NOTES EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
Dated as of August 13, 1999
by and among
REPUBLIC TECHNOLOGIES INTERNATIONAL, LLC
RTI CAPITAL CORP.
and
THE GUARANTORS
named herein
and
THE INITIAL PURCHASERS
named herein
------------------------------
$425,000,000
13 3/4% SENIOR SECURED NOTES DUE 2009
TABLE OF CONTENTS
Page
1. Definitions............................................................1
2. Exchange Offer Registration............................................4
3. Shelf Registration.....................................................7
4. Liquidated Damages.....................................................8
5. Underwritten Registrations.............................................9
6. Shelf Registration Procedures.........................................10
7. Registration Expenses.................................................15
8. Indemnification.......................................................15
9. Miscellaneous.........................................................18
(a) No Inconsistent Agreements.....................................18
(b) Amendments and Waivers.........................................18
(c) Notices........................................................18
(d) Successors and Assigns.........................................19
(e) Counterparts...................................................19
(f) Headings.......................................................19
(g) Governing Law..................................................19
(h) Severability...................................................19
(i) Joint and Several Obligations..................................20
(j) Securities Held by the Issuers or Their Affiliates.............20
Annex A
Annex B
Annex C
-i-
NOTES EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
This Notes Exchange and Registration Rights Agreement (the
"Agreement") is made and entered into as of August 13, 1999, by and among
Republic Technologies International, LLC, a Delaware limited liability
corporation ("Republic Technologies"), RTI Capital Corp., a Delaware corporation
(together with REPUBLIC TECHNOLOGIES, the "Companies"), the guarantors whose
signatures appear on the execution pages of this Agreement (the "Guarantors")
and the Initial Purchasers (as defined below). The Companies and the Guarantors
are hereinafter collectively referred to as the "Issuers".
This Agreement is entered into in connection with the Purchase
Agreement dated August 13, 1999 (the "Purchase Agreement") among Republic
Technologies International, Inc. ("Parent"), the Companies, the Guarantors and
Chase Securities Inc., ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation and
BancBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. (the "Initial Purchasers"). Pursuant to the
terms of the Purchase Agreement, the Initial Purchasers have agreed to purchase
425,000 Units consisting of $425,000,000 aggregate principal amount of 13 3/4%
Senior Secured Notes due 2009 of the Companies (the "Notes") and 425,000
Warrants to purchase an aggregate of 822,386 shares of Class D common stock of
Parent. The Guarantors will fully and unconditionally guarantee (the
"Guarantees") on a joint and several basis all of the Companies' obligations
under the Notes and the Indenture (as defined below), subject to the terms of
the Indenture and, unless the context otherwise requires, any reference to the
"Notes" herein includes a reference to the related Guarantees. The Guarantee of
CDSC is subject to the limitations set forth in Section 10.10 of the Indenture.
Capitalized terms used but not defined herein shall have the meanings given to
such terms in the Purchase Agreement.
In order to induce the Initial Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to the obligations of the Initial
Purchasers thereunder, the Issuers have agreed to provide the registration
rights set forth in this Agreement for the benefit of the Holders (as defined
below) and their direct and indirect transferees and assigns.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Advice: See the last paragraph of Section 6.
Agreement: See the first introductory paragraph to this Agreement.
Business Day: Any day excluding Saturday, Sunday and any day which
is a legal holiday under the laws of New York, New York or is a day on which
banking institutions therein located are authorized or required by law or other
governmental action to close.
Companies: See the first introductory paragraph to this Agreement.
DTC: See Section 6(j).
Event Date: See Section 4(c).
Exchange Effectiveness Date: 210 days after the Issue Date.
Exchange Effectiveness Period: See Section 2.
Exchange Filing Date: 90 days after the Issue Date.
Exchange Notes: See Section 2. Unless the context otherwise
requires, any reference to the "Exchange Notes" herein includes a reference to
the related Guarantees.
Exchange Offer Consummation Date: 240 days after the Issue Date.
Exchange Offer Registration: See Section 2.
Exchange Registration Statement: See Section 2.
Exchanging Dealer: See Section 2.
Guarantees: See the second introductory paragraph to this Agreement.
Guarantors: See the first introductory paragraph to this Agreement.
Holders: The registered holders (including the Initial Purchasers)
of the Notes, the Exchange Notes, and the Private Exchange Notes.
Holders' Information: See Section 3(c).
Indemnified Person: See Section 8(c).
Indemnifying Person: See Section 8(c).
Indenture: The Indenture to be entered into by and among the
Companies, the Guarantors and an indenture trustee, pursuant to which the Notes
will be issued, as amended or supplemented from time to time in accordance with
the terms thereof.
Inspectors: See Section 6(p).
Initial Purchasers: See the second introductory paragraph to this
Agreement.
Issue Date: The Closing Date under the Purchase Agreement.
Issuers: See the first introductory paragraph to this Agreement.
Losses: See Section 8.
NASD: See Section 6(n).
-2-
Notes: The $425,000,000 aggregate principal amount of 13 3/4% Senior
Secured Notes of the Companies being issued pursuant to the Indenture as
required by the Purchase Agreement. Unless the context otherwise requires, any
reference to the "Notes" herein includes a reference to the related Guarantees.
Participant: See Section 8(a).
Private Exchange: See Section 2.
Private Exchange Notes: See Section 2. Unless the context otherwise
requires, any reference to the "Private Exchange Notes" herein includes a
reference to the related Guarantees.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Transfer Restricted Securities covered by such Registration Statement,
and all other amendments and supplements to the Prospectus, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
Purchase Agreement: See the second introductory paragraph to this
Agreement.
Registration Expenses: See Section 8(a).
Registration Statement: Any registration statement filed or required
to be filed with the SEC pursuant to the provisions of this Agreement, including
the Prospectus, amendments and supplements to such registration statement,
including post-effective amendments, all exhibits and all material incorporated
by reference or deemed to be incorporated by reference in such registration
statement.
Rule 144: Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC.
Rule 144A: Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
Rule 415: Rule 415 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933 as amended, and the rules
and regulations of the SEC promulgated thereunder.
Shelf Effectiveness Date: 150 days after the Shelf Filing Date.
Shelf Filing Date: 90 days after the obligation to file a Shelf
Registration Statement arises.
-3-
Shelf Notice: See Section 3(a).
Shelf Registration: See Section 3(b).
Shelf Termination Date: See Section 3(b).
Subsequent Shelf Registration: See Section 3(c).
TIA: The Trust Indenture Act of 1939, as amended.
Transfer Restricted Securities: The Notes upon original issuance
thereof and at all times subsequent thereto, until in the case of any such Note
(i) a Registration Statement covering such Note has been declared effective and
such Note has been disposed of in accordance with such effective Registration
Statement, (ii) it is sold in compliance with Rule 144 or may be sold pursuant
to Rule 144(k), (iii) it shall have been otherwise transferred and a new
certificate for any such Note not bearing a legend restricting further transfer
shall have been delivered by the Companies, or (iv) it ceases to be outstanding.
"Transfer Restricted Securities" shall also include Private Exchange Securities,
unless the context otherwise requires.
Trustee: The trustee under the Indenture.
underwritten registration or underwritten offering: A registration
in which securities of any of the Issuers are sold to an underwriter for
reoffering to the public.
Withdrawal Election: See Section 4(b).
2. Exchange Offer Registration
The Issuers shall file with the SEC no later than the Exchange
Filing Date, an offer to exchange (the "Exchange Offer Registration") for any
and all of the Transfer Restricted Securities covered by such Exchange Offer
Registration a like aggregate principal amount of debt securities of the
Companies, guaranteed by the Guarantors, which are identical in all material
respects to the Notes (the "Exchange Notes") (and which are entitled to the
benefits of the Indenture or a trust indenture which is identical in all
material respects to the Indenture (other than such changes to the Indenture or
any such identical trust indenture as are necessary to comply with any
requirements of the SEC to effect or maintain the qualification thereof under
the TIA) and which, in either case, has been qualified under the TIA), except
that the Exchange Notes shall have been registered pursuant to an effective
Registration Statement under the Securities Act and shall contain no restrictive
legend thereon or provisions relating to transfer restrictions or the payment of
liquidated damages. The Exchange Offer Registration shall be registered under
the Securities Act on the appropriate form (the "Exchange Registration
Statement") and shall comply with all applicable tender offer rules and
regulations under the Exchange Act.
Each of the Issuers agrees to use its reasonable best efforts to (x)
cause the Exchange Registration Statement to be declared effective under the
Securities Act on or before the Exchange Effectiveness Date; (y) keep the
Exchange Offer Registration open for at least 20 business days (or longer if
required by applicable law) after the date that notice of the Exchange Offer
Registration is mailed to Holders of Transfer Restricted Securities (the
"Exchange Effectiveness Period"); and
-4-
(z) consummate the Exchange Offer Registration on or prior to the Exchange Offer
Consummation Date. If after such Exchange Registration Statement is initially
declared effective by the SEC, the Exchange Offer Registration or the issuance
of the Exchange Notes thereunder is interfered with by any stop order or
injunction of the SEC or any court, such Exchange Registration Statement shall
be deemed not to have become effective for purposes of this Agreement.
Each Holder of Transfer Restricted Securities who participates in
the Exchange Offer Registration will be required to represent in writing at the
time of the consummation of the Exchange Offer Registration (1) that any
Exchange Notes received by it will be acquired in the ordinary course of its
business, (2) that such Holder of Transfer Restricted Securities has no and will
have no arrangement or understanding with any person to participate in the
distribution of the Exchange Notes, and (3) that such Holder of Transfer
Restricted Securities is not an "affiliate" (as defined in Rule 405 under the
Securities Act) of any of the Issuers, or if it is an affiliate, that it will
comply with the registration and prospectus delivery requirements of the
Securities Act, to the extent applicable.
Each Holder of Transfer Restricted Securities who participates in
the Exchange Offer Registration who is not an Exchanging Dealer will also be
required to represent in writing that it is not engaged in, and does not intend
to engage in, the distribution of the Exchange Notes. Each Holder that is a
broker-dealer electing to exchange Notes, acquired for its own account as a
result of market-making activities or other trading activities, for Exchange
Notes (an "Exchanging Dealer") will be required to acknowledge that, pursuant to
current interpretations by the SEC's staff of Section 5 of the Securities Act,
it is required to deliver a Prospectus containing substantially the information
set forth in Annex A hereto in the "Exchange Offer Procedures" section and the
"Purpose of the Exchange Offer" section and in Annex B hereto in the "Plan of
Distribution" section of such Prospectus in connection with a sale of any such
Exchange Notes received by such Exchanging Dealer pursuant to the Exchange Offer
Registration.
If, prior to the consummation of the Exchange Offer Registration,
any Holder holds any Notes acquired by it that have, or that are reasonably
likely to be determined to have, the status of an unsold allotment in an initial
distribution, or any Holder is not entitled to participate in the Exchange Offer
Registration, the Issuers shall, upon the request of any such Holder,
simultaneously with the delivery of the Exchange Notes in the Exchange Offer
Registration, issue and deliver to any such Holder, in exchange for the Notes
held by such Holder (the "Private Exchange"), a like aggregate principal amount
of debt securities of the Companies (the "Private Exchange Notes"),
unconditionally guaranteed by the Guarantors, that are identical in all material
respects to the Exchange Notes, except for the transfer restrictions relating to
such Private Exchange Notes. The Private Exchange Notes will be issued under the
same indenture as the Exchange Notes to the extent permitted by applicable law,
and the Issuers shall use their reasonable best efforts to cause the Private
Exchange Notes to bear the same CUSIP number as the Exchange Notes.
In connection with the Exchange Offer Registration, the Issuers
shall:
(1) mail to each Holder a copy of the Prospectus forming part of the
Exchange Registration Statement, together with an appropriate letter of
transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer
Registration with an address in the Borough of Manhattan, The City of New
York;
-5-
(3) permit Holders of Notes to withdraw tendered Notes at any time
prior to the close of business, New York time, on the last Business Day on
which the Exchange Offer Registration shall remain open; and
(4) otherwise comply in all material respects with all laws
applicable to the Exchange Offer Registration and obligations hereunder.
As soon as practicable after the close of the Exchange Offer
Registration and any Private Exchange, as the case may be, the Issuers shall:
(1) accept for exchange all Notes tendered and not validly
withdrawn pursuant to the Exchange Offer Registration and any Private
Exchange;
(2) deliver to the Trustee for cancellation all Notes so accepted
for exchange; and
(3) cause the Trustee promptly to authenticate and deliver to each
holder of Notes, Exchange Notes or Private Exchange Notes, as applicable,
equal in principal amount to the Notes of such holder so accepted for
exchange.
The Issuers shall use their reasonable best efforts to keep the
Exchange Registration Statement effective and to amend and supplement the
Prospectus contained therein in order to permit such Prospectus to be used by
all persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as such persons must comply with such requirements
in order to resell the Exchange Notes; provided that (i) in the case where such
Prospectus and any amendment or supplement thereto must be delivered by an
Exchanging Dealer, such period shall be the lesser of 180 days and the date on
which all Exchanging Dealers have sold all Exchange Notes held by them and (ii)
the Issuers shall make such Prospectus and any amendment or supplement thereto
available to any broker-dealer for use in connection with any resale of any
Exchange Notes for a period of not less than 90 days after the consummation of
the Exchange Offer Registration.
The Exchange Notes may be issued under (i) the Indenture or (ii) an
indenture identical in all material respects to the Indenture, which in either
event will provide that the holders of the Notes, the Exchange Notes and the
Private Exchange Notes will vote and consent together on all matters as one
class and that none of the Notes, the Exchange Notes and the Private Exchange
Notes will have the right to vote or consent as a separate class on any matter.
Interest on each Exchange Note and Private Exchange Note issued
pursuant to the Exchange Offer Registration and any Private Exchange will accrue
from the last interest payment date on which interest was paid on the Notes
surrendered in exchange therefor or, if no interest has been paid on the Notes,
from the Issue Date.
Notwithstanding any other provisions hereof, the Issuers will ensure
that (i) any Exchange Registration Statement and any amendment thereto and any
Prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations of the
Commission thereunder, (ii) any Exchange Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) any Prospectus forming part of any Exchange Registration Statement, and
any
-6-
supplement to such Prospectus, does not, as of the consummation of the Exchange
Offer Registration, include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
The Issuers shall use their reasonable best efforts (i) to include
substantially the information set forth in Annex A hereto in the "Exchange Offer
Procedures" section and the "Purpose of the Exchange Offer" section and in Annex
B hereto in the "Plan of Distribution" section of the Prospectus forming a part
of any Exchange Registration Statement, and (ii) to include substantially the
information set forth in Annex C hereto in the Letter of Transmittal delivered
pursuant to the Exchange Offer Registration; and (iii) if requested by any
Initial Purchaser, to include substantially the information required by Items
507 or 508 of Regulation S-K, as applicable, in the Prospectus forming a part of
the Exchange Registration Statement.
In connection with an Exchange Offer, upon delivery of the Transfer
Restricted Securities by such selling Holders to the Issuers (or to such other
Person as directed by the Issuers) in exchange for the Exchange Notes, the
Issuers shall ▇▇▇▇, or caused to be marked, on such Transfer Restricted
Securities that such Transfer Restricted Securities are being cancelled in
exchange for the Exchange Notes; in no event shall such Transfer Restricted
Securities be marked as paid or otherwise satisfied. The Issuers shall use
reasonable best efforts to take all other steps reasonably necessary to effect
the registration of the Transfer Restricted Securities covered by the Exchange
Offer Registration Statement.
3. Shelf Registration
(a) Shelf Registration. If (i) because of any change in law or
applicable interpretations thereof by the SEC's staff, the Issuers are not
permitted to effect the Exchange Offer Registration as contemplated by Section 2
hereof, or (ii) any Initial Purchaser requests a Shelf Registration with respect
to Notes not eligible to be exchanged for Exchange Notes in the Exchange Offer
Registration or with respect to Notes that constitute an unsold allotment in an
initial distribution, or (iii) any applicable law or interpretations do not
permit any Holder to participate in the Exchange Offer Registration and any of
these Holders notifies the Companies of this fact within 30 days of the
consummation of the Exchange Offer Registration, or (iv) any Holder that
participates in the Exchange Offer Registration does not receive freely
transferable Exchange Notes in exchange for tendered Transfer Restricted
Securities and any of these Holders notifies the Companies of this fact within
30 days of the consummation of the Exchange Offer Registration, the Issuers
agree to file with the SEC, a Registration Statement for an offering to be made
on a continuous basis pursuant to Rule 415 covering all of the Transfer
Restricted Securities (the "Shelf Registration"). The Shelf Registration shall
be on Form S-1 or another appropriate form permitting registration of such
Transfer Restricted Securities for resale by Holders in the manner or manners
designated by them (including, without limitation, one or more underwritten
offerings). The Issuers shall not permit any securities other than the Transfer
Restricted Securities to be included in the Shelf Registration or any Subsequent
Shelf Registration. The Issuers shall use their reasonable best efforts to cause
the Shelf Registration to be declared effective under the Securities Act on or
prior to the Shelf Effectiveness Date and to keep such Shelf Registration
continuously effective under the Securities Act until the date which is two
years from the Issue Date (subject to extension pursuant to the last paragraph
of Section 6 and pursuant to Section 10) (the "Shelf Termination Date"), or such
shorter period ending when all
-7-
Transfer Restricted Securities covered by such Shelf Registration have been sold
in the manner set forth and as contemplated in such Shelf Registration.
(b) Subsequent Shelf Registrations. If a Shelf Registration or any
Subsequent Shelf Registration ceases to be effective for any reason at any time
prior to the Shelf Termination Date (other than because of the sale of all
Transfer Restricted Securities covered by such Shelf Registration in the manner
set forth and as contemplated in such Shelf Registration), the Issuers shall use
their reasonable best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within 45 days of
such cessation of effectiveness amend such Shelf Registration in a manner
reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional "shelf" Registration Statement
pursuant to Rule 415 covering all of the Transfer Restricted Securities which
were covered by such Shelf Registration that have not been sold in the manner
set forth and as contemplated in such Shelf Registration (a "Subsequent Shelf
Registration"). If a Subsequent Shelf Registration is filed, the Issuers shall
use their reasonable best efforts to cause such Subsequent Shelf Registration to
be declared effective as soon as practicable after such filing and to keep such
Registration Statement continuously effective until the Shelf Termination Date.
As used herein, the term "Shelf Registration" means the Shelf Registrations and
any Subsequent Shelf Registrations.
(c) Supplements and Amendments. Notwithstanding any other provisions
hereof, the Issuers will use their reasonable best efforts to ensure that (i)
any Shelf Registration and any amendment thereto and any Prospectus forming part
thereof and any supplement thereto complies in all material respects with the
Securities Act and the rules and regulations of the SEC thereunder, (ii) any
Shelf Registration and any amendment thereto (in either case, other than with
respect to information included therein in reliance upon or in substantial
conformity with written information furnished to the Issuers by or on behalf of
any Holder specifically for use therein (the "Holders' Information")) does not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading and (iii) any Prospectus forming part of any Shelf Registration, and
any supplement to such prospectus (in either case, other than with respect to
Holders' Information), does not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
4. Liquidated Damages
(a) The parties hereto agree that the Holders of Transfer Restricted
Securities will suffer damages if the Issuers fail to fulfill their obligations
to Holders of Transfer Restricted Securities under Section 2 and/or 3 hereof and
that it would not be feasible to ascertain the extent of such damages with
precision. Accordingly, if (i) the Exchange Registration Statement is not filed
with the SEC on or prior to the Exchange Filing Date or the Shelf Registration
is not filed on or prior to Shelf Filing Date, (ii) the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may be,
is not declared effective by the Exchange Effectiveness Date or the Shelf
Effectiveness Date, as the case may be, (iii) the Exchange Offer Registration is
not consummated on or prior to the Exchange Offer Consummation Date (other than
in the event the Issuers file a Shelf Registration), or (iv) the Shelf
Registration is filed and declared effective by the Shelf Effectiveness Date but
shall thereafter cease to be effective (at any time that the Issuers are
obligated to maintain the effectiveness thereof) without being succeeded within
45 days by a post-effective amendment or
-8-
an additional Registration Statement filed and declared effective by the SEC
(each such event referred to in clauses (i) through (iv), a "Registration
Default"), the Issuers will be obligated to pay liquidated damages to each
Holder of Transfer Restricted Securities affected by such Registration Default,
during the period of one or more such Registration Defaults, at a rate of $.192
per full or partial week per $1,000 amount of Notes constituting Transfer
Restricted Securities until (i) the applicable Registration Statement is filed,
(ii) the Exchange Registration Statement is declared effective or the Shelf
Registration is declared effective, (iii) the Exchange Offer Registration is
consummated or (iv) the Shelf Registration again becomes effective, as the case
may be. Following the cure of all Registration Defaults, the accrual of
liquidated damages will cease. Notwithstanding anything to the contrary in this
Section 3(a), the Issuers shall not be required to pay liquidated damages to a
Holder of Transfer Restricted Securities if such Holder failed to comply with
its obligations to make the representations set forth in the third paragraph of
Section 2 or the second to last paragraph of Section 6.
(b) Notwithstanding the other provisions of this Agreement, the
Companies may issue a notice that the Shelf Registration is unusable pending the
announcement of a material corporate transaction or development or other actions
taken in good faith and for valid business reasons (not including avoidance of
obligations hereunder) and may issue any notice suspending use of the Shelf
Registration required under applicable securities laws to be issued and, in the
event that the aggregate number of days in any consecutive twelve-month period
for which all such notices are issued and effective does not exceed 45 days in
the aggregate, then liquidated damages shall cease to accrue during such period
in which such notices are issued and effective.
(c) The Issuers shall notify the Trustee within one Business Day
after each Registration Default occurs in respect of which liquidated damages is
required to be paid (an "Event Date"). Any amounts of liquidated damages due
pursuant to Section 4(a) will be payable in cash semi-annually on each interest
payment date for the Transfer Restricted Securities (to the Holders of record
entitled to such interest payment), commencing with the first such date
occurring after any such liquidated damages commence to accrue.
(d) The parties hereto agree that the liquidated damages provided
for in this Section 4 constitute a reasonable estimate of the damages that will
be suffered by Holders of Transfer Restricted Securities by reason of the
failure of (i) the Shelf Registration or the Exchange Registration Statement to
be filed, (ii) the Shelf Registration to remain effective, or (iii) the Exchange
Registration Statement to be declared effective and the Exchange Offer
Registration to be consummated, in each case to the extent required by this
Agreement and that such liquidated damages will constitute the sole damage to
which the Holders may be entitled for the foregoing failures absent willful
breach by the Issuers of their obligations under this Agreement.
5. Underwritten Registrations
If any of the Transfer Restricted Securities covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will manage the offering will
be selected by the Holders of a majority in aggregate principal amount of the
Transfer Restricted Securities included in such offering and reasonably
acceptable to the Issuers.
No Holder may participate in any underwritten registration hereunder
unless such Holder (i) agrees to sell such Holder's Transfer Restricted
Securities on the basis reasonably provided
-9-
in any underwriting arrangements approved by the persons entitled hereunder to
approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, custody agreements, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
6. Shelf Registration Procedures
In connection with the filing of any Shelf Registration Statement,
the Issuers shall as expeditiously as possible:
(a) Before filing any Registration Statement or Prospectus or any
amendments or supplements thereto (not including documents that would be
incorporated or deemed to be incorporated therein by reference), the Issuers
shall furnish the Initial Purchasers, their counsel and the managing
underwriters, if any, promptly, with copies of all such documents proposed to be
filed; provided, however, that the Issuers shall not be required to afford such
persons an opportunity to review a copy of (i) any such document that has not
been materially changed from a copy of such document that such person was
previously furnished to review and (ii) any amendments or supplements to a
Registration Statement or Prospectus which are made solely as a result of any
filing by the Issuers of reports required to be filed pursuant to the Exchange
Act.
(b) Use reasonable best efforts to prepare and file with the SEC
such amendments and post-effective amendments to each Registration Statement as
may be necessary to keep such Registration Statement continuously effective for
the time periods prescribed hereby; cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply with the provisions of the Securities Act, the
Exchange Act and the rules and regulations of the SEC promulgated thereunder
applicable to it with respect to the disposition of all securities covered by
such Registration Statement as so amended or in such Prospectus as so
supplemented.
(c) Notify the counsel selected by the selling Holders of Transfer
Restricted Securities, as a group, and the managing underwriters, if any,
promptly (but in any event within two business days after becoming aware
thereof), and, if requested by such person confirm such notice in writing to
such person, (i) when a Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to a Registration
Statement or any post-effective amendment, when the same has become effective,
(ii) of the issuance by the SEC of any stop order suspending the effectiveness
of such Registration Statement or of any order preventing or suspending the use
of any preliminary prospectus or the initiation of any proceedings for that
purpose, (iii) of the receipt by the Issuers of any notification with respect to
the suspension of the qualification or exemption from qualification of such
Registration Statement or any of the Transfer Restricted Securities for offer or
sale in any jurisdiction, or the initiation or threatening of any proceeding for
such purpose, (iv) of the happening of any event, the existence of any condition
or any information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect or
that requires the making of any changes in such Registration Statement,
Prospectus or documents so that, in the case of such Registration Statement, it
will not contain any
-10-
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, and that in the case of the Prospectus, it will not contain any
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, in the light
of the circumstances under which they were made, not misleading, and (v) of the
Issuers' reasonable determination that a post-effective amendment to such
Registration Statement would be appropriate.
(d) Use its best efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus or suspending the qualification
(or exemption from qualification) of any of the Transfer Restricted Securities
for sale in any jurisdiction, and, if any such order is issued, to obtain the
withdrawal of any such order at the earliest practicable moment.
(e) If requested by the managing underwriters, if any, or the
Holders of a majority in aggregate principal amount of the Transfer Restricted
Securities being sold in connection with an underwritten offering, (i) promptly
incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriters, if any, or such Holders reasonably
request to be included therein, (ii) make all required filings of such
prospectus supplement or such post-effective amendment as soon as practicable
after the Issuers received notification of the matters to be incorporated in
such prospectus supplement or post-effective amendment, and (iii) supplement or
make amendments to such Registration Statement; provided, however, that the
Company shall not be required to take any action pursuant to this Section 6(e)
that would in the opinion of counsel for the Issuers, violate applicable law.
(f) Upon written request to the Issuers, furnish to each selling
Holder of Transfer Restricted Securities who so requests in writing, to counsel,
and to each managing underwriter, if any, without charge, one conformed copy of
the Registration Statement and each post-effective amendment thereto, including
financial statements and schedules, and, if requested, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits.
(g) Deliver to each selling Holder of Transfer Restricted
Securities, their counsel, and the underwriters, if any, without charge, as many
copies of each Prospectus (including each form of preliminary prospectus) and
each amendment or supplement thereto and any documents incorporated by reference
therein as such Persons may reasonably request; and, subject to the last
paragraph of this Section 6, each Issuer hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of the selling
Holders of Transfer Restricted Securities and the underwriters or agents, if
any, in connection with the offering and sale of the Transfer Restricted
Securities covered by such Prospectus and any amendment or supplement thereto
until such time as the Issuers have notified the Holders to discontinue the use
of such Prospectus.
(h) Prior to any public offering of Transfer Restricted Securities,
to use their reasonable best efforts to register or qualify, and to cooperate
with the selling Holders of Transfer Restricted Securities, the underwriters, if
any, and their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of such
Transfer Restricted Securities for offer and sale under the securities or Blue
Sky laws of such jurisdictions within the United States as any selling Holder,
or the managing underwriters reasonably request in writing; provided that where
Transfer Restricted Securities are offered other than through an underwritten
offering, the Issuers agree to use their reasonable best efforts to cause their
counsel to perform Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this Section 6(h); keep each
such registration or qualification (or exemption therefrom) effective
-11-
during the period such Registration Statement is required to be kept effective
and do any and all other acts or things reasonably necessary or advisable to
enable the disposition in such jurisdictions of the Transfer Restricted
Securities covered by the applicable Registration Statement; provided, however,
that no Issuer shall be required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any action that would
subject it to general service of process in any such jurisdiction where it is
not then so subject or (C) become subject to taxation in any such jurisdiction
where it is not then so subject.
(i) Cooperate with the selling Holders of Transfer Restricted
Securities and the managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities to be sold, which certificates shall not bear any restrictive legends
and shall be in a form eligible for deposit with The Depository Trust Company
("DTC"); and enable such Transfer Restricted Securities to be in such
denominations and registered in such names as the managing underwriters, if any,
or selling holders of Transfer Restricted Securities may reasonably request in
writing at least three Business Days prior to any sale of Transfer Restricted
Securities.
(j) Upon the occurrence of any event contemplated by paragraph
6(c)(iv) or 6(c)(v), as promptly as practicable prepare and file with the SEC,
at the joint and several expense of each of the Issuers, a supplement or
post-effective amendment to the Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference, or file any other required document so that, as thereafter
delivered to the purchasers of the Transfer Restricted Securities being sold
thereunder, such Prospectus will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(k) Use its best efforts to cause the Transfer Restricted Securities
covered by a Shelf Registration Statement to be rated with the appropriate
rating agencies, if so requested by the Holders of a majority in aggregate
principal amount of Transfer Restricted Securities covered by such Registration
Statement or the managing underwriters, if any.
(l) Prior to the effective date of any Registration Statement
relating to the Transfer Restricted Securities, (i) provide the Trustee with
printed certificates for the Transfer Restricted Securities covered by such
Registration Statement in a form eligible for deposit with DTC and (ii) provide
a CUSIP number(s) for the Transfer Restricted Securities.
(m) Cooperate with each selling Holder of Transfer Restricted
Securities covered by any Registration Statement, and each underwriter, if any,
participating in the disposition of such Transfer Restricted Securities and
their respective counsel in connection with any filings required to be made with
the National Association of Securities Dealers, Inc. (the "NASD").
(n) If requested by Holders of a majority in aggregate principal
amount of Transfer Restricted Securities covered by such Registration Statement,
enter into an underwriting agreement in form, scope and substance as is
customary in underwritten offerings and take all such other actions as are
reasonably requested by the managing underwriters in order to expedite or
facilitate the registration or the disposition of such Transfer Restricted
Securities, and in such connection, (i) make such representations and warranties
to the underwriters, with respect to the business of
-12-
the Issuers and their respective subsidiaries, and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, in form, substance and scope as are customarily
made by issuers to underwriters in underwritten offerings of securities similar
to the Registrable Security, and confirm the same if and when requested; (ii)
use reasonable best efforts to obtain opinions of counsel to the Issuers and
updates thereof in form, scope and substance reasonably satisfactory to the
managing underwriters, addressed to the underwriters covering the matters
customarily covered in opinions requested in underwritten offerings and such
other matters as may be reasonably requested by underwriters; (iii) use
reasonable best efforts to obtain "cold comfort" letters and updates thereof in
form and substance reasonably satisfactory to the managing underwriter or
underwriters from the independent certified public accountants of the Issuers
(and, if necessary, any other independent certified public accountants of any
subsidiary of the Issuers or business acquired by the Issuers for which
financial statements and financial data are, or are required to be, included in
the Registration Statement), addressed to each of the underwriters such letters
to be in customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with underwritten offerings of securities
similar to the Transfer Restricted Securities; and (iv) if an underwriting
agreement is entered into, the same shall contain indemnification provisions and
procedures no less favorable than those set forth in Section 8 (or such other
less favorable provisions and procedures acceptable to Holders of a majority in
aggregate principal amount of Transfer Restricted Securities covered by such
Registration Statement and the managing underwriters or agents) with respect to
all parties to be indemnified pursuant to said Section. The above shall be done
at each closing under such underwriting agreement, or as and to the extent
required thereunder.
(o) Make available for inspection by a representative of the selling
Holders of Transfer Restricted Securities, any underwriter participating in any
such disposition of Transfer Restricted Securities, if any, and any attorney or
accountant or other agent retained by any such representative of such selling
Holders or underwriter (collectively, the "Inspectors"), at the offices where
normally kept, during reasonable business hours, all financial and other
records, pertinent corporate documents and properties of the Issuers and their
subsidiaries, and use their reasonable best efforts to cause the officers,
directors and employees of the Issuers and their subsidiaries to supply all
information, in each case reasonably requested by any such Inspector in
connection with such Registration Statement; provided, however, that any
information that is designated in writing by the Issuers, in good faith, as
confidential at the time of delivery of such information, shall be kept
confidential by such Inspector unless (i) disclosure of such information is
required by court or administrative order, (ii) other than under the
circumstances contemplated by, and for the time period permitted by, Section 10,
disclosure of such information, in the opinion of counsel to such Inspector, is
necessary to avoid or correct a misstatement or omission of a material fact in
the Registration Statement, Prospectus or any supplement or post-effective
amendment thereto or disclosure is otherwise required by law, or (iii) such
information becomes generally available to the public other than as a result of
a disclosure or failure to safeguard by such Inspector; provided further, that
the foregoing investigation shall be coordinated on behalf of the Holders by one
representative designated by and on behalf of such Holders. Each selling Holder
of such Transfer Restricted Securities will be required to agree that
information obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any market
transactions in the securities of the Issuers unless and until such is made
generally available to the public. Each selling Holder of such Transfer
Restricted Securities will be required to further agree that it will, upon
learning that disclosure of any such information is sought in a court or
administrative tribunal of competent jurisdiction, give notice to the Issuers
and allow the Issuers to undertake appropriate action to prevent disclosure of
the information
-13-
deemed confidential at its expense and will use reasonable efforts to cooperate
with the Issuers in attempting to prevent such disclosure.
(p) Provide an indenture trustee for the Transfer Restricted
Securities, and cause the Indenture to be qualified under the TIA not later than
the effective date of the first Registration Statement relating to the Transfer
Restricted Securities; and in connection therewith, cooperate with the trustee
under any such indenture and the selling holders of the Transfer Restricted
Securities, to effect such changes to such indenture as may be required for such
Indenture to be so qualified in accordance with the terms of the TIA; and
execute, and use its best efforts to cause such trustee to execute, all
documents as may be required to effect such changes, and all other forms and
documents required to be filed with the SEC to enable such indenture to be so
qualified in a timely manner.
(q) Comply with all applicable rules and regulations of the SEC and
make generally available to their securityholders earnings statements satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act) no later than 45 days
after the end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year), commencing on the first day of the
first fiscal quarter after the effective date of a Registration Statement, which
statements shall cover said 12-month periods.
(r) Use its reasonable best efforts to take all other steps
reasonably necessary to effect the registration of the Transfer Restricted
Securities covered by a Registration Statement contemplated hereby.
The Companies may require each selling Holder of Transfer Restricted
Securities as to which any registration is being effected to furnish to the
Companies such information regarding such selling Holder and the distribution of
such Transfer Restricted Securities as the Companies may, from time to time,
reasonably request in writing and to otherwise cooperate in the preparation of
the Registration Statement. The Companies may exclude from such registration the
Transfer Restricted Securities of any selling Holder who unreasonably fails to
furnish such information within a reasonable time after receiving such request.
If the identity of a seller of Transfer Restricted Securities is to be disclosed
in a Registration Statement, such selling Holder shall be permitted to include
all information regarding such seller as it shall reasonably request. At any
time during the effectiveness of any Registration Statement with respect to the
Transfer Restricted Securities, any selling Holder becomes aware of any change
materially affecting the accuracy of the information contained in the
Registration Statement or related Prospectus, such Holder will notify the
Companies of such change.
Each Holder, upon receipt of any notice from the Issuers of the
happening of any event of the kind described in Section 6(c), will forthwith
discontinue disposition of such Transfer Restricted Securities covered by such
Registration Statement or Prospectus, until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 6(c), or until
it is advised in writing (the "Advice") by the Issuers that the use of the
applicable Prospectus may be resumed. In the event the Issuers shall give any
such notice, the Shelf Termination Date and the Exchange Effectiveness Period
shall be extended by the number of days during such periods from and including
the date of the giving of such notice to and including the date when each seller
of Transfer Restricted Securities covered by such Registration Statement shall
have received the copies of the supplemented or amended Prospectus contemplated
by Section 6(j) (if an amended or supplemental Prospectus is required) or the
Advice (if no amended or supplemental Prospectus is required).
-14-
7. Registration Expenses
(a) All fees and expenses, other than underwriters' fees and
expenses, including fees and expenses of their counsel, underwriting discounts
and commissions and transfer taxes, incident to the performance of or compliance
with this Agreement by the Issuers shall be borne by the Issuers, jointly and
severally, whether or not a Registration Statement is filed or becomes
effective, including, without limitation, (i) all registration and filing fees
(including, without limitation, (A) fees with respect to filings required to be
made with the NASD in connection with an underwritten offering and (B) fees and
expenses of compliance with state securities or Blue Sky laws (including,
without limitation, reasonable fees and disbursements of counsel in connection
with Blue Sky qualifications of the Transfer Restricted Securities or Exchange,
(ii) printing expenses (including, without limitation, expenses of printing
certificates for Transfer Restricted Securities or Exchange Notes in a form
eligible for deposit with DTC and of printing prospectuses if the printing of
prospectuses is requested by the managing underwriters, if any, or, in respect
of Transfer Restricted Securities, by the Holders of a majority in aggregate
principal amount of the Transfer Restricted Securities included in the
Registration Statement), (iii) messenger, telephone and delivery expenses, (iv)
fees and disbursements of counsel for the Issuers and reasonable fees and
disbursements of one counsel for the sellers of Transfer Restricted Securities
(subject to the provisions of Section 7(b)), (v) fees and disbursements of all
independent certified public accountants referred to in Section 6(o)(iii)
(including, without limitation, the expenses of any special audit and "cold
comfort" letters required by or incident to such performance), (vi) the fees and
expenses of any "qualified independent underwriter" or other independent
appraiser participating in an offering pursuant to Rule 2720 of the Conduct
Rules of the NASD, (vii) rating agency fees, (viii) fees and expenses of all
other Persons retained by the Issuers, (ix) internal expenses of the Issuers
(including, without limitation, all salaries and expenses of officers and
employees of the Issuers performing legal or accounting duties) and, (xi) the
expense of any annual audit (collectively, "Registration Expenses").
(b) In connection with any Registration Statement hereunder or any
amendment thereto, the Issuers shall reimburse the Holders of the Transfer
Restricted Securities being registered in such registration for the reasonable
fees and disbursements of not more than one counsel chosen by the Holders of a
majority in aggregate principal amount of the Transfer Restricted Securities to
be included in such Registration Statement.
8. Indemnification
(a) The Issuers, jointly and severally, agree to indemnify and hold
harmless each Holder of Transfer Restricted Securities covered by a Registration
Statement, the officers and directors of each such person, and each person, if
any, who controls any such person within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act (each, a "Participant"), from
and against any and all losses, claims, damages and liabilities (including,
without limitation, the reasonable legal fees and other expenses actually
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in such Registration
Statement or any related Prospectus (as amended or supplemented if the Issuers
shall have furnished any amendments or supplements thereto) or any related
preliminary prospectus, or caused by, arising out of or based upon any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any untrue
-15-
statement or omission or alleged untrue statement or omission made in reliance
upon and in substantial conformity with information relating to any Participant
furnished to the Issuers in writing by such Participant expressly for use
therein; provided that the Issuers will not be liable to any Participant with
respect to any such untrue statement or omission in any preliminary prospectus
that is corrected in the related Prospectus (or any amendment or supplement
thereto) if the person asserting any such loss, claim, damage or liability
purchased Transfer Restricted Securities or Exchange Notes which are the subject
thereof from such Participant in reliance upon such preliminary prospectus but
was not sent or given a copy of the related Prospectus (as amended or
supplemented) at or prior to the written confirmation of the sale of such
Transfer Restricted Securities or Exchange Notes, as the case may be, to such
person, unless such failure to deliver such Prospectus (as amended or
supplemented) was a result of noncompliance by the Issuers with Section 6 of
this Agreement.
(b) Each Participant and each underwriter, if any, will be required
to agree, severally and not jointly, to indemnify and hold harmless the Issuers,
their respective directors and officers, each person who controls the Issuers
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act and each director, officer, affiliate or agent of persons
controlling the Issuers to the same extent as the foregoing indemnity from the
Issuers to each Participant, but only (i) with reference to information relating
to such Participant or underwriter furnished to the Issuers in writing by or on
behalf of such Participant or underwriter expressly for use in any Registration
Statement or Prospectus, any amendment or supplement thereto, or any preliminary
prospectus or (ii) with respect to any untrue statement or representation made
by such Participant or underwriter in writing to the Issuers. The liability of
any Participant under this paragraph shall in no event exceed the proceeds
received by such Participant from sales of Transfer Restricted Securities or
Exchange Notes giving rise to such obligations.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may reasonably designate in such proceeding and shall pay
the reasonable fees and expenses actually incurred by such counsel related to
such proceeding; provided, however, that the failure to so notify the
Indemnifying Person shall not relieve it of any obligation or liability which it
may have hereunder or otherwise (unless and only to the extent that such failure
directly results in an actual loss or compromise of any material rights or
defenses by the Indemnifying Person). In any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Person unless (i)
the Indemnifying Person and the Indemnified Person shall have mutually agreed in
writing to the contrary, (ii) the Indemnifying Person has failed within a
reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed at least quarterly. Any such separate firm for the Participants
and such control persons of Participants shall be designated in writing by
Participants who sold a majority in interest of Transfer Restricted Securities
sold by all such Participants in the related registration and any such separate
firm for the Issuers, their directors, officers and such control persons of the
Issuers shall be desig-
-16-
nated in writing by the Issuers. The Indemnifying Person shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final non-appealable judgment for the
plaintiff, the Indemnifying Person agrees to indemnify any Indemnified Person
from and against any loss or liability by reason of such settlement or judgment.
No Indemnifying Person shall, without the prior written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such
proceeding.
(d) If the indemnification provided for in the first and second
paragraphs of this Section 8 is unavailable to, or insufficient to hold
harmless, an Indemnified Person in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such
paragraphs, in lieu of indemnifying such Indemnified Person thereunder and in
order to provide for just and equitable contribution, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such losses,
claims, damages or liabilities in such proportion as is appropriate to reflect
the relative fault of the Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof). The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Issuers on the one hand
or by the Participants or such other Indemnified Person, as the case may be, on
the other, the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission and any other
equitable considerations appropriate under the circumstances.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 8 were determined by pro rata allocation
(even if the Participants were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any reasonable
legal or other expenses actually incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, in no event shall a
Participant be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Transfer Restricted
Securities or Exchange Notes, as the case may be, exceeds the amount of any
damages that such Participant has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
10(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in this
Section 8 will be in addition to any liability which the Indemnifying Persons
may otherwise have to the Indemnified Persons referred to above.
-17-
9. Miscellaneous
(a) No Inconsistent Agreements. No Issuer has entered, as of the
date hereof, and no Issuer shall enter, after the date of this Agreement, into
any agreement with respect to any of its securities that is inconsistent with
the rights granted to the Holders of Transfer Restricted Securities in this
Agreement or otherwise conflicts with the provisions hereof. No Issuer has
entered and no Issuer will enter into any agreement with respect to any of its
securities which will grant to any person piggy-back rights with respect to a
Registration Statement.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Issuers have obtained the written consent of
Holders of at least a majority of the then outstanding aggregate principal
amount of Transfer Restricted Securities. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders of Transfer Restricted
Securities whose securities are being sold pursuant to a Registration Statement
and that does not directly or indirectly affect, impair, limit or compromise the
rights of other Holders of Transfer Restricted Securities may be given by
Holders of at least a majority in aggregate principal amount of the Transfer
Restricted Securities being sold by such Holders pursuant to such Registration
Statement; provided that the provisions of this sentence may not be amended,
modified or supplemented except in accordance with the provisions of the
immediately preceding sentence.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or telecopier:
(i) if to a Holder of the Transfer Restricted Securities, at
the most current address for such Holder reflected in the register
maintained pursuant to the Indenture with a copy in like manner to the
Initial Purchasers as follows:
c/o Chase Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
(ii) if to the Issuers as follows:
c/o Republic Technologies International, LLC
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-▇▇-
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; five business days
after being deposited in the mail, postage prepaid, if mailed; one business day
after being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the person giving the same to the trustee under the
Indenture at the address specified in such Indenture.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO
AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(h) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
-19-
(i) Joint and Several Obligations. Each of the obligations of the
Issuers under this Agreement shall be joint and several obligations of each of
them.
(j) Securities Held by the Issuers or Their Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Transfer Restricted
Securities is required hereunder, Transfer Restricted Securities held by the
Issuers or their affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
[Signature Page Follows]
-20-
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
THE COMPANIES:
REPUBLIC TECHNOLOGIES
INTERNATIONAL, LLC
By:_________________________________
Name:
Title:
RTI CAPITAL CORP.
By:_________________________________
Name:
Title:
THE GUARANTORS:
Republic Technologies International
Holdings, LLC
By:_________________________________
Name:
Title:
Nimishillen & Tuscarawas, LLC
By:_________________________________
Name:
Title:
Bliss & ▇▇▇▇▇▇▇▇, LLC
By:_________________________________
Name:
Title:
Canadian Drawn Steel Company, Inc.
By:_________________________________
Name:
Title:
THE INITIAL PURCHASERS:
CHASE SECURITIES INC.
on behalf of the Holders
of Notes
By:_________________________________
Name:
Title:
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
on behalf of the Holders
of Notes
By:_________________________________
Name:
Title:
BANCBOSTON ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INC.
on behalf of the Holders
of Notes
By:_________________________________
Name:
Title:
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account
in exchange for Notes, where such Notes were acquired by such broker-dealer as a
result of market-making activities or other trading activities, must acknowledge
that it will deliver a prospectus in connection with any resale of such Exchange
Notes. See "Plan of Distribution."
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer Registration must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Notes where such Notes were acquired as a result of market-making
activities or other trading activities. The Issuers has agreed that, for a
period of 180 days after the Expiration Date, they will make this prospectus, as
amended or supplemented, available to any broker-dealer for use in connection
with any such resale. In addition, until _______________, ___, all dealers
effecting transactions in the Exchange Notes may be required to deliver a
prospectus.
The Issuers will not receive any proceeds from any sale of Exchange
Notes by broker-dealers. Exchange Notes received by broker-dealers for their own
account pursuant to the Exchange Offer Registration may be sold from time to
time in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Notes or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or at negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer or the purchasers of any such Exchange
Notes. Any broker-dealer that resells Exchange Notes that were received by it
for its own account pursuant to the Exchange Offer Registration and any broker
or dealer that participates in a distribution of such Exchange Notes may be
deemed to be an "underwriter" within the meaning of the Securities Act and any
profit on any such resale of Exchange Notes and any commission or concessions
received by any such persons may be deemed to be underwriting compensation under
the Securities Act. The Letter of Transmittal states that, by acknowledging that
it will deliver and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaning of the Securities
Act.
For a period of 180 days after the Expiration Date, the Issuers will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Issuers have agreed to pay all expenses
incident to the Exchange Offer Registration (including the expenses of one
counsel for the Holders of the Notes) other than commissions or concessions of
any broker-dealers and will indemnify the Holders of the Notes (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
/ / CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name:
Address:
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Notes. If the undersigned is a broker-dealer that will receive Exchange Notes
for its own account in exchange for Notes that were acquired as a result of
market-making activities or other trading activities, it acknowledges that it
will deliver a prospectus in connection with any resale of such Exchange Notes;
however, by so acknowledging and by delivering a prospectus, the undersigned
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act.