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REGISTRATION RIGHTS AGREEMENT
Dated October 23, 1996
among
KAISER ALUMINUM & CHEMICAL CORPORATION
KAISER ALUMINA AUSTRALIA CORPORATION
KAISER FINANCE CORPORATION
ALPART JAMAICA INC.
KAISER JAMAICA CORPORATION
KAISER MICROMILL HOLDINGS, LLC
KAISER SIERRA MICROMILLS, LLC
KAISER TEXAS MICROMILL HOLDINGS, LLC
KAISER TEXAS SIERRA MICROMILLS, LLC
and
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
SALOMON BROTHERS INC
BA SECURITIES, INC.
BEAR, STEARNS & CO. INC.
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is
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made and entered into as of October 23, 1996 among Kaiser
Aluminum & Chemical Corporation, a Delaware corporation (the
"Company"), Kaiser Alumina Australia Corporation, Kaiser
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Finance Corporation, Alpart Jamaica Inc., Kaiser Jamaica
Corporation, Kaiser Micromill Holdings, LLC, Kaiser Sierra
Micromills, LLC, Kaiser Texas Micromill Holdings, LLC, and
Kaiser Texas Sierra Micromills, LLC (collectively, the
"Guarantors"), and Merrill Lynch, Pierce, Fenner & Smith
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Incorporated, Donaldson, Lufkin & Jenrette Securities
Corporation, Salomon Brothers Inc, BA Securities, Inc. and
Bear, Stearns & Co. Inc. (the "Purchasers").
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This Agreement is made pursuant to the Purchase Agreement
dated October 17, 1996 among the Company, the Guarantors and
the Purchasers (the "Purchase Agreement"), which provides for,
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among other things, the sale by the Company to the Purchasers
of an aggregate of $175,000,000 principal amount of the
Company's 10-7/8% Senior Notes due 2006 (the "Securities"). In
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order to induce the Purchasers to enter into the Purchase
Agreement, the Company and the Guarantors have agreed to
provide to the Purchasers and certain of their direct and
indirect transferees the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a
condition to the closing of the transactions contemplated by
the Purchase Agreement.
In consideration of the foregoing, the parties hereto
agree as follows:
1. Definitions. As used in this Agreement, the following
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capitalized defined terms shall have the following meanings:
"Additional Interest" shall have the meaning set forth in
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Section 2(e) hereof.
"Advice" shall have the meaning set forth in the last
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paragraph of Section 3 hereof.
"Applicable Period" shall have the meaning set forth in
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Section 3(s) hereof.
"Business Day" shall mean a day that is not a Saturday, a
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Sunday, or a day on which banking institutions in New York, New
York are required to be closed.
"Closing Time" shall mean the Closing Time as defined in
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the Purchase Agreement.
"Company" shall have the meaning set forth in the preamble
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to this Agreement and also includes the Company's successors
and permitted assigns.
"Depositary" shall mean The Depository Trust Company, or
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any other depositary appointed by the Company; provided,
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however, that such depositary must have an address in the
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Borough of Manhattan, in The City of New York.
"Effectiveness Period" shall have the meaning set forth in
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Section 2(b) hereof.
"Exchange Act" shall mean the Securities Exchange Act of
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1934, as amended from time to time, and the rules and
regulations of the SEC promulgated thereunder.
"Exchange Notes" shall mean the 10-7/8% Senior Notes due
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2006, Series B, issued by the Company under the Indenture
containing terms substantially identical to the Securities
(except that (i) interest thereon shall accrue from the last
date to which interest was paid on the Securities or, if no
such interest has been paid, from October 23, 1996, (ii) the
provisions for Additional Interest thereon shall be eliminated
(except as contemplated by Section 2(e)(v) hereof with respect
to Exchange Notes held by Participating Broker-Dealers) and
(iii) the transfer restrictions thereon shall be eliminated) to
be offered to Holders of Securities in exchange for Securities
pursuant to the Exchange Offer.
"Exchange Offer" shall mean the exchange offer by the
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Company of Exchange Notes for Securities pursuant to Section
2(a) hereof.
"Exchange Offer Registration" shall mean a registration
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under the Securities Act effected pursuant to Section 2(a)
hereof.
"Exchange Offer Registration Statement" shall mean an
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exchange offer registration statement on Form S-4 (or, if
applicable, on another appropriate form), and all amendments
and supplements to such registration statement, in each case
including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in
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Section 2(a) hereof.
"Guarantors" shall have the meaning set forth in the
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Indenture.
"Holder" shall mean the Purchasers, for so long as they
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own any Registrable Securities, and each of their successors,
assigns and direct and indirect transferees who become
registered owners of Registrable Securities under the
Indenture.
"Indenture" shall mean the Indenture relating to the
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Securities dated as of October 23, 1996 among the Company, as
issuer, the Guarantors and First Trust National Association, as
trustee, as the same may be amended or supplemented from time
to time in accordance with the terms thereof.
"Inspectors" shall have the meaning set forth in
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Section 3(n) hereof.
"Majority Holders" shall mean the Holders of a majority of
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the aggregate principal amount of outstanding Registrable
Securities.
"Participating Broker-Dealer" shall have the meaning set
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forth in Section 3(s) hereof.
"Person" shall mean an individual, trustee, partnership,
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corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof, or other
legal entity.
"Prospectus" shall mean the prospectus included in a
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Registration Statement, including any preliminary prospectus,
and any such prospectus as amended or supplemented by any
prospectus supplement, including a prospectus supplement with
respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration
Statement, and by all other amendments and supplements to a
prospectus, including post-effective amendments, and in each
case including all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in
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the preamble to this Agreement.
"Purchasers" shall have the meaning set forth in the
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preamble to this Agreement.
"Records" shall have the meaning set forth in Section 3(n)
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hereof.
"Registrable Securities" shall mean the Securities;
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provided, however, that Securities shall cease to be
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Registrable Securities when (i) a Registration Statement with
respect to such Securities for the resale thereof, shall have
been declared effective under the Securities Act and such
Securities shall have been disposed of pursuant to such
Registration Statement, (ii) such Securities shall have been
sold to the public in compliance with Rule 144 (or any similar
provision then in force) under the Securities Act, (iii) such
Securities shall have ceased to be outstanding or (iv) with
respect to the Securities, such Securities have been exchanged
for Exchange Notes upon consummation of the Exchange Offer and
are thereafter freely tradeable (and, for the purpose only of
Section 2(e) hereof, not subject to a prospectus delivery
requirement) by the holder thereof not an affiliate of the
Company or any Guarantor.
"Registration Default" shall have the meaning set forth in
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Section 2(e) hereof.
"Registration Expenses" shall mean any and all expenses
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incident to performance of or compliance by the Company and the
Guarantors with this Agreement, including without limitation:
(i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. (the "NASD") registration and filing
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fees, including, if applicable, the fees and expenses of any
"qualified independent underwriter" (and its counsel) that is
required to be retained by any Holder of Registrable Securities
in accordance with the rules and regulations of the NASD, (ii)
all fees and expenses incurred in connection with compliance
with state securities or blue sky laws (including reasonable
fees and disbursements of counsel for any underwriters or
Holders in connection with blue sky qualification of any of the
Exchange Notes or Registrable Securities) and compliance with
the rules of the NASD, (iii) all expenses of any Persons
retained with the consent of the Company in preparing or
assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus and any
amendments or supplements thereto, and in preparing or
assisting in preparing, printing and distributing any
underwriting agreements, securities sales agreements and other
documents relating to the performance of and compliance with
this Agreement, (iv) all rating agency fees, (v) the fees and
disbursements of counsel for the Company and the Guarantors and
of the independent certified public accountants of the Company
and the Guarantors, including the expenses of any "cold
comfort" letters required by or incident to such performance
and compliance, (vi) the fees and expenses of the Trustee, and
any exchange agent or custodian, (vii) all fees and expenses
incurred in connection with the listing, if any, of any of the
Registrable Securities or Exchange Notes on any securities
exchange or exchanges, and (viii) any fees and disbursements of
any underwriter customarily required to be paid by issuers or
sellers of securities and the reasonable fees and expenses of
any special experts, in each case, retained by the Company or
any Guarantor in connection with any Registration Statement,
but excluding fees of counsel to the underwriters and
underwriting discounts and commissions and transfer taxes, if
any, relating to the sale or disposition of Registrable
Securities by a Holder.
"Registration Statement" shall mean any registration
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statement of the Company which covers any of the Exchange Notes
or Registrable Securities pursuant to the provisions of this
Agreement, and all amendments and supplements to any such
Registration Statement, including post-effective amendments, in
each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference, or
deemed to be incorporated by reference, therein.
"SEC" shall mean the Securities and Exchange Commission.
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"Securities" shall have the meaning set forth in the
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preamble to this Agreement.
"Securities Act" shall mean the Securities Act of 1933, as
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amended from time to time and the rules and regulations of the
SEC promulgated thereunder.
"Shelf Registration" shall mean a registration effected
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pursuant to Section 2(b) hereof.
"Shelf Registration Event" shall have the meaning set
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forth in Section 2(b) hereof.
"Shelf Registration Event Date" shall have the meaning set
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forth in Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf"
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registration statement of the Company pursuant to the
provisions of Section 2(b) hereof which covers Registrable
Securities in respect of which a Shelf Registration Statement
is required to be filed pursuant to this Agreement on an
appropriate form under Rule 415 under the Securities Act, or
any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement,
including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all
material incorporated by reference or deemed to be incorporated
by reference therein.
"TIA" shall have the meaning set forth in Section 3(l)
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hereof.
"Trustee" shall mean the trustee with respect to the
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Securities under the Indenture.
2. Registration Under the Securities Act.
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a. Exchange Offer. To the extent not prohibited by
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any law or applicable interpretations of the staff of the
SEC, the Company and the Guarantors shall, for the benefit
of the Holders, at the Company's expense, (i) cause to be
filed with the SEC within 30 days after the Closing Time
an Exchange Offer Registration Statement on an appropriate
form under the Securities Act covering the offer by the
Company and the Guarantors to the Holders to exchange any
and all of the Registrable Securities for a like principal
amount of Exchange Notes, (ii) use their reasonable best
efforts to have such Exchange Offer Registration Statement
declared effective under the Securities Act by the SEC not
later than the date which is 90 days after the Closing
Time, (iii) use their reasonable best efforts to have such
Registration Statement remain effective until the closing
of the Exchange Offer and (iv) use their reasonable best
efforts to cause the Exchange Offer to be consummated not
later than 130 days after the Closing Time. The Exchange
Notes will be issued under the Indenture. Upon the
effectiveness of the Exchange Offer Registration
Statement, the Company and the Guarantors shall as soon as
practicable commence the Exchange Offer, it being the
objective of such Exchange Offer to enable each Holder
eligible and electing to exchange Registrable Securities
for Exchange Notes (assuming that such Holder is not an
affiliate of the Company or any Guarantor within the
meaning of Rule 405 under the Securities Act and is not a
broker-dealer tendering Registrable Securities acquired
directly from the Company or any Guarantor or any
affiliate of the Company or any Guarantor for its own
account, and has no arrangements or understandings with
any Person to participate in the Exchange Offer for the
purpose of distributing (within the meaning of the
Securities Act) the Exchange Notes) to transfer such
Exchange Notes from and after their receipt, subject to
the prospectus delivery requirements of Participating
Broker-Dealers as contemplated by Section 3(s) hereof,
without any limitations or restrictions under the
Securities Act or under state securities or blue sky laws.
In connection with the Exchange Offer, the Company
and the Guarantors shall:
(a) mail to each Holder a copy of the
Prospectus forming part of the Exchange Offer Registration
Statement, together with an appropriate letter of
transmittal and related documents;
(b) keep the Exchange Offer open for
acceptance for a period of not less than 30 days after
the date notice thereof is mailed to the Holders (or
longer if required by applicable law) (such period
referred to herein as the "Exchange Period");
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(c) utilize the services of a
Depositary for the Exchange Offer;
(d) permit Holders to withdraw
tendered Securities at any time prior to the close
of business, New York time, on the last Business
Day of the Exchange Period, by sending to the
institution specified in the notice, a telegram,
telex, facsimile transmission or letter setting
forth the name of such Holder, the principal amount of
Securities delivered for exchange, and a statement that
such Holder is withdrawing his election to have such
Securities exchanged;
(e) notify each Holder that any
Security not tendered will remain outstanding and
continue to accrue interest, but will not retain
any rights under this Agreement (except as
otherwise provided herein); and
(f) otherwise comply in all
material respects with all applicable laws relating
to the Exchange Offer.
As soon as practicable after the close of the
Exchange Offer the Company shall (i) accept for exchange
all Securities or portions thereof tendered and not
validly withdrawn pursuant to the Exchange Offer and (ii)
deliver, or cause to be delivered, to the Trustee for
cancellation all Securities or portions thereof so
accepted for exchange by the Company, and issue, and cause
the Trustee under the Indenture to promptly authenticate
and deliver to each Holder, a new Exchange Security equal
in principal amount to the principal amount of the
Securities surrendered by such Holder.
To the extent not prohibited by any law or applicable
interpretations of the staff of the SEC, the Company and
the Guarantors shall use their reasonable best efforts to
complete the Exchange Offer as provided above, and shall
comply with the applicable requirements of the Securities
Act, the Exchange Act and other applicable laws in
connection with the Exchange Offer. The Exchange Offer
shall not be subject to any conditions, other than that
the Exchange Offer does not violate any law or applicable
interpretations of the staff of the SEC. Each Holder of
Registrable Securities who wishes to exchange such
Registrable Securities for Exchange Notes in the Exchange
Offer will be required to make certain customary
representations in connection therewith, including
representations that (i) it is not an affiliate of the
Company or any Guarantor, (ii) it is not a broker-dealer
tendering Securities acquired directly from the Company or
any Guarantor or an affiliate of the Company or any
Guarantor, (iii) any Exchange Notes to be received by it
will be acquired in the ordinary course of business, (iv)
it has no arrangement or understanding with any person to
participate in the distribution (within the meaning of the
Securities Act) of the Exchange Notes in violation of the
Securities Act and (v) it is not acting on behalf of any
person who could not truthfully make the foregoing
representations.
Upon consummation of the Exchange Offer in accordance
with this Section 2(a), the provisions of this Agreement
shall continue to apply, mutatis mutandis, solely with
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respect to Registrable Securities as to which Section
2(b)(iii) or Section 2(b)(iv) hereof is applicable and to
Exchange Notes held by Participating Broker-Dealers, and
the Company shall have no further obligation to register
Registrable Securities (other than Securities as to which
Section 2(b)(iii) or Section 2(b)(iv) hereof is
applicable) pursuant to Section 2(b) hereof.
b. Shelf Registration. In the event that (i) the
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Company reasonably determines, after conferring with
counsel (which may be in-house counsel), that the Exchange
Offer Registration provided in Section 2(a) hereof is not
available or may not be consummated as soon as practicable
after the last day of the Exchange Period because it would
violate any law or applicable interpretations of the staff
of the SEC, (ii) the Exchange Offer is not for any reason
consummated or capable of being consummated within 180
days after the Closing Time, (iii) any Holder of
Securities notifies the Company in writing within 15 days
after receipt of the prospectus forming part of the
Exchange Offer Registration Statement required to be
mailed to each Holder as set forth above that (A) in the
opinion of nationally-recognized counsel for such Holder
(or counsel acting for or by reference to all Holders),
due to a change in law or SEC staff interpretation which
change occurs subsequent to the date hereof, such Holder
is not entitled to participate in the Exchange Offer or
(B) in the opinion of nationally-recognized counsel for
such Holder (or counsel acting for or by reference to all
Holders), due to a change in law or SEC staff
interpretation which change occurs subsequent to the date
hereof, such Holder may not resell the Exchange Notes
acquired by it in the Exchange Offer to the public without
delivering a prospectus and (I) the prospectus contained
in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder
and (II) such prospectus is not promptly amended or
modified in order to be suitable for use in connection
with resales by such Holder or (iv) upon the request of
any Purchaser with respect to any Registrable Securities
which it acquired directly from the Company or any
Guarantor or an affiliate of the Company or any Guarantor
and, with respect to other Registrable Securities held by
it, if such Purchaser is not permitted, in the opinion of
nationally-recognized counsel to such Purchaser, pursuant
to any law or applicable interpretations of the staff of
the SEC, to participate in the Exchange Offer and thereby
receive securities that are freely tradeable without
restriction (other than a prospectus delivery requirement)
under the Securities Act and applicable blue sky or state
securities laws (any of the events specified in (i)-(iv)
being a "Shelf Registration Event" and the date of
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occurrence thereof, the "Shelf Registration Event Date"),
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the Company and the Guarantors shall, at the Company's
expense, cause to be filed as promptly as practicable
after such Shelf Registration Event Date, as the case may
be, and, in any event, in the case of (i), (iii) and (iv)
above, within 130 days after the Closing Time, and in the
case of (ii) above, as soon as reasonably practicable
after the 180 day period set forth therein
(notwithstanding in the case of (ii) above, the Company
shall remain liable for the increases in interest set
forth in Section 2(e) until the effectiveness of the Shelf
Registration Statement), a Shelf Registration Statement
providing for the sale by the Holders of any and all of
the Registrable Securities, and shall use their reasonable
best efforts to have such Shelf Registration Statement
declared effective by the SEC as soon as reasonably
practicable after its filing with the SEC. No Holder of
Registrable Securities may include any of its Registrable
Securities in any Shelf Registration pursuant to this
Agreement unless and until such Holder furnishes to the
Company in writing such information as the Company may,
after conferring with counsel with regard to information
relating to Holders that would be required by the SEC to
be included in such Shelf Registration Statement or
Prospectus included therein, reasonably request for
inclusion in any Shelf Registration Statement or
Prospectus included therein. Each Holder as to which any
Shelf Registration is being effected agrees to furnish to
the Company all information with respect to such Holder
necessary to make the information previously furnished to
the Company by such Holder not materially misleading.
The Company and the Guarantors agree to use their
reasonable best efforts to keep the Shelf Registration
Statement continuously effective for a period until the
earlier of 36 months following the Closing Time (subject
to extension pursuant to the last paragraph of Section 3
hereof) or for such shorter period which will terminate
when all of the Registrable Securities covered by the
Shelf Registration Statement have been sold pursuant to
the Shelf Registration Statement or otherwise cease to be
Registrable Securities (the "Effectiveness Period"). The
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Company and the Guarantors shall not permit any securities
other than Registrable Securities to be included in the
Shelf Registration. The Company and the Guarantors
further agree, if necessary, to supplement or amend the
Shelf Registration Statement, if required by the rules,
regulations or instructions applicable to the registration
form used by the Company for such Shelf Registration
Statement or by the Securities Act or by any other rules
and regulations thereunder for shelf registrations, and
the Company agrees to furnish to the Holders of
Registrable Securities copies of any such supplement or
amendment promptly after its being used or filed with the
SEC.
c. Expenses. The Company and the Guarantors shall
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pay all Registration Expenses in connection with the
registration pursuant to Section 2(a) or 2(b) hereof and
will pay the reasonable fees and disbursements of any one
counsel designated in writing by the Majority Holders to
act as counsel for the Holders of the Registrable
Securities in connection with a Shelf Registration
Statement. Except as provided herein, each Holder shall
pay all expenses of its counsel, underwriting discounts
and commissions and transfer taxes, if any, relating to
the sale or disposition of such Holder's Registrable
Securities pursuant to the Shelf Registration Statement.
d. Effective Registration Statement. An Exchange
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Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to
Section 2(b) hereof will not be deemed to have become
effective unless it has been declared effective by the
SEC; provided, however, that if, after it has been
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declared effective, the effectiveness of a Registration
Statement is interfered with by any stop order, injunction
or other order or requirement of the SEC or any other
governmental agency or court, such Registration Statement
will be deemed not to have been effective during the
period of such interference. The Company and the
Guarantors will be deemed not to have used their
reasonable best efforts to cause the Exchange Offer
Registration Statement or the Shelf Registration
Statement, as the case may be, to become, or to remain,
effective during the requisite period if they voluntarily
take any action that would result in any such Registration
Statement not being declared effective or in the Holders
of Registrable Securities covered thereby not being able
to exchange or offer and sell such Registrable Securities
during that period unless (i) such action is required by
applicable law or interpretations of the staff of the SEC
or (ii) such action is taken by them in good faith and for
valid business reasons (not including avoidance of their
obligations hereunder).
e. Additional Interest. In the event that (i) the
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Exchange Offer Registration Statement has not been filed
with the SEC on or prior to the 30th calendar day after
the Closing Time, (ii) the Exchange Offer Registration
Statement is not declared effective on or prior to the
90th calendar day after the Closing Time, (iii) the
Exchange Offer is not consummated on or prior to the 130th
calendar day after the Closing Time, (iv) if a Shelf
Registration Event shall have occurred and if the Shelf
Registration Statement is not declared effective on or
prior to the 130th calendar after the Closing Time or (v)
the Exchange Offer Registration Statement or the Shelf
Registration Statement is declared effective but
thereafter ceases to be effective or usable during the
period specified herein (each such event referred to in
(i) through (v), a "Registration Default"), the interest
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rate borne by the Securities or Exchange Notes which are
Registrable Securities shall be increased (the "Additional
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Interest") by one-quarter of one percent (0.25%) per annum
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for the first 90-day period immediately after the first
such Registration Default. The interest rate borne by
such Registrable Securities shall increase by an
additional one-quarter of one percent (0.25%) per annum
for each subsequent 90-day period, in each case, until all
Registration Defaults have been cured (provided that in
the event the Company has abandoned the Exchange Offer
because of the circumstances described in Section 2(b)(i)
or Section 2(b)(ii) hereof, then the effectiveness of the
Shelf Registration Statement shall be deemed a cure of
such Registration Defaults); provided, that the aggregate
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increase in such interest rate pursuant to this Section
2(e) will in no event exceed one percent (1.00%) per
annum. Notwithstanding any of the above, it is understood
that additional interest pursuant to a Registration
Default under clause (v) above, as such clause (v) relates
to an Exchange Offer Registration Statement, shall only be
payable to a Participating Broker-Dealer that holds
Registrable Securities subject to a prospectus delivery
requirement; provided, that such a Registration Default
may only be deemed to be occurring during the period
following the 90th day after Closing Time until, subject
to an extension of the relevant 180 day period pursuant to
the last sentence of Section 3 hereof, 180 days after the
effectiveness of the Exchange Offer Registration
Statement. Following the cure of all Registration
Defaults, the interest rate borne by such Registrable
Securities will be reduced to the original interest rate.
The Company shall notify the Trustee within three
Business Days after each and every date on which a
Registration Default occurs. Additional Interest shall be
paid by depositing with the Trustee, in trust, for the
benefit of the Holders of Securities on or before the
applicable semiannual interest payment date, immediately
available funds in sums sufficient to pay the Additional
Interest then due. The Additional Interest due shall be
payable on each interest payment date to the record Holder
of Securities entitled to receive the interest payment to
be paid on such date as set forth in the Indenture. Each
obligation to pay Additional Interest shall be deemed to
accrue from and including the day following the applicable
Registration Default.
f. Specific Enforcement. Without limiting the
--------------------
remedies available to the Purchasers and the Holders, the
Company and the Guarantors acknowledge that any failure by
the Company and the Guarantors to comply with their
obligations under Section 2(a) and Section 2(b) hereof may
result in material irreparable injury to the Purchasers or
the Holders for which there is no adequate remedy at law,
that it would not be possible to measure damages for such
injuries precisely and that, in the event of any such
failure, the Purchasers or any Holder may obtain such
relief as may be required to specifically enforce the
Company's and the Guarantors' obligations under Section
2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with the
-----------------------
obligations of the Company and the Guarantors with respect to
the Registration Statements pursuant to Sections 2(a) and 2(b)
hereof, the Company and the Guarantors shall:
a. prepare and file with the SEC a Registration
Statement or Registration Statements as prescribed by
Sections 2(a) and 2(b) hereof within the relevant time
period specified in Section 2 hereof on the appropriate
form under the Securities Act, which form (i) shall be
selected by the Company, (ii) shall, in the case of a
Shelf Registration, be available for the sale of the
relevant Registrable Securities by the selling Holders
thereof and (iii) shall comply as to form in all material
respects with the requirements of the applicable form and
include all financial statements required by the SEC to be
filed therewith; and use their reasonable best efforts to
cause such Registration Statement to become effective and
remain effective in accordance with Section 2 hereof;
provided, however, that if (1) such filing is pursuant to
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Section 2(b), or (2) a Prospectus contained in an Exchange
Offer Registration Statement filed pursuant to Section
2(a) is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell
Exchange Notes, before filing any Registration Statement
or Prospectus or any amendments or supplements thereto,
the Company shall furnish to and afford the Holders of the
Registrable Securities covered by the relevant Shelf
Registration Statement and each such Participating
Broker-Dealer, as the case may be, covered by such
Registration Statement, their counsel and the managing
underwriters, if any, a reasonable opportunity to review
copies of all such documents (including copies of any
documents to be incorporated by reference therein and all
exhibits thereto) proposed to be filed (at least 5
Business Days prior to such filing). The Company and the
Guarantors shall not file any Registration Statement or
Prospectus or any amendments or supplements thereto in
respect of which the Holders must be pursuant to this
Section 3(a) afforded an opportunity to review prior to
the filing of such document if the Majority Holders or
such Participating Broker-Dealer, as the case may be,
their counsel or the managing underwriters, if any, shall
reasonably and promptly object in writing;
b. 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 effective for the Effectiveness Period or the
Applicable Period, as the case may be; and cause each
Prospectus to be supplemented by any required prospectus
supplement and as so supplemented to be filed pursuant to
Rule 424 (or any similar provision then in force) under
the Securities Act, and comply with the provisions of the
Securities Act, the Exchange Act and the rules and
regulations promulgated thereunder applicable to it with
respect to the disposition of all securities covered by
such Registration Statement during the Effectiveness
Period or the Applicable Period, as the case may be, in
accordance with the intended method or methods of
distribution by the selling Holders thereof described in
this Agreement (including sales by any Participating
Broker-Dealer);
c. in the case of a Shelf Registration, (i) notify
each Holder of Registrable Securities covered by such
Shelf Registration Statement, at least 10 days prior to
filing, that a Shelf Registration Statement with respect
to the Registrable Securities is being filed and advising
such Holder that the distribution of Registrable
Securities will be made in accordance with the method
selected by the Majority Holders; and (ii) furnish to each
Holder of Registrable Securities covered by such Shelf
Registration Statement and to each underwriter of an
underwritten offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus,
including each preliminary Prospectus, and any amendment
or supplement thereto and such other documents as such
Holder or underwriter may reasonably request, in order to
facilitate the public sale or other disposition of the
Registrable Securities (it being understood that the
Company and the Guarantors hereby consent to the use of
the Prospectus or any amendment or supplement thereto by
each of the selling Holders of Registrable Securities in
accordance with the terms hereof, in connection with the
offering and sale of the Registrable Securities covered by
the Prospectus or any amendment or supplement thereto);
d. in the case of a Shelf Registration, use their
reasonable best efforts to register or qualify the
Registrable Securities under all applicable state
securities or "blue sky" laws of such jurisdictions by the
time the applicable Registration Statement is declared
effective by the SEC as any Holder of Registrable
Securities covered by a Registration Statement and each
underwriter of an underwritten offering of Registrable
Securities shall reasonably request in advance of such
date of effectiveness, and do any and all other acts and
things which may be reasonably necessary or advisable to
enable such Holder and underwriter to consummate the
disposition in each such jurisdiction of such Registrable
Securities owned by such Holder; provided, however, that
--------- --------
the Company and the Guarantors shall not be obligated to
qualify as foreign corporations in any jurisdiction in
which they are not so qualified or to take any action that
would subject them to general consent to service of
process in any jurisdiction in which they are not now so
subject or to subject them to general taxation in any such
jurisdiction in which they are not now so subject;
e. in the case of (1) a Shelf Registration or
(2) Participating Broker-Dealers who have notified the
Company that they will be utilizing the Prospectus
contained in the Exchange Offer Registration Statement as
provided in Section 3(s) hereof, notify each Holder of
Registrable Securities covered by such Shelf Registration
Statement, or such Participating Broker-Dealers, as the
case may be, their counsel and the managing underwriters,
if any, promptly and promptly confirm such notice in
writing (i) when a Registration Statement has become
effective and when any post-effective amendments and
supplements thereto become effective, (ii) of any request
by the SEC or any state securities authority for
amendments and supplements to a Registration Statement or
Prospectus or for additional information after the
Registration Statement has become effective, (iii) of the
issuance by the SEC or any state securities authority of
any stop order suspending the effectiveness of a
Registration Statement or the initiation of any
proceedings for that purpose, (iv) if the Company or the
Guarantors receive any notification with respect to the
suspension of the qualification of the Registrable
Securities or the Exchange Notes to be sold by any
Participating Broker-Dealer for offer or sale in any
jurisdiction or the initiation of any proceeding for such
purpose, (v) of the happening of any event or the failure
of any event to occur or the discovery of any facts,
during the period a Registration Statement is effective
which makes any statement made in such Registration
Statement or the related Prospectus untrue in any material
respect or which causes such Registration Statement or
Prospectus to omit to state a material fact necessary to
make the statements therein, in the light of the
circumstances under which they were made, not misleading
and (vi) the Company's reasonable determination that a
post-effective amendment to the Registration Statement
would be appropriate;
f. make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of a
Registration Statement at the earliest possible moment;
g. in the case of a Shelf Registration, furnish to
each Holder of Registrable Securities covered by such
Shelf Registration Statement, without charge, at least one
conformed copy of each Registration Statement relating to
such Shelf Registration and any post-effective amendment
thereto (without documents incorporated therein by
reference or exhibits thereto, unless requested);
h. in the case of a Shelf Registration, cooperate
with the selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be
sold and not bearing any restrictive legends; and cause
such Registrable Securities to be in such denominations
(consistent with the provisions of the Indenture) and
registered in such names as the selling Holders or the
underwriters may reasonably request at least two Business
Days prior to the closing of any sale of Registrable
Securities;
i. in the case of a Shelf Registration or an
Exchange Offer Registration, upon the occurrence of any
circumstance contemplated by Section 3(e)(ii), 3(e)(iii),
3(e)(v) or 3(e)(vi) hereof, use their reasonable best
efforts to prepare a supplement or post-effective
amendment to a Registration Statement or the related
Prospectus or any document incorporated therein by
reference or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable
Securities, such Prospectus will not contain any untrue
statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; and to notify each Holder to suspend use of
the Prospectus as promptly as practicable after the
occurrence of such an event, and each Holder hereby agrees
to suspend use of the Prospectus until the Company has
amended or supplemented the Prospectus to correct such
misstatement or omission;
j. in the case of a Shelf Registration, a
reasonable time prior to the filing of any document which
is to be incorporated by reference into a Registration
Statement or a Prospectus after the initial filing of a
Registration Statement, provide a reasonable number of
copies of such document to the Holders of Registrable
Securities covered by such Shelf Registration Statement;
and make such of the representatives of the Company and
the Guarantors as shall be reasonably requested by such
Holders of Registrable Securities or the Purchasers on
behalf of such Holders available for discussion of such
document;
k. obtain a CUSIP number for all Exchange Notes or
Registrable Securities, as the case may be, not later than
the effective date of a Registration Statement, and
provide the Trustee with printed certificates for the
Exchange Notes or the Registrable Securities, as the case
may be, in a form eligible for deposit with the
Depositary;
l. cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended (the "TIA"), in
---
connection with the registration of the Exchange Notes or
Registrable Securities, as the case may be, cooperate with
the Trustee and the Holders to effect such changes to the
Indenture as may be required for the Indenture to be so
qualified in accordance with the terms of the TIA and
execute, and use their reasonable best efforts to cause
the 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 the Indenture
to be so qualified in a timely manner;
m. in the case of a Shelf Registration, enter into
such agreements as are customary in shelf registrations
and take all such other appropriate actions as are
reasonably requested in order to expedite or facilitate
the registration or the disposition of such Registrable
Securities, and in such connection, whether or not an
underwriting agreement is entered into and whether or not
the registration is an underwritten registration:
(i) make such representations and warranties to Holders of
such Registrable Securities and the underwriters (if any),
with respect to the business of the Company and its
subsidiaries as then conducted or proposed to be conducted
and the Registration Statement, Prospectus and documents,
if any, incorporated or deemed to be incorporated by
reference therein, in each case, as are customarily made
by issuers in shelf registrations to underwriters and
selling securityholders, and confirm the same if and when
requested; (ii) obtain opinions of counsel to the Company
and the Guarantors and updates thereof in form and
substance reasonably satisfactory to the managing
underwriters (if any) and the Holders of a majority in
principal amount of the Registrable Securities being sold,
addressed to each selling Holder and the underwriters (if
any) covering the matters customarily covered in opinions
requested in shelf registrations and such other matters as
may be reasonably requested by such Holders and
underwriters; (iii) obtain "cold comfort" letters and
updates thereof in form and substance reasonably
satisfactory to the recipients from the independent
certified public accountants of the Company (and, if
necessary, any other independent certified public
accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial
statements and financial data are, or are required to be,
included in the Registration Statement), addressed to the
selling Holders of Registrable Securities and 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 shelf registrations
and such other matters as reasonably requested by such
selling Holders and underwriters (including, without
limitation, negative assurance with respect to any interim
financial period included in the Registration Statement or
the Prospectus and with respect to any period after the
date of the latest balance sheet included therein and up
to five days prior to the closing date in respect of any
such sale); 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 4 hereof (or such other provisions and
procedures acceptable to Holders of a majority in
aggregate principal amount of Registrable Securities
covered by such Registration Statement and the managing
underwriters or agents) with respect to all parties to be
indemnified pursuant to said Section (including, without
limitation, such underwriters and selling Holders). The
above shall be done at each closing under such
underwriting agreement, or as and to the extent required
thereunder;
n. if (1) a Shelf Registration is filed pursuant to
Section 2(b) or (2) a Prospectus contained in an Exchange
Offer Registration Statement filed pursuant to Section
2(a) is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the applicable period, make
available for inspection by any selling Holder of such
Registrable Securities being sold, or each such
Participating Broker-Dealer, as the case may be, any
underwriter participating in any such disposition of
Registrable Securities, if any, and any attorney,
accountant or other agent retained by any such selling
Holder or each such Participating Broker-Dealer, as the
case may be, 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 Company and its subsidiaries (collectively, the
"Records") as shall be reasonably necessary to enable them
-------
to exercise any applicable due diligence responsibilities,
and cause the officers, directors and employees of the
Company and its subsidiaries to supply all relevant
information in each case reasonably requested by any such
Inspector in connection with such Registration Statement.
Records which the Company determines, in good faith, to be
confidential and any Records which it notifies the
Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is
necessary in the opinion of nationally-recognized counsel
to avoid or correct a misstatement or omission in such
Registration Statement, (ii) the release of such Records
is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction or (iii) the information
in such Records has been made generally available to the
public. Each selling Holder of such Registrable
Securities and each such Participating Broker-Dealer 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 any securities other than for the purposes
expressly set forth in this Agreement unless and until
such is made generally available to the public. Each
selling Holder of such Registrable Securities and each
such Participating Broker-Dealer will be required to
further agree that it will, upon learning that disclosure
of such Records is sought in a court of competent
jurisdiction, give prompt notice to the Company and allow
the Company at its expense to undertake appropriate action
to prevent disclosure of the Records deemed confidential
(it being understood that the Holders shall at all times
be unrestricted in complying with any order of any court
or tribunal of competent jurisdiction);
o. comply with all applicable rules and regulations
of the SEC and make generally available to the Company's
security holders 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) (i) commencing at
the end of any fiscal quarter in which Registrable
Securities are sold to underwriters in a firm commitment
or best efforts underwritten offering and (ii) if not sold
to underwriters in such an offering, commencing on the
first day of the first fiscal quarter of the Company after
the effective date of a Registration Statement, which
statements shall cover said 12-month periods;
p. if an Exchange Offer is to be consummated, upon
delivery of the Registrable Securities by Holders to the
Company (or to such other Person as directed by the
Company) in exchange for the Exchange Notes, the Company
shall mark, or cause to be marked, on such Registrable
Securities delivered by such Holders that such Registrable
Securities are being cancelled in exchange for the
Exchange Notes; in no event shall such Registrable
Securities be marked as paid or otherwise satisfied;
q. cooperate with each seller of Registrable
Securities covered by any Registration Statement and each
underwriter, if any, participating in the disposition of
such Registrable Securities and their respective counsel
in connection with any filings required to be made with
the NASD;
r. use their reasonable best efforts to take all
other steps necessary to effect the registration of the
Registrable Securities covered by a Registration Statement
contemplated hereby;
s. in the case of the Exchange Offer Registration
Statement (i) include in the Exchange Offer Registration
Statement a section entitled "Plan of Distribution," which
section shall be reasonably acceptable to the Purchasers
or another representative of the Participating
Broker-Dealers, and which shall contain a summary statement
of the positions taken or policies made by the staff of the
SEC with respect to the potential "underwriter" status of
any broker-dealer (a "Participating Broker-Dealer") that
---------------------------
holds Registrable Securities acquired for its own account
as a result of market-making activities or other trading
activities and that will be the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) of Exchange
Notes to be received by such broker-dealer in the Exchange
Offer, whether such positions or policies have been
publicly disseminated by the staff of the SEC or such
positions or policies, in the reasonable judgment of the
Purchasers or such other representative, represent the
prevailing views of the staff of the SEC, including a
statement that any such broker-dealer who receives
Exchange Notes for Registrable Securities pursuant to the
Exchange Offer may be deemed a statutory underwriter and
must deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of such
Exchange Notes, (ii) furnish to each Participating
Broker-Dealer who has delivered to the Company the notice
referred to in Section 3(e), without charge, as many
copies of each Prospectus included in the Exchange Offer
Registration Statement, including any preliminary
prospectus, and any amendment or supplement thereto, as
such Participating Broker-Dealer may reasonably request
(it being understood that the Company hereby consents to
the use of the Prospectus forming part of the Exchange
Offer Registration Statement or any amendment or
supplement thereto, by any Person subject to the
prospectus delivery requirements of the SEC, including all
Participating Broker-Dealers, in connection with the sale
or transfer of the Exchange Notes covered by the
Prospectus or any amendment or supplement thereto),
(iii) use their reasonable best efforts to keep the
Exchange Offer Registration Statement effective and to
amend and supplement the Prospectus contained therein in
order to permit such Prospectus to be lawfully delivered
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, however,
--------- --------
that such period shall not be required to exceed 180 days
(or such longer period if extended pursuant to the last
sentence of Section 3 hereof) (the "Applicable Period"),
-----------------
and (iv) include in the transmittal letter or similar
documentation to be executed by an exchange offeree in
order to participate in the Exchange Offer (x) the
following provision or a provision substantially similar
thereto:
"If the exchange offeree is a broker-dealer
holding Registrable Securities acquired for
its own account as a result of market-making
activities or other trading activities,
it will deliver a prospectus
meeting the requirements of the Securities
Act in connection with any resale of
Exchange Notes received in respect of such
Registrable Securities pursuant to the
Exchange Offer";
and (y) a statement to the effect that by a broker-dealer
making the acknowledgment described in clause (x) and by
delivering a Prospectus in connection with the exchange of
Registrable Securities, the broker-dealer will not be
deemed to admit that it is an underwriter within the
meaning of the Securities Act.
The Company may require each seller of Registrable
Securities as to which any registration is being effected to
furnish to the Company such information regarding such seller
and the proposed distribution of such Registrable Securities,
as the Company may from time to time reasonably request in
writing. The Company may exclude from such registration the
Registrable Securities of any seller who fails to furnish such
information within a reasonable time after receiving such
request.
In the case of (1) a Shelf Registration Statement or
(2) Participating Broker-Dealers who have notified the Company
that they will be utilizing the Prospectus contained in the
Exchange Offer Registration Statement as provided in Section
3(s) hereof, each Holder agrees that, upon receipt of any
notice from the Company of the happening of any event of the
kind described in Section 3(e)(ii), 3(e)(iii), 3(e)(v) or
3(e)(vi) hereof, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to a
Registration Statement until such Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated
by Section 3(i) hereof or until it is advised in writing (the
"Advice") by the Company that the use of the applicable
------
Prospectus may be resumed, and, if so directed by the Company,
such Holder will deliver to the Company (at the Company's
expense) all copies in such Holder's possession, other than
permanent file copies then in such Holder's possession, of the
Prospectus covering such Registrable Securities or Exchange
Notes, as the case may be, current at the time of receipt of
such notice. If the Company or the Guarantors shall give any
such notice to suspend the disposition of Registrable
Securities or Exchange Notes, as the case may be, pursuant to a
Registration Statement, the Company and the Guarantors shall
file and use their reasonable best efforts to have declared
effective (if an amendment) as soon as practicable an amendment
or supplement to the Registration Statement and shall extend
the period during which such Registration Statement shall be
maintained effective pursuant to this Agreement by the number
of days in the period from and including the date of the giving
of such notice to and including the date when the Company shall
have made available to the Holders (x) copies of the
supplemented or amended Prospectus necessary to resume such
dispositions or (y) the Advice.
4. Indemnification and Contribution. a. The
--------------------------------
Company and the Guarantors shall indemnify and hold harmless
each Purchaser, each Holder, each Participating Broker-Dealer,
each underwriter who participates in an offering of Registrable
Securities, their respective affiliates, each Person, if any,
who controls any of such parties within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act and
each of their respective directors, officers, employees and
agents, as follows:
(a) from and against any and all loss,
liability, claim, damage and expense whatsoever, joint
or several, as incurred, arising out of any untrue
statement or alleged untrue statement of a material
fact contained in any Registration Statement (or
any amendment thereto), covering Registrable Securities
or Exchange Notes, including all documents incorporated
therein by reference, or the omission or alleged
omission therefrom of a material fact required to be
stated therein or necessary to make the statements
therein not misleading or arising out of any untrue
statement or alleged untrue statement of
a material fact contained in any Prospectus (or any
amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(b) from and against any and all loss,
liability, claim, damage and expense whatsoever, joint
or several, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any
investigation or proceeding by any court or governmental
agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 4(d) below)
any such settlement is effected with the prior written
consent of the Company; and
(c) from and against any and all
expenses whatsoever, as incurred (including the fees and
disbursements of counsel chosen by the Purchasers, such
Holder, such Participating Broker-Dealer or any
underwriter (except to the extent otherwise provided in
Section 4(c) hereof)), reasonably incurred in
investigating, preparing or defending against any
litigation, or any investigation or proceeding by any
court or governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense
is not paid under subparagraph (i) or (ii) of this Section
4(a);
provided, however, that this agreement shall not apply to any
- --------- --------
loss, liability, claim, damage or expense to the extent arising
out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity
with written information furnished in writing to the Company by
any Purchaser, any Holder, any Participating Broker-Dealer or
any underwriter with respect to any Purchaser, Holder,
Participating Broker-Dealer or underwriter, as the case may be,
expressly for use in the Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or
supplement thereto).
b. Each Holder agrees, severally and not jointly,
to indemnify and hold harmless the Company and the Guarantors,
each Purchaser, each underwriter who participates in an
offering of Registrable Securities and the other selling
Holders and each of their respective directors, officers
(including each officer of the Company who signed the
Registration Statement), employees and agents and each Person,
if any, who controls the Company and the Guarantors, any
Purchaser, any underwriter or any other selling Holder within
the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, from and against any and all loss,
liability, claim, damage and expense whatsoever described in
the indemnity contained in Section 4(a) hereof, as incurred,
but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any
Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to
the Company by such selling Holder with respect to such Holder
expressly for use in the Registration Statement (or any
amendment thereto), or any such Prospectus (or any amendment or
supplement thereto); provided, however, that, in the case of
--------- --------
Shelf Registration Statement, no such Holder shall be liable
for any claims hereunder in excess of the amount of net
proceeds received by such Holder from the sale of Registrable
Securities pursuant to such Shelf Registration Statement.
c. Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party
of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party
from any liability hereunder except to the extent it is
materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to
--------- --------
the indemnifying party shall not (expect with the consent of
the indemnified party) also be counsel to the indemnified
party. In no event shall the indemnifying parties be liable
for fees and expenses of more than one counsel (in addition to
any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or
separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect
to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or
contribution is sought under this Section 4 (whether or not the
indemnified parties are actual or potential parties thereto),
unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all
liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
d. If at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, such indemnifying party
agrees that, unless such indemnifying party is contesting the
payment of such fees and expenses in good faith, it shall be
liable for any settlement of the nature contemplated by Section
4(a)(ii) effected without its written consent if (i) such
settlement is entered into more than 90 days after receipt by
such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received written notice of all of
the terms of such settlement at least 60 days prior to such
settlement being entered into and (iii) such indemnifying party
shall not have reimbursed such indemnified party in accordance
with such request prior to the date of such settlement.
e. If the indemnification provided for in Section
4(a) or (b) hereof is for any reason unavailable to or
insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities,
claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the
Guarantors on the one hand and the Holder of Registrable
Securities, the Participating Broker-Dealer or Purchaser, as
the case may be, on the other hand from the offering of the
Securities pursuant to the Purchase Agreement or (ii) if the
allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company and the Guarantors
on the one hand and of the Holder of Registrable Securities,
the Participating Broker-Dealer or Purchaser, as the case may
be, on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable
considerations.
The relative fault of the Company and the Guarantors
on the one hand and the Holder of Registrable Securities, the
Participating Broker-Dealer or the Purchasers, as the case may
be, on the other hand 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 Company or the Guarantors, or by the Holder of
Registrable Securities, the Participating Broker-Dealer or the
Purchasers, as the case may be, and the parties' relative
intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company, the Guarantors and the Holders of the
Registrable Securities and the Purchasers agree that it would
not be just and equitable if contribution pursuant to this
Section 4(e) were determined by pro rata allocation or by any
other method of allocation which does not take account of the
equitable considerations referred to above in this Section
4(e).
No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
For purposes of this Section 4(e), each Person, if
any, who controls a Holder of Registrable Securities, a
Purchaser or a Participating Broker-Dealer within the meaning
of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such
other Person, and each director of the Company and the
Guarantors, each officer of the Company who signed the
Registration Statement, and each Person, if any, who controls
the Company and the Guarantors within the meaning of Section 15
of the Securities act or Section 20 of the Exchange Act shall
have the same rights to contribution as the Company and the
Guarantors.
5. Participation in Underwritten Registrations. No
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Holder may participate in any underwritten registration
hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and
executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other
documents reasonably required under the terms of such
underwriting arrangements.
6. Selection of Underwriters. The Holders of
-------------------------
Registrable Securities covered by the Shelf Registration
Statement who desire to do so may sell the securities covered
by such Shelf Registration in an underwritten offering. In any
such underwritten offering, the underwriter or underwriters and
manager or managers that will administer the offering will be
selected by the Holders of a majority in aggregate principal
amount of the Registrable Securities included in such offering;
provided, however, that such underwriters and managers must be
- --------- --------
reasonably satisfactory to the Company.
7. Miscellaneous.
--------------
a. Rule 144 and Rule 144A. For so long as the
----------------------
Company or any Guarantor is subject to the reporting
requirements of Section 13 or 15 of the Exchange Act and any
Registrable Securities remain outstanding, the Company and the
Guarantors covenant that they will comply with their reporting
obligations under the Securities Act and Section 13(a) or 15(d)
of the Exchange Act and the rules and regulations adopted by
the SEC thereunder, that if they cease to be required to file
periodic reports thereunder, they will upon the request of any
Holder of Registrable Securities (a) make publicly available
such information as is necessary to permit sales pursuant to
Rule 144 under the Securities Act, (b) deliver such information
to a prospective purchaser as is necessary to permit sales
pursuant to Rule 144A under the Securities Act, and (c) take
such further action that is reasonable in the circumstances, in
each case, to the extent required from time to time to enable
such Holder to sell its Registrable Securities without
registration under the Securities Act within the limitation of
the exemptions provided by (i) Rule 144 under the Securities
Act, as such rule may be amended from time to time, (ii) Rule
144A under the Securities Act, as such rule may be amended from
time to time, or (iii) any similar rules or regulations
hereafter adopted by the SEC. For so long as any of the
Company or the Guarantors is subject to the reporting
requirements of Section 13 or 15 of the Exchange Act and any
Registrable Securities remain outstanding, upon the request of
any Holder of Registrable Securities, the Company and the
Guarantors will deliver to such Holder a written statement as
to whether they have complied with such requirements.
b. No Inconsistent Agreements. The Company and the
--------------------------
Guarantors have not entered into nor will the Company and the
Guarantors on or after the date of this Agreement enter into
any agreement which may require any action which would violate
the rights granted to the Holders of Registrable Securities in
this Agreement or otherwise conflicts with the provisions
hereof. The rights granted to the Holders hereunder do not in
any way conflict with and do not under any circumstances
require any action which would violate the rights granted to
the Holders of the Company's other issued and outstanding
securities under any such agreements.
c. Amendments and Waivers. The provisions of this
----------------------
Agreement may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof
may not be given, otherwise than with the prior written consent
of (A) the Holders of not less than a majority in aggregate
principal amount of the then outstanding Registrable Securities
and (B) in circumstances that would adversely affect the
Participating Broker-Dealers, the Participating Broker-Dealers
holding not less than a majority in aggregate principal amount
of the Exchange Notes held by all Participating Broker-Dealers;
provided, however, that Section 4 and this Section 7(c) may not
- --------- --------
be amended, modified or supplemented without the prior written
consent of each Holder and each Participating Broker-Dealer
(including any Person who was a Holder or Participating
Broker-Dealer of Registrable Securities or Exchange Notes, as
the case may be, disposed of pursuant to any Registration
Statement). 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 Registrable 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 Registrable Securities may
be given by Holders of at least a majority in aggregate
principal amount of the Registrable Securities being sold
by such Holders pursuant to such Registration Statement.
d. Notices. All notices and other communications
-------
provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, telex, telecopier,
or any courier guaranteeing overnight delivery (i) if to a
Holder, at the most current address given by such Holder to the
Company by means of a notice given in accordance with the
provisions of this Section 7(d), which address initially is,
with respect to the Purchasers, the address set forth in the
Purchase Agreement; and (ii) if to the Company or the
Guarantors, initially at the Company's address set forth in the
Purchase Agreement to the attention of General Counsel and
thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 7(d), with a
copy to Kramer, Levin, Naftalis & Frankel, 919 Third Avenue,
New York, New York 10022, Attention: Howard A. Sobel, Esq.
All such notices and communications shall be deemed
to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited
in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt is acknowledged, if telecopied; and on
the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.
Copies of all such notices, demands, or other
communications shall be concurrently delivered by the Person
giving the same to the Trustee, at the address specified in the
Indenture.
e. Successors and Assigns. This Agreement shall
----------------------
inure to the benefit of and be binding upon the successors,
assigns and transferees of the Purchasers, including, without
limitation and without the need for an express assignment,
subsequent Holders; provided, however, that nothing herein
--------- --------
shall be deemed to permit any assignment, transfer or other
disposition of Registrable Securities in violation of the terms
of the Purchase Agreement or the Indenture. If any transferee
of any Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the
terms of this Agreement, and by taking and holding such
Registrable Securities, such Person shall be conclusively
deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement and such Person shall be
entitled to receive the benefits hereof.
f. Third Party Beneficiary. Each of the Purchasers
------------------------
shall be a third party beneficiary of the agreements made
hereunder between the Company and the Guarantors, on the one
hand, and the Holders, on the other hand, and shall have the
right to enforce such agreements directly to the extent it
deems such enforcement necessary or advisable to protect its
rights or the rights of Holders hereunder.
g. 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.
h. Headings. The headings in this Agreement are
---------
for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
i. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED
--------------
TO HAVE BEEN MADE IN THE STATE OF NEW YORK. THE VALIDITY AND
INTERPRETATION OF THIS AGREEMENT, AND THE TERMS AND CONDITIONS
SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS.
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.
j. Severability. In the event that any one or more
-------------
of the provisions contained herein, or the application thereof
in any circumstance, is held invalid, illegal or unenforceable,
the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
k. Securities Held by the Company or Its
----------------------------------------
Affiliates. Whenever the consent or approval of Holders of a
- -----------
specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company or the
Guarantors 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.
l. Entire Agreement. This Agreement, together with
-----------------
the Purchase Agreement and the Indenture, is intended by the
parties as a final and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject
matter contained herein and therein and any and all prior oral
or written agreements, representations, or warranties,
contracts, understandings, correspondence, conversation and
memoranda between the Purchasers on the one hand and the
Company and the Guarantors on the other, or between or among
any agents, representatives, parents, subsidiaries, affiliates,
predecessors in interest or successors in interest with respect
to the subject matter hereof and thereof are merged herein and
replaced hereby.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
KAISER ALUMINUM & CHEMICAL CORPORATION
By:
----------------------------------
Name:
Title:
KAISER ALUMINA AUSTRALIA CORPORATION
By:
----------------------------------
Name:
Title:
KAISER FINANCE CORPORATION
By:
----------------------------------
Name:
Title:
ALPART JAMAICA INC.
By:
----------------------------------
Name:
Title:
KAISER JAMAICA CORPORATION
By:
----------------------------------
Name:
Title:
KAISER MICROMILL HOLDINGS, LLC
By:
-------------------------------
Name:
Title:
KAISER SIERRA MICROMILLS, LLC
By:
-------------------------------
Name:
Title:
KAISER TEXAS MICROMILL HOLDINGS, LLC
By:
-------------------------------
Name:
Title:
KAISER TEXAS SIERRA MICROMILLS, LLC
By:
-------------------------------
Name:
Title:
Confirmed and accepted as of
the date first above
written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
------------------------------------
Name:
Title:
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
By:
------------------------------------
Name:
Title:
SALOMON BROTHERS INC
By:
------------------------------------
Name:
Title:
BA SECURITIES, INC.
By:
------------------------------------
Name:
Title:
BEAR, STEARNS & CO. INC.
By:
------------------------------------
Name:
Title:
Exhibit A
---------
Form of Opinion of Counsel
--------------------------
1. Each of the Exchange Offer Registration
Statement and the Prospectus (other than the financial
statements, notes or schedules thereto and other financial and
statistical information and supplemental schedules included or
referred to therein or omitted therefrom and the Form T-1, as
to which such counsel need express no opinion), complies as to
form in all material respects with the applicable requirements
of the Securities Act and the applicable rules and regulations
promulgated under the Securities Act.
2. In the course of such counsel's review and
discussion of the contents of the Exchange Offer Registration
Statement and the Prospectus with certain officers and other
representatives of the Company and the Guarantors and
representatives of the independent certified public accountants
of the Company, but without independent check or verification
or responsibility for the accuracy, completeness or fairness of
the statements contained therein, on the basis of the foregoing
(relying as to materiality to a large extent upon
representations and opinions of officers and other
representatives of the Company and the Guarantors), no facts
have come to such counsel's attention which cause such counsel
to believe that the Exchange Offer Registration Statement
(other than the financial statements, notes and schedules
thereto and other financial and statistical information
contained or referred to therein and the Form T-1, as to which
such counsel need express no belief), at the time the Exchange
Offer Registration Statement became effective and at the time
of the consummation of the Exchange Offer, contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements contained therein not misleading, or that the
Prospectus (other than the financial statements, notes and
schedules thereto and other financial and statistical
information contained or referred to therein, as to which such
counsel need express no belief) contains any untrue statement
of a material fact or omits to state a material fact necessary
to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading.