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EXHIBIT 4.02
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REGISTRATION RIGHTS AGREEMENT
Dated as of November 25, 1996
among
Aristech Chemical Corporation,
Issuer,
and
Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
J.P. Morgan Securities Inc. and
Morgan Stanley & Co. Incorporated,
Initial Purchasers
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Table of Contents
1. Definitions..................................... 1
2. Registration Under the 1933 Act................. 4
(a) Exchange Offer Registration............ 4
(b) Shelf Registration..................... 6
(c) Expenses............................... 7
(d) Effective Registration Statement....... 8
(e) Increase in Interest Rate.............. 8
(f) Specific Enforcement................... 9
3. Registration Procedures......................... 9
4. Underwritten Registrations...................... 18
5. Indemnification and Contribution................ 18
6. Miscellaneous................................... 20
(a) Rule 144 and Rule 144A................. 20
(b) No Inconsistent Agreements............. 20
(c) Amendments and Waivers................. 21
(d) Notices................................ 21
(e) Successors and Assigns................. 21
(f) Third Party Beneficiary................ 22
(g) Counterparts........................... 22
(h) Headings............................... 22
(i) GOVERNING LAW.......................... 22
(j) Severability........................... 22
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered as of November 25, 1996, among ARISTECH CHEMICAL CORPORATION, a
Delaware corporation (the "Company"), and MERRILL LYNCH & CO., MERRILL LYNCH,
PIERCE, FENNER & SMITH INCORPORATED, J.P. MORGAN SECURITIES INC. and MORGAN
STANLEY & CO. INCORPORATED (the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated
November 20, 1996 among the Company and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial
Purchasers of an aggregate of $150,000,000 principal amount of the Company's 6
7/8 percent Notes due 2006 (the "Debt Securities"). In order to induce the
Initial Purchasers to enter into the Purchase Agreement, the Company has agreed
to provide to the Initial Purchasers and their direct and indirect transferees
the registration rights set forth in this Agreement. The execution and delivery
of this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree, and all
other Holders (as defined below) of Registrable Securities (as defined below)
from time to time, by their acceptance thereof, shall be conclusively deemed to
have agreed, as follows:
1. Definitions. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time
to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Closing Date" shall mean the Closing Time as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble and also
includes the Company's successors.
"Debt Securities" shall have the meaning set forth in the preamble.
"Depositary" shall mean the Trustee, or any other exchange agent
appointed by the Company.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Securities for Registrable Securities pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the 1933
Act effected pursuant to Section 2(a) hereof.
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"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement, in
each case including the Prospectus contained therein, and all exhibits thereto.
"Exchange Securities" shall mean 6 7/8 percent Notes due 2006 issued
by the Company under the Indenture containing terms identical in all material
respects to the Debt Securities (except that (i) interest thereon shall accrue
from the last date on which interest was paid or duly provided for on the Debt
Securities or, if no such interest has been paid, from the date of their
original issue, (ii) the transfer restrictions thereon shall be eliminated,
(iii) certain provisions relating to an increase in the stated rate of interest
thereon shall be eliminated and (iv) the denominations thereof shall be $1000
and integral multiples of $1000), to be offered to Holders of Debt Securities
in exchange for Debt Securities pursuant to the Exchange Offer.
"Holders" shall mean each of the Initial Purchasers, for so long as it
owns any Registrable Securities, and each of its successors, assigns and direct
and indirect transferees who shall at the time be owners of Registrable
Securities under the Indenture; provided that the term Holder shall exclude any
underwriter who purchased Registrable Securities for distribution in an
underwritten public offering pursuant to an effective Registration Statement.
"Indenture" shall mean the Indenture relating to the Debt Securities
dated as of November 1, 1996 between the Company and The Chase Manhattan Bank,
as trustee, as the same may be amended from time to time in accordance with the
terms thereof.
"Initial Purchasers" shall have the meaning set forth in the preamble.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities; provided that
whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by
the Company shall be disregarded in determining whether such consent or
approval was given by the Holders of such required percentage or amount; and
provided, further, that whenever the consent or approval of Holders of
Registrable Securities is required hereunder with regard to matters related to
an underwritten registration or similar offering or with regard to matters
pertaining to a Registration Statement, Registrable Securities held by Holders
not participating in such underwritten registration or similar offering, or
Registrable Securities not registered pursuant to such Registration Statement
(or, at any time prior to the filing of a Shelf Registration Statement and
after the determination to file such Shelf Registration is made, Registrable
Securities whose Holders have not requested that such Registrable Securities be
included in such
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Shelf Registration Statement), as the case may be, shall be disregarded in
determining whether such consent or approval was given by the Holders of such
required percentage or amount.
"Merrill Lynch" shall mean Merrill Lynch, Pierce, Fenner & Smith
Incorporated, on behalf of the Initial Purchasers.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to a prospectus, including post-effective
amendments.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Registrable Securities" shall mean the Debt Securities; provided,
however, that any Debt Securities shall cease to be Registrable Securities when
(i) a Registration Statement with respect to such Debt Securities shall have
been declared effective under the 1933 Act and such Debt Securities shall have
been disposed of pursuant to such Registration Statement, (ii) such Debt
Securities shall have been sold to the public pursuant to Rule 144 (or any
similar provision then in force, but not Rule 144A) under the 1933 Act, (iii)
such Debt Securities shall have become eligible for resale pursuant to Rule
144(k) under the 1933 Act, (iv) such Debt Securities shall have ceased to be
outstanding or (v) such Debt Securities have been exchanged for Exchange
Securities upon consummation of the Exchange Offer.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC or National Association of Securities Dealers,
Inc. ("NASD") registration and filing fees, (ii) all fees and expenses incurred
in connection with compliance with state securities or blue sky laws (including
reasonable fees and disbursements of one firm of legal counsel for any
underwriters and Holders in connection with blue sky qualification of any of
the Exchange Securities or Registrable Securities), (iii) all expenses of
printing and distributing any Registration Statement, any Prospectus and any
amendments or supplements thereto, (iv) all rating agency fees, (v) the fees
and disbursements of counsel for the Company and of the independent public
accountants of the Company, including the expenses of "cold comfort" letters
required by this Agreement, (vi) the fees and expenses of the Trustee, and any
escrow agent or custodian, and (vii) the reasonable fees and expenses of any
special experts
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retained by the Company in connection with any Registration Statement, but
excluding fees of counsel to the underwriters or the Holders and underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by a Holder.
"Registration Statement" shall mean any registration statement of the
Company which covers any of the Exchange Securities or Registrable Securities
pursuant to the provisions of this Agreement, and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, and all
exhibits thereto.
"SEC" shall mean the Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) of this
Agreement which covers all of the Registrable Securities (except Registrable
Securities which the Holders have elected not to include in such Shelf
Registration Statement or the Holders of which have not complied with their
obligations under the penultimate paragraph of Section 3 hereof or under the
penultimate sentence of Section 2(b) hereof) on an appropriate form under Rule
415 under the 1933 Act, or any similar rule that may be adopted by the SEC, and
all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein and, all exhibits thereto.
"Trustee" shall mean the trustee with respect to the Debt Securities
under the Indenture.
2. Registration Under the 1933 Act. (a) Exchange Offer
Registration. To the extent not prohibited by law (including, without
limitation, any applicable interpretation of the Staff of the SEC), the Company
shall use its best efforts (A) to file within 90 days after the Closing Date
the Exchange Offer Registration Statement covering the offer by the Company to
the Holders to exchange all of the Registrable Securities (except Registrable
Securities held by an Initial Purchaser and acquired directly from the Company
if such Initial Purchaser is not permitted, in the reasonable opinion of
counsel to the Initial Purchasers, pursuant to applicable law or SEC
interpretation, to participate in the Exchange Offer) for Exchange Securities,
(B) to cause such Exchange Offer Registration Statement to be declared
effective by the SEC within 180 days after the Closing Date, (C) to cause such
Exchange Offer Registration Statement to remain effective until the closing of
the Exchange Offer and (D) to consummate the Exchange Offer on or prior to the
earlier of (x) the 30th day following the date on which the Exchange Offer
Registration Statement is declared
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effective and (y) the 210th day following the Closing Date. The Exchange
Securities will be issued under the Indenture. Upon the effectiveness of the
Exchange Offer Registration Statement, the Company shall promptly commence the
Exchange Offer, it being the objective of such Exchange Offer to enable each
Holder (other than Participating Broker-Dealers (as defined in Section 3(f))
and broker-dealers who purchased Debt Securities directly from the Company to
resell pursuant to Rule 144A or any other available exemption under the 1933
Act) eligible and electing to exchange Registrable Securities for Exchange
Securities (assuming that such Holder is not an affiliate of the Company,
acquires the Exchange Securities in the ordinary course of such Holder's
business and has no arrangements or understandings with any person to
participate in the distribution (within the meaning of the 1933 Act) of
Exchange Securities) to trade such Exchange Securities from and after their
receipt without any limitations or restrictions under the 1933 Act and without
material restrictions under the securities laws of a substantial proportion of
the several states of the United States.
In connection with the Exchange Offer, the Company shall:
(i) 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;
(ii) keep the 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);
(iii) use the services of the Depositary for the Exchange
Offer;
(iv) permit Holders to withdraw tendered Registrable
Securities at any time prior to the close of business, New York City
time, on the last business day on which the Exchange Offer shall
remain open, by sending to the institution specified in the notice, a
telegram, telex, facsimile transmission or letter setting forth the
name of such Holder, the principal amount of Registrable Securities
delivered for exchange, and a statement that such Holder is
withdrawing his election to have such Registrable Securities
exchanged; and
(v) otherwise comply in all respects with all applicable
laws relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer,
the Company shall:
(i) accept for exchange Registrable Securities duly tendered
and not validly withdrawn pursuant to the Exchange Offer in accordance
with the terms of the Exchange Offer Registration Statement and letter
of transmittal which is an exhibit thereto;
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(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities so accepted for exchange by
the Company; and
(iii) cause the Trustee promptly to authenticate and deliver
Exchange Securities to each Holder of Registrable Securities equal in
amount to the Registrable Securities of such Holder so accepted for
exchange.
Interest on each Exchange Security will accrue from the last
date on which interest was paid or duly provided for on the Registrable
Securities surrendered or exchanged therefor or, if no interest has been paid
on the Registrable Securities, from the date of their original issue. The
Exchange Offer shall not be subject to any conditions, other than (i) that the
Exchange Offer, or the making of any exchange by a Holder, does not violate
applicable law or any applicable interpretation of the Staff of the SEC, (ii)
that no action or proceeding shall have been instituted or threatened in any
court or by or before any governmental agency or body with respect to the
Exchange Offer, (iii) that there shall not have been adopted or enacted any
law, statute, rule or regulation, (iv) that there shall not have been declared
by United States federal or New York state authorities a banking moratorium,
(v) that trading on the New York Stock Exchange or generally in the United
States over-the-counter market shall not have been suspended by order of the
SEC or any other governmental authority and (vi) such other conditions as may
be reasonably acceptable to Merrill Lynch, in each of clauses (ii) through (v),
which, in the Company's judgment, would reasonably be expected to impair the
ability of the Company to proceed with the Exchange Offer. In addition, each
Holder of Registrable Securities (other than Participating Broker-Dealers) who
wishes to exchange such Registrable Securities for Exchange Securities in the
Exchange Offer will be required to represent that (i) it is not an affiliate of
the Company, (ii) any Exchange Securities to be received by it were acquired in
the ordinary course of business and (iii) it has no arrangement with any person
to participate in the distribution (within the meaning of the 1933 Act) of the
Exchange Securities. Each Participating Broker-Dealer shall be required to make
such representations as, in the reasonable judgment of the Company, may be
necessary under applicable SEC rules, regulations or interpretations or
customary in connection with similar exchange offers. Each Holder (including
Participating Broker-Dealers) shall be required to make such other
representations as may be reasonably necessary under applicable SEC rules,
regulations or interpretations to render the use of Form S-4 or another
appropriate form under the 1933 Act available and will be required to agree to
comply with their agreements and covenants set forth in this Agreement. The
Exchange Offer shall be subject to the further condition that no stop order
shall have been issued by the SEC or any state securities authority suspending
the effectiveness of the Exchange Offer Registration Statement and no
proceedings shall have been initiated or, to the knowledge of the Company,
threatened for that purpose. To the extent permitted by law, the Company shall,
upon request of Merrill Lynch, inform the
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Initial Purchasers of the names and addresses of the Holders to whom the
Exchange Offer is made, and the Initial Purchasers shall have the right to,
and, if requested by the Company, shall, contact such Holders and otherwise
facilitate the tender of Registrable Securities in the Exchange Offer.
For greater clarity, the Company's obligation to use its best
efforts to make the Exchange Offer hereunder terminates at the close of
business on the 210th day following the Closing Date.
(b) Shelf Registration. (i) If, because of any change in law
or applicable interpretations thereof by the Staff of the SEC, the Company is
not permitted to effect the Exchange Offer as contemplated by Section 2(a)
hereof, or (ii) if for any other reason the Exchange Offer Registration
Statement is not declared effective within 180 days after the Closing Date, the
Company shall, at its cost:
(A) as promptly as practicable, file with the SEC a Shelf
Registration Statement relating to the offer and sale of the
Registrable Securities (other than Registrable Securities owned by
Holders who have elected not to include such Registrable Securities in
such Shelf Registration Statement or who have not complied with their
obligations under the penultimate paragraph of Section 3 hereof or
under the penultimate sentence of this Section 2(b)) by the Holders
from time to time in accordance with the methods of distribution
selected by the Majority Holders of such Registrable Securities and
set forth in such Shelf Registration Statement, and use its best
efforts to cause such Shelf Registration Statement to be declared
effective by the SEC by the 210th day after the Closing Date;
(B) use its reasonable 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 date a Shelf Registration Statement is declared
effective by the SEC or such shorter period which will terminate when
all of the Registrable Securities covered by the Shelf Registration
Statement have been sold pursuant to such Shelf Registration Statement
or otherwise are no longer Registrable Securities; and
(C) notwithstanding any other provisions hereof, use its
reasonable efforts to 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 1933
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
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(iii) any Prospectus forming part of any Shelf Registration Statement,
and any supplement to such Prospectus (as amended or supplemented from
time to time), 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.
To the extent permitted by law, the Company further agrees,
if necessary, to supplement or amend the Shelf Registration Statement (if
reasonably requested by one firm of legal counsel selected by the Majority
Holders) with respect to information relating to the Holders and otherwise as
required by Section 3(b) below, to use all reasonable efforts to cause any such
amendment to become effective and such Shelf Registration Statement to become
usable as soon as thereafter practicable and to furnish to the Holders of
Registrable Securities registered thereby, promptly after its being used or
filed with the SEC, such number of copies of any such supplement or amendment
as such Holders may reasonably request. Anything herein to the contrary
notwithstanding, the Company shall not be required to (x) permit or effect more
than one underwritten offering of Registrable Securities pursuant to the Shelf
Registration Statement or (y) permit or effect any offerings through sales
agents, distributors or other similar offerings in respect of any Registration
Statement. The Company may require, as a condition to including the Registrable
Securities of any Holder in any Shelf Registration Statement, that such Holder
shall have furnished to the Company a written agreement to the effect that such
Holder agrees to comply with and be bound by the provisions of this
Registration Rights Agreement. For further clarity, the Company shall have no
obligation to keep the Shelf Registration Statement effective after
consummation of the Exchange Offer, and the Company's obligations to use its
best efforts to file a Shelf Registration Statement and to keep such Shelf
Registration Statement effective shall immediately terminate upon effectiveness
of the Exchange Offer Registration Statement (regardless of when such
effectiveness shall occur).
(c) Expenses. The Company (i) shall pay all Registration
Expenses in connection with the registration pursuant to Section 2(a) or 2(b),
and (ii) in the case of the Shelf Registration Statement, will reimburse the
Holders for the reasonable fees and disbursements of one firm of legal counsel
(reasonably satisfactory to the Company) designated in writing by the Majority
Holders to act as counsel for the Holders of the Registrable Securities in
connection therewith (including any Initial Purchasers whose Registrable
Securities are registered for resale pursuant to such Shelf Registration
Statement). Each Holder (including each Initial Purchaser) shall pay all
expenses of its counsel other than as set forth in the preceding sentence,
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of such Holder's Registrable Securities pursuant to any
Shelf Registration Statement or the exchange of its Registrable Securities
pursuant to any Exchange
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Offer Registration Statement. Notwithstanding anything in this Agreement to the
contrary, the Company shall not be required to pay the fees and disbursements
of legal counsel for any Holders (including Initial Purchasers) except (A) as
provided in clause (ii) of the first sentence of this paragraph and (B) to the
extent required by Section 5 hereof.
(d) Effective Registration Statement. (i) The Company will be
deemed not to have used its best efforts or reasonable efforts, as the case may
be, to cause the Exchange Offer Registration Statement or any Shelf
Registration Statement, as the case may be, to become, or to remain, effective
during the requisite period if the Company voluntarily takes any action that
would result in any such Registration Statement not being declared effective or
in the Holders of Registrable Securities covered thereby not being able to
exchange or offer and sell such Registrable Securities during that period
unless (A) such action is, in the reasonable judgment of the Company, required
by applicable law (including, without limitation, any interpretation of the
SEC) or (B) such action is taken by the Company in good faith and for valid
business reasons (not including avoidance of the Company's obligations
hereunder), including the acquisition or divestiture of assets, so long as the
Company promptly complies with the requirements of Section 3(k) hereof, if
applicable.
(ii) An Exchange Offer Registration Statement pursuant to
Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b)
hereof will not be deemed to have become effective unless it has been declared
effective by the SEC; provided however, that if, after it has been declared
effective, the offering of Registrable Securities pursuant to such Shelf
Registration Statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other governmental agency or
court, such Shelf Registration Statement will be deemed not to have been
effective during the period of such interference, until the offering of
Registrable Securities pursuant to such Shelf Registration Statement may
legally resume.
(e) Increase in Interest Rate. In the event that (i) the
Exchange Offer Registration Statement is not filed with the SEC on or prior to
the 90th calendar day after the Closing Date, (ii) the Exchange Offer
Registration Statement is not declared effective by the SEC on or prior to the
180th calendar day after the Closing Date or (iii) the Exchange Offer is not
consummated or a Shelf Registration Statement is not declared effective by the
SEC on or prior to the earlier of (x) the 30th day following the date on which
the Exchange Offer Registration Statement is declared effective and (y) the
210th day after the Closing Date, the interest rate borne by the Debt
Securities shall be increased by 0.50 percent per annum following such 90th day
in the case of clause (i) above, such 180th day in the case of clause (ii)
above, or the earlier of such 30th day and such 210th day in the case of clause
(iii) above; provided that the aggregate amount of any such increase in such
per annum interest rate will in no event exceed
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0.50 percent; and provided, further that if the Exchange Offer Registration
Statement is not declared effective by the SEC on or prior to the 180th day
following the Closing Date, then Debt Securities owned by Persons who do not
comply in all material respects with their obligations under the penultimate
paragraph of Section 3 will not be entitled to any such increase in the
interest rate for any day after the 210th day following the Closing Date. Upon
(x) the filing of the Exchange Offer Registration Statement after the 90th day
described in clause (i) above, (y) the effectiveness of the Exchange Offer
Registration Statement after the 180th day described in clause (ii) above or
(z) the consummation of the Exchange Offer or the effectiveness of a Shelf
Registration Statement, as the case may be, after the earlier of the 30th day
and the 210th day described in clause (iii) above, the interest rate borne by
the Debt Securities from the date of such filing, effectiveness or
consummation, as the case may be, will be reduced to the original interest
rate.
(f) Specific Enforcement. Without limiting the remedies
available to the Holders, the Company acknowledges that any failure by the
Company to comply with its obligations under Section 2(a) and Section 2(b)
hereof may result in material irreparable injury to the Holders for which there
is no adequate remedy at law, that it will not be possible to measure damages
for such injuries precisely and that, in the event of any such failure, any
Holder may, to the extent permitted by law, obtain such relief as may be
required to specifically enforce the Company's obligations under Section 2(a)
and Section 2(b) hereof.
3. Registration Procedures. In connection with the
obligations of the Company with respect to the Registration Statements pursuant
to Sections 2(a) and 2(b) hereof, but only so long as the Company shall have an
obligation under this Agreement to keep a Registration Statement effective, the
Company shall:
(a) use its best efforts to prepare and file with the SEC a
Registration Statement, within the relevant time period specified in
Section 2, on the appropriate form under the 1933 Act, which form (i)
shall be selected by the Company, (ii) shall, in the case of a Shelf
Registration, be available for the sale of the Registrable Securities
by the selling Holders thereof and (iii) shall comply as to form in
all material respects with the requirements of the applicable form and
include all financial statements required by the SEC to be filed
therewith, and use its best efforts to cause such Registration
Statement to become effective and use its reasonable efforts to cause
such Registration Statement to remain effective in accordance with
Section 2 hereof;
(b) to the extent permitted by law, use its reasonable
efforts to (i) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary under applicable law to keep such Registration Statement
effective for the applicable period,
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(ii) cause each Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed (if
required) pursuant to Rule 424 under the 1933 Act, and (iii) comply
with the provisions of the 1933 Act with respect to the disposition of
all securities covered by each Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution by the selling Holders thereof;
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Securities, at least five days prior to filing,
that the Shelf Registration Statement with respect to the Registrable
Securities is being filed and advising such Holders that the
distribution of Registrable Securities will be made in accordance with
the method elected by the Majority Holders; and (ii) furnish to each
Holder of Registrable Securities registered under the Shelf
Registration Statement, to a single firm of legal counsel for the
Holders (including the Initial Purchasers) and to the managing
underwriters of an underwritten offering of Registrable Securities, if
any, and their counsel, without charge, as many copies of each
Prospectus, including each preliminary prospectus, and any amendment
or supplement thereto as such Holder, counsel or underwriters may
reasonably request and, if the Holder so requests, all exhibits in
order to facilitate the public sale or other disposition of the
Registrable Securities; and (iii) subject to Section 3(k) and the last
paragraph of Section 3, hereby consent to the use of the Prospectus or
any amendment or supplement thereto by each of the selling Holders of
Registrable Securities in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment or
supplement thereto but only during the period of time that the Company
is required to keep the Shelf Registration Statement effective
pursuant to this Agreement;
(d) use its reasonable efforts to register or qualify the
Registrable Securities under all applicable state securities or "blue
sky" laws of such jurisdictions in the United States as the Majority
Holders of Registrable Securities covered by a Registration Statement
and the managing underwriter of an underwritten offering of
Registrable Securities shall reasonably request at least ten days
prior to the time the applicable Registration Statement is declared
effective by the SEC, to cooperate with the Holders in connection with
any filings required to be made with the NASD, and do any and all
other acts and things which may be reasonably necessary or advisable
to enable such Holder to consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such Holder
pursuant to such Registration Statement; provided, however, that the
Company shall not be required to (i) qualify as a foreign corporation
or as a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(d) or (ii)
take any action that would subject
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it to general service of process or taxation in any such jurisdiction
if it is not then so subject;
(e) in the case of a Shelf Registration Statement, notify a
single firm of legal counsel for the Holders of Registrable Securities
registered thereby (including any Initial Purchasers) and Merrill
Lynch promptly and, if requested by such counsel or Merrill Lynch,
confirm such advice in writing promptly (by notice to such counsel or
to Merrill Lynch) (i) when such Registration Statement has become
effective and when any post-effective amendments thereto become
effective, (ii) of any request by the SEC or any state securities
authority for post-effective amendments and supplements to such
Registration Statement and the related Prospectus or for additional
information after such Registration Statement has become effective,
(iii) of the issuance by the SEC or any state securities authority of
any stop order suspending the effectiveness of such Registration
Statement or the initiation of any proceedings for that purpose, (iv)
if, between the effective date of such Registration Statement and the
closing of any sale of Registrable Securities covered thereby pursuant
to an underwriting agreement to which the Company is a party, the
representations and warranties of the Company contained in such
underwriting agreement cease to be true and correct in all material
respects, (v) of the receipt by an appropriate officer or management
employee of the Company of any notification with respect to the
suspension of the qualification of the Registrable Securities covered
by such Registration Statement for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose and (vi)
upon an appropriate officer or management employee of the Company
becoming aware thereof, of the happening of any event or the discovery
of any facts during the period such Registration Statement is
effective which (A) makes any statement made in such Registration
Statement or the related Prospectus untrue in any material respect or
(B) causes such Registration Statement or the related Prospectus to
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;
(f) (A) in the case of the Exchange Offer, (i) include in the
Exchange Offer Registration Statement a "Plan of Distribution" section
covering the use of the Prospectus included in the Exchange Offer
Registration Statement by Participating Broker-Dealers (as defined
below) who have exchanged their Registrable Securities for Exchange
Securities for the resale of such Exchange Securities, (ii) furnish to
each Participating Broker-Dealer who notifies the Company in writing
that it desires to participate in the Exchange Offer, without charge,
as many copies of each Prospectus included in the Exchange Offer
Registration Statement, including any preliminary prospectus, and any
amendment or supplement
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thereto, as such Participating Broker-Dealer may reasonably request,
(iii) include in the Exchange Offer Registration Statement a statement
that any broker-dealer who holds Registrable Securities acquired for
its own account as a result of market-making activities or other
trading activities (a "Participating Broker-Dealer"), and who receives
Exchange Securities for Registrable Securities pursuant to the
Exchange Offer, may be a statutory underwriter and must deliver a
prospectus meeting the requirements of the 1933 Act in connection with
any resale of such Exchange Securities, (iv) subject to Section 3(k)
and the last paragraph of Section 3, hereby consent to the use of the
Prospectus forming part of the Exchange Offer Registration Statement
or any amendment or supplement thereto by any Participating
Broker-Dealer in connection with the sale or transfer of the Exchange
Securities covered by the Prospectus or any amendment or supplement
thereto for a period ending 90 days following consummation of the
Exchange Offer or, if earlier, when all Exchange Securities received
by such Participating Broker-Dealer in exchange for Registrable
Securities acquired for their own account as a result of market-making
or other trading activities have been disposed of by such
Participating Broker-Dealer, and (v) include in the transmittal letter
or similar documentation to be executed by an exchange offeree in
order to participate in the Exchange Offer a provision to
substantially the following effect (or such similar provision as is
reasonably acceptable to counsel for the Initial Purchasers and as, in
the reasonable opinion of the Company, may at the time be required by
applicable law or SEC interpretation):
"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 Securities. If the
undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Registrable
Securities, it represents that the Registrable Securities to
be exchanged for Exchange Securities were acquired by it as a
result of market-making activities or other trading
activities and acknowledges that it will deliver a prospectus
meeting the requirements of the 1933 Act in connection with
any resale of such Exchange Securities pursuant to the
Exchange Offer; 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 1933 Act"; and
(B) to the extent any Participating Broker-Dealer
participates in the Exchange Offer, the Company shall use its
reasonable efforts to cause to be delivered at the request of an
entity representing the Participating Broker-Dealers (which entity
shall be Merrill Lynch, Pierce, Fenner & Smith Incorporated or another
Initial Purchaser) only one, if any,
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"cold comfort" letter with respect to the Prospectus in the Exchange
Offer Registration Statement in the form existing on the last date for
which exchanges are accepted pursuant to the Exchange Offer; and
(C) to the extent any Participating Broker-Dealer
participates in the Exchange Offer and notifies the Company or causes
the Company to be notified in writing that it is a Participating
Broker-Dealer, the Company shall use its reasonable efforts to
maintain the effectiveness of the Exchange Offer Registration
Statement for a period of 90 days following the last date on which
exchanges are accepted pursuant to the Exchange Offer, or, if earlier,
when all Exchange Securities received by Participating Broker-Dealers
in exchange for Registrable Securities acquired for their own account
as a result of market-making or other trading activities have been
disposed of by such Participating Broker-Dealers; and
(D) the Company shall not be required to amend or supplement
the Prospectus contained in the Exchange Offer Registration Statement
as would otherwise be contemplated by Section 3(b), or take any other
action as a result of this Section 3(f), for a period exceeding 90
days after the last date for which exchanges are accepted pursuant to
the Exchange Offer (or such earlier date referred to in paragraph (C)
above) and Participating Broker-Dealers shall not be authorized by the
Company to, and shall not, deliver such Prospectus after such period
in connection with resales contemplated by this Section 3 or
otherwise;
it being understood that, notwithstanding anything in this Agreement
to the contrary, the Company shall not be required to comply with any
provision of this Section 3(f) or any other provision of this
Agreement relating to the distribution of Exchange Securities by
Participating Broker-Dealers, to the extent that the Company
reasonably concludes (with the consent of Merrill Lynch, not to be
unreasonably withheld) that compliance with such provision is no
longer required by applicable law or interpretation of the Staff of
the SEC;
(g) (A) in the case of an Exchange Offer, furnish one firm of
legal counsel for the Initial Purchasers and (B) in the case of a
Shelf Registration, furnish one firm of legal counsel for the Holders
of Registrable Securities covered thereby, copies of any request
received by or on behalf of the Company from the SEC or any state
securities authority for amendments or supplements to the relevant
Registration Statement and Prospectus or for additional information;
(h) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement as
soon as practicable and provide
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prompt notice to one firm of legal counsel for the Holders of the
withdrawal of any such order;
(i) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities registered thereby, without charge,
at least one conformed copy of each Registration Statement and any
post-effective amendment thereto;
(j) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legend (except
any customary legend borne by securities held through The Depository
Trust Company or any similar depository); and cause such Registrable
Securities to be in such denominations (consistent with the provisions
of the Indenture and the officers' certificate establishing the form
and terms of the Debt Securities pursuant to the Indenture) and
registered in such names as the selling Holders or the underwriters,
if any, may reasonably request at least two business days prior to the
closing of any sale of Registrable Securities;
(k) in the case of a Shelf Registration, upon an appropriate
officer or management employee of the Company becoming aware of the
occurrence of any event or the discovery of any facts, each as
contemplated by Section 3(e)(vi) hereof, use its reasonable efforts to
prepare a supplement or post-effective amendment to the relevant
Registration Statement or the related Prospectus or file any other
required document so that, as thereafter delivered to the purchasers
of the Registrable Securities, such Prospectus will not contain at the
time of such delivery any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. The Company agrees to notify each Holder of Registrable
Securities registered under the Shelf Registration Statement to
suspend use of the Prospectus as promptly as practicable after an
appropriate officer or management employee of the Company becomes
aware of the occurrence of such an event, and each Holder of
Registrable Securities registered under the Shelf Registration
Statement hereby agrees to suspend use of the Prospectus until the
Company has amended or supplemented the Prospectus to correct such
misstatement or omission or has advised such Holders that use of such
Prospectus may be resumed. At such time as such public disclosure is
otherwise made or the Company determines that such disclosure is not
necessary, in each case to correct any misstatement of a material fact
or to include any omitted material fact, or the Company otherwise
determines that use of such Prospectus may be resumed, the Company
agrees promptly to notify each Holder of Registrable Securities
registered under the Shelf Registration Statement of such
determination and (if applicable) to furnish each such
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Holder such numbers of copies of the Prospectus, as amended or
supplemented, as such Holder may reasonably request;
(l) obtain a CUSIP number for all Exchange Securities, or
Registrable Securities, as the case may be, not later than the
effective date of a Registration Statement, and provide the Trustee
with printed certificates for the Exchange Securities or the
Registrable Securities, as the case may be, in a form eligible for
deposit with The Depository Trust Company (provided that the Company
shall not be required to provide for any Exchange Securities or
Registrable Securities to be so-called "book-entry only" securities);
(m) unless the Indenture, as it relates to the Exchange
Securities or the Registrable Securities, as the case may be, has
already been so qualified, use its reasonable efforts to (i) cause the
Indenture to be qualified under the Trust Indenture Act of 1939, as
amended (the "TIA"), in connection with the registration of the
Exchange Securities or Registrable Securities, as the case may be,
(ii) cooperate with the Trustee and the Holders to effect such changes
to the Indenture as may be required for the Indenture to be so
qualified in accordance with the terms of the TIA and (iii) execute,
and use its reasonable efforts to cause the Trustee to execute, all
documents as may be required to effect such changes, and all other
forms and documents required to be filed with the SEC to enable the
Indenture to be so qualified in a timely manner;
(n) in the case of a Shelf Registration, take all customary
and appropriate actions (including those reasonably requested by the
Majority Holders) in order to expedite or facilitate the disposition
of the Registrable Securities registered thereby, provided that the
Company shall not be required to (A) enter into more than one
underwriting agreement (the "Underwriting Agreement") with respect to
Registrable Securities registered under the Shelf Registration
Statement or (B) enter into any sales agency agreements, distribution
agreements or other similar agreements whatsoever with respect to the
Registrable Securities. The Company agrees that it will in good faith
negotiate the terms of any such Underwriting Agreement, which shall be
in form and scope as is customary for similar offerings of debt
securities with similar credit ratings (including, without limitation,
representations and warranties to the underwriters) and shall
otherwise be reasonably satisfactory to the Company and the managing
underwriters; and
(i) with regard to not more than one underwritten
offering pursuant to the Underwriting Agreement (opinions of
counsel that are required to be filed as Exhibit 5 to any
registration statement being specifically excluded from this
limitation), if requested by the managing underwriters,
obtain opinions of counsel to the Company
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(which counsel shall be reasonably satisfactory to the
managing underwriters) addressed to such underwriters,
covering the matters customarily covered in opinions
requested in sales of securities or underwritten offerings
and in substantially the forms specified in the Underwriting
Agreement; provided, however, that all of such opinions shall
be dated as of a single date and no updates thereof shall be
required; and provided, further, that except as set forth in
this paragraph (i), the Company shall have no obligation to
deliver any legal opinions (excluding Exhibit 5 opinions)
under or in connection with this Agreement;
(ii) with regard to not more than one underwritten
offering pursuant to the Underwriting Agreement, if requested
by the managing underwriters, obtain a single "cold comfort"
letter and a single update thereto not later than two weeks
after the date of the original letter (or if not available
under applicable accounting pronouncements or standards, a
single "procedures" letter and a single update thereto) from
the Company's independent certified public accountants
addressed to the underwriters named in the Underwriting
Agreement and use reasonable efforts to have such letter
addressed to the selling Holders of Registrable Securities
(provided that such letter need not be addressed to any
Holder to whom, in the reasonable opinion of the Company's
independent certified public accountants, addressing such
letter is not permissible under applicable accounting
standards), such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" (or
"procedures") letters to underwriters in connection with
similar underwritten offerings; provided, however, that
except as set forth in this paragraph (ii), the Company shall
have no obligation to deliver any "cold comfort" or
"procedures" letters or any updates thereto under or in
connection with this Agreement; and
(iii) deliver such documents and certificates as
may be reasonably requested and as are customarily delivered
in similar underwritten offerings.
Notwithstanding anything herein to the contrary, the Company shall
have no obligation to enter into any underwriting agreement or permit
an underwritten offering of Registrable Securities unless a request
therefor shall have been received from the Majority Holders. In the
case of such a request for an underwritten offering, the Company shall
provide written notice to the Holders of all Registrable Securities of
such underwritten offering at least 30 days prior to the filing of a
prospectus supplement for such underwritten offering. Such notice
shall (x) offer each such Holder the right to participate in such
underwritten offering (but may indicate that whether or not all
Registrable Securities are included
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will be at the discretion of the underwriters), (y) specify a date,
which shall be no earlier than 10 days following the date of such
notice, by which such Holder must inform the Company of its intent to
participate in such underwritten offering and (z) include the
instructions such Holder must follow in order to participate in such
underwritten offering;
(o) in the case of a Shelf Registration, and to the extent
customary in connection with a "due diligence" investigation for an
offering of debt securities with a similar credit rating to that of
the Registrable Securities, make available for inspection by
representatives appointed by the Majority Holders and any underwriters
participating in any disposition pursuant to a Shelf Registration
Statement and one firm of legal counsel retained for all Holders
participating in such Shelf Registration, and one firm of legal
counsel to the underwriters, if any, all financial and other records,
pertinent corporate documents and properties of the Company reasonably
requested by any such persons, and cause the respective officers,
employees, and any other agents of the Company to supply all
information reasonably requested by any such representative,
underwriters or counsel in connection with the Shelf Registration
Statement; provided that, if any such records, documents or other
information relates to pending or proposed acquisitions or
dispositions, or otherwise relates to matters reasonably considered by
the Company to constitute sensitive or proprietary information, the
Company need not provide such records, documents or information unless
the foregoing parties enter into a confidentiality agreement in
customary form and reasonably acceptable to such parties and the
Company;
(p) (i) a reasonable time prior to the filing of any Exchange
Offer Registration Statement, any Prospectus forming a part thereof,
any amendment to an Exchange Offer Registration Statement or amendment
or supplement to such Prospectus, provide copies of such document to
the Initial Purchasers, and make such changes in any such document
prior to the filing thereof as Merrill Lynch or one firm of legal
counsel to the Initial Purchasers may reasonably request; (ii) in the
case of a Shelf Registration, a reasonable time prior to filing any
Shelf Registration Statement, any Prospectus forming a part thereof,
any amendment to such Shelf Registration Statement or amendment or
supplement to such Prospectus, provide copies of such document to
Merrill Lynch, one firm of legal counsel appointed by the Majority
Holders to represent the Holders participating in such Shelf
Registration, the managing underwriters of an underwritten offering of
Registrable Securities, if any, and their counsel, and make such
changes in any such document prior to the filing thereof as Merrill
Lynch, such one firm of legal counsel for the Holders, such managing
underwriters or their counsel may reasonably request; and (iii) cause
the representatives of the Company to be available for discussion of
such document as
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shall be reasonably requested by Merrill Lynch, one firm of legal
counsel to the Holders, the managing underwriters and their counsel
and shall not at any time make any filing of any such document of
which Merrill Lynch, one firm of legal counsel to the Holders, the
managing underwriters and their counsel shall not have previously been
advised and furnished a copy;
(q) use its reasonable efforts to cause the Exchange
Securities, if applicable, and, in the event of a Shelf Registration,
the Debt Securities to be rated with not more than two rating agencies
selected by the Company, if so requested by the Majority Holders or by
the managing underwriters of an underwritten offering of Registrable
Securities, if any, unless the Exchange Securities or the Registrable
Securities, as the case may be, are already so rated or unless the
Company has obtained such ratings for its long-term debt securities
generally;
(r) otherwise use its reasonable efforts to comply with all
applicable rules and regulations of the SEC and make available to its
security holders, as soon as reasonably practicable, an earnings
statement covering at least 12 months which shall satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder;
provided that the Company's obligations under this paragraph (r) shall
be satisfied by the filing of its quarterly and annual reports on
Forms 10-Q and 10-K; and
(s) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence
investigation by any managing underwriters and their counsel.
In the case of a Shelf Registration Statement, the Company
may (as a condition to such Holder's participation in the Shelf Registration)
(i) require each Holder of Registrable Securities to furnish to the Company
such information regarding such Holder and the proposed distribution by such
Holder of such Registrable Securities as the Company may from time to time
reasonably request in writing and such other information as, in the reasonable
opinion of the Company, is required for inclusion in the Shelf Registration
Statement (which requests may be given to a single firm of legal counsel for
the Holders), and (ii) further require each Holder of Registrable Securities,
through one firm of legal counsel on behalf of all such Holders, to furnish to
the Company comments on the Shelf Registration Statement and the Prospectus
included therein or any amendment or supplement to any of the foregoing not
later than such times as the Company may request.
In the case of a Shelf Registration Statement, each Holder
agrees and, in the case of the Exchange Offer Registration Statement, each
Participating Broker-Dealer agrees that, upon receipt of any notice from the
Company of the happening of any
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event or the discovery of any facts, each of the kind described in Section
3(e)(ii)-(vi) or Section 3(k) hereof (it being understood and agreed that, for
purposes of this paragraph, all references in Sections 3(e)(ii)-(vi) and
Section 3(k) to a "Shelf Registration Statement" or a "Registration Statement"
shall be deemed to mean and include the Shelf Registration Statement or the
Exchange Offer Registration Statement or both thereof (as the context
requires), mutatis mutandis, such Holder or Participating Broker-Dealer, as the
case may be, will forthwith discontinue disposition of Registrable Securities
pursuant to such Registration Statement and discontinue use of the Prospectus
included therein until such Holder's or Participating Broker-Dealer's receipt,
as the case may be, of (A) copies of the supplemented or amended Prospectus
contemplated by Section 3(k) hereof or (B) notice from the Company that the
sale of the Registrable Securities may be resumed, and, if so directed by the
Company, such Holder or Participating Broker-Dealer, as the case may be, will
deliver to the Company (at its expense) all copies in its possession, other
than permanent file copies then in its possession, of the Prospectus covering
such Registrable Securities current at the time of receipt of such notice. If
the Company shall give any such notice to suspend the disposition of
Registrable Securities pursuant to a Registration Statement as a result of the
happening of any event or the discovery of any facts, each of the kind
described in Section 3(e)(vi) or 3(k) hereof, the Company shall be deemed to
have used its reasonable efforts to keep such Registration Statement effective
during such period of suspension, provided that the Company shall use its
reasonable efforts to file and have declared effective (if an amendment) as
soon as reasonably practicable an amendment or supplement to such Registration
Statement or the related Prospectus and shall extend the period during which
such Registration Statement shall be maintained effective pursuant to this
Agreement by the number of days during the period from and including the date
of the giving of such notice to and including the date when the Holders shall
have received copies of the supplemented or amended Prospectus necessary to
resume such dispositions or the date on which the Company has given notice that
the sale of Registrable Securities may be resumed, as the case may be. Each
Holder of Registrable Securities hereby agrees that it will at all times use
the then most current preliminary prospectus or Prospectus (as the case may
be), as then amended or supplemented, which has been provided to it by the
Company in connection with the resale or transfer of any Registrable Securities
pursuant to a Registration Statement or Prospectus.
4. Underwritten Registrations. If any of the Registrable
Securities covered by the Shelf Registration Statement are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will manage the offering will be selected by the Majority
Holders of such Registrable Securities included in such offering and shall be
reasonably acceptable to the Company.
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No Holder of Registrable Securities may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (b) completes, executes and delivers, or causes to be
completed, executed and delivered, all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents required under the
terms of such underwriting arrangements.
5. Indemnification and Contribution. (a) The Company
shall indemnify and hold harmless each Initial Purchaser, each Holder and each
Person, if any, who controls any of such parties within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all losses, liabilities, claims, damages
and expenses whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
any Registration Statement (or any amendment thereto) pursuant to
which Exchange Securities or Registrable Securities were registered
under the 1933 Act or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in
any Prospectus (or any amendment or supplement thereto) 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;
(ii) against any and all losses, liabilities, claims, damages
and expenses whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the Company; and
(iii) against any and all expenses whatsoever, as incurred
(including (subject to Section 5(c) below) the reasonable fees and
disbursements of counsel chosen by Merrill Lynch, Pierce, Fenner &
Smith Incorporated or, in the event that Merrill Lynch, Pierce, Fenner
& Smith Incorporated is not an indemnified party, by a majority of the
indemnified parties), reasonably incurred in investigating, preparing
or defending against any litigation, or investigation or proceeding by
any court or governmental 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, to the extent that
any such
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expense is not paid under subparagraph (i) or (ii) of this Section
5(a);
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an 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 or on behalf of
any Initial Purchaser, any Holder or any underwriter expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto).
(b) In the case of a Shelf Registration, each Holder agrees,
severally and not jointly, to indemnify and hold harmless the Company, each
Initial Purchaser, each underwriter who participates in an offering of
Registrable Securities and the other Holders and each of their respective
directors and officers (including each officer of the Company who signed the
Registration Statement in question) and each Person, if any, who controls the
Company, any Initial Purchaser, any underwriter or any other Holder within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against
any and all losses, liabilities, claims, damages and expenses described in the
indemnity contained in Section 5(a) hereof, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto) or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity
with written information furnished to the Company by or on behalf of such
Holder expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto); provided,
however, that no such Holder shall be liable for any claims hereunder in excess
of the amount of net proceeds received by such Holder from the sale of
Registrable Securities pursuant to such Registration Statement.
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have other than on account of this indemnity agreement or the contribution
agreement set forth in Section 5(d) below. An indemnifying party may
participate at its own expense in the defense of such action. In no event shall
the indemnifying party or parties be liable for the fees and expenses of more
than one legal counsel (which shall be selected by Merrill Lynch, Pierce,
Fenner & Smith Incorporated or, in the event that Merrill Lynch, Pierce, Fenner
& Smith Incorporated is not an indemnified party, by a majority of the
indemnified parties) for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
(d) In order to provide for just and equitable contribution
in circumstances in which any of the indemnity
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provisions set forth in this Section 5 are for any reason held to be
unenforceable by the indemnified parties although applicable in accordance with
its terms, the Company, the Initial Purchasers and the Holders shall contribute
to the aggregate losses, liabilities, claims, damages and expenses of the
nature contemplated by such indemnity agreement incurred by the Company, the
Initial Purchasers and the Holders, as incurred; provided, however, that no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any Person that
was not guilty of such fraudulent misrepresentation. As between the Company,
the Initial Purchasers and the Holders, such parties shall contribute to such
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement in such proportion as shall be
appropriate to reflect (i) the relative benefits received by the Company on the
one hand, the Initial Purchasers on another hand, and the Holders on another
hand, from the offering of the Exchange Securities or Registrable Securities,
as the case may be, included in such offering, and (ii) the relative fault of
the Company on the one hand, the Initial Purchasers on another hand, and the
Holders on another hand, with respect to the statements or omissions which
resulted in such loss, liability, claim, damage or expense, or action in
respect thereof, as well as any other relevant equitable considerations. The
Company, the Initial Purchasers and the Holders agree that it would not be just
and equitable if contribution pursuant to this Section 5 were to be determined
by pro rata allocation or by any other method of allocation that does not take
into account the relevant equitable considerations. For purposes of this
Section 5, each Person, if any, who controls an Initial Purchaser or a Holder
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as such Initial Purchaser or such
Holder, and each director of the Company, each officer of the Company who
signed the Registration Statement in question, and each Person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company.
6. Miscellaneous. (a) Rule 144 and Rule 144A. For so long as
the Company is subject to the reporting requirements of Section 13 or 15 of the
1934 Act, the Company covenants that it will file the reports required to be
filed by it under Section 13(a) or 15(d) of the 1934 Act and the rules and
regulations adopted by the SEC thereunder, that if it ceases to be so required
to file such reports, it will upon the request of any Holder of Registrable
Securities (i) make publicly available such information as is necessary to
permit sales pursuant to Rule 144 under the 1933 Act, (ii) deliver such
information to a prospective purchaser as is necessary to permit sales pursuant
to Rule 144A under the 1933 Act, and (iii) take such further action that is
reasonable in the circumstances, in each case, to the extent required from time
to time to enable such Holder to sell its Registrable Securities without
registration under the 1933 Act within the limitation of the exemptions provided
by (x) Rule 144 under the 1933 Act, as such
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Rule may be amended from time to time, (y) Rule 144A under the 1933 Act, as
such Rule may be amended from time to time, or (z) any similar rules or
regulations hereafter adopted by the SEC (provided that the obligations of the
Company under any such similar rules or regulations shall not be more
burdensome in any substantial respect than those referred to in clauses (x) or
(y)). Upon the request of any Holder of Registrable Securities, the Company
will deliver to such Holder a written statement as to whether it has complied
with such requirements.
(b) No Inconsistent Agreements. The Company has not entered
into nor will the Company on or after the date of this Agreement enter into any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any
way conflict with and are not inconsistent with the rights granted to the
holders of the Company's other issued and outstanding securities under any such
agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of Holders
of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or departure; provided, however, that to the extent any provision of
this Agreement relates to the Initial Purchasers, such provision may be
amended, modified or supplemented, and waivers or consents to departures from
such provisions thereof may be given, by Merrill Lynch; and provided, further,
that no amendment, modification, supplement or waiver or consent to any
departure from the provisions of Section 5 hereof shall be effective as against
any Holder of Registrable Securities unless consented to in writing by such
Holder. Notwithstanding anything in this Agreement to the contrary, this
Agreement may be amended, modified or supplemented, and waivers and consents to
departures from the provisions hereof may be given, by written agreement signed
by the Company and Merrill Lynch to the extent that any such amendment,
modification, supplement, waiver or consent is, in their reasonable judgment,
necessary or appropriate to comply with applicable law (including any
interpretation of the Staff of the SEC) or any change therein.
(d) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telex, telecopier, or any courier providing
overnight delivery (i) if to a Holder, at its address appearing in the
Securities Register (as defined in the Indenture) or at such other address as
shall have been given by such Holder to the Company by means of a notice given
in accordance with the provisions of this Section 6(d), which address initially
is, with respect to the Initial Purchasers, the address care of
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Merrill Lynch, Pierce, Fenner & Smith Incorporated set forth in the Purchase
Agreement, and (ii) if to the Company initially at the Company's address set
forth in the Purchase Agreement, or in each case to such other address notice
of which is given in accordance with the provisions of this Section 6(d).
All such notices and communications shall be deemed to have
been duly given at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied;
and on the next business day if timely delivered to an air courier providing
overnight delivery.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms hereof or of the Purchase Agreement, the
Indenture or the Offering Memorandum dated November 20, 1996; and provided,
further, that Holders of Registrable Securities may not assign their rights
under this Agreement except in connection with the permitted transfer of
Registrable Securities and then only insofar as relates to such Registrable
Securities. If any transferee of any Holder shall acquire Registrable
Securities, in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities, such Person
shall be conclusively deemed to have agreed to be bound by and to perform all
of the terms and provisions of this Agreement, including the restrictions on
resale set forth in this Agreement and, if applicable, the Purchase Agreement,
and such Person shall be entitled to receive the benefits hereof.
(f) Third Party Beneficiary. The Holders from time to time
shall each be a third party beneficiary to the agreements made hereunder
between the Company, on the one hand, and the Initial Purchasers, on the other
hand, and Merrill Lynch, Pierce, Fenner & Smith Incorporated shall have the
right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(g) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
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(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
-------------------------------
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
ARISTECH CHEMICAL CORPORATION
By: /s/ MICHAEL J. EGAN
-------------------------------
Name: Michael J. Egan
Title: Senior Vice President
and Chief Financial Officer
Confirmed and accepted as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ MICHAEL L. SANTINI
---------------------------
Name: Michael L. Santini
Title: Associate
J.P. MORGAN SECURITIES INC.
By: /s/ MARGARET BRODY
---------------------------
Name: Margaret Brody
Title: Managing Director
MORGAN STANLEY & CO. INCORPORATED
By: /s/ H. WAKAMOTO
---------------------------
Name: H. Wakamoto
Title: Principal
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