trustee"), such indenture to be identical
in all material respects with the Indenture except for the transfer restrictions
relating to the Notes (as described above).
Upon the effectiveness of the Exchange Offer Registration Statement,
the Company shall promptly commence the Registered Exchange Offer, it being the
objective of such Registered Exchange Offer to enable each Holder electing to
exchange Notes for Exchange Notes (assuming that such Holder is not an affiliate
of the Company within the meaning of the Securities Act, acquires the Exchange
Notes in the ordinary course of such Holder's business and has no arrangements
or understandings with any person to participate in the distribution of the
Exchange Notes) to trade such Exchange Notes from and after their receipt
without any limitations or restrictions under the Securities Act and without
material restrictions under the securities laws of the several states of the
United States. The Company acknowledges that, pursuant to current
interpretations by the Commission's staff of Section 5 of the Securities Act,
(i) each Holder which is a broker-dealer electing to exchange Notes, acquired
for its own account as a result of market making activities or other trading
activities, for Exchange Notes (an "Exchanging Dealer"), is required to deliver
a prospectus containing the information set forth in Annex A hereto on the
cover, in Annex B hereto in the "Exchange Offer Procedures" section and the
"Purpose of the Exchange Offer" section, and in Annex C hereto in the
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"Plan of Distribution" section of such prospectus in connection with a sale of
any such Exchange Notes received by such Exchanging Dealer pursuant to the
Registered Exchange Offer and (ii) if any Initial Purchaser elects to sell
Exchange Notes acquired in exchange for Notes constituting any portion of an
unsold allotment it is required to deliver a prospectus, containing the
information required by Items 507 and/or 508 of Regulation S-K under the
Securities Act, as applicable, in connection with such a sale.
In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days
after the date notice thereof is mailed to the Holders (or longer if
required by applicable law);
(c) utilize the services of a Depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York;
(d) permit Holders to withdraw tendered Notes at any time prior to the
close of business, New York time, on the last business day on which the
Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all applicable laws
applicable to the Registered Exchange Offer.
As soon as practicable after the close of the Registered Exchange
Offer, the Company shall:
(a) accept for exchange all Notes tendered and not validly withdrawn
pursuant to the Registered Exchange Offer;
(b) deliver to the Trustee for cancellation all Notes so accepted for
exchange; and
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(c) cause the Trustee or the Exchange Notes Trustee, as the case may
be, promptly to authenticate and deliver to each Holder of Notes, Exchange
Notes equal in principal amount to the Notes of such Holder so accepted for
exchange.
The Company shall make available for a period of 180 days after the
consummation of the Registered Exchange Offer, a copy of the prospectus forming
part of the Exchange Offer Registration Statement to any broker-dealer for use
in connection with any resale of any Exchange Notes.
Interest on each Exchange Note issued pursuant to the Registered
Exchange Offer will accrue from the last interest payment date on which interest
was paid on the Notes surrendered in exchange therefor or, if no interest has
been paid on the Notes, from the date of original issue of the Notes.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company that at the time of the consummation of the
Registered Exchange Offer (i) any Exchange Notes received by such Holder will be
acquired in the ordinary course of business, (ii) such Holder will have no
arrangements or understanding with any person to participate in the distribution
of the Notes or the Exchange Notes within the meaning of the Securities Act and
(iii) such Holder is not an affiliate of the Company within the meaning of the
Securities Act.
Notwithstanding any other provisions hereof, the Company will ensure
that (i) any Exchange Offer Registration Statement and any amendment thereto and
any prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations
thereunder, (ii) any Exchange Offer Registration Statement and any amendment
thereto does not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) any prospectus
forming part of any Exchange Offer Registration Statement, and any supplement to
such prospectus, does not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
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2. SHELF REGISTRATION. If, (a) because of any change in law or
applicable interpretations thereof by the Commission's staff, the Company
determines that it is not permitted to effect the Registered Exchange Offer as
contemplated by Section 1 hereof, or (b) if for any other reason the Registered
Exchange Offer is not consummated within 135 days of the date hereof (unless the
Company has commenced such Registered Exchange Offer prior to such 135th day and
completes such offer within 30 days thereafter), or (c) if any Initial Purchaser
so requests with respect to Notes not eligible to be exchanged for Exchange
Notes in a Registered Exchange Offer and held by it following consummation of
the Registered Exchange Offer, or (d) if any applicable laws or applicable
interpretations do not permit any Holder (including an Initial Purchaser, but
excluding any Exchanging Dealer) to participate in such Registered Exchange
Offer, or (e) any Holder that participates in the Registered Exchange Offer
(other than an Exchanging Dealer), does not receive freely tradeable Exchange
Notes in exchange for tendered Notes upon the consummation of such offer or (f)
if the Company so elects, then the following provisions shall apply:
(a) The Company shall use its best efforts as promptly as practicable
to file with the Commission and thereafter shall use its best efforts to cause
to be declared effective a registration statement on an appropriate form under
the Securities Act relating to the offer and sale of the Transfer Restricted
Notes (as defined below) by the Holders from time to time in accordance with the
methods of distribution elected by such Holders and set forth in such
registration statement (hereafter, a "Shelf Registration Statement" and,
together with any Exchange Offer Registration Statement, a "Registration
Statement").
(b) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the prospectus
forming part thereof to be usable by Holders for a period of three years from
the Closing Date or such shorter period that will terminate when all the Notes
covered by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement or pursuant to Rule 144 under the Securities Act (in any
such case, such period being called the "Shelf Registration Period"). The
Company shall be deemed not to have used its best efforts to keep the Shelf
Registration Statement effective during the requisite period if it voluntarily
takes any action that would result in Holders of Notes
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covered thereby not being able to offer and sell such Notes during that period,
unless such action, in the opinion of the Company after consulting with legal
counsel, is required by applicable law.
(c) Notwithstanding any other provisions hereof, the Company will
ensure that (i) any Shelf Registration Statement and any amendment thereto and
any prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations
thereunder, (ii) any Shelf Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) any prospectus forming part
of any Shelf Registration Statement, and any supplement to such prospectus does
not include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
3. LIQUIDATED DAMAGES. (a) The parties hereto agree that the Holders
of Notes will suffer damages if the Company fails to fulfill its obligations
under Section 1 or Section 2, as applicable, and that it would not be feasible
to ascertain the extent of such damages. Accordingly, if (i) the applicable
Registration Statement is not filed with the Commission on or prior to 45 days
after the Closing Date, (ii) the Exchange Offer Registration Statement or, as
the case may be, the Shelf Registration Statement, is not declared effective
within 105 days after the Closing Date, (iii) the Exchange Offer is not
consummated on or prior to 135 days after the Closing Date, or (iv) the Shelf
Registration Statement is filed and declared effective within 105 days after the
Closing Date but shall thereafter cease to be effective (at any time that the
Company is obligated to maintain the effectiveness thereof) without being
succeeded within 30 days by an additional Registration Statement filed and
declared effective (each such event referred to in clauses (i) through (iv), a
"Registration Default"), the Company will pay liquidated damages to each holder
of Transfer Restricted Notes (as defined below) in an amount equal to $0.192 per
week per $1,000 principal amount of the Notes constituting Transfer Restricted
Notes held by such holder until (i) the applicable Registration Statement is
filed, (ii) the Exchange Registration Statement is declared effective and the
Exchange Offer is consummated,
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(iii) the Shelf Registration Statement is declared effective or (iv) the Shelf
Registration Statement again becomes effective, as the case may be. Following
the cure of all Registration Defaults, the accrual of liquidated damages will
cease. "Transfer Restricted Notes" means each Note until (i) the date on which
such Note has been exchanged for a freely transferrable Exchange Notes in the
Exchange Offer, (ii) the date on which such Note has been effectively registered
under the Securities Act and disposed of in accordance with the Shelf
Registration Statement or (iii) the date on which such Note is distributed to
the public pursuant to Rule 144 under the Securities Act or is salable pursuant
to Rule 144(k) under the Securities Act. Notwithstanding anything to the
contrary in this Section 3(a), the Company shall not be required to pay
liquidated damages to the holder of Transfer Restricted Notes if such holder:
(a) failed to comply with its obligations to make the representations in the
second to last paragraph of Section 1; or (b) failed to provide the information
required to be provided by it, if any, pursuant to Section 4(n).
(b) The Company shall notify the Trustee and Paying Agent under the
Indenture immediately upon the happening of each and every Registration Default.
The Company shall pay the liquidated damages due on the Transfer Restricted
Notes by depositing with the Paying Agent (which may not be the Company for
these purposes), in trust, for the benefit of the Holders thereof, prior to
10:00 a.m. New York City time on the next interest payment date specified by the
Indenture and the Notes, sums sufficient to pay the liquidated damages then due.
The liquidated damages due shall be payable on each interest payment date
specified by the Indenture and the Notes to the record holder entitled to
receive this interest payment to be made on such date. Each obligation to pay
liquidated damages shall be deemed to accrue from and including the applicable
Registration Default.
(c) The parties hereto agree that the liquidated damages provided for
in this Section 3 constitute a reasonable estimate of and are intended to
constitute the sole damages that will be suffered by holders of Transfer
Restricted Notes by reason of the failure of (i) the Shelf Registration
Statement or the Exchange Offer Registration Statement to be filed, (ii) the
Shelf Registration Statement to be declared effective or to remain effective, or
(iii) the Exchange Offer Registration Statement to be
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declared effective and the Exchange Offer to be consummated, to the extent
required by this Agreement.
4. REGISTRATION PROCEDURES. In connection with any Registration
Statement, the following provisions shall apply:
(a) The Company shall (i) furnish to you, prior to the filing thereof
with the Commission, a copy of the Registration Statement and each amendment
thereof and each supplement, if any, to the prospectus included therein and, in
the event that any of the Initial Purchasers (with respect to any portion of an
unsold allotment from the original offering) are participating in the Registered
Exchange Offer or the Shelf Registration, shall use reasonable efforts to
reflect in each such document, when so filed with the Commission, such comments
as you reasonably may propose; (ii) with respect to an Exchange Offer
Registration Statement, include the information set forth in Annex A hereto on
the cover, in Annex B hereto in the "Exchange Offer Procedures" section and the
"Purpose of the Exchange Offer" section and in Annex C hereto in the "Plan of
Distribution" section of the prospectus forming a part of the Exchange Offer
Registration Statement, and include the information set forth in Annex D hereto
in the Letter of Transmittal delivered pursuant to the Registered Exchange
Offer; and (iii) if requested by any Initial Purchaser, include the information
required by Items 507 or 508 of Regulation S-K under the Securities Act, as
applicable, in the prospectus forming a part of the Exchange Offer Registration
Statement.
(b) The Company shall advise you and, in the case of a Shelf
Registration Statement, the Holders (if applicable), and, if requested by you or
any such Holder, confirm such advice in writing (which advice pursuant to
clauses (ii)-(v) hereof shall be accompanied by an instruction to suspend the
use of the prospectus until the requisite changes have been made):
(i) when the Registration Statement and any amendment thereto has been
filed with the Commission and when the Registration Statement or any
posteffective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or supplements to
the Registration Statement
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or the prospectus included therein or for additional information;
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose;
(iv) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Notes or the Exchange Notes for
sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose; and
(v) of the happening of any event that requires the making of any
changes in the Registration Statement or the prospectus so that, as of such
date, the statements therein are not misleading and do not omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(c) The Company will use its best efforts to obtain the withdrawal of
any order suspending the effectiveness of any Registration Statement at the
earliest possible time.
(d) The Company will furnish to each Holder of Notes included within
the coverage of any Shelf Registration Statement, without charge, at least one
copy of such Shelf Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if the Holder so
requests in writing, all exhibits (including those incorporated by reference).
(e) The Company will deliver to each Holder of Notes included within
the coverage of any Shelf Registration Statement, without charge, as many copies
of the prospectus (including each preliminary prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such Holder
may reasonably request; and the Company consents to the use of the prospectus or
any amendment or supplement thereto by each of the selling Holders of Notes in
connection with the offering and sale of the Notes covered by the prospectus or
any amendment or supplement thereto.
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(f) The Company will furnish to each Exchanging Dealer or Initial
Purchaser, as applicable, which so requests, without charge, at least one copy
of the Exchange Offer Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if the Exchanging
Dealer or Initial Purchaser, as applicable, so requests in writing, all exhibits
(including those incorporated by reference).
(g) The Company will, during the Exchange Offer Registration Period
or the Shelf Registration Period, as applicable, promptly deliver to each
Exchanging Dealer or Initial Purchaser, as applicable, without charge, as many
copies of the prospectus included in such Exchange Offer Registration Statement
or Shelf Registration Statement, as applicable, and any amendment or supplement
thereto as such Exchanging Dealer or Initial Purchaser, as applicable, may
reasonably request for delivery by (i) such Exchanging Dealer in connection with
a sale of Exchange Notes received by it pursuant to the Registered Exchange
Offer or (ii) such Initial Purchaser in connection with a sale of Exchange Notes
received by it in exchange for Notes constituting any portion of an unsold
allotment; and the Company consents to the use of the prospectus or any
amendment or supplement thereto by any such Exchanging Dealer or Initial
Purchaser, as applicable, as aforesaid.
(h) Prior to any public offering of Notes or Exchange Notes pursuant
to any Registration Statement, the Company will use its best efforts to register
or qualify or cooperate with the Holders of Notes included therein and their
respective counsel in connection with the registration or qualification of such
securities for offer and sale under the securities or blue sky laws of such
jurisdictions as any such Holder reasonably requests in writing and do any and
all other acts or things necessary or advisable to enable the offer and sale in
such jurisdictions of the Notes or Exchange Notes covered by such Registration
Statement; PROVIDED, HOWEVER, that the Company (or any subsidiary or affiliate
of the Company) will not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action which would
subject it to general service of process or to taxation in any such jurisdiction
where it is not then so subject.
(i) The Company will cooperate with the Holders of Notes to
facilitate the timely preparation and delivery of certificates representing
Notes or Exchange Notes to be
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sold pursuant to any Registration Statement free of any restrictive legends and
in such denominations and registered in such names as Holders may request in
writing prior to sales of Notes or Exchange Notes pursuant to such Registration
Statement.
(j) Upon the occurrence of any event contemplated by
paragraphs (b)(ii) through (v) above during the period for which the Company is
required to maintain an effective Registration Statement, the Company will
promptly prepare a post-effective amendment to the Registration Statement or a
supplement to the related prospectus or file any other required document so
that, as so amended or supplemented, the prospectus will not include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(k) Not later than the effective date of the applicable Registration
Statement, the Company will provide a CUSIP number for the Notes or Exchange
Notes, as the case may be, and provide the applicable trustee with printed
certificates for the Notes or Exchange Notes, as the case may be, in a form
eligible for deposit with The Depositary Trust Company.
(l) The Company will comply with all applicable rules and regulations
of the Commission and will make generally available to its security holders not
later than 90 days after the end of the 12 month period beginning at the end of
the fiscal quarter in which the applicable Registration Statement first became
effective under the Securities Act, an earnings statement (which need not be
audited) satisfying the provisions of Section 11(a) of the Securities Act.
(m) The Company will cause the Indenture or the Exchange Notes
Indenture, as the case may be, to be qualified under the Trust Indenture Act as
required by applicable law in a timely manner.
(n) The Company may require each Holder of Notes to be sold pursuant
to any Shelf Registration Statement to furnish to the Company such information
regarding the Holder and the distribution of such Notes as the Company may from
time to time reasonably require for inclusion in such Registration Statement,
and the Company may exclude from such registration the Notes of any Holder that
unreasonably
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fails to furnish such information within a reasonable time after receiving such
request.
(o) The Company shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form) and take
all such other action, if any, as Holders of a majority in aggregate principal
amount of Notes or Exchange Notes being sold or the managing underwriters (if
any) shall reasonably request in order to facilitate the disposition of Notes
pursuant to any Shelf Registration Statement.
(p) In the case of a Shelf Registration Statement, the Company shall
(i) make reasonably available for inspection by a representative of, and Special
Counsel (as defined) acting for, a majority in aggregate principal amount of the
Holders, and any underwriter participating in any disposition pursuant to a
Shelf Registration Statement, all relevant financial and other records,
pertinent corporate documents and properties of the Company and the Subsidiaries
and (ii) use reasonable efforts to have Company's and the Subsidiaries'
officers, directors, employees, accountants and auditors supply all relevant
information reasonably requested by such representative, counsel or any such
underwriter (an "Inspector") in connection with any such Registration Statement,
subject to executing a confidentiality undertaking in customary form with
respect to confidential or proprietary information of the Company or such
Subsidiary.
(q) In the case of a Shelf Registration Statement, the Company, if
requested by Holders of a majority in aggregate principal amount of the Notes
and Exchange Notes being sold, their Special Counsel, or the managing
underwriters (if any) in connection with any Shelf Registration Statement, shall
use its best efforts to cause (w) its counsel to deliver an opinion relating to
the Registration Statement and the Notes or the Exchange Notes, as applicable,
in customary form, (x) its officers to execute and deliver all customary
documents and certificates requested by Holders of a majority in aggregate
principal amount of the Notes and Exchange Notes being sold, their Special
Counsel, or the managing underwriters (if any) and (y) its independent public
accountants to provide a comfort letter in customary form, subject to receipt of
appropriate documentation as contemplated, and only if permitted, by Statement
of Auditing Standards No. 72.
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(r) The Company will use reasonable efforts to cause the Notes or the
Exchange Notes, as applicable, covered by a Registration Statement to be rated
with an appropriate rating agency, if so requested by Holders of a majority in
aggregate principal amount of Securities covered by such Registration Statement
or the Exchange Notes, as the case may be, or by the managing underwriters, if
any.
(s) The Company will use reasonable efforts to cause the Notes or the
Exchange Notes, as applicable, relating to such Registration Statement to be
listed on each securities exchange, if any, on which debt securities issued by
the Company are then listed, if so requested by Holders of a majority in
aggregate principal amount of Notes covered by such Registration Statement or
the Exchange Notes, as the case may be, or by the managing underwriters, if any.
(t) In the case of a Shelf Registration Statement, each Holder of
Notes agrees by acquisition of such Notes that, upon receipt of any notice of
the Company pursuant to Section 4(b)(ii) through (v) hereof, such Holder will
discontinue disposition of such Notes covered by such Registration Statement
until such Holder's receipt of copies of the supplemental or amended prospectus
contemplated by Section 4(j) hereof, or until advised in writing (the "Advice")
by the Company that the use of the applicable prospectus may be resumed. If the
Company shall give any notice under Section 4(b)(ii) through (v) during the
period that the Company is required to maintain an effective Registration
Statement (the "Effectiveness Period"), such Effectiveness Period shall be
extended by the number of days during such period from and including the date of
the giving of such notice to and including the date when each seller of Notes
covered by such Registration Statement shall have received (x) the copies of the
supplemental or amended prospectus contemplated by Section 4(j) (if an amended
or supplemental prospectus is required) or (y) the Advice (if no amended or
supplemental prospectus is required).
5. REGISTRATION EXPENSES. The Company will bear all expenses
incurred in connection with the performance of its obligations under Sections 1,
2, 3 and 4 hereof and the Company will reimburse the Initial Purchasers and the
Holders for the reasonable fees and disbursements of one firm of attorneys (in
addition to local counsel) chosen by the Holders of a majority in aggregate
principal amount of the Notes and the Exchange Notes to be sold pursuant to a
Registration Statement (the "Special Counsel") acting for
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the Initial Purchasers or Holders in connection therewith. The Holders shall be
responsible for all underwriting commissions and discounts in the case of a
Shelf Registration Statement.
6. INDEMNIFICATION. (a) In the event of a Shelf Registration
Statement or in connection with any prospectus delivery pursuant to an Exchange
Offer Registration Statement by an Exchanging Dealer or Initial Purchaser, as
applicable, as contemplated in Section 4(g) above, the Company shall indemnify
and hold harmless each Holder and each person, if any, who controls such Holder
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, (promptly following receipt of a statement or
statements therefor in reasonable detail) arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
such Registration Statement or any prospectus forming part thereof or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and
(ii) against any and all expense whatsoever, as incurred (promptly
following receipt of a statement or statements therefor in reasonable
detail) (including, subject to Section 6(c) hereof, the reasonable fees and
disbursements of counsel chosen by the indemnified party), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental or regulatory agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission;
PROVIDED, HOWEVER, that (i) this indemnity shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by you
or the indemnified party expressly for use in such Registration Statement and
(ii) this indemnity with respect to any untrue statement or alleged untrue
statement
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or omission or alleged omission in any related preliminary prospectus shall not
enure to the benefit of any indemnified party from whom the person asserting any
such loss, claim damage or liability received Notes or Exchange Notes if such
persons did not receive a copy of the final prospectus at or prior to the
confirmation of the sale of such Notes or Exchange Notes to such person in any
case where such delivery is required by the Securities Act and the untrue
statement or omission of material fact contained in the related preliminary
prospectus was corrected in the final prospectus unless such failure to deliver
the final prospectus was a result of noncompliance by the Company with Sections
4(d), 4(e), 4(f) or 4(g).
(b) In the event of a Shelf Registration Statement, each Holder agrees
to indemnify and hold harmless the Company, each of its respective directors,
officers, agents and employees and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act and the directors, officers, agents and employees of such
controlling persons against any and all loss, liability, claim, damage and
expense described in the indemnity contained in Section 6(a) hereof, as
incurred, arising out of or based upon any untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment or supplement thereto) in reliance on and in conformity with
written information furnished to the Company by such Holder expressly for use in
the Registration Statement (or in such amendment or supplement); PROVIDED,
HOWEVER, that no such Holder shall be liable for any indemnity claims hereunder
in excess of the amount of net proceeds received by such Holder from the sale of
Notes or Exchange Notes pursuant to the Registration Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any claim or action
commenced against it in respect of which indemnity may be sought hereunder;
PROVIDED, HOWEVER, that failure to so notify an indemnifying party shall not
relieve such indemnifying party from any obligation that it may have pursuant to
this Section except to the extent it has been materially prejudiced by such
failure; PROVIDED FURTHER, HOWEVER, that the failure to notify the indemnifying
party shall not relieve it from any liability that it may have to an indemnified
party otherwise than on account of this Section. If any such claim or action
shall be brought against an indemnified party, the
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indemnified party shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 6 for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation; PROVIDED,
HOWEVER, that an indemnified party will have the right to employ its own counsel
in any such action, but the fees, expenses and other charges of such counsel
will be at the expense of such indemnified party unless (1) the employment of
counsel by the indemnified party has been authorized in writing by the
indemnifying party, (2) the indemnified party has reasonably concluded (based on
advice of counsel) that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those available to
the indemnifying party, (3) a conflict or potential conflict exists (based on
advice of counsel to the indemnified party) between the indemnified party and
indemnifying party (in which case the indemnifying party will not have the right
to direct the defense of such action on behalf of the indemnified party) or
(4) the indemnifying party has not in fact employed counsel to assume the
defense of such action within a reasonable time after receiving notice of the
commencement of the action, in each of which cases the reasonable fees,
disbursements and other charges of counsel will be at the expense of the
indemnifying party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm of attorneys (in addition to any
local counsel) at any one time for all such indemnified party or parties. Each
indemnified party, as a condition of the indemnity agreements contained in
Sections 6(a) and 6(b), shall use all reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. No indemnifying
party shall be liable for any settlement of any such action effected without its
written consent, but if settled with its written consent (which consent shall
not be unreasonably withheld) or if there be a final judgment for the plaintiff
in any such action, the
17
indemnifying party agrees to indemnify and hold harmless any indemnified party
from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(d) If a claim by an indemnified party for indemnification under this
Section 6 is found unenforceable in a final judgment by a court of competent
jurisdiction (not subject to further appeal or review) even though the express
provisions hereof provide for indemnification in such case, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses in such proportion as is appropriate to reflect the relative
fault of the indemnifying party and indemnified party in connection with the
actions, statements or omissions that resulted in such losses as well as any
other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission of a
material fact, has been taken or made by, or relates to information supplied by,
such indemnifying party or indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a
result of any losses shall be deemed to include, subject to the limitations set
forth in Section 6(c) herein, any legal or other fees or expenses reasonably
incurred by such party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section, an indemnifying party that is a
holder of Transfer Restricted Notes or Exchange Notes shall not be required to
18
contribute any amount in excess of the amount by which the total price at which
the Notes or Exchange Notes sold by such indemnifying party and distributed to
the public were offered to the public exceeds the amount of any damages that
such indemnifying party has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to any contribution from any person who
was not guilty of such fraudulent misrepresentation.
7. RULES 144 AND 144A. The Company shall use its best efforts to
file the reports required to be filed by it under the Securities Act and the
Exchange Act in a timely manner and, if at any time the Company is not required
to file such reports, it will, upon the written request of any holder of
Transfer Restricted Notes, make publicly available other information so long as
necessary to permit sales of their securities pursuant to Rules 144 and 144A.
The Company covenants that it will take such further action as any holder of
Transfer Restricted Notes may reasonably request, all to the extent required
from time to time to enable such holder to sell Transfer Restricted Notes
without registration under the Securities Act within the limitation of the
exemptions provided by Rules 144 and 144A (including, without limitation, the
requirements of Rule 144A(d)(4)). Upon the written request of any holder of
Transfer Restricted Notes, the Company shall deliver to such holder a written
statement as to whether it has complied with such requirements. Notwithstanding
the foregoing, nothing in this Section 7 shall be deemed to require the Company
to register any of its securities pursuant to the Exchange Act.
8. UNDERWRITTEN REGISTRATIONS. If any of the Transfer Restricted
Notes covered by any Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be selected by the holders of a majority
in aggregate principal amount of such Transfer Restricted Notes included in such
offering, subject to the consent of the Company (which shall not be unreasonably
withheld or delayed). The Holders shall be responsible for all underwriting
commissions and discounts.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted Notes on
the basis
19
reasonably provided in any underwriting arrangements approved by the persons
entitled hereunder to approve such arrangements and (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
9. MISCELLANEOUS. (a) AMENDMENTS AND WAIVERS. The provisions of
this Agreement may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, unless the
Company has obtained the written consent of Holders of a majority in aggregate
principal amount of the Notes and the Exchange Notes, taken as a single class.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of the
Holders of Notes whose Notes or Exchange Notes are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of a majority in aggregate
principal amount of the Notes or Exchange Notes being sold by such Holders
pursuant to such Registration Statement.
(b) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the most current address given by such Holder
to the Company in accordance with the provisions of this Section 9(b),
which address initially is, with respect to each Holder, the address of
such Holder maintained by the Registrar under the Indenture, with a copy in
like manner to Chase Securities Inc.;
(2) if to you, initially at the respective addresses set forth in the
Purchase Agreement; and
(3) if to the Company, initially at the address set forth in the
Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one business day after
being delivered to a next-day air courier; five business days after being
deposited in the mail; when answered back, if faxed; and
20
when receipt is acknowledged by the recipient's telecopier machine, if
telecopied.
(c) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Company and its successors and assigns.
(d) COUNTERPARTS. This Agreement may be executed in any number of
counterparts (which may be delivered in original form or by telecopies) and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(e) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(f) GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED
WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE COMPANY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW,
TRIAL BY JURY AND ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE
RIGHT OF ANY HOLDER OF A TRANSFER RESTRICTED NOTE TO SERVE PROCESS IN ANY MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
THE COMPANY IN ANY OTHER JURISDICTION.
(g) REMEDIES. In the event of a breach by the Company, or by a
holder of Transfer Restricted Notes, of any of their obligations under this
Agreement, each holder of Transfer Restricted Notes or the Company, as the case
may
21
be, in addition to being entitled to exercise all rights granted by law,
including recovery of damages (other than the recovery of damages for a breach
by the Company of its obligations under Sections 1 or 2 hereof for which
liquidated damages have been paid pursuant to Section 3 hereof), will be
entitled to specific performance of its rights under this Agreement. The
Company and each holder of Transfer Restricted Notes agree that, except for such
liquidated damages, when payable monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agree that, in the event of any
action for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
(h) NO INCONSISTENT AGREEMENTS. The Company has not, nor shall the
Company on or after the date of this Agreement, enter into any agreement that is
inconsistent with the rights granted to the holders of Transfer Restricted Notes
in this Agreement or otherwise conflicts with the provisions hereof. The
Company has not previously entered into any agreement which remains in effect
granting any registration rights with respect to any of its debt securities to
any person. Without limiting the generality of the foregoing, without the
written consent of the holders of a majority in aggregate principal amount of
the then outstanding Transfer Restricted Notes, the Company shall not grant to
any person the right to request the Company to register any debt securities of
the Company under the Securities Act unless the rights so granted are subject in
all respects to the prior rights of the holders of Transfer Restricted Notes set
forth herein, and are not otherwise in conflict or inconsistent with the
provisions of the Agreement.
(i) NO PIGGYBACK ON REGISTRATIONS. Neither the Company nor any of
its securityholders (other than the holders of Transfer Restricted Notes in such
capacity) shall have the right to include any securities of the Company in any
Shelf Registration or Exchange Offer other than Transfer Restricted Notes.
(j) SEVERABILITY. The remedies provided herein are cumulative and
not exclusive of any remedies provided by law. If any term, provision, covenant
or restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set
22
forth herein shall remain in full force and effect and shall in no way be
affected, impaired or invalidated, and the parties hereto shall use their
reasonable efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
22
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
CORE-MARK INTERNATIONAL, INC.
By: /s/ Leo F. Korman
_________________________
Name: Leo F. Korman
Title: Senior Vice President and
Chief Financial Officer
Accepted in New York, New York
CHASE SECURITIES INC.
By: /s/ Stephen J. Eichenberger
______________________________
Name: Stephen J. Eichenberger
Title: Managing Director
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ Daniel K. Flatley
_____________________________
Name: Daniel K. Flatley
Title: Managing Director
23
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Notes received in exchange for Existing Notes where
such Existing Notes were acquired by such broker-dealer as a result of market-
making activities or other trading activities. The Company has agreed that, for
a period of 180 days after the Expiration Date (as defined herein), it will make
this Prospectus available to any broker-dealer for use in connection with any
such resale. See "Plan of Distribution."
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Notes, where such Notes were acquired by such broker-dealer as a
result of market-making activities or other trading activities, must acknowledge
that it will deliver a prospectus in connection with any resale of such Exchange
Notes. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Existing Notes where such Existing Notes were acquired as a result
of market-making activities or other trading activities. The Company has agreed
that, for a period of 180 days after the Expiration Date, it will make this
prospectus, as amended or supplemented, available to any broker-dealer for use
in connection with any such resale. In addition, until ,
199 , all dealers effecting transactions in the Exchange Notes may be required
to deliver a prospectus. */
The Company will not receive any proceeds from any sale of Exchange
Notes by broker-dealers. Exchange Notes received by broker-dealers for their
own account pursuant to the Exchange Offer may be sold from time to time in one
or more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the Exchange Notes or a combination of such
methods of resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may
receive compensation in the form of commissions or concessions from any such
broker-dealer or the purchasers of any such Exchange Notes. Any broker-dealer
that resells Exchange Notes that were received by it for its own account
pursuant to the Exchange Offer and any broker or dealer that participates in a
distribution of such Exchange Notes may be deemed to be an "underwriter" within
the meaning of the Securities Act and any profit on any such resale of Exchange
Notes and any commission or concessions received by any such persons may be
deemed to be underwriting compensation under the Securities Act. The Letter of
Transmittal states that, by acknowledging that it will deliver and by delivering
a prospectus, a broker-dealer will not be deemed to admit that
_______________________
*/ In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Exchange Offer prospectus.
3
it is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
Holders of the Notes) other than commissions or concessions of any brokers or
dealers and will indemnify the Holders of the Notes (including any broker-
dealers) against certain liabilities, including liabilities under the Securities
Act.
ANNEX D
____
/____/ CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO
RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND
10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name: ____________________________________________
Address: _________________________________________
_________________________________________
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Notes. If the undersigned is a broker-dealer that will receive Exchange Notes
for its own account in exchange for Notes that were acquired as a result of
market-making activities or other trading activities, it acknowledges that it
will deliver a prospectus in connection with any resale of such Exchange Notes;
however, by so acknowledging and by delivering a prospectus, the undersigned
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act.