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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated as of
August 28, 1998, by and between TENNECO INC., a Delaware corporation (the
"Company"), and Xxxx X. Xxxx, Xxxxxxxx X. Xxxxxxxx, Xxxx X. Xxxxxx and Xxxxxx X.
Xxxxxxx, not individually but solely as trustees (collectively, the "Trustee")
under that certain Tenneco Inc. Rabbi Trust, dated as of August 28, 1998 (the
"Trust").
WHEREAS, the Company and the Trustee have established the Trust to hold
assets until certain amounts are paid to participants under certain designated
nonqualified deferred compensation plan(s) and supplemental pension
arrangements; and
WHEREAS, in connection with entering into the Trust, the Company has
agreed to provide the registration rights set forth in this Agreement for the
benefit of the Trust; and
WHEREAS, the parties desire to enter into this Agreement to set forth
their agreement regarding certain registration rights with respect to the Common
Stock (and any other securities issued in respect thereof or in exchange
therefor) held by the Trust.
NOW, THEREFORE, the parties hereto agree as follows:
1. Demand Registrations.
(a) Upon written notice by the Trustee to the Company at any time and
from time to time after the date hereof requesting that the Company effect the
registration under the Securities Act of 1933 (the "Securities Act") of any or
all of the securities of the Company now or hereafter held by the Trust (or
such shares or other securities into which or for which such securities are
changed, converted or exchanged upon any reclassification, share combination,
share subdivision, share dividend, share exchange, merger, consolidation or
similar transaction or event, together with such shares or other securities
received through dividends, reinvestment of dividends or otherwise) (the
"Registrable Securities"), which notice shall specify the intended method(s) of
disposition of such Registrable Securities, the Company shall use its best
efforts to effect the registration under the Securities Act and applicable
state securities laws of such Registrable Securities for disposition in
accordance with such intended method(s) of disposition.
(b) Notwithstanding any other provision of this Agreement to the
contrary, a registration requested by the Trustee shall not be deemed to have
been effected: (i) unless it has become effective, (ii) if after it has become
effective such registration is interfered with by any stop order, injunction or
other order or requirement of the Securities and Exchange Commission ("SEC") or
other governmental agency or court for any reason other than a misrepresentation
or an omission by the Trustee and, as a result thereof, the Registrable
Securities requested to be registered cannot be completely distributed in
accordance with the plan of distribution set forth in the registration statement
or (iii) if the conditions to closing specified in any purchase agreement or
underwriting agreement entered into in connection with any such registration are
not satisfied or waived other than by reason of some act or omission by the
Trustee.
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(c) In the event that any registration pursuant to this Section shall
involve, in whole or in part, an underwritten offering, the Trustee shall have
the right to designate an underwriter or underwriters as the lead or managing
underwriters of such underwritten offering and, in connection with each
registration, the Trustee may select counsel to represent the Trustee.
(d) As to any particular Registrable Securities, such Registrable
Securities shall cease to be Registrable Securities when (i) a registration
statement with respect to the sale by the Trust shall have been declared
effective under the Securities Act and such securities shall have been disposed
of in accordance with such registration statement, (ii) such securities shall
have been distributed to the public in accordance with Rule 144 promulgated
under the Securities Act ("Rule 144"), or (iii) such securities shall have been
otherwise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent disposition of them shall not require registration or qualification
of them under the Securities Act or any state securities or blue sky law then in
effect.
2. Expenses. The Company shall pay any and all expenses incident to
performance of or compliance with each registration of securities pursuant to
this Agreement, including, without limitation, (i) the fees, disbursements and
expenses of the Company's counsel and accountants and the fees, disbursements
and expenses of counsel selected by the Trust in accordance with this Agreement
in connection with the registration of the securities to be disposed of; (ii)
all expenses, including filing fees, in connection with the preparation,
printing and filing of the registration statement, any preliminary prospectus or
final prospectus, any other offering document and amendments and supplements
thereto and the mailing and delivering of copies thereof to any underwriters and
dealers; (iii) the cost of printing or producing any underwriting agreements and
blue sky or legal investment memoranda and any other documents in connection
with the offering, sale or delivery of the securities to be disposed of; (iv)
all expenses in connection with the qualification of the securities to be
disposed of for offering and sale under state securities laws, including the
fees, disbursements and expenses of counsel for the underwriters or the Trustee
in connection with such qualification and in connection with any blue sky and
legal investment surveys; (v) the filing fees incident to securing any required
review by the National Association of Securities Dealers, Inc. of the terms of
the sale of the securities to be disposed of; (vi) transfer agents' and
registrars' fees and expenses and the fees and expenses of any other agent or
trustee appointed in connection with such offering; (vii) all security engraving
and security printing expenses; (viii) all fees, disbursements and expenses
payable in connection with the listing of the securities on any securities
exchange or automated interdealer quotation system or the rating of such
securities, (ix) any other fees, disbursements and expenses of underwriters
customarily paid by the sellers of securities, and underwriting discounts and
commissions and transfer taxes, if any, and (x) other out-of-pocket expenses of
the Trust. Notwithstanding the foregoing, each of the Trust and the Company
shall be responsible for its own internal administrative and similar costs.
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3. Registration and Qualification. If and whenever the Company is required
to effect the registration of any Registrable Securities under the Securities
Act as provided in Section 1, the Company shall as promptly as practicable:
(a) prepare, file and use its reasonable best efforts to cause to become
effective a registration statement under the Securities Act relating to the
Registrable Securities to be offered;
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective and to comply
with the provisions of the Securities Act with respect to the disposition of all
Registrable Securities until the earlier of (A) such time as all of such
Registrable Securities have been disposed of in accordance with the intended
methods of disposition set forth in such registration statement and (B) the
expiration of six months after such registration statement becomes effective;
provided, that such six-month period shall be extended for such number of days
that equals the number of days elapsing from (x) the date the written notice
contemplated by paragraph (f) below is given by the Company to (y) the date on
which the Company delivers to the Trustee the supplement or amendment
contemplated by paragraph (f) below;
(c) furnish to the Trustee and to any underwriter of such Registrable
Securities such number of conformed copies of such registration statement and of
each such amendment and supplement thereto (in each case including all
exhibits), such number of copies of the prospectus included in such registration
statement (including each preliminary prospectus and any summary prospectus), in
conformity with the requirements of the Securities Act, such documents
incorporated by reference in such registration statement or prospectus, and such
other documents, as the Trustee or such underwriter may reasonably request, and
upon request a copy of any and all transmittal letters or other correspondence
to or received from, the SEC or any other governmental agency or self-regulatory
body or other body having jurisdiction (including any domestic or foreign
securities exchange) relating to such offering;
(d) use its reasonable best efforts to register or qualify all
Registrable Securities covered by such registration statement under the
securities or blue sky laws of such U.S. jurisdictions as the Trustee or any
underwriter to such Registrable Securities shall request, and use its reasonable
best efforts to obtain all appropriate registrations, permits and consents in
connection therewith, and do any and all other acts and things which may be
necessary or advisable to enable the Trustee or any such underwriter to
consummate the disposition in such jurisdictions of its Registrable Securities
covered by such registration statement;
(e) (i) furnish to the Trustee and to any underwriter of such
Registrable Securities an opinion of counsel for the Company addressed to the
Trustee and dated the date of the closing under the underwriting agreement (if
any) (or if such offering is not underwritten, dated the effective date of the
registration statement) and (ii) furnish to the Trustee and to any underwriter
of such Registrable Securities a "cold comfort" letter addressed to the Trustee
and signed by the
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independent public accountants who have audited the financial statements of the
Company included in such registration statement, in each such case covering
substantially the same matters with respect to such registration statement (and
the prospectus included therein) as are customarily covered in opinions of
issuer's counsel and in accountants' letters delivered to underwriters in
underwritten public offerings of securities and such other matters as the
Trustee may reasonably request and, in the case of such accountants' letter,
with respect to events subsequent to the date of such financial statements;
(f) as promptly as practicable, notify the Trustee in writing (i) at any
time when a prospectus relating to a registration pursuant to Section 1 is
required to be delivered under the Securities Act, of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading and (ii) of any request by the SEC or any other regulatory body
or other body having jurisdiction for any amendment of or supplement to any
registration statement or other document relating to such offering, and in
either such case, at the request of the Trustee, prepare and furnish to the
Trustee a reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not include 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, in light of the
circumstances under which they are made, not misleading;
(g) if requested by the Trustee or the lead or managing underwriters,
use its best efforts to list all such Registrable Securities covered by such
registration on each securities exchange and automated inter-dealer quotation
system on which a class of common equity securities of the Company is then
listed; and
(h) furnish for delivery in connection with the closing of any offering
of Registrable Securities pursuant to a registration effected pursuant to
Sections 1 or 2 unlegended certificates representing ownership of the
Registrable Securities being sold in such denominations as shall be requested by
the Trustee or the underwriters.
4. Underwriting; Due Diligence.
(a) If requested by the underwriters for any underwritten offering of
Registrable Securities pursuant to a registration requested under this
Agreement, the Company shall enter into an underwriting agreement with such
underwriters for such offering, which agreement will contain such
representations and warranties by the Company and such other terms and
provisions as are customarily contained in underwriting agreements of the
Company to the extent relevant and as are customarily contained in underwriting
agreements generally with respect to secondary distributions to the extent
relevant, including, without limitation, indemnification and contribution
provisions substantially to the effect and to the extent provided in Section
5(a), and
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agreements as to the provision of opinions of counsel and accountants' letters
to the effect and to the extent provided in Section 3(e). The Trust shall be a
party to any such underwriting agreement and the representations and warranties
by, and the other agreements on the part of, the Company to and for the benefit
of such underwriters, shall also be made to and for the benefit of the Trust.
Such underwriting agreement shall also contain such representations and
warranties by the Trust and such other terms and provisions as are customarily
contained in underwriting agreements with respect to secondary distributions,
when relevant, including, without limitation, indemnification and contribution
provisions substantially to the effect and to the extent provided in Section
5(b).
(b) In connection with the preparation and filing of each registration
statement registering Registrable Securities under the Securities Act pursuant
to this Agreement, the Company shall give the Trustee and the underwriters, if
any, and their respective counsel and accountants, such access to its books and
records and such opportunities to discuss the business of the Company with its
officers and the independent public accountants who have certified the financial
statements of the Company as shall be necessary, in the opinion of the Trustee
and such underwriters or their respective counsel, to conduct a reasonable
investigation within the meaning of the Securities Act.
5. Indemnification and Contribution.
(a) In the case of each offering of Registrable Securities made pursuant
to this Agreement, the Company agrees to indemnify and hold harmless, to the
extent permitted by law, the Trustee, the Trust, each underwriter of Registrable
Securities so offered and each individual or entity (each a "Person"), if any,
who controls any of the foregoing Persons within the meaning of the Securities
Act and the officers, directors, affiliates, employees and agents of each of the
foregoing, against any and all losses, liabilities, costs (including reasonable
attorney's fees and disbursements), claims and damages, joint or several, to
which they or any of them may become subject, under the Securities Act or
otherwise, including any amount paid in settlement of any litigation commenced
or threatened, insofar as such losses, liabilities, costs, claims and damages
(or actions or proceedings in respect thereof, whether or not such indemnified
Person is a party thereto) arise out of or are based upon any untrue statement
by the Company or alleged untrue statement by the Company of a material fact
contained in the registration statement (or in any preliminary or final
prospectus included therein) or in any offering memorandum or other offering
document relating to the offering and sale of such Registrable Securities
prepared by the Company or at its direction, or any amendment thereof or
supplement thereto, or in any document incorporated by reference therein, or any
omission by the Company or alleged omission by the Company to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading; provided that the Company shall not be liable to any
Person in any such case to the extent that any such loss, liability, cost, claim
or damage arises out of or relates to any untrue statement or alleged untrue
statement, or any omission or alleged omission, if such statement or omission
shall have been made in reliance upon and in conformity with information
relating to the Trust or an underwriter furnished in
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writing to the Company by or on behalf of the Trust or such underwriter
specifically for use in the registration statement (or in any preliminary or
final prospectus included therein), offering memorandum or other offering
document, or any amendment thereof or supplement thereto. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Trust or any underwriter and shall survive the transfer of such
securities. The foregoing indemnity agreement is in addition to any liability
that the Company may otherwise have to the Trust or any underwriter of the
Registrable Securities or any controlling Person of the foregoing and the
officers, directors, affiliates, employees and agents of each of the foregoing;
provided, further, that, in the case of an offering with respect to which the
Trust has designated the lead or managing underwriters (or the Trust is offering
Registrable Securities directly, without an underwriter), this indemnity does
not apply to any loss, liability, cost, claim or damage arising out of or
relating to any untrue statement or alleged untrue statement or omission or
alleged omission in any preliminary prospectus or offering memorandum if a copy
of a final prospectus or offering memorandum was not sent or given by or on
behalf of any underwriter (or the Trust) to such Person asserting such loss,
liability, cost, claim or damage at or prior to the written confirmation of the
sale of the Registrable Securities as required by the Securities Act and such
untrue statement or omission had been corrected in such final prospectus or
offering memorandum.
(b) In the case of each offering made pursuant to this Agreement, the
Trust, by exercising its registration rights hereunder, agrees to indemnify and
hold harmless, and to cause each underwriter of Registrable Securities included
in such offering (in the same manner and to the same extent as set forth in
Section 5(a)) to agree to indemnify and hold harmless, the Company, each other
underwriter who participates in such offering, each other holder with securities
included in such offering, each Person, if any, who controls any of the
foregoing within the meaning of the Securities Act and the officers, directors,
affiliates, employees and agents of each of the foregoing, against any and all
losses, liabilities, costs (including reasonable attorney's fees and
disbursements), claims and damages to which they or any of them may become
subject, under the Securities Act or otherwise, including any amount paid in
settlement of any litigation commenced or threatened, insofar as such losses,
liabilities, costs, claims and damages (or actions or proceedings in respect
thereof, whether or not such indemnified Person is a party thereto) arise out of
or are based upon any untrue statement or alleged untrue statement by the
Trustee or underwriter, as the case may be, of a material fact contained in the
registration statement (or in any preliminary or final prospectus included
therein) or in any offering memorandum or other offering document relating to
the offering and sale of such Registrable Securities prepared by the Company or
at its direction, or any amendment thereof or supplement thereto, or any
omission by the Trust or underwriter, as the case may be, or alleged omission by
the Trustee or underwriter, as the case may be, of a material fact required to
be stated therein or necessary to make the statements therein not misleading,
but in each case only to the extent that such untrue statement of a material
fact is contained in, or such material fact is omitted from, information
relating to the Trust or underwriter, as the case may be, furnished in writing
to the Company by or on behalf of the Trust or underwriter, as the case may be,
specifically for use in such registration statement (or in any preliminary or
final prospectus included therein), offering
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memorandum or other offering document, or any amendment thereof or supplement
thereto. The foregoing indemnity is in addition to any liability which the Trust
or underwriter, as the case may be, may otherwise have to the Company, or
controlling persons and the officers, directors, affiliates, employees, and
agents of each of the foregoing; provided that, in the case of an offering made
pursuant to this Agreement with respect to which the Company has designated the
lead or managing underwriters (or the Company is offering securities directly,
without an underwriter), this indemnity does not apply to any loss, liability,
cost, claim, or damage arising out of or based upon any untrue statement or
alleged untrue statement or omission or alleged omission in any preliminary
prospectus or offering memorandum if a copy of a final prospectus or offering
memorandum was not sent or given by or on behalf of any underwriter (or the
Company, as the case may be) to such Person asserting such loss, liability,
cost, claim or damage at or prior to the written confirmation of the sale of the
Registrable Securities as required by the Securities Act and such untrue
statement or omission had been corrected in such final prospectus or offering
memorandum.
(c) Each party indemnified under paragraph (a) or (b) above shall,
promptly after receipt of notice of a claim or action against such indemnified
party in respect of which indemnity may be sought hereunder, notify the
indemnifying party in writing of the claim or action; provided, that the failure
to notify the indemnifying party shall not relieve it from any liability that it
may have to an indemnified party on account of the indemnity agreement contained
in paragraph (a) or (b) above otherwise than under such subsection. If any such
claim or action shall be brought against an indemnified party, and it shall have
notified the indemnifying party thereof, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified party and
indemnifying parties may exist in respect of such claim, the indemnifying party
shall be entitled to participate therein, and, to the extent that it wishes,
jointly with any other similarly notified indemnifying party, to assume the
defense thereof with counsel satisfactory to the indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party). After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 5 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. If the indemnifying party does not assume the defense of
such claim or action, it is understood that the indemnifying party shall not, in
connection with any one such claim or action or separate but substantially
similar or related claims or actions in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for the fees and expenses
of more than one separate firm of attorneys (in addition to one separate firm of
local attorneys in each such jurisdiction) at any time for all such indemnified
parties. Any indemnifying party against whom indemnity may be sought under this
Section 5 shall not be liable to indemnify an indemnified party if such
indemnified party settles such claim or action without the consent of the
indemnifying party, which consent shall not be unreasonably withheld.
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(d) If the indemnification provided for in this Section 5 shall for any
reason be unavailable (other than in accordance with its terms) to an
indemnified party in respect of any loss, liability, cost, claim or damage
referred to therein, then each indemnifying party shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, cost, claim or damage in
such proportion as shall be appropriate to reflect the relative fault of the
indemnifying party on the one hand and the indemnified party on the other with
respect to the statements or omissions which resulted in such loss, liability,
cost, claim or damage as well as any other relevant equitable considerations.
The relative fault shall be determined by reference to whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the indemnifying party
on the one hand or the indemnified party on the other, the intent of the parties
and their relative knowledge, access to information and opportunity to correct
or prevent such statement or omission, but not by reference to any indemnified
party's stock ownership in the Company. The amount paid or payable by an
indemnified party as a result of the loss, cost, claim, damage or liability, or
action in respect thereof, referred to above in this paragraph (d) shall be
deemed to include, for purposes of this paragraph (d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(e) Indemnification and contribution similar to that specified in the
preceding paragraphs of this Section 5 (with appropriate modifications) shall be
given by the Company, the Trust and underwriters with respect to any required
registration or other qualification of securities under any state law or
regulation or governmental authority.
(f) The obligations of the parties under this Section 5 shall be in
addition to any liability which any party may otherwise have to any other party.
6. Black-Out Period. The Company agrees not to effect, for itself or on
behalf of any other person or entity, any public sale or distribution of any
Common Stock or other equity security of the Company, or any securities
convertible into or exchangeable or exercisable for such securities, during the
period beginning 7 days before, and ending 180 days (or such lesser period as
may be permitted by the Trustee) after, the effective date of a registration
statement filed in connection with the registration of the Registrable
Securities hereunder. Such black-out period shall not apply to public sales or
distributions that: (a) have been consented to in writing by the Trustee, or
(b) in the opinion of the lead or managing underwriter designated by the
Trustee can be effected without an adverse effect on the price, timing or
distribution of the Registrable Securities offered pursuant to a registration
statement hereunder. In the event the black-out period does not apply pursuant
to clauses (a) or (b) hereof, the Company may effect such public sale or
distribution only on the terms and conditions (including, without limitation,
the amount and timing of the public sale or distribution) established by the
Trustee or the underwriter, as the case may be.
7. Rule 144 and Form S-3.
(a) The Company shall use its best efforts to ensure that the conditions
to the availability of Rule 144 set forth in paragraph (c) thereof shall be
satisfied. Upon the request of the Trustee, the Company will deliver to the
Trustee a written statement as to whether it has complied with such
requirements.
(b) The Company shall to use its reasonable efforts to cause all
conditions to the availability of Form S-3 (or any successor form) under the
Securities Act for the filing of registration statements under this Agreement to
be met.
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8. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire agreement
between the Company and the Trustee with respect to the transactions
contemplated hereby and supersedes all prior agreements or understandings among
the parties with respect thereto.
(b) Headings. Descriptive headings are for convenience only and shall
not control or affect the meaning or construction of any provision of this
Agreement.
(c) Notices. All notices or other communications provided for in this
Agreement shall be in writing and shall be sent by confirmed telecopy (with an
undertaking to provide a hard copy) or delivered by hand or sent by overnight
courier service prepaid to the address specified below.
If to the Company: If to the Trust or Trustee:
TENNECO INC. TENNECO INC. RABBI TRUST
0000 Xxxx Xxxxxx c/o TENNECO INC.
Xxxxxxxxx, XX 00000 0000 Xxxx Xxxxxx
Attention: Corporate Secretary Xxxxxxxxx, XX 00000
Attention: Corporate Secretary
or to such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith.
(d) Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
(e) Successor Trustee and Successor Trust. The Trust and Trustee may
assign this Agreement. As used herein, the "Trustee" shall include any and all
successor trustees of the Trust, and the "Trust" shall include any and all
successor trusts. Each successor trustee and successor trust shall be entitled
to the benefits and may enforce this Agreement as if an original party hereto.
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(f) Amendments. This Agreement shall not be altered or otherwise amended
except pursuant to an instrument in writing signed by the Company and the
Trustee.
(g) Transferability. The registration and other rights granted to the
Trust hereunder may be transferred or assigned by the Trust to a third party in
connection with a sale or other transfer of all shares of Common Stock then
owned by the Trust to such third party.
(h) Choice of Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
duly executed and delivered as of the date first above written.
TENNECO INC.
/s/ XXXX X. XXXXXXX
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By: Xxxx X. Xxxxxxx
Its: Vice President
TENNECO INC. RABBI TRUST
dated August 28, 1998
By: /s/ XXXX X. XXXX
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Xxxx X. Xxxx, not individually
but solely as trustee
By: /s/ XXXXXXXX X. XXXXXXXX
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Xxxxxxxx X. Xxxxxxxx, not individually
but solely as trustee
By: /s/ XXXX X. XXXXXX
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Xxxx X. Xxxxxx, not individually
but solely as trustee
By: /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx, not individually
but solely as trustee
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