UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
Trans World Airlines, Inc.
(Name of Issuer)
Common Stock
(Title of Class of Securities)
893349837
(CUSIP Number)
Marc Weitzen, Esq.
Gordon Altman Butowsky Weitzen Shalov & Wein
114 West 47th Street, 20th Floor
New York, New York 10036
(212) 626-0800
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
August 23, 1995
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box //.
Check the following box if a fee is being paid with the statement /x/. (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7).
NOTE: Six copies of this statement, including all exhibits, should
be filed with the Commission. See Rule 13d-1(a) for other parties
to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 1 of 14 Pages
List of Exhibits is on Page 12
<PAGE>
SCHEDULE 13D
CUSIP No. 893349837 Page 2 of 14 Pages
1 NAME OF REPORTING PERSON
Pichin Corp.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) /x/
(b) //
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
4,166,667
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
4,166,667
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,166,667
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13%
14 TYPE OF REPORTING PERSON*
CO
<PAGE>
SCHEDULE 13D
CUSIP No. 893349837 Page 3 of 14 Pages
1 NAME OF REPORTING PERSON
Chelonian Corp.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) /x/
(b) //
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
4,166,667
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
4,166,667
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,166,667
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13%
14 TYPE OF REPORTING PERSON*
CO
<PAGE>
SCHEDULE 13D
CUSIP No. 893349837 Page 4 of 14 Pages
1 NAME OF REPORTING PERSON
Unicorn Associates Corporation
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) /x/
(b) //
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
4,166,667
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
4,166,667
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,166,667
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13%
14 TYPE OF REPORTING PERSON*
CO
<PAGE>
SCHEDULE 13D
CUSIP No. 893349837 Page 5 of 14 Pages
1 NAME OF REPORTING PERSON
ACF Industries, Incorporated
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) /x/
(b) //
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New Jersey
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
4,166,667
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
4,166,667
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,166,667
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13%
14 TYPE OF REPORTING PERSON*
CO
<PAGE>
SCHEDULE 13D
CUSIP No. 893349837 Page 6 of 14 Pages
1 NAME OF REPORTING PERSON
ACF Industries Holding Corp.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) /x/
(b) //
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
4,166,667
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
4,166,667
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,166,667
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13%
14 TYPE OF REPORTING PERSON*
CO
<PAGE>
SCHEDULE 13D
CUSIP No. 893349837 Page 7 of 14 Pages
1 NAME OF REPORTING PERSON
Highcrest Investors Corp.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) /x/
(b) //
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
4,166,667
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
4,166,667
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,166,667
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13%
14 TYPE OF REPORTING PERSON*
CO
<PAGE>
SCHEDULE 13D
CUSIP No. 893349837 Page 8 of 14 Pages
1 NAME OF REPORTING PERSON
Icahn Holding Corporation
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) /x/
(b) //
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
4,166,667
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
4,166,667
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,166,667
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13%
14 TYPE OF REPORTING PERSON*
CO
<PAGE>
SCHEDULE 13D
CUSIP No. 893349837 Page 9 of 14 Pages
1 NAME OF REPORTING PERSON
Carl C. Icahn
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) /x/
(b) //
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of American
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
4,166,667
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
4,166,667
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,166,667
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13%
14 TYPE OF REPORTING PERSON*
CO
<PAGE>
SCHEDULE 13D
Item 1. Security and Issuer
This statement relates to the common stock, par value $0.01 per share
("Shares"), of Trans World Airlines, Inc., a Delaware corporation (the
"Issuer"). The address of the principal executive offices of the Issuer is One
City Centre, 515 N. Sixth Street, St. Louis, Missouri 63101.
Item 2. Identity and Background
The persons filing this statement are Pichin Corp., a Delaware
corporation ("Pichin"), Chelonian Corp., a New York corporation ("Chelonian"),
Unicorn Associates Corporation, a New York corporation ("Unicorn"), ACF
Industries, Incorporated, a New Jersey corporation ("ACF"), ACF Industries
Holding Corp., a Delaware corporation ("Holding"), Highcrest Investors Corp., a
Delaware corporation ("Highcrest"), Icahn Holding Corporation, a Delaware
corporation ("IHC") and Carl C. Icahn, a citizen of the United States of America
(collectively, the "Registrants"). The principal business address and the
address of the principal office of the Registrants is 100 South Bedford Road,
Mount Kisco, New York 10549, with the exception of ACF, whose principal business
address and the address of its principal office is 3301 Rider Trail South, Earth
City, Missouri 63045 and Carl C. Icahn, whose principal business address is c/o
Icahn Associates Corp., 114 West 47th Street, New York, New York 10036.
Pichin is a wholly owned subsidiary of Chelonian. Chelonian is
a wholly-owned subsidiary of Unicorn. Unicorn is a wholly-owned subsidiary of
ACF. ACF is a wholly-owned subsidiary of Holding. Holding is a wholly-owned
subsidiary of Highcrest. Highcrest is approximately 99.5% owned by IHC. Mr.
Icahn is the sole stockholder of IHC.
Registrants may be deemed to be a "group" within the meaning of Rule
13d-5 promulgated under the Securities Exchange Act of 1934, as amended (the
"Act").
Pichin is primarily engaged in acting as Sponsor of the Retirement Plan
for Employees of Trans World Airlines, Inc. and The Retirement Plan for Pilots
of Trans World Airlines, Inc., (the "Plans"), Chelonian and Unicorn are
primarily engaged in the business of investing in securities. ACF is primarily
engaged in the leasing, sale and manufacture of railroad freight and tank cars.
Holding, Highcrest and IHC are primarily engaged in holding, either directly or
through subsidiaries, a majority of the common stock of ACF. IHC also holds all
of the stock of Icahn & Co., Inc. ("Icahn & Co."), a registered broker-dealer.
From time to time, IHC invests directly and indirectly in securities. Mr.
Icahn's present principal occupation is acting as Chairman of the Board of
Directors of ACF.
Carl C. Icahn is the sole stockholder, a director and President of IHC.
Mr. Icahn is also Chairman of the Board, a director and President of Highcrest
and Chairman of the Board and a director of Holding and ACF. Further, Mr. Icahn
is a director of Unicorn, Chelonian and Pichin. As such, Mr. Icahn is in a
position directly and indirectly to determine the investment and voting
decisions made by Registrants.
Neither Pichin, Chelonian, Unicorn, ACF, Holding, Highcrest, IHC,
Mr. Icahn, nor any executive officer or director of any of the Registrants, has,
during the past five years, (a) been convicted in a criminal proceeding
excluding traffic violations or similar misdemeanors), or (b) been a party to a
<PAGE>
civil proceeding of a judicial or administrative body of competent jurisdiction
and as a result of such proceeding was or is subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or a finding of any
violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Considerations
The securities were acquired by American National Bank and Trust
Company of Chicago as Settlement Trustee under the Settlement Trust
Agreement dated as of January 5, 1993, in consideration of a reduction in
the principal amount of a note issued by Issuer and held by such Trust.
The issuance of the Shares in consideration of such reduction was part of
the Plan of Reorganization of Issuer which became effective August 23, 1995.
Item 4. Purpose of Transaction
See Item 3 for information on the purpose of transaction. There are
no plans or proposals which the reporting persons have which relate to the
matters enumerated in Item 4.
Item 5. Interest in Securities of the Issuer
As of the close of business on November 10, 1995, Registrants may be
deemed to beneficially own in the aggregate 4,166,667 Shares of common stock
representing approximately 13% of the Issuer's outstanding Shares (based upon
the 32,261,938 Shares stated to be outstanding by Issuer.)
Each of Pichin, Chelonian, Unicorn, ACF, Holdings, Highcrest, IHC and
Carl C. Icahn have shared voting power of 4,166,667 shares and shared
dispositive power of 4,166,667 Shares. This does not include any of the 722
shares of the Issuer beneficially owned by the Issuer's Retirement Plans, of
which Pichin is the Plan Sponsor.
Item 6. Contracts, Arrangements, Understandings or Relationships
With Respect to Securities of the Issuer
Pursuant to an understanding between the Pension Benefit Guaranty
Corporation and Pichin, either party may determine to cause the Trust to dispose
of the Shares and, in the event of a dispute regarding voting of such Shares,
Pichin shall be entitled to direct the voting of 50% of such Shares. These
Shares are covered by a Registration Rights Agreement with Issuer dated
August 23, 1995.
Item 7. Material To Be Filed as Exhibits
The following documents are filed as Exhibits to this Schedule 13D:
Exhibit 1 Joint Filing Agreement
Exhibit 2 Registration Rights Agreement
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated:
PICHIN CORP.
By: /s/ Edward E. Mattner
_________________________
Edward E. Mattner
Its: President
CHELONIAN CORP.
By: /s/ Edward E. Mattner
_________________________
Edward E. Mattner
Its: President
UNICORN CORP.
By: /s/ Edward E. Mattner
_________________________
Edward E. Mattner
Its: President
ACF INDUSTRIES, INCORPORATED
By: /s/ Carl C. Icahn
_________________________
Carl C. Icahn
Its: Chairman of the Board
ACF INDUSTRIES HOLDING CORP.
By: /s/ Richard T. Buonato
_________________________
Richard T. Buonato
Its: Vice President
<PAGE>
HIGHCREST INVESTORS CORP.
By: /s/ Richard T. Buonato
_________________________
Richard T. Buonato
Its: Senior Vice President
ICAHN HOLDING CORPORATION
By: /s/ Richard T. Buonato
_________________________
Richard T. Buonato
Its: Vice President
By: /s/ Carl C. Icahn
_________________________
Carl C. Icahn
[Joint filing Agreement for Schedule 13D with
respect to Trans World Airlines, Inc.]
EXHIBIT 1
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(f) under the
Securities Exchange Act of 1934, as amended, the persons
named below agree to the joint filing on behalf of each of
them of a statement on Schedule 13D (including amendments
thereto) with respect to the common stock, par value $.01
per share of Trans World Airlines and further agree to this
Joint Filing Agreement be included as an Exhibit to such
joint filings. In evidence thereof, the undersigned, being
duly authorized, have executed this Joint Filing Agreement
this 13th day of November, 1995.
PICHIN CORP.
By: /s/ Edward E. Mattner
Edward E. Mattner
Its: President
CHELONIAN CORP.
By: /s/ Edward E. Mattner
Edward E. Mattner
Its: President
UNICORN CORP.
By: /s/ Edward E. Mattner
Edward E. Mattner
Its: President
ACF INDUSTRIES, INCORPORATED
By: /s/ Carl C. Icahn
Carl C. Icahn
Its: Chairman of the Board
ACF INDUSTRIES HOLDING CORP.
By: /s/ Richard T. Buonato
Richard T. Buonato
Its: Vice President
HIGHCREST INVESTORS CORP.
By: /s/ Richard T. Buonato
Richard T. Buonato
Its: Senior Vice President
ICAHN HOLDING CORPORATION
By: /s/ Richard T. Buonato
Richard T. Buonato
Its: Vice President
By: /s/ Carl C. Icahn
Carl C. Icahn
[Joint filing Agreement for Schedule 13D with
respect to Trans World Airlines, Inc.]
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement (the "Agreement"), dated as of August 23,
1995, by and among Trans World Airlines, Inc., a Delaware corporation (the
"Company"), American National Bank and Trust Company of Chicago as Settlement
Trustee under the Settlement Trust Agreement dated as of January 5, 1993, as
amended (the "Settlement Trust Agreement"), by and among the Company and
American National Bank and Trust Company of Chicago (the "Settlement Trustee"),
the Pension Benefit Guaranty Corporation ("PBGC"), a United States government
corporation established under Section 4002 of the Employee Retirement Income
Security Act of 1974, as amended, and Pichin Corp., a Delaware corporation, in
its capacity as the "Icahn Sponsor" as defined in the Settlement Agreement (in
such capacity the "Icahn Sponsor").
WHEREAS, the Company, the Settlement Trustee and PBGC are parties to a Note
Terms Agreement, dated as of the date hereof (the "Note Terms Agreement")
pursuant to which, among other things, the Company issued to the Settlement
Trustee an aggregate of 4,166,667 shares of the Common Stock;
WHEREAS, pursuant to the terms of the Note Terms Agreement the Company
agreed to enter into a registration rights agreement pursuant to which the
Settlement Trustee and PBGC would be granted certain rights regarding the
Registration of the shares of Common Stock issued to the Settlement Trustee;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereto hereby agree as follows:
1. Registration.
1.1 Certain Definitions. As used in this Agreement the following terms
shall have the following meanings:
(a) "Commission" shall mean the U.S. Securities and Exchange
Commission or any other federal agency or instrumentality at the time
administering the Securities Act.
(b) "Common Stock" shall mean the Company's common stock and any
other equity security issued by the Company.
(c) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, or any similar successor federal statute and the
rules and regulations thereunder, all as the same shall be in effect
at the time.
(d) "Non-Standard Termination has the meaning set forth in
Section 2.02 of the Settlement Trust Agreement.
(e) "Person" shall mean an individual,
<PAGE>
corporation, partnership, limited liability company, association, joint-stock
company, trust, business trust, unincorporated organization, government agency
or political subdivision, or other entity.
(f) "Prospectus" shall mean the prospectus relating to the
Registrable Securities included in any Registration Statement at the
time it becomes effective and, in the event of any amendment or
supplement to such prospectus after the effective date of such
Registration Statement, shall also mean (from and after the
effectiveness of such amendment or the filing with the Commission of
such supplement) such prospectus as so amended or supplemented.
(g) "Qualifying Holder" shall mean (1) the Settlement Trustee,
(ii) in the event of a Non-Standard Termination, PBGC, (iii) any
successor of any of the foregoing, and (iv) any purchaser or
transferee which acquires from the Settlement Trustee or PBGC (or any
such successor) at least one million shares Def Registrable Securities
(as adjusted to reflect any exchange, stock split or stock dividends,
recapitalization, merger, consolidation or other reorganization or
similar transaction or occurrence) and in connection with such
acquisition receives from the Settlement Trustee or PBGC or any such
successor an assignment Def the right to demand at least one
Registration of its Registrable Securities pursuant to Section 1.2
hereof, and executes a counterpart of this Agreement and agrees to be
bound by the terms and provisions hereof as a Qualifying Holder (such
purchaser or transferee being hereinafter referred to as a "Permitted
Transferee"). Except as provided in part (iv) of the preceding
sentence, no transferee of Registrable Securities (other than PBGC or
its successor) shall be a Qualifying Holder.
(h) "Registrable Securities" means (1) the Common Stock issued to
the Settlement Trustee pursuant to the terms Def the Note Terms
Agreement while held by a Qualifying Holder and (ii) any securities
issued or issuable with respect to the Common Stock referred to in
clause (i) above by way of exchange, stock split or stock dividend, or
in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise.
(i) "Registration Request" shall mean any written request by a
Qualifying Holder or Qualifying Holders for registration of all or any
part of such Qualifying Holder's or Holders' Registrable Securities
pursuant to this Agreement, specifying the number of shares of
Registrable Securities proposed to be included in such registration
and the intended method of disposition thereof.
<PAGE>
(j) "Registration Statement" shall mean any registration
statement filed by the Company to effect a Registration of Registrable
Securities in accordance herewith, including exhibits and financial
statements thereto, in the form in which it shall become effective
and, in the event of any amendment or supplement thereto after the
effective date of such Registration Statement, shall also mean (from
and after the effectiveness of such amendment or supplement) such
Registration Statement as so amended or supplemented, including
post-effective amendments and supplements, all exhibits and all
materials incorporAted by reference in such Registration Statement.
(k) "Register," "Registered" and "Registration" refer to a
registration effected by preparing and filing with the Commission a
Registration Statement in compliance with the Securities Act and this
Agreement, and the declaration or ordering of the effectiveness of
such Registration Statement.
(l) "Rule 144" shall mean Rule 144 as promulgated by the
Commission under the Securities Act, as such Rule may be amended from
time to time, or any successor to such Rule that may be promulgated by
the Commission.
(m) "Securities Act" shall mean the Securities Act if 1933, as
amended, or any similar successor federal statute and the rules and
regulations thereunder, all as the same shall be in effect at the
time.
(n) "Shelf Registration" shall have the meaning ascribed to such
term in Section 1.2(f) hereof.
1.2 Demand Registration Rights.
(a) Upon the delivery to the Company of a Registration Request,
the Company shall, subject to the provisions hereof, use its best
efforts to effect, as expeditiously as practicable, the Registration
of the Registrable Securities specified in such Registration Request
in accordance with the intended method of disposition stated therein.
Such Qualifying Holder or Qualifying Holders shall send a copy of the
Registration Request to each other Qualifying Holder concurrently with
the giving of such notice to the Company. The Company shall prepare
and file with the Commission a Registration Statement, on any form
that the Company is eligible to use, such form to be selected by the
Company, which form must be reasonably acceptable to the Qualifying
Holder or Qualifying Holders requesting Registration, in Order to
permit the public offering or the Registrable Securities being offered
in accordance with the
<PAGE>
intended method of disposition upon the effective date of the
Registration Statement relating to such Registrable Securities. The
Company may elect to include in such Registration: (i) any other
shares of Common Stock that the Company has been requested to register
by the holders thereof, and (ii) all shares of Common Stock that the
Company may elect to register for its own account, subject in either
case to Section 1.2(b) hereof.
(b) If a requested Registration pursuant to this Section 1.2
involves an underwritten offering, and the managing underwriter shall
advise the Company in writing (with a copy to each Qualifying Holder)
that in the good faith exercise of its reasonable business judgment,
the number of shares of Common Stock requested to be included in such
Registration (including Common Stock that is not Registrable
Securities) exceeds the number that can be sold in such offering
without materially and adversely affecting the successful marketing of
the Registrable Securities of the Qualifying Holder or Qualifying
Holders or the trading market in Common Stock, the Company will
include in such Registration the lumber of shares that the Company is
so advised can be sold in such Offering without such material adverse
effect in the following priority: (i) first, Registrable Securities
requested to be included in such Registration by the Qualifying Holder
or Qualifying Holders that originally requested the Registration; (ii)
second, Registrable Securities of other Qualifying Holders included in
the Registration; and (iii) third, other Common Stock proposed To be
included in such Registration, in accordance with the priorities, if
any, then existing among the Company and the holders Def such other
securities.
(c) Registration rights under this Section 1.2 shall only be
available to the Qualifying Holders for a Registration Statement that
becomes effective subsequent to the expiration of six (6) months from
and after the date hereof. No Registration Request pursuant to Section
1.2 hereof may be submitted to the Company by any Qualifying Holder
any earlier than forty-five (45) days prior to the expiration of six
months (6) from nd after the date hereof.
(d) The Qualifying Holders and Permitted Transferees shall be
entitled to demand, in the aggregate, and the Company shall be
obligated to effect, no more than a total of four Registrations
pursuant to this Section 1.2 with no more than two such demand
Registrations being made within any twelve-month period. The Company
shall not be obliged to Register any Registrable Securities pursuant
to this Section 1.2 unless there is requested to be included in such
Registration at least 500,000 shares of Registrable Securities
(adjusted to reflect any exchange, stock split or stock dividend,
recapitalization, merger, consolidation or other reorganization or
similar
<PAGE>
transaction or occurrence), except that a Qualifying Holder may
request Registration of less than the amount set forth above in the
event it is eliminating its entire remaining ownership of Registrable
Securities. A registration of Registrable Securities will not count as
a demand Registration pursuant to this Section 1.2 until it has become
effective under the Securities Act; provided, however, that if after
the Registration Statement has become effective, the offering of
Registrable Securities pursuant to such Registration is interfered
with by a stop order, injunction or other requirement of the
Commission or other governmental agency or veered not resulting from
the acts or omissions of any Qualifying Holder whose securities are so
Registered and no Registrable Securities are actually sold thereunder,
such registration will be Seemed not to have become effective and
shall not count ar a demand Registration pursuant to this Section 1.2;
provided, further, that 1 registration that does not become effective
after the Company has substantially prepared and has filed or is in a
position to file a Registration Statement with respect thereto solely
by reason of the refusal to proceed by the Qualifying Holder or
Qualifying Holders requesting Registration (other than any refusal to
proceed based upon (i) the advice of its counsel that the Registration
Statement, or the prospectus contained therein, contains an untrue
statement Def a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then
existing, which untrue statement or omission is not related to
information provided pursuant to Section 1.4(a) hereof, (ii) the
failure or inability of the Company to meet the conditions to closing
specified in any underwriting agreement to which the Company and/or a
Qualifying {older is a party and that was entered into in connection
with such registration, or (iii) the number of shares of Registrable
Securities that are to be sold being reduced pursuant to Section
1.2(b) to less than 500,000, as adjusted to reflect any exchange,
stock split or stock dividend, recapitalization, merger, consolidation
or other reorganization or similar transaction or occurrence) shall be
deemed to have been effected by the Company pursuant to this Section
1.2.
(e) The Company shall use its best efforts to keep any
Registration Statement filed pursuant to this Section 1.2 effective
for the period of distribution contemplated by such Registration
Statement, which in no event need be later than (i) in the case of a
Registration other then a Shelf Registration, the earlier to occur of
(x) the date on which the Registrable Securities offered under such
Registration Statement are sold or the offer thereof is discontinued
by the Qualifying Holders requesting Registration thereunder, or (y)
180 days after the effective date of such Registration Statement and
(ii) in the case Def a Shelf Registration, the earlier to occur of (x)
the date on which the Registrable Securities offered under such Shelf
<PAGE>
registration are sold, or (y) two years after the effective date or
such Shelf Registration.
(f) The Company, at its election, may cause one or more
Registration Statements under Rule 415 as promulgated by the
Commission under the Securities Act, as such Rule may be amended From
time to time, or any successor Rule that may be promulgated by the
Commission (each a "Shelf Registration") to be filed covering the
disposition by the Qualifying Holders of their Registrable Securities.
(g) Notwithstanding the foregoing obligations or the Company to
use its best efforts to cause the Registrable Securities to be
Registered under the Securities Act, if the Company shall furnish to
the Qualifying Holder or QuAlifying Holders requesting Registration a
certificate signed by an officer of the Company stating that in the
good faith judgment of the Company's Board of Directors or Executive
Committee it would be materially detrimental to the Company or its
shareholders for such a Registration Statement to be filed as
expeditiously as possible and that it is therefore necessary to
postpone the filing of such Registration Statement and, to the extent
practicable, containing a statement of the reasons for such deferral
and an estimate of the anticipated delay, the Company shall have the
right, subject to the provisions of this Section 1.2(g), to postpone
such filing for such period as may be necessary so as not to interfere
with corporate transactions of the Company. Any such certificate must
be furnished within five days after a Registration Request is given
or, if later, as soon as reasonably possible after the determination
forming the basis for such certificate is made by TWA. If as a result
of any such postponement, the Company does not for a period of 180
days after the postponement effect a Registration of the Registrable
Securities desired by a Qualifying Holder to be Registered pursuant to
this Section 1.2, the Company will use its best reasonable efforts
promptly to effect such Registration. The Company may not postpone a
Registration in this manner more than once in any twelve (12) month
period. If the Company shall postpone the filing of a Registration
Statement pursuant to the foregoing for 45 days after the delivery of
the above-referenced certificate, the Qualifying Holder requesting
registration shall have the right to withdraw the Registration Request
by giving written notice to the Company within fifteen days after such
45-day period and, in the event of such withdrawal, such Registration
Request shall not be counted for purposes of the requests for
Registration to which the Qualifying Holders are entitled pursuant to
Section 1.2.
(h) If a requested Registration pursuant to this Section 1.2
involves an underwritten offering, the Qualifying Solder or Qualifying
Holders requesting Registration
<PAGE>
shall have the right to select the investment banker and manager or
co-managers that will administer the offering (after consulting with
the Company as to such selection and upon the written consent of the
Company, which consent shall not be withheld unreasonably). The
Company will promptly enter into an underwriting agreement reasonably
acceptable to the Company and such Qualifying Holder or Qualifying
Holders with such underwriters for such offering, such Agreement to
contain such terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions,
including, without limitation, indemnities to the affect and to the
extent provided in Section 1.6 hereof. Each Qualifying Holder
requesting Registration shall be a party to such underwriting
agreement and may, at its option, require that any or 11 of 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 such Qualifying Holder or
Qualifying Holders and that any or all of the conditions precedent to
the obligations of such underwriters under such underwriting agreement
be conditions precedent to any Obligations of such Qualifying Holder
or Qualifying Holders; provided, however, that such Qualifying Holder
or Qualifying Holders shall be required to agree to indemnify the
Company and its officers and directors to the same extent as provided
in Section 1.6(b) hereof.
1.3 Incidental Registration Rights.
(a) If at any time or times from and after the date hereof the
Company shall determine, other than pursuant to Section 1.2, to
register any of its Common Stock, whether or not for its own account
other than (i) a registration on Form S-8 or any similar form which
may be authorized in the future, or (ii) a registration relating to a
transaction governed by Rule 145 promulgated under the Securities Act
on Form S-4 or any similar form which may be authorized in the future,
the Company shall:
(1) each such time promptly give lo the Qualifying Holders
written notice of the proposed registration at Least 30 days
prior to the filing of the proposed registration ;statement; and
(2} Include in each such registration (and any related
qualification under blue sky laws or other state securities
laws), and in any underwriting involved therein, all the
Registrable Securities specified in a Registration Request or
Requests made within 15 days after receipt of such written notice
from the Company, by the applicable Qualifying Holder, subject to
Section 1.3(c) hereof.
<PAGE>
(b) If the registration of which the Company gives notice is for
a registered public offering involving an underwritten offering, the
Company shall so advise the applicable QualifYing Holder as a part of
the written notice given pursuant to Section 1.3(a)(1). In such event,
the right of such Qualifying Holder to Registration of its Registrable
Securities pursuant to this Section 1.3 shall be conditioned upon its
participation in such underwriting and the inclusion of such
Qualifying Holder's Registrable Securities requested to be included in
the underwriting to the extent provided herein. If such Qualifying
Holder desires to dispose of all or a portion of its Registrable
Securities pursuant to such underwriting, it shall (together with the
Company and the other stockholders, if any, distributing their
securities through such underwriting) enter into an underwriting
agreement in customary form, reasonably acceptable to such Qualifying
Holder (such agreement to contain such terms and provisions as are
customarily contained in underwriting agreements of such nature,
subject to Section 1.6(b) hereof), with the underwriter or
underwriters selected for such offering by the Company and, subject to
the foregoing, agree to sell their Registrable Securities to the
underwriter or underwriters selected for such underwriting by the
Company, on the same terms and conditions as apply to the Company. If
such Qualifying Holder disapproves of the terms of any such
underwriting, it may elect to withdraw therefrom by written notice to
the Company and the underwriter. Any Registrable Securities excluded
or withdrawn from such underwriting shall be excluded from such
registration.
(c) Notwithstanding any other provision of this Agreement, if a
Registration pursuant to this Section 1.3 involves an underwritten
offering, and the managing underwriter shall advise the Company in
writing (with a copy to each Qualifying Holder participating in the
offering) that in the good faith exercise of its reasonable business
judgment, the number of shares of Common Stock which the Company, the
applicable Qualifying Holder or Qualifying Holders and any other
Persons request to be included in such Registration exceeds the number
that can be sold in such offering without materially and adversely
affecting the successful marketing of the Common Stock to be sold in
such offering or the trading market in Common Stock, the Company will
include in such registration: (i) in the event of a Registration
initiated by the Company, the number of shares that the Company is so
advised can be sold in such offering without such material adverse
effect in the following priority: (x) first, all the Common Stock the
Company proposes to sell for its own account (including any shares of
Common Stock pursuant to an underwriter's exercise of an
over-allotment option to be sold for the Company's account), and (y)
second, the balance of Common Stock to be included in such
Registration shall be allocated as follows: the number of such
Registrable Securities requested to be included in such Registration
by such
<PAGE>
Qualifying Holder or Qualifying Holders pursuant to this Section 1.3
and the shares of Common Stock requested to be sold for the account of
any other Persons shall be allocated pro rata among such Qualifying
Holder or Qualifying Holders and all such requesting Persons on the
basis of the relative number of shares of Registrable Securities and
other shares of Common Stock that the Qualifying Holder or Qualifying
Holders and each other Persons, respectively, have requested to be
included in such Registration; and (ii) in the event of a Registration
initiated by a Person other than the Company, tx) first, all the
Common Stock such Person proposes to sell for its own account, and (y)
second, the balance of Common Stock to be included in such
Registration (including any Common Stock the Company proposes to
register) shall be allocated as follows: the number of such
Registrable Securities requested to be included in such Registration
by such Qualifying Holder or Qualifying Holders pursuant to this
Section 1.3 and the shares of Common Stock requested to be sold for
the account of the Company and any other Persons shall be allocated
pro rata among such Qualifying Holder or Qualifying Holders, the
Company and all such requesting Persons on the basis of the relative
number of shares of Registrable Securities and other shares of Common
Stock the Qualifying Holder Dr Qualifying Holders, the Company and
each other Persons, respectively, have requested to be included in
such Registration.
(d) Notwithstanding anything in this Section 1.3 to the contrary,
no Registration of Registrable Securities under this Section 1.3 shall
relieve the Company of its obligations to effect demand Registrations
in accordance with Section 1.2 hereof.
(e) If, at any time after giving such written notice under this
Section 1.3 of its intention to register any common Stock and prior to
the effective date of the registration statement filed in connection
with such registration, the Company shall determine for any reason not
to register such Common Stock, the Company may, at its election, give
written notice of such determination to the Qualifying Holder or
Qualifying Holders requesting Registration and thereupon shall be
relieved of its obligation to Register any Registrable Securities in
connection with such registration.
(f) The Company shall use its best efforts to keep any
Registration Statement filed pursuant to this Section 1.3 effective
for the period of distribution contemplated by such Registration
Statement, which in no event need be later than (i) in the case of a
Registration other than a Shelf Registration, the earlier to occur of
(x) the date on which the Registrable Securities offered under such
Registration Statement are sold or the offer thereof is discontinued
by the Qualifying Holders
<PAGE>
requesting Registration thereunder, or (y) 180 days after the
effective date of such Registration Statement and (ii) in the case of
a Shelf Registration, the earlier to occur of (x) the date on which
the Registrable Securities offered under such Shelf Registration are
sold, or (y) two years after the effective date of such Shelf
Registration.
(g) If in the future the Company grants to any Person other than
a Qualifying Holder rights to demand, or participate in, Registrations
of Common Stock, the Company shall within five business days
thereafter advise the PBGC and the Settlement Trustee of such
registration rights.
1.4 Covenants with Respect to Registration.
In furtherance of the Registration of the Registrable Securities pursuant to
this Agreement:
(a) Subject to the provisions or applicable law, each Qualifying
Holder requesting Registration will promptly furnish the Company in
writing such information regarding such Qualifying Holder, the plan of
distribution of the Registrable Securities and such other matters as
may be legally required in the Opinion of counsel to the Company
(experienced in securities law matters and reasonably acceptable to
such Qualifying Holder) in connection with such Registration or as the
Company may reasonably request from time to time to comply with the
requirements of applicable securities laws.
All such information furnished by the applicable Qualifying
Holder shall be signed by it, and shall be stated to be specifically
for use in connection with the Registration. The Company shall provide
such Qualifying Holder with a copy or draft of any Registration
Statement or Prospectus which includes information provided by such
Qualifying Holder prior to the filing of such Registration Statement
or Prospectus, and shall provide sufficient time for such Qualifying
Holder to comment on and modify, to the extent it deems necessary,
such information. Such Qualifying Holder shall revise and comment on
such information as soon as reasonably possible after it is received
by it and in so doing shall use its best efforts to avoid delaying the
effectiveness of any applicable Registration.
(b) Subject to the other terms and provisions of this Agreement,
the Company shall use its best efforts to cause any Registration
Statement filed pursuant to this Agreement to become effective as soon
as practicable after the filing thereof and shall deliver to each
Qualifying Holder requesting Registration and any underwriter
participating in such Registration evidence of such effectiveness, two
(2) conformed copies of such Registration Statement and of each
amendment and supplement thereto (in each case including all exhibits
<PAGE>
other than those incorporated by reference therein) and such number of
copies of the Prospectus as much Qualifying Holder and underwriter may
reasonably request. In addition, the Company shall qualify or
register, if necessary for resale by the Qualifying Holders, ln such
states as may be reasonably requested by the applicable Qualifying
Holder, all Registrable Securities as shall have been included in the
Registration Statement and keep such Registration or qualification in
effect for so long as the Registration Statement remains in effect;
provided, however, that such request shall be given to the Company (i)
prior to the effectiveness of any Registration Statement pursuant to
Section 1.2, and (ii) a reasonable period prior to any proposed
distribution under a Registration Statement filed pursuant to Section
1.3; and provided, further, that in no event shall the Company be
obligated to qualify to do business as a foreign corporation in any
state in which it is not so qualified as of the date of such request,
or to take any action that would subject the Company to unlimited
service of process or to general taxation in any state where it is not
so subject as of the date of the request.
(c) The Company shall use its best efforts to cause any
Registration Statement and the Prospectus to remain current, including
the filing of necessary amendments and supplements, and shall furnish
copies of such amendments and supplements to the applicable Qualifying
Holder and any underwriter participating in such registration, so as
to permit distributions by such Qualifying Holder or underwriter, as
the case may be, during the respective contemplated periods of
distribution (as Limited by Sections 1.2 or 1.3, as the case may be).
(d) The Company shall, as soon as practicable upon discovery,
notify each Qualifying Holder requesting Registration, at any time
when a Prospectus relating to such Qualifying Holder is required to be
delivered under the Securities Act, of the happening of any event
which comes to the Company's attention as a result of which the
Prospectus included in a Registration Statement contains 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 not misleading under the circumstances in which they were
made. The Company will prepare and furnish to each such Qualifying
Holder a supplement or amendment to such Prospectus so that, as
thereafter delivered with such supplement or amendment to the
purchasers of such Registrable Securities, such Prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided that, in the event the
Company shall give such notice in connection with any
<PAGE>
Registration pursuant to Section 1.2(a) hereof, the Company shall, to
the extent reasonably requested by such Qualifying Holder, extend the
period during which such Registration Statement shall be maintained
effective as referred to in Section 1.2(e) by the number of days in
the period from and including the date of the giving of such notice to
the date when the Company shall make available to such Qualifying
Holder a Prospectus supplemented or amended to conform with the
requirements of this Section 1.4(d).
(e) The Company shall on a confidential basis make available for
inspection at any reasonable time by a representative of each
Qualifying Holder requesting Registration, any underwriter
participating in any disposition pursuant to such Registration
Statement, and any attorney, accountant or other agent retained by
such Qualifying Holder or underwriter (collectively, the
"Inspectors"), all financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries, if any,
as shall be reasonably necessary to enable them to exercise their due
diligence responsibility, and cause the Company and its subsidiaries,
officers, directors and employees to supply on a confidential basis
all information and respond to all inquiries reasonably requested by
any such Inspectors in connection with such Registration Statement.
Such inspection and due diligence efforts shall be coordinated by the
Inspectors and the Company to minimize disruption and expense to the
Company during the course of the Registration process.
(f) Each Qualifying Holder requesting Registration shall report
to counsel to the Company, either orally or telephonically and
confirmed promptly in writing, any distribution made by such
Qualifying Holder of its Registrable Securities pursuant to a
Registration under this Agreement within ten (10) business days after
such distribution has been completed and, at the time of such report,
shall notify the Company of the number of Registrable Securities sold,
the state or states in which the Registrable Securities were sold and
the method of distribution.
(g) ln connection with any Registration under this Agreement,
upon notice by the Company to each Qualifying Holder requesting
Registration, which may be given orally or telephonically and
confirmed promptly in writing, that an event has occurred as a result
of which a supplement or amendment to the Prospectus or the
Registration Statement is required, each such Qualifying Holder shall
cease further distributions of the Prospectus and all offers and sales
of Registrable Securities until notified by the Company of the
availability and filing of such supplement or the effectiveness of
such amendment. The Company shall use its best efforts to distribute
and file such
<PAGE>
Supplement or cause to be declared effective such amendment as soon as
practicable. Each such Qualifying Holder shall distribute such
Registrable Securities only in the manner that is in accordance with
the manner of distribution contemplated by the Prospectus with respect
to such Registrable Securities and only in compliance with applicable
federal and state securities laws.
(h) The Company shall use its best efforts to obtain and furnish
each Qualifying Holder requesting Registration with a signed
counterpart of a "cold comfort" letter from the Company's independent
public accountants in customary form and covering such matters of the
type customarily covered by "cold comfort" letters in registered
secondary offerings.
(i) The Company and each Qualifying Holder requesting
Registration in any offering in which Registrable Securities of each
such Qualifying Holder are being sold shall each deliver to the other,
its counsel and each underwriter of any of the Registrable Securities
to be distributed pursuant to the Prospectus, such certificates,
agreements, opinions of counsel and other documents that are
reasonably required from such party by applicable law or reasonably
necessary for the sale of such Registrable Securities and that are
customarily delivered in connection with underwritten public
offerings.
(j) In any offering or Registrable Securities hereunder each
Qualifying Holder requesting Registration will reasonably cooperate
with the Company and any underwriters for such Registrable Securities,
and take all such other reasonable actions as are reasonably necessary
or advisable to permit, expedite and facilitate the disposition of
such Registrable Securities in the manner contemplated by the related
Registration Statement, except in each case to the extent prohibited
by federal law applicable to the PBGC.
(k) The Company will use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available
to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months, but
not more than eighteen months, after the effective date of such
Registration Statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158
promulgated thereunder by the Commission.
(l) The company Will provide (if not theretofore provided) a
CUSIP number for, and cause a competent transfer agent and registrar
to be maintained for, all Registrable Securities covered by such
Registration Statement from and after a late not later than the
effective date of such Registration Statement.
<PAGE>
(m) The Company will use its best efforts to list the Registrable
Securities covered by each Registration Statement on each securities
exchange and/or inter-dealer quotation system on which the Company's
Common Stock is then listed.
1.5 Expenses of Registration.
In connection with any Registration, including without limitation a Shelf
Registration, a Registration pursuant to Section 1.2 of this Agreement or a
Registration pursuant to Section 1.3 of this Agreement, the Company shall bear
the following costs and expenses of Registration: (i) costs of preparing,
printing and filing each Registration Statement and Prospectus and any
supplement(s) or amendment(s) thereto, (ii) costs of furnishing to each
Qualifying Holder requesting Registration two copies of the Registration
Statement and such number of copies of the Prospectus as may be required by
Sections 1.4(b) and (c) hereof to be so furnished, together with a like number
of copies of each amendment thereof or supplement thereto, (iii) costs of
performing its obligations under Section 1.4 hereof, (iv) costs of printing and
issuing share certificates, including the transfer agent's and registrar's fees,
in connection with the distribution so Registered, (v) fees of legal counsel of
the Qualifying Holder(s) requesting Registration in an amount not to exceed
$15,000 in the aggregate with respect to all Qualifying Holders, (vi) fees and
expenses in connection with qualifications or registrations of the resale of the
Registrable Securities under blue sky laws and other state securities laws,
(vii) expenses necessary to keep all filings effective and current, (viii) fees
and expenses of counsel for the Company and all independent certified public
accountants (including the expenses of any annual audit, special audit and "cold
comfort" letters required by -or incident to such performance and compliance),
(ix) the reasonable fees and expenses of any special experts retained by the
Company in connection with such Registration,- and (x) in the case of a
Registration under Section 1.3 all reasonable underwriter's out-of-pocket
expenses. The Company shall not be required to bear any cost or expense incurred
by the applicable Qualifying Holder except as set forth above and such
Qualifying Holder agrees to pay its pro rata portion of any underwriting
discounts or commissions and transfer taxes applicable to its Registrable
Securities and in the case of a Registration under Section 1.2, underwriting
out-of-pocket expenses except that if a Registration Request is withdrawn
pursuant to Section 1.2(g) then the Company shall promptly reimburse such
Qualifying Holder for any such expenses incurred prior thereto. Notwithstanding
anything to the contrary in this Agreement, if the Settlement Trustee as a
Qualifying Holder incurs any costs, fees or expenses pursuant to the foregoing
for which TWA is not responsible, such amount shall be paid out of the proceeds
<PAGE>
of the sale of Common Stock or otherwise out of any proceeds or funds held by
the Settlement Trustee under the Settlement Trust Agreement or as may otherwise
be agreed to by the Settlement Trustee and PBGC.
1.6 Indemnification.
(a) In connection with any Registration of Registrable Securities
pursuant to this Agreement, the Company shall indemnify and hold
harmless the Settlement Trustee, PBGC, each other Qualifying Holder
Registering Registrable Securities, each of their officers, directors,
employees, legal counsel and accountants, if applicable, each Person
controlling the Settlement Trustee, PBGC or other Qualifying Holder
within the meaning of Section 15 of the Securities Act or Section
20(a) of the Exchange Act, each underwriter, if any, for the
Qualifying Holder requesting Registration, each Person who controls
any such underwriter within the meaning of Section 15 of the
Securities Act, and their respective successors and assigns from and
against any and all costs, expenses (including, without limitation,
reasonable attorneys' fees and expenses), claims, demands, losses,
damages and liabilities (and actions and proceedings in respect
thereof), including, but without limitation, any of the foregoing
incurred in settlement of any litigation, investigation, discovery or
other proceedings, commenced or threatened, arising out of or based on
any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement under which Registrable
Securities are included, or Prospectus or other document incident
thereto, or any document filed by the Company with the Commission Dr
any securities exchange or inter-dealer quotation system, or any
amendment or supplement thereof, or arising out of or based on any
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading, or
any violation by the Company of the Securities Act, the Exchange Act,
or state securities laws applicable to the Company or any rule or
regulation thereunder relating to action or inaction required of the
Company in connection with any Registration, qualification or
compliance required of the Company under this Agreement, and shall
reimburse each Person indemnified pursuant to this Section 1.6(a) for
reasonable legal, and any other Out-of-pocket expenses reasonably
incurred in connection with investigating, defending and responding to
discovery whether or not a party to litigation, investigation,
discovery or proceedings or preparing or defending any such claim,
demand, loss, damage, liability or action; provided, however, that the
Company shall not be liable in any such case to the extent that any
such cost, claim, expense, loss, demand, damage, liability or expense
arises out of Dr is based on any untrue statement or omission or
alleged untrue statement or omission made in reliance
<PAGE>
upon and in conformity with written information furnished by the
Qualifying Holder requesting Registration or its counsel to the
Company and stated to be specifically for use in the Registration
Statement or the Prospectus pursuant to Section 1.4(a) of this
Agreement.
(b) A Qualifying Holder, by participating in any Registration
pursuant to this Agreement, thereby agrees to indemnify and hold
harmless the Company, its officers and directors, if applicable, each
Person controlling the Company within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, and their
respective successors against all costs, claims, expenses (including,
without limitation, reasonable attorney's fees and expenses), losses,
demands, damages and liabilities to third parties (and actions in
respect thereof), including, without limitation, any of the foregoing
incurred in the settlement of any litigation, investigation, or other
proceeding, commenced or threatened, arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact
contained in any Registration Statement or Prospectus or other
document incident thereto, or filed with the Commission or any
securities exchange, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and shall reimburse the
Company and each other Person indemnified pursuant to this Section
1.6(b) for reasonable legal and any other out-of-pocket expenses
reasonably incurred in connection with investigating and defending any
such cost, claim, expense, loss, demand, damage, liability or action,
or responding to discovery whether or not a party to litigation, in
each case to the extent, but only to the extent, that such untrue
statement or omission was made in reliance upon and in conformity with
written information furnished to the company by an instrument duly
executed by or on behalf of such Qualifying Holder and stated to be
specifically for use in the Registration Statement or in the
Prospectus pursuant to Section 1.4(a) of this Agreement.
Notwithstanding the foregoing, to the extent that PBGC is prohibited
by federal law from indemnifying private parties, this Section 1.6(b)
shall not be applicable to it, and further, if the Settlement Trustee
participates in any Registration, its indemnification obligations
pursuant to the foregoing shall only apply to the extent of its
grossly negligent action or grossly negligent failure to act, or its
own willful misconduct.
(c) Each party entitled to indemnification under this Section 1.6
(the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which
indemnity may be sought hereunder (provided that the failure of any
Indemnified Party to give notice is provided herein shall not relieve
<PAGE>
the Indemnifying Party of its obligations under this Agreement, except
to the extent such failure is prejudicial to the Indemnifying Party in
defending such claim or Litigation or results in any increased cost,
expense or liability of the Indemnifying Party), and shall permit the
Indemnifying Party to participate in and assume the defense of any
such claim or any Litigation resulting therefrom provided that (i)
counsel for the Indemnifying Party, who shall conduct the defense of
such claim or litigation, shall be approved by the Indemnified Party
(whose approval shall not be unreasonably withheld or delayed) and
(ii) counsel for the Indemnified Party shall not have determined, in
the reasonable judgment of such counsel, that a conflict of interest
between the Indemnifying Party and the Indemnified Party nay exist. No
Indemnifying Party, in the defense of any such claim or litigation,
shall consent to entry of any judgment or enter into any settlement
except with the prior written consent of each Indemnified Party.
(d) If the indemnification provide for in this Section 1.6 is
held by a final judgment of a court of competent jurisdiction, which
is no longer subject to appeal, to be available to an Indemnified
Party with respect to any cost, loss, Liability, demand, claim,
damage, expense or action referred to therein, then the Indemnifying
Party, in lieu of indemnifying such Indemnified Party hereunder, shall
contribute to the amount unpaid Dr payable by such Indemnified Party
as a result of such loss, cost, liability, claim, demand, damage,
expense or action in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party on the one hand and of the
Indemnified Party on the other in connection with the statements or
omissions which resulted in such cost, loss, liability, claim, demand,
damage or expense as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of
the Indemnified Party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the omission to state a material fact relates to information
supplied by the Indemnifying Party or by the Indemnified Party and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Company also agrees to indemnify (or if indemnification
is held by a final judgment of a court of competent jurisdiction,
which is no longer subject to appeal, to be unavailable to contribute
to the amount paid or payable by) any underwriters of the Registrable
Securities, their officers and directors and each Person who controls
such underwriters on substantially the same basis as that of the
indemnification (or contribution) of the Qualifying Holders
hereinabove provided.
<PAGE>
(f) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in any
underwriting agreement to which the Company and the applicable
Qualifying Holder are parties entered into in connection with any
underwritten public offering contemplated hereby are in conflict with
the foregoing provisions, the provisions in the underwriting agreement
relating to indemnification and contribution obligations shall
control.
1.7 Holdback Agreements.
If any Registration of Common Stock shall be made by means of an
underwritten public offering (whether or not any Registrable Securities are
registered thereby), the Qualifying Holders agree not to effect any public sale
or distribution, including any sale pursuant to Rule 144, of any Registrable
Securities, and not to effect any such public sale or distribution of any other
equity security of the Company or of any security convertible into or
exchangeable or exercisable for Any equity security of the Company (in each
case, other than as part of such underwritten public offering or with the
permission of the managing underwriter) during the longer of (i) the 15 days
prior to, and during the 120-day period beginning on, the effective date of such
Registration Statement (except as part of such Registration), or (ii) such
period as the officers, directors, affiliates or control persons of the Company
are required by the underwriter to cease sales or distributions, provided that
such Qualifying Holders have received written notice of such Registration at
least 15 days prior to such effective date. Notwithstanding this Section 1.7,
the Qualifying Holders shall only be subject to no more than two holdback
periods pursuant to this Section 1.7 in any 12 month period relating to
Registrations of Common Stock by the Company.
1.8 No Registration Required.
Notwithstanding anything to the contrary contained herein, in the event a
proposed sale of Registrable Securities specified in a Registration Request
pursuant to Section 1.2 hereof, or in a Registration Request pursuant to Section
1.3 hereof, may, in the written opinion of the Company's counsel (experienced in
securities law matters and reasonably acceptable to the Qualifying Holder or
Qualifying Holders making such Request), be effected under applicable securities
laws without Registration, or without the limitations and restrictions of Rule
144, the company shall be under no obligation to register such securities.
2. Rule 144; Legend.
(a) The Company hereby covenants that at any time the Qualified
<PAGE>
Holders are permitted hereunder to sell Common Stock pursuant to Rule
144 it shall file in a timely manner all reports required to be filed
by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the commission thereunder and it shall take
such further action as the Qualifying Holders may reasonably request
all to the extent required from time to time to enable the Qualifying
Holders to sell Registrable Securities as permitted by this Agreement
without registration under the Securities Act within the limitation of
the exemptions provided by (i) Rule 144, or (ii) any similar rule or
regulation hereafter adopted by the Commission. Upon the request of a
Qualifying Holder at any time it is permitted hereunder to sell Common
Stock pursuant to Rule 144, the Company shall deliver :o such
Qualifying Holder a written statement as to whether it has complied
with such requirements. In addition, the Company hereby agrees that
for a period of eighteen months following the date on which a
Registration Statement filed pursuant to Section 1.2 hereof ;hall have
become effective, the Company shall not deregister such securities
under Section 12 of the Exchange Act (even if then permitted to do so
pursuant to the Exchange Act and the rules and regulations promulgated
thereunder).
(b) Each Qualifying Holder agrees that substantially the
following legend shall be placed on the certificates representing any
shares of Registrable Securities acquired by it:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
THE RESTRICTIONS CONTAINED IN A REGISTRATION RIGHTS
AGREEMENT, AND A NOTE TERMS AGREEMENT, EACH DATED AS OF
AUGUST 23, 1995, COPIES OF WHICH ARE ON FILE AT THE OFFICE
OF THE SECRETARY OF THE COMPANY."
; provided that such legend shall be removed upon the Registration of
such shares of Registrable Securities pursuant hereto.
(c) Each Qualifying Holder hereby agrees that it shall not sell
or otherwise transfer any Common Stock during the term of this
Agreement pursuant to Rule 144 until the earlier to occur of (i) the
date on which the number of Registrable Securities held by or for the
benefit of the Qualifying Holders has been reduced to less than five
percent of the total number of shares of Common Stock then
outstanding, or (ii) the first anniversary of the late of this
Agreement.
3. Private Sales. There shall be no limit on the number of privately
negotiated transactions permitted to be consummated by the Qualifying
Holders except as provided in Sections 1.7 and
<PAGE>
2(c) hereof and except as provided in the Note Terms Agreement. No later
than ten business days prior to the sale of Common Stock in a privately
negotiated transaction, the Settlement Trustee shall give the Company
written notice of its intention to effect such transfer. Each such notice
shall describe the manner of the proposed transfer, and the proposed
transferee, and shall be accompanied by an opinion of counsel experienced
in federal securities law matters and reasonably acceptable to the Company
to the effect that the proposed transfer may be effected without
registration under the Securities Act and applicable state Laws.
4. Permitted Purchasers and Tender Offers. The Qualifying Holders may
transfer Registrable Securities in any manner permitted hereunder and
permitted under the Note Terms Agreement to any Person whether or not such
Person is required to file with the Commission a Schedule 13D under the
Exchange Act. Further, any Qualifying Holder may tender its Registrable
Securities in any third party tender offer for all or any portion of the
Common Stock of the Company.
5. Assignability. The provisions of this Agreement shall be binding
upon and accrue to the benefit of the parties hereto and their respective
successors. Nothing in this Agreement shall be construed to limit the
transfer or assignment of the rights or obligations of the Company herein.
The Qualified Holders may not transfer any of their rights or obligations
hereunder without the prior written consent of the Company, except to a
Permitted Transferee. No rights in any respect shall accrue to, or be
transferred to, any subsequent holder of any shares of Common Stock held by
a Qualified Holder, other than a Permitted Transferee .
6. No Inconsistent Agreements. The Company shall not hereafter enter
into any agreement with respect to its Common Stock or other equity
securities which breaches or restricts the Company from performing its
obligations under this Agreement, including without limitation its
obligations under Section 1.3(a) hereof.
7. Governing Law. The parties hereto agree that this Agreement shall
be governed by, and construed in accordance with, the laws of the State of
New York, and the laws of the United States to the extent such laws preempt
state law.
8. Entire Agreement. This Agreement and the Note Terms Agreement
constitute the entire agreement and understanding of the parties hereto in
respect of the subject matter contained herein, and there are no
restrictions, promises, representations, warranties, covenants, or
undertakings with respect to the subject matter hereof, other than those
expressly set forth or referred to herein. This Agreement and the Note
Terms Agreement
<PAGE>
supersede all prior agreements and understandings among the parties hereto
with respect to the subject matter hereof.
9. Severability. The invalidity, illegality or unenforceability of one
or more of the provisions of this Agreement in any jurisdiction shall not
affect the validity, legality or enforceability of the remainder of this
Agreement in such jurisdiction or the validity, legality or enforceability
of this Agreement, including any such provision, in any other jurisdiction,
it being intended that all rights and obligations of the parties hereunder
shall be enforceable to the fullest extent permitted by applicable law.
10. Amendments. No modification, waiver or amendment or this Agreement
shall be binding or enforceable unless set forth in a written document
executed by all the parties hereto.
11. Notices. All notices, demands, instructions or other
communications required or permitted to be given to or made upon any party
hereto shall be in writing and shall be personally delivered or sent by
registered, certified or express mail or nationally recognized overnight
courier service, postage prepaid, return receipt requested, or by Telex
(answerback received), telefacsimile (which shall be immediately followed
by mailing the original of such communication), TWX or prepaid telegram
(with messenger delivery specified in the case of a telegram) and shall be
deemed to be given for purposes of this Agreement (i) in the case of Telex
or telefacsimile, on the date transmitted to the intended recipient
thereof, (ii) in the case of express mail or nationally recognized
overnight courier service, on the business day after the date sent by
express mail or nationally recognized overnight courier service, or (iii)
on the fifth day after sent by registered or certified mail. Unless
otherwise specified in a notice sent or delivered in accordance with the
foregoing provisions of this Section, notices, demands, instructions and
other communications in writing shall be given to or made upon the
following parties at their respective addresses (or to their respective
Telex or telefacsimile numbers) indicated below, and, in the case of
telephonic instructions or notices, by calling the telephone number or
numbers indicated for such party below or at such other address as any
party hereto may notify to the other parties hereto in accordance with the
provisions of this Section.
To TWA: Trans World Airlines, Inc.
One City Centre
515 North 6th Street
St. Louis, Missouri 63101
Attention: General Counsel
Telephone: (314) 589-3264
Telefacsimile: (314) 589-3267
<PAGE>
To PBGC: Pension Benefit Guaranty
Corporation
1200 K Street, N.W.
Washington, D.C. 20005
Attention: General Counsel
Telephone: (202) 326-4020
Telefacsimile: (202) 326-4112
with a copy to: Pension Benefit Guaranty
Corporation
1200 K Street, N.W.
Washington, D.C. 20005
Attention: Director, CFND
Telephone: (202) 326-4070
Telefacsimile: (202) 842-2643
To the Settlement American National Bank and Trust
Trustee: Company of Chicago
33 N. LaSalle Street
Chicago, Illinois 60690
Attention: Corporate Trust
Department
Telephone: (312) 661-6952
Telefacsimile: (312) 661-6419
To the Icahn Pichin Corp.
Sponsor: c/o Icahn Holding Corporation
One Wall Street
New York, New York 10005
Attention: Richard T. Buonato
Telephone: (212) 635-5571
Telefacsimile: (212)
or to such other address as the party to receive notice may from time to
time designate by notice in accordance with the provisions of this Section
11 to the other parties.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
13. Termination. This Agreement, including all rights and transfer
restrictions set forth herein, shall terminate upon :he date on which the
number of Registrable Securities held by the Qualifying Holders is less
than two percent of the total outstanding shares of Common Stock of the
Company.
14. The Icahn Sponsor. If all of the "Plans" (as Settlement Agreement)
are terminated pursuant to Section 11.1 of the Settlement Agreement and the
proceeds received From the sale or distribution of the Registrable
Securities
<PAGE>
are to be applied to reimburse the Icahn Sponsor under Section 11.2 or the
Settlement Agreement, the Settlement Trustee and PBGC agree that from and
after the date all of the Plans are terminated, and prior to the
reimbursement of the Icahn Sponsor for its "Contribution Payments" as
defined in Section 11.2 of the Settlement Agreement, the rights under this
Agreement of the Settlement Trustee and the PBGC as a Qualifying Holder
with respect to any Common Stock held by them at such time will be
exercised under this Agreement only with the prior written consent and at
the direction of the IcAhn Sponsor.
15. Rights of the Settlement Trustee. Notwithstanding anything to the
contrary in this Agreement, in executing, delivering and performing this
Agreement, the Settlement Trustee shall be entitled to all of the
privileges, rights and immunities afforded to the Settlement Trustee under
the terms and provisions of the Settlement Trust Agreement.
[Signatures on remaining pages]
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement by their duly authorized officers as of the date of this Agreement.
Trans World Airlines, Inc.
By:_______________________________
Title
Pension Benefit Guaranty
Corporation
By:_______________________________
Title
American National Bank and Trust
Company of Chicago, not personally
but solely as Settlement Trustee
By:_______________________________
Title
Pichin Corp.
By:_______________________________
Title
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement by their duly authorized officers as of the date of this Agreement.
Trans World Airlines, Inc.
By:_______________________________
Title
Pension Benefit Guaranty
Corporation
By:_______________________________
Title
American National Bank and Trust
Company of Chicago, not personally
but solely as Settlement Trustee
By:_______________________________
Title
Pichin Corp.
By:_______________________________
Title
[Signature Page of Registration Rights Agreement
dated as of August 23, 1995]
<PAGE>
IN WITNESS WHEREOF, the parties have executed this
Registration Rights Agreement by their duly authorized officers as of the date
of this Agreement.
Trans World Airlines, Inc.
By:_______________________________
Title
Pension Benefit Guaranty
Corporation
By:_______________________________
Title
American National Bank and Trust
Company of Chicago, not personally
but solely as Settlement Trustee
By:_______________________________
Title
Pichin Corp.
By:_______________________________
Title
<PAGE>
