Huntsman International Holdings LLC
000 Xxxxxxxx Xxx
Xxxx Xxxx Xxxx
Xxxx 00000
XXX
ICI Finance plc
Imperial Chemical House
0 Xxxxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
December 20, 2001
Ladies and Gentlemen:
Reference is made to the Registration Rights Agreement dated as of June 30, 1999
(the "Registration Rights Agreement") between Huntsman International Holdings
LLC, formerly known as Huntsman ICI Holdings LLC (the "Issuer") and ICI Finance
plc ("ICI Finance"), and to the letter agreement dated November 2, 2000, as
amended (the "B Note Letter Agreement"), between ICI Finance and the Issuer.
Capitalized terms used but not otherwise defined herein shall have the meanings
ascribed to them in the Registration Rights Agreement.
In consideration of the mutual covenants and agreements set forth herein, the
parties hereto agree as follows:
1. The B Note Letter Agreement is hereby terminated, including, for the
avoidance of doubt, (i) the obligations of the Issuer under the last
sentence of the third paragraph of Section 7 thereof and (ii) any
transaction notice served thereunder.
2. The Hold Period Termination Date in the Registration Rights Agreement shall
be deemed to have occurred 30 days after the date hereof so that, during
such 30-day period, the Issuer shall have the ability to investigate and
observe the market for its debt securities without any overhang from any
pending sale or transfer of the Registrable Notes.
3. The Registration Rights Agreement is hereby amended as follows:
(a) The following definition shall be added to Section 1:
"Private Sale Letter Agreement: The Private Sale Letter Agreement
dated as of o, 2001 between the Issuer and the Holders."
(b) in the seventh sentence in Section 2(a), the words "at any time, the
Issuer may (i) delay the filing" shall be deleted and replaced by the
words "the Issuer may, on one occasion only in any consecutive twelve
month period (i) delay the filing";
(c) in the seventh sentence in Section 2(a), the words "90 days in any
consecutive twelve month period" shall be deleted and replaced by the
words "45 days in any consecutive twelve month period";
(d) in the first sentence of Section 2(b), clause (ii), after the words
"(other than any such failure which is caused by any action or failure
to act on the part of any or all of the Holders)", the following words
shall be inserted: "which is set forth in any written purchase
agreement entered into, inter alia, between the Holders, on the one
hand, and such underwriter, on the other hand (it being understood and
agreed that the failure or inability of the Holders or any underwriter
to enter into a purchase agreement shall not constitute a failure of
any condition for the purposes of this clause (ii))".
(e) Section 4(b) shall be deleted in its entirety and replaced by the
following:
"NUMBER OF REGISTRATIONS. The Issuer shall be obligated to effect up
to six (6) Registrations (whether pursuant to Section 2(a) or Section
8) in the aggregate pursuant to this Agreement, PROVIDED that up to
five (5) of such Demand Notices or Rule 144A Notices may be given at
any time and one additional Demand Notice or Rule 144A Notice may only
be given at any time on or after January 1, 2004, and PROVIDED FURTHER
that each Private Sale Notice given by a Holder pursuant to the
Private Sale Letter Agreement shall be counted as a Registration
effected under this Agreement.";
(f) in the first sentence of Section 5(o), clause (v)(A), the words "two
Registrations pursuant to Section 2(a) or Section 8" shall be deleted
and replaced by the words "four Registrations (but no more than three
Registrations for which a Demand Notice or Rule 144A Notice is given
prior to January 1, 2004) pursuant to Section 2(a) or Section 8,";
(g) in the first sentence of Section 5(o), clause (v)(A), the words "with
respect to such two Registrations" shall be deleted and replaced by
the words "with respect to such four Registrations";
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(h) in the proviso to Section 5(o), clause (v)(A), the words "two
management participations" shall be deleted and replaced by the words
"four management participations";
(i) in the proviso to Section 5(o), clause (v)(A), after the words "as the
case may be," the following words shall be inserted: "and PROVIDED
FURTHER that each Private Sale Roadshow which occurs pursuant to the
Private Sale Letter Agreement shall count against the four management
participations allotted hereby regardless of whether any such Private
Sale is consummated,";
(j) in the proviso to Section 5(o), clause (v)(B), after the words "the
Issuer and its affiliates." the following words shall be inserted:
"Notwithstanding the foregoing, the Issuer will not be obligated to
participate, or to make members of the Issuer's management available
to participate, in more than four roadshows under this Agreement.";
(k) Section 6 shall be deleted in its entirety and replaced by the
following:
"Except as provided below, all fees and expenses (including any
underwriting discounts and commissions) incident to the performance of
or compliance with this Agreement or the Private Sale Letter Agreement
by the Issuer shall be borne by the Holders, and shall constitute a
joint and several obligation of each of them, whether or not a
Registration Statement is filed or becomes effective or an Offering
Memorandum is printed or an Information Memorandum (as defined in the
Private Sale Letter Agreement) is prepared (except with respect to any
particular Registration Statement or Offering Memorandum where the
Issuer failed to use its reasonable best efforts to fulfill its
obligations under the first paragraph of Section 5 with respect to
such Registration Statement or Offering Memorandum and with respect to
any Information Memorandum where the Issuer failed to use its
reasonable best efforts to fulfill its obligations under paragraph
5(d) of the Private Sale Letter Agreement), including, without
limitation, (i) all registration and filing fees (including, without
limitation, (A) fees with respect to filings required to be made with
the NASD in connection with an Underwritten Offering and (B) fees and
expenses of compliance with state securities or Blue Sky laws
(including, without limitation, reasonable fees and disbursements of
counsel in connection with Blue Sky qualifications of the Registrable
Notes and determination of the eligibility of the Registrable Notes
for investment under the laws of such jurisdictions as provided in
Section 5(h) hereof), (ii) the expenses relating to printing, word
processing and distributing such
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Registration Statement, Offering Memoranda, Prospectuses, Information
Memoranda, underwriting agreements, indentures and any other documents
necessary in order to comply with this Agreement or the Private Sale
Letter Agreement, (iii) fees and disbursements of counsel for the
Holders and counsel for the underwriters, if any, (iv) the reasonable
fees and expenses of any special experts retained by the Issuer in
connection with a Registration Statement or an Offering Memorandum or
an Information Memorandum, (v) the fees and expenses of any "qualified
independent underwriter" or other independent appraiser participating
in an offering pursuant to Schedule E to the By-laws of the NASD, (vi)
50% of any and all rating agency fees, (vii) any fees and expenses
incurred in connection with the listing of the securities to be
registered on any securities exchange, and the obtaining of a rating
of the securities, in each case, as applicable; (viii) any fees and
disbursements of KPMG with respect to the historical financial
information of the businesses acquired by the Issuer from Imperial
Chemical Industries PLC and its affiliates, including without
limitation any fees and disbursements resulting from the inclusion of
such information in any disclosure document and any cold comfort or
similar letter obtained with respect thereto and of any independent
certified public accountants retained by a Holder and (ix) all other
fees and expenses of any Holder, underwriter, initial purchaser or
placement agent, PROVIDED that the following expenses shall be borne
by the Issuer: (A) any and all internal costs and expenses of the
Issuer and any of its affiliates (other than ICI Finance and its
affiliates), (B) fees and disbursements of any counsel retained by the
Issuer and any of its affiliates (other than ICI Finance and its
affiliates) (C) any and all fees and disbursements of independent
certified public accountants of the Issuer (other than any fees and
disbursements of KPMG with respect to the historical financial
information of the businesses acquired by the Issuer from Imperial
Chemical Industries PLC and its affiliates, including without
limitation any fees and disbursements resulting from the inclusion of
such information in any disclosure document and any cold comfort or
similar letter obtained with respect thereto), and (D) 50% of any and
all rating agency fees"; and
(l) in the first sentence of Section 8, the words "five Demand Notices or
Rule 144A Notices," shall be deleted and replaced with the words "six
Demand Notices or Rule 144A Notices (or, if the time of determination
is before January 1, 2004, an aggregate of five Demand Notices or Rule
144A Notices),".
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4. At any time and from time to time after the date hereof until ICI Finance
and/or its affiliates has completed (x) the sale of all of its Registrable
Notes or (y) the sale or other disposition of a majority of the voting or
economic interest in any subsidiary or subsidiaries that, directly or
indirectly, hold all of the Registrable Notes, the Issuer shall reasonably
cooperate and assist ICI Finance in any effort to pre-market the
Registrable Notes, by making reasonably available the relevant senior
management of the Issuer to participate in a reasonable number of due
diligence conference calls with ICI Finance and/or its affiliates and any
prospective purchaser (subject to execution of Confidentiality Agreements),
and the provision of historical financial information to any prospective
purchaser, PROVIDED that such activities shall be arranged so as to cause
minimal disruption to such management personnel's work-related duties to
the Issuer and its affiliates.
5. At any time after the date hereof until ICI Finance and/or its affiliates
has completed (x) the sale of all of its Registrable Notes or (y) the sale
or other disposition of a majority of the voting or economic interest in
any subsidiary or subsidiaries that, directly or indirectly, hold all of
the Registrable Notes, ICI Finance and/or its affiliates shall be entitled
to elect, by providing written notice of such election (a "Private Sale
Notice") to the Issuer, to pursue a private sale of all or part of the
Registrable Notes of ICI Finance and/or its affiliates (a "Private Sale"),
PROVIDED that ICI Finance and/or its affiliates will not be deemed to have
given (for the purposes of Section 4(b) of the Registration Rights
Agreement and for purposes of the following paragraph), a Private Sale
Notice with respect to which the Holders have withdrawn or cancelled such
Private Sale Notice (i) at any time prior to the completion or preparation
of an Information Memorandum described in Section 5(d) below (for the
avoidance of doubt, the test under this clause (i) is completion of the
Information Memorandum, not delivery thereof to any prospective purchaser)
or (ii) at any time following the failure of any condition to the
obligations of any purchaser to effect such Private Sale (other than any
such failure which is caused by any action or failure to act on the part of
any or all of the Holders) which are set forth in any written purchase
agreement entered into, inter alia, between ICI Finance and/or any of its
affiliates, on the one hand, and such prospective purchaser, on the other
hand (it being understood and agreed that the failure or inability of ICI
Finance, any of its affiliates or any prospective purchaser to enter into a
purchase agreement shall not constitute a failure of any condition for the
purposes of this clause (ii)).
ICI Finance and/or its affiliates shall be entitled to give up to eight
Private Sale Notices and the Issuer shall be obligated to participate in up
to six Private Sale Roadshows (as defined below) in the aggregate pursuant
to this letter agreement, PROVIDED that:
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(1) no more than three Private Sale Notices may be given within any two
year period and no more than two Private Sale Notices may be given in
any one year period,
(2) each Registration effected pursuant to the Registration Rights
Agreement shall reduce by one the number of Private Sale Notices that
ICI Finance and/or its affiliates can give hereunder, and
(3) each roadshow which occurs pursuant to the Registration Rights
Agreement shall be counted as a Private Sale Roadshow hereunder.
For the avoidance of doubt, ICI Finance and/or its affiliates may:
(x) subject to the limitations and conditions set forth herein, give two
Private Sale Notices even if all six Registrations under the
Registration Rights Agreement (either by giving a Demand Notice, Rule
144A Notice or Private Sale Notice) have been effected, and
(y) subject to the limitations and conditions set forth herein, instruct
the Issuer to participate in two Private Sale Roadshows even if all
four roadshows under the Registration Rights Agreement have occurred.
In connection with a Private Sale, the Issuer will comply with the
provisions of Section 5 of the Registration Rights Agreement to the extent
that such provisions would be customary for a private sale transaction
(including, without limitation, the requirements of paragraphs (a)-(j)
below), and will also reasonably cooperate with and assist ICI Finance
and/or its affiliates in any such Private Sale by using its reasonable best
efforts, as expeditiously as practicable, to:
(a) enter into a purchase agreement relating to a purchase of the
Registrable Notes, which agreement will contain terms and conditions
customary in transactions of a similar kind, and in which the Issuer
will give such representations, warranties and indemnities and obtain
such opinions of the Issuer's counsel and accountants' comfort letters
as are customary in private sale transactions;
(b) in the event that ICI Finance and/or its affiliates shall sell all of
the Registrable Notes to one or more purchasers in a single
transaction, the Issuer shall enter into a registration rights
agreement with such purchasers relating to the Registrable Notes
substantially in the form attached hereto as Exhibit A (the
"Purchasers' Registration Rights Agreement") and upon execution and
delivery of the Purchasers Registration Rights Agreement, the Issuer's
obligations under the Registration Rights Agreement and
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under this letter agreement shall automatically terminate and the
Issuer shall have no further liability or obligation thereunder or
hereunder;
(c) prior to the first sale by ICI Finance or any of its affiliates of any
Registrable Notes, negotiate in good faith with regard to any
reasonable changes proposed by the prospective purchasers to the
Amended and Restated Indenture dated as of the date hereof governing
the Notes (the "Indenture") and the Purchasers' Registration Rights
Agreement, PROVIDED that the Issuer will not be obligated to agree to
any such changes that (i) would be detrimental to the Issuer's or ICI
Finance and/or its affiliates' interest, respectively (except in any
immaterial respect) and (ii) would constitute a "significant
modification" as determined under U.S. Treasury
Regulations SECTION 1.1001-3), in each case, in the reasonable
judgment of the Issuer;
(d) prepare an information memorandum and any necessary or appropriate
amendment or supplement thereto (the "Information Memorandum")
regarding the business, operations and prospects of the Issuer,
including a review of the Issuer's historical and projected financial
information by business unit. The Information Memorandum will, once
approved by the Issuer, be provided by ICI Finance and/or its
affiliates to prospective purchasers on a strictly confidential basis,
PROVIDED that the Information Memorandum will not be provided to a
Holder (whether or not a Member of the Issuer as defined in the
Issuer's LLC Agreement), any prospective purchaser or any other person
who has not entered into a written confidentiality agreement with
respect thereto and to any other confidential information provided by
the Issuer or its advisors, including any such information provided or
obtained pursuant to this letter agreement, that is customary for a
private sale transaction and reasonably satisfactory, in form and
substance, to the Issuer (each, a "Confidentiality Agreement"). The
Issuer will be responsible for the contents of the Information
Memorandum, subject to normal exceptions, including any forward
looking information contained therein, which will be prepared in good
faith;
(e) subject to execution of Confidentiality Agreements, provide for review
any information provided to any of the Issuer's lenders, or to the
lenders of any of the Issuer's principal operating subsidiaries,
within the past 12 months;
(f) subject to execution of Confidentiality Agreements, provide all
information and documentation reasonably requested by a prospective
purchaser and its counsel in connection with their
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investigation of the Issuer's business, financial performance and
prospects, including, without limitation, everything to be provided to
Inspectors pursuant to Section 5(p) of the Registration Rights
Agreement;
(g) subject to execution of Confidentiality Agreements,
(i) as reasonably determined by the Issuer, make the appropriate
senior management of the Issuer (including, without limitation,
the Issuer's CFO and Treasurer) and each of the Issuer's
principal business units available to participate in conference
calls, meetings at the offices of the Issuer (or such other
places as agreed between the parties and such other marketing
support activities for the Registrable Notes to be sold under
this letter agreement, PROVIDED that in each case under this
clause (i) such activities shall be arranged so as to cause
minimal disruption to such management personnel's work-related
duties to the Issuer and its affiliates, and PROVIDED FURTHER
that upon receipt of a written notice from the Issuer that the
activities proposed by ICI Finance and/or its affiliates, any
prospective purchaser or anyone acting on behalf of any of the
foregoing would exceed the level of cooperation from the Issuer
described in this clause (i) with respect to any member of the
Issuer's senior management (other than the Issuer's CFO and
Treasurer), ICI Finance and/or its affiliates may (1) instruct
the Issuer to participate in a Private Sale Roadshow (as
described in (ii) below) or (2) instruct the Issuer not to exceed
the level of cooperation from the Issuer described under this
clause (i), PROVIDED that in the circumstances referred to in
this clause (2), the Issuer agrees that for a period of 15
business days following such instruction the Issuer will continue
to cooperate to the extent such cooperation is required under
this clause (i) in order to allow a prospective purchaser an
opportunity to complete a Private Sale, or
(ii) at the request of ICI Finance and/or its affiliates,
(A) as reasonably determined by the Issuer, make reasonably
available the appropriate senior management of the Issuer
and each of the Issuer's principal business units for
discussions concerning their respective businesses and
prospects, with a view to providing all reasonable
assistance to the due diligence efforts of a prospective
purchaser and its advisors, and
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(B) make reasonable arrangements for site visits to facilities
operated by the Issuer and each of its principal business
units for any prospective purchaser and its advisors (it
being agreed by the parties that the activities described in
clause (ii)(A) and (B) together constitute a "Private Sale
Roadshow");
(h) subject to execution of Confidentiality Agreements, provide the
information and consultation rights necessary for a prospective
purchaser to qualify as a venture capital operating company pursuant
to the Employee Retirement Income Security Act guidelines; and
(i) provide any further assistance reasonably requested by ICI Finance
and/or its affiliates or any prospective purchaser and customarily
provided in private sale transactions of a similar kind.
6. In connection with any offering under the Registration Rights Agreement or
a Private Sale under this letter agreement, the Issuer and ICI Finance
and/or its affiliates each agree to use their respective reasonable
endeavors to coordinate their respective activities in the bond markets so
as to facilitate an orderly market for any such offering or Private Sale
and any other bond offerings or private sale transactions of debt
securities, in which the Issuer is involved, including, in the case of a
bond offering, piggy-back rights or other forms of joint offering.
7. This letter agreement shall be governed by and construed in accordance with
the laws of the State of New York, as applied to contracts made and
performed entirely within the State of New York, without regard to
principles of conflicts of law.
8. The benefits of this letter agreement may not be assigned except that ICI
Finance may assign its interests to any of its affiliates, provided that if
ICI Finance and/or its affiliates participates in any transaction or series
of related transactions that would result in any such assignee affiliate no
longer constituting an affiliate of ICI Finance, then the assignment to
such affiliate shall be deemed to be an assignment of this letter agreement
to a non-affiliated third party for the purposes of this Section 8.
9. This letter agreement shall inure to the benefit of and be binding upon the
successors and permissible assignees of the parties hereto.
10. No variation of this letter agreement (or any of the documents referred to
in this letter agreement) shall be valid unless it is in writing and signed
by or on behalf of each of the parties to it. The expression "variation"
shall
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include any variation, supplement, deletion or replacement however
effected.
11. No delay or omission on the part of any party to this letter agreement in
exercising any right, power or remedy provided under this letter agreement
or any other documents referred to in it shall impair such right, power or
remedy or operate as a waiver thereof. The single or partial exercise of
any right, power or remedy provided under this letter agreement or any
document referred to in it shall not preclude any other or further exercise
thereof or the exercise of any other right, power or remedy.
12. This letter agreement, together with the Registration Rights Agreement and
the Indenture, set out the entire agreement and understanding between the
parties with respect to the subject matter hereof. Nothing in this letter
agreement shall be deemed to affect the rights and obligations of the
parties under the Registration Rights Agreement or the Indenture, except as
otherwise expressly provided herein.
13. This letter agreement may be executed in several counterparts and by the
different parties hereto on separate counterparts, and when executed, each
such counterpart shall be deemed to be an original, said counterparts
together to constitute one and the same instrument.
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If you are in agreement with the foregoing, kindly acknowledge and return this
letter to the attention of the undersigned.
Sincerely,
HUNTSMAN INTERNATIONAL HOLDINGS LLC
By:
--------------------------------
Name:
Title:
Xxxxxx and accepted as of
the date first written above:
ICI FINANCE PLC
By:
---------------------------
Name:
Title:
11
ANNEX A
FORM OF PURCHASERS' REGISTRATION RIGHTS AGREEMENT
12
