Exhibit 10.2 EXECUTION COPY
HUNTSMAN INTERNATIONAL HOLDINGS LLC
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CSFB Global Opportunities Partners, L.P.
Eleven Madison Avenue, 16th Floor
New York, New York 10010
BNAC, Inc.
c/o CSFB Global Opportunities Partners, L.P.
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
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June 14, 2002
Ladies and Gentlemen:
Reference is made to: (a) the Registration Rights Agreement dated as of June 30,
1999, as amended by a letter agreement dated December 20, 2001 (the
"Registration Rights Agreement"), between Huntsman International Holdings LLC,
formerly known as Huntsman ICI Holdings LLC (the "Issuer") and ICI Finance PLC,
(b) the Amended and Restated Indenture dated as of December 20, 2001 (the
"Indenture") between the Issuer and ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as
successor trustee. Capitalized terms used but not otherwise defined herein shall
have the meanings ascribed to them in the Registration Rights Agreement.
The Company and the Issuer hereby acknowledge that upon the performance of the
transactions contemplated in the Sale and Purchase Agreement dated as of the
date hereof, among Imperial Chemical Industries PLC, ICI Americas Inc., ICI Alta
Inc., ICI Finance PLC (collectively, the "ICI Parties"), BNAC, Inc. ("BNAC") and
CSFB Global Opportunities Partners, L.P. ("GOF", and together with BNAC, the
"GOF Parties"), the Issuer will receive certain direct and indirect benefits
including, without limitation, assistance toward achieving key strategic
initiatives.
In consideration of the mutual covenants and agreements set forth herein, the
Issuer and the GOF Parties, hereto agree as follows:
1. Each Party represents and warrants, that: (A) it is a corporation (in the
case of GOF, a limited partnership), duly incorporated (in the case of GOF,
duly organized), validly existing and in good standing under the laws of
the jurisdiction in which it is incorporated or organized, as the case may
be; (B) the execution, delivery and performance by such Party of this
letter agreement is within its corporate powers and has been duly
authorized
by all necessary corporate or partnership (as the case may be) action on
the part of such Party; (D) this letter agreement constitutes a valid and
binding agreement of such Party enforceable against such Party in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and similar laws
relating to or affecting creditors generally, by general equity principles;
and (E) the execution, delivery and performance by such Party of this
letter agreement and the consummation of the transactions and actions
contemplated hereby: (i) do not and will not violate its constitutional or
organizational documents; (ii) do not violate any applicable law, rule,
regulation, judgment, injunction, order or decree, constitute a default
under, or (iii) give rise to any right of termination, cancellation or
acceleration of any right or obligation of such Party or to a loss of any
benefit to which such Party is entitled under any provision of any
agreement or other instrument binding upon such Party, in each case except:
(x) as explicitly set forth herein, or (y) for any such matters which would
not, individually or in the aggregate, reasonably be expected to have a
material adverse effect on the business, financial condition (including
levels of working capital), results of operations, assets and liabilities
of such Party.
2. The GOF Parties represent and warrant to the Issuer that BNAC is a wholly
owned subsidiary of GOF.
3. At any time and from time to time after the date hereof until the GOF
Parties and/or their affiliates have completed (x) the sale of all of their
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 the GOF Parties and/or their affiliates 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 the GOF Parties
and/or their affiliates and any prospective purchaser (subject to execution
of a Confidentiality Agreement (as defined below)), 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. Notwithstanding anything contained herein to the contrary, the
execution, delivery and performance (including without limitation the
application of Section 6 of the Pledge Agreement dated as of the date
hereof (the "Pledge Agreement")), by BNAC of the Pledge Agreement by and
among BNAC, ICI Americas Inc. and ICI Finance PLC shall not be deemed a
"sale" of the Registrable Notes hereunder until such time, if any, that the
Registrable Notes are sold pursuant to Section 9 of the Pledge Agreement.
4. At any time after the date hereof until the GOF Parties and/or their
affiliates have completed (x) the sale of all of their 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 GOF Parties and/or their 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 the GOF Parties and/or their affiliates (a
"Private Sale"), PROVIDED that the GOF Parties and/or their affiliates will
not be deemed to have given (for the purposes of Section 4(b)
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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 4(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 GOF Parties
and/or any of their affiliates, on the one hand, and such prospective
purchaser, on the other hand (it being understood and agreed that the
failure or inability of GOF Parties, any of their 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)).
The GOF Parties and/or their affiliates shall be entitled to give up to
seven 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:
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 GOF Parties and/or their 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, the GOF Parties and/or their
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)-(i) below), and will also reasonably cooperate with and
assist the GOF Parties and/or their affiliates in any such Private Sale
by using its reasonable best efforts, as expeditiously as practicable,
to:
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(a) subject to the requisite consent, if any, of any Member (as
defined in the Issuer's LLC Agreement) of the Issuer, 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 the GOF Parties and/or their 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 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 the GOF Parties or any of their
affiliates of any Registrable Notes, negotiate in good faith with
regard to any reasonable changes proposed by the prospective
purchasers to 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 the GOF Parties and/or their affiliates' interest,
respectively (except in any immaterial respect) and (ii) would
constitute a "significant modification" as determined under U.S.
Treasury Regulations SEC 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 the
GOF Parties and/or their 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;
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(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
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 the GOF Parties and/or their 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), the GOF Parties and/or their 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 the GOF Parties and/or their 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
(B) make reasonable arrangements for site visits to
facilities operated by the Issuer and each of its
principal business units for any
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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 the GOF
Parties and/or their affiliates or any prospective purchaser and
customarily provided in private sale transactions of a similar
kind.
In addition, upon the request of the GOF Parties, the Issuer shall use
its reasonable best efforts to obtain, as expeditiously as
practicable, the requisite consent, if any, of any Member of the
Issuer to permit it to fulfill its Private Sale obligations set forth
in this Section 4 hereof.
5. In connection with any offering under the Registration Rights Agreement or
a Private Sale under this letter agreement, the Issuer and the GOF Parties
and/or their 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.
6. 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.
7. The benefits of this letter agreement may not be assigned except that: (i)
the GOF Parties may assign their interests to any of their respective
affiliates, provided that if the GOF Parties and/or their affiliates
participate in any transaction or series of related transactions that would
result in any such assignee no longer constituting an affiliate of the GOF
Parties, then the assignment to such affiliate of the GOF Parties or the
transaction or series of transactions that results in such affiliate no
longer constituting an affiliate of the GOF Parties shall be deemed to be
an assignment of this letter agreement to a non-affiliate third party for
the purposes of this Section 7, (ii) the GOF Parties may assign this letter
agreement to any one or more of the ICI Parties pursuant to the terms of
the Pledge Agreement, (iii) the ICI Parties may assign this letter
agreement to the GOF Parties pursuant to the terms of the Pledge Agreement
and (iv) upon the assignment, if any, of this letter agreement by the GOF
Parties to the ICI Parties pursuant to the exception set forth in subpart
(ii) of this Section 7, the applicable ICI Parties may assign their
respective interests to any of their respective affiliates, provided that
if the ICI Parties and/or their affiliates participate in any transaction
or series of related transactions that would result in any such assignee no
longer constituting an affiliate of the ICI Parties, then the assignment to
such affiliate of the ICI Parties or the transaction or series
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of transactions that results in such affiliate no longer constituting an
affiliate of the ICI Parties shall be deemed to be an assignment of this
letter agreement to a non-affiliate third party for the purposes of this
Section 7.
8. This letter agreement shall inure to the benefit of and be binding upon the
successors and permissible assignees of the parties hereto.
9. 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 include any variation, supplement, deletion or replacement however
effected.
10. 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.
11. 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.
12. 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.
13. The GOF Parties hereby agree that for all purposes under the Registration
Rights Agreement, the Issuer shall be entitled to treat this letter
agreement as the "Private Sale Letter Agreement."
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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: /s/ ▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Agreed and accepted as of the date first written above:
CSFB GLOBAL OPPORTUNITIES PARTNERS, L.P.
By: CSFB GLOBAL OPPORTUNITES ADVISERS, LLC,
as its investment advisor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BNAC, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
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