Exhibit 4.3
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REGISTRATION RIGHTS AGREEMENT
Dated as of June 13, 2002
Among
INTERMET CORPORATION
and
THE GUARANTORS NAMED HEREIN
as Issuers,
and
DEUTSCHE BANK SECURITIES INC., BANC OF AMERICA SECURITIES LLC,
SCOTIA CAPITAL (USA) INC., SUNTRUST CAPITAL MARKETS, INC.,
BANC ONE CAPITAL MARKETS, INC., COMERICA SECURITIES, INC., and
ABN AMRO INCORPORATED
as Initial Purchasers
9-3/4% Senior Notes due 2009
TABLE OF CONTENTS
Page
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1. Definitions...................................................... 1
2. Exchange Offer................................................... 5
3. Shelf Registration............................................... 9
4. Additional Interest.............................................. 10
5. Registration Procedures.......................................... 12
6. Registration Expenses............................................ 21
7. Indemnification and Contribution................................. 22
8. Rules 144 and 144A............................................... 27
9. Underwritten Registrations....................................... 27
10. Miscellaneous.................................................... 27
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated as of
June 13, 2002, among INTERMET CORPORATION, a Georgia corporation (the
"Company"), the subsidiaries of the Company that are listed on the signature
pages hereto (collectively, and together with any entity that in the future
executes a supplemental indenture pursuant to which such entity agrees to
guarantee the Notes (as hereinafter defined), the "Guarantors" and, together
with the Company, the "Issuers"), and DEUTSCHE BANK SECURITIES INC., BANC OF
AMERICA SECURITIES LLC, SCOTIA CAPITAL (USA) INC., SUNTRUST CAPITAL MARKETS,
INC., BANC ONE CAPITAL MARKETS, INC., COMERICA SECURITIES, INC., and ABN AMRO
INCORPORATED, as initial purchasers (the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement by and among the Issuers and the Initial Purchasers, dated as of June
10, 2002 (the "Purchase Agreement"), which provides for, among other things, the
sale by the Company to the Initial Purchasers of $175,000,000 aggregate
principal amount of the Company's 9-3/4% Senior Notes due 2009 (the "Notes"),
guaranteed by the Guarantors (the "Guarantees"). The Notes and the Guarantees
are collectively referenced to herein as the "Securities". In order to induce
the Initial Purchasers to enter into the Purchase Agreement, the Issuers have
agreed to provide the registration rights set forth in this Agreement for the
benefit of the Initial Purchasers and any subsequent holder or holders of the
Securities. The execution and delivery of this Agreement is a condition to the
Initial Purchasers' obligation to purchase the Securities under the Purchase
Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Additional Interest: See Section 4(a) hereof.
Advice: See the last paragraph of Section 5 hereof.
Agreement: See the introductory paragraphs hereto.
Applicable Period: See Section 2(b) hereof.
Business Day: Any day that is not a Saturday, Sunday or a day on
which banking institutions in New York are authorized or required by law to be
closed.
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Company: See the introductory paragraphs hereto.
Effectiveness Date: With respect to (i) the Exchange Offer
Registration Statement, the 165th day after the Issue Date and (ii) any Shelf
Registration Statement, the 90th day after the Filing Date with respect thereto;
provided, however, that if the Effectiveness Date would otherwise fall on a day
that is not a Business Day, then the Effectiveness Date shall be the next
succeeding Business Day.
Effectiveness Period: See Section 3(a) hereof.
Event Date: See Section 4 hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Exchange Notes: See Section 2(a) hereof.
Exchange Offer: See Section 2(a) hereof.
Exchange Offer Registration Statement: See Section 2(a) hereof.
Filing Date: (A) If no Registration Statement has been filed by the
Issuers pursuant to this Agreement, the 75th day after the Issue Date; and (B)
in any other case (which may be applicable notwithstanding the consummation of
the Exchange Offer), the 75th day after the delivery of a Shelf Notice as
required pursuant to Section 2(c) hereof; provided, however, that if the Filing
Date would otherwise fall on a day that is not a Business Day, then the Filing
Date shall be the next succeeding Business Day.
Guarantees: See the introductory paragraphs hereto.
Guarantors: See the introductory paragraphs hereto.
Holder: Any holder of a Registrable Note or Registrable Notes.
Indenture: The Indenture, dated as of June 13, 2002, by and among
the Issuers and U.S. Bank National Association, as Trustee, pursuant to which
the Notes are being issued, as amended or supplemented from time to time in
accordance with the terms thereof.
Information: See Section 5(o) hereof.
Initial Purchasers: See the introductory paragraphs hereto.
Initial Shelf Registration: See Section 3(a) hereof.
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Inspectors: See Section 5(o) hereof.
Issue Date: June 13, 2002, the date of original issuance of the
Notes.
Issuers: See the introductory paragraphs hereto.
NASD: See Section 5(s) hereof.
Notes: See the introductory paragraphs hereto.
Participant: See Section 7(a) hereof.
Participating Broker-Dealer: See Section 2(b) hereof.
Person: An individual, trustee, corporation, partnership, limited
liability company, joint stock company, trust, unincorporated association,
union, business association, firm or other legal entity.
Private Exchange: See Section 2(b) hereof.
Private Exchange Notes: See Section 2(b) hereof.
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
under the Securities Act and any term sheet filed pursuant to Rule 434 under the
Securities Act), as amended or supplemented by any prospectus supplement, 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 introductory paragraphs hereof.
Records: See Section 5(o) hereof.
Registrable Notes: Each Note (and the related Guarantees) upon its
original issuance and at all times subsequent thereto, each Exchange Note (and
the related guarantees) as to which Section 2(c)(iv) hereof is applicable upon
original issuance and at all times subsequent thereto and each Private Exchange
Note (and the related guarantees) upon original issuance thereof and at all
times subsequent thereto, until, in each case, the earliest to occur of (i) a
Registration Statement (other than, with respect to any Exchange Note as to
which Section 2(c)(iv) hereof is applicable, the Exchange Offer Registration
Statement) covering such Note, Exchange Note or Private Exchange Note has been
declared effective by the SEC and
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such Note, Exchange Note or such Private Exchange Note (and the related
guarantees), as the case may be, has been disposed of in accordance with such
effective Registration Statement, (ii) such Note has been exchanged pursuant to
the Exchange Offer for an Exchange Note or Exchange Notes (and the related
guarantees) that may be resold without restriction under state and federal
securities laws, (iii) such Note, Exchange Note or Private Exchange Note (and
the related guarantees), as the case may be, ceases to be outstanding for
purposes of the Indenture or (iv) such Note, Exchange Note or Private Exchange
Note (and the related guarantees), as the case may be, may be resold without
restriction pursuant to Rule 144(k) (as amended or replaced) under the
Securities Act.
Registration Statement: Any registration statement of the Issuers
that covers any of the Notes, the Exchange Notes or the Private Exchange Notes
(and the related Guarantees) filed with the SEC under the Securities Act,
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.
Rule 144A: Rule 144A under the Securities Act.
Rule 405: Rule 405 under the Securities Act.
Rule 415: Rule 415 under the Securities Act.
Rule 424: Rule 424 under the Securities Act.
SEC: The U.S. Securities and Exchange Commission.
Securities: See the introductory paragraphs hereto.
Securities Act: The Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c) hereof.
Shelf Registration: See Section 3(b) hereof.
Shelf Registration Statement: Any Registration Statement relating to
a Shelf Registration.
Subsequent Shelf Registration: See Section 3(b) hereof.
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TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and the trustee (if any)
under any indenture governing the Exchange Notes and Private Exchange Notes (and
the related guarantees).
Underwritten registration or underwritten offering: A registration
in which securities of one or more of the Issuers are sold to an underwriter for
reoffering to the public.
Except as otherwise specifically provided, all references in this
Agreement to acts, laws, statutes, rules, regulations, releases, forms,
no-action letters and other regulatory requirements (collectively, "Regulatory
Requirements") shall be deemed to refer also to any amendments thereto and all
subsequent Regulatory Requirements adopted as a replacement thereto having
substantially the same effect therewith; provided that Rule 144 shall not be
deemed to amend or replace Rule 144A.
2. Exchange Offer
(a) Unless the Exchange Offer would violate applicable law or any
applicable interpretation of the staff of the SEC, the Issuers shall file with
the SEC, no later than the Filing Date, a Registration Statement (the "Exchange
Offer Registration Statement") on an appropriate registration form with respect
to a registered offer (the "Exchange Offer") to exchange any and all of the
Registrable Notes for a like aggregate principal amount of debt securities of
the Company (the "Exchange Notes"), guaranteed by the Guarantors, that are
identical in all material respects to the Securities, except that (i) the
Exchange Notes shall contain no restrictive legend thereon and (ii) interest
thereon shall accrue from the last date on which interest was paid on the Notes
or, if no such interest has been paid, from the Issue Date, 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 the TIA) and which, in either case, has been qualified under the TIA. The
Exchange Offer shall comply with all applicable tender offer rules and
regulations under the Exchange Act and other applicable laws. The Issuers shall
use their reasonable best efforts to (x) cause the Exchange Offer Registration
Statement to be declared effective under the Securities Act on or before the
Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or
longer if required by applicable law) after the date that notice of the Exchange
Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to
the 200th day following the Issue Date.
Each Holder (including, without limitation, each Participating
Broker-Dealer) who participates in the Exchange Offer will be required to
represent to the Issuers in writing (which may be contained in the applicable
letter of transmittal) that: (i) any Exchange Notes acquired in exchange for
Registrable Notes tendered are being acquired in the ordinary course
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of business of the Person receiving such Exchange Notes, whether or not such
recipient is such Holder itself; (ii) at the time of the commencement or
consummation of the Exchange Offer neither such Holder nor, to the actual
knowledge of such Holder, any other Person receiving Exchange Notes from such
Holder has an arrangement or understanding with any Person to participate in the
distribution of the Exchange Notes in violation of the provisions of the
Securities Act; (iii) neither the Holder nor, to the actual knowledge of such
Holder, any other Person receiving Exchange Notes from such Holder is an
"affiliate" (as defined in Rule 405) of the Company or, if it is an affiliate of
the Company, it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable and will provide
information to be included in the Shelf Registration Statement in accordance
with Section 5 hereof in order to have their Notes included in the Shelf
Registration Statement and benefit from the provisions regarding Additional
Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual
knowledge of such Holder, any other Person receiving Exchange Notes from such
Holder is engaging in or intends to engage in a distribution of the Exchange
Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has
acquired the Registrable Notes as a result of market-making activities or other
trading activities and that it will comply with the applicable provisions of the
Securities Act (including, but not limited to, the prospectus delivery
requirements thereunder).
Upon consummation of the Exchange Offer in accordance with this
Section 2, the provisions of this Agreement shall continue to apply, mutatis
mutandis, solely with respect to Registrable Notes that are Private Exchange
Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange
Notes held by Participating Broker-Dealers, and the Issuers shall have no
further obligation to register Registrable Notes (other than Private Exchange
Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to
Section 3 hereof.
No securities other than the Exchange Notes shall be included in the
Exchange Offer Registration Statement.
(b) The Issuers shall include within the Prospectus contained in
the Exchange Offer Registration Statement a section entitled "Plan of
Distribution," reasonably acceptable to the Initial Purchasers, 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 that is the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange
Offer (a "Participating Broker-Dealer"), whether such positions or policies have
been publicly disseminated by the staff of the SEC or such positions or policies
represent the prevailing views of the staff of the SEC. Such "Plan of
Distribution" section shall also expressly permit, to the extent permitted by
applicable policies and regulations of the SEC, the use of the Prospectus by all
Persons subject to the prospectus delivery requirements of the Securities Act,
including,
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to the extent permitted by applicable policies and regulations of the SEC, all
Participating Broker-Dealers, and include a statement describing the means by
which Participating Broker-Dealers may resell the Exchange Notes in compliance
with the Securities Act.
The Issuers shall 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 is necessary to comply with applicable
law in connection with any resale of the Exchange Notes; provided, however, that
such period shall not be required to exceed 90 days or such longer period if
extended pursuant to the last paragraph of Section 5 hereof (the "Applicable
Period").
If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Notes acquired by them that have the status of an unsold
allotment in the initial distribution, the Issuers upon the request of the
Initial Purchasers shall simultaneously with the delivery of the Exchange Notes
issue and deliver to the Initial Purchasers, in exchange (the "Private
Exchange") for such Notes held by any such Holder, a like principal amount of
notes (the "Private Exchange Notes") of the Issuers, guaranteed by the
Guarantors, that are identical in all material respects to the Exchange Notes
except for the placement of a restrictive legend on such Private Exchange Notes.
The Private Exchange Notes shall be issued pursuant to the same indenture as the
Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted
by the CUSIP Service Bureau.
In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled
to participate in the Exchange Offer a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(2) use their reasonable best efforts to keep the Exchange Offer
open for not less than 30 days after the date that notice of the Exchange
Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer
with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last Business Day on
which the Exchange Offer remains open; and
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(5) otherwise comply in all material respects with all applicable
laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer and the
Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and
not validly withdrawn pursuant to the Exchange Offer and the Private
Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes
so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each
Holder of Securities, Exchange Notes or Private Exchange Notes, as the
case may be, equal in principal amount to the Securities of such Holder so
accepted for exchange; provided that, in the case of any Securities held
in global form by a depositary, authentication and delivery to such
depositary of one or more replacement Securities in global form in an
equivalent principal amount thereto for the account of such Holders in
accordance with the Indenture shall satisfy such authentication and
delivery requirement.
The Exchange Offer and the Private Exchange shall not be subject to
any conditions, other than that (i) the Exchange Offer or Private Exchange, as
the case may be, does not violate applicable law or any applicable
interpretation of the staff of the SEC; (ii) no action or proceeding shall have
been instituted or threatened in any court or by any governmental agency which
might materially impair the ability of the Issuers to proceed with the Exchange
Offer or the Private Exchange, and no material adverse development shall have
occurred in any existing action or proceeding with respect to the Issuers; and
(iii) all governmental approvals shall have been obtained, which approvals the
Issuers deem necessary for the consummation of the Exchange Offer or Private
Exchange.
The Exchange Notes and the Private Exchange Notes shall be issued
under (i) the Indenture or (ii) an indenture identical in all material respects
to the Indenture and which, in either case, has been qualified under the TIA or
is exempt from such qualification and shall provide that the Exchange Notes
shall not be subject to the transfer restrictions set forth in the Indenture.
The Indenture or such indenture shall provide that the Exchange Notes, the
Private Exchange Notes and the Securities shall vote and consent together on all
matters as one class and that none of the Exchange Notes, the Private Exchange
Notes or the Securities will have the right to vote or consent as a separate
class on any matter.
(c) If, (i) because of any change in law or in currently
prevailing interpretations of the staff of the SEC, the Issuers are not
permitted to effect the Exchange Offer, (ii) the Exchange Offer is not
consummated within 200 days of the Issue Date, (iii) the Initial Pur-
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chasers or any other holder of Private Exchange Notes so requests in writing to
the Company at any time after the consummation of the Exchange Offer, or (iv) in
the case of any Holder that participates in the Exchange Offer, such Holder does
not receive Exchange Notes on the date of the exchange that may be sold without
restriction under state and federal securities laws (other than due solely to
the status of such Holder as an affiliate of the Issuers within the meaning of
the Securities Act) and so notifies the Company within 30 days after such Holder
first becomes aware of such restrictions, in the case of each of clauses (i) to
and including (iv) of this sentence, then the Issuers shall promptly deliver to
the Holders and the Trustee written notice thereof (the "Shelf Notice") and
shall file a Shelf Registration pursuant to Section 3 hereof.
3. Shelf Registration
If at any time a Shelf Notice is delivered as contemplated by
Section 2(c) hereof, then:
(a) Shelf Registration. The Issuers shall as promptly as
practicable 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
Registrable Notes (the "Initial Shelf Registration"). The Issuers shall
use their reasonable best efforts to file with the SEC the Initial Shelf
Registration on or prior to the applicable Filing Date. The Initial Shelf
Registration shall be on Form S-1 or another appropriate form permitting
registration of such Registrable Notes 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 Registrable Notes and the Guarantees to be included in the
Initial Shelf Registration or any Subsequent Shelf Registration (as
defined below).
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 Effectiveness Date and to keep the Initial Shelf Registration
continuously effective under the Securities Act until the date that is two
years from the Issue Date or such shorter period ending when all
Registrable Notes covered by the Initial Shelf Registration have been sold
in the manner set forth and as contemplated in the Initial Shelf
Registration or, if applicable, a Subsequent Shelf Registration (the
"Effectiveness Period"); provided, however, that the Effectiveness Period
in respect of the Initial Shelf Registration shall be extended to the
extent required to permit dealers to comply with the applicable prospectus
delivery requirements of Rule 174 under the Securities Act and as
otherwise provided herein and shall be subject to reduction to the extent
that the applicable provisions of Rule 144(k) are amended or revised to
reduce the two year holding period set forth therein.
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(b) Withdrawal of Stop Orders; Subsequent Shelf Registrations. If
the Initial Shelf Registration or any Subsequent Shelf Registration ceases
to be effective for any reason at any time during the Effectiveness Period
(other than because of the sale of all of the Notes registered
thereunder), 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 30 days of such cessation of effectiveness
amend such Shelf Registration Statement in a manner 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 Registrable Notes covered by and not sold under the Initial Shelf
Registration or an earlier Subsequent Shelf Registration (each, a
"Subsequent Shelf Registration"). If a Subsequent Shelf Registration is
filed, the Issuers shall use their reasonable best efforts to cause the
Subsequent Shelf Registration to be declared effective under the
Securities Act as soon as practicable after such filing and to keep such
subsequent Shelf Registration continuously effective for a period equal to
the number of days in the Effectiveness Period less the aggregate number
of days during which the Initial Shelf Registration or any Subsequent
Shelf Registration was previously continuously effective. As used herein
the term "Shelf Registration" means the Initial Shelf Registration and any
Subsequent Shelf Registration.
(c) Supplements and Amendments. The Issuers shall promptly
supplement and amend the Shelf Registration if required by the rules,
regulations or instructions applicable to the registration form used for
such Shelf Registration, if required by the Securities Act, or if
reasonably requested by the Holders of a majority in aggregate principal
amount of the Registrable Notes (or their counsel) covered by such
Registration Statement with respect to the information included therein
with respect to one or more of such Holders, or by any underwriter of such
Registrable Notes with respect to the information included therein with
respect to such underwriter.
4. Additional Interest
(a) The Issuers and the Initial Purchasers agree that the Holders
will suffer damages if the Issuers fail to fulfill their obligations under
Section 2 or Section 3 hereof and that it would not be feasible to ascertain the
extent of such damages with precision. Accordingly, the Issuers agree to pay,
jointly and severally, as liquidated damages, additional interest on the Notes
("Additional Interest") under the circumstances and to the extent set forth
below (each of which shall be given independent effect):
(i) if (A) neither the Exchange Offer Registration Statement nor
the Initial Shelf Registration has been filed on or prior to the Filing
Date applicable thereto or (B) notwithstanding that the Issuers have
consummated or will consummate the Exchange Offer, the Issuers are
required to file a Shelf Registration and such Shelf Reg-
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istration is not filed on or prior to the Filing Date applicable thereto,
then, commencing on the day after any such Filing Date, Additional
Interest shall accrue on the principal amount of the Notes at a rate of
0.25% per annum for the first 90 days immediately following such
applicable Filing Date, and such Additional Interest rate shall increase
by an additional 0.25% per annum at the beginning of each subsequent
90-day period; or
(ii) if (A) neither the Exchange Offer Registration Statement nor
the Initial Shelf Registration is declared effective by the SEC on or
prior to the Effectiveness Date applicable thereto or (B) notwithstanding
that the Issuers have consummated or will consummate the Exchange Offer,
the Issuers are required to file a Shelf Registration and such Shelf
Registration is not declared effective by the SEC on or prior to the
Effectiveness Date applicable to such Shelf Registration, then, commencing
on the day after such Effectiveness Date, Additional Interest shall accrue
on the principal amount of the Notes at a rate of 0.25% per annum for the
first 90 days immediately following the day after such Effectiveness Date,
and such Additional Interest rate shall increase by an additional 0.25%
per annum at the beginning of each subsequent 90-day period; or
(iii) if (A) the Issuers have not exchanged Exchange Notes for all
Notes validly tendered in accordance with the terms of the Exchange Offer
on or prior to the 200th day after the Issue Date or (B) if applicable, a
Shelf Registration has been declared effective and such Shelf Registration
ceases to be effective at any time during the Effectiveness Period, then
Additional Interest shall accrue on the principal amount of the Notes at a
rate of 0.25% per annum for the first 90 days commencing on the (x) 201st
day after the Issue Date, in the case of (A) above, or (y) the day such
Shelf Registration ceases to be effective in the case of (B) above, and
such Additional Interest rate shall increase by an additional 0.25% per
annum at the beginning of each such subsequent 90-day period;
provided, however, that the Additional Interest rate on the Notes may not accrue
under more than one of the foregoing clauses (i) - (iii) at any one time and at
no time shall the aggregate amount of additional interest accruing exceed in the
aggregate 1.0% per annum; provided, further, however, that (1) upon the filing
of the applicable Exchange Offer Registration Statement or the applicable Shelf
Registration as required hereunder (in the case of clause (i) above of this
Section 4), (2) upon the effectiveness of the Exchange Offer Registration
Statement or the applicable Shelf Registration Statement as required hereunder
(in the case of clause (ii) of this Section 4), or (3) upon the exchange of the
Exchange Notes for all Notes tendered (in the case of clause (iii)(A) of this
Section 4), or upon the effectiveness of the applicable Shelf Registration
Statement which had ceased to remain effective (in the case of (iii)(B) of this
Section 4), Additional Interest on the Notes in respect of which such events
re-
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late as a result of such clause (or the relevant subclause thereof), as the case
may be, shall cease to accrue.
(b) The Issuers shall notify the Trustee within one business day
after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "Event Date"). Any amounts of
Additional Interest due pursuant to (a)(i), (a)(ii) or (a)(iii) of this Section
4 will be payable in cash semiannually on each June 15 and December 15 (to the
holders of record on the June 1 and December 1 immediately preceding such
dates), commencing with the first such date occurring after any such Additional
Interest commences to accrue. The amount of Additional Interest will be
determined by multiplying the applicable Additional Interest rate by the
principal amount of the Registrable Notes, multiplied by a fraction, the
numerator of which is the number of days such Additional Interest rate was
applicable during such period (determined on the basis of a 360 day year
comprised of twelve 30 day months and, in the case of a partial month, the
actual number of days elapsed), and the denominator of which is 360.
5. Registration Procedures
In connection with the filing of any Registration Statement pursuant
to Section 2 or 3 hereof, the Issuers shall effect such registrations to permit
the sale of the securities covered thereby in accordance with the intended
method or methods of disposition thereof, and pursuant thereto and in connection
with any Registration Statement filed by the Issuers hereunder each of the
Issuers shall:
(a) Prepare and file with the SEC on or prior to the applicable
Filing Date a Registration Statement or Registration Statements as
prescribed by Section 2 or 3 hereof, and use its reasonable best efforts
to cause each such Registration Statement to become effective and remain
effective as provided herein; provided, however, that if (1) such filing
is pursuant to Section 3 hereof or (2) a Prospectus contained in the
Exchange Offer Registration Statement filed pursuant to Section 2 hereof
is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period relating thereto from whom any Issuer has received prior written
notice that it will be a Participating Broker-Dealer in the Exchange
Offer, before filing any Registration Statement or Prospectus or any
amendments or supplements thereto, the Issuers shall furnish to and afford
the Holders of the Registrable Notes covered by such Registration
Statement (with respect to a Registration Statement filed pursuant to
Section 3 hereof) or each such Participating Broker-Dealer (with respect
to any such Registration Statement), as the case may be, their counsel and
the managing underwriters, if any and in each case of which the Issuers
have notice, a reasonable opportunity to review copies of all such
documents (including copies of any documents to be incorporated by
reference therein and all exhib-
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its thereto) proposed to be filed (in each case at least five business
days prior to such filing). The Issuers shall not file any Registration
Statement or Prospectus or any amendments or supplements thereto if the
Holders of a majority in aggregate principal amount of the Registrable
Notes covered by such Registration Statement, their counsel, or the
managing underwriters, if any, shall reasonably object on a timely basis.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration Statement or Exchange
Offer Registration Statement, as the case may be, as may be necessary to
keep such Registration Statement continuously effective for the
Effectiveness Period, the Applicable Period or until consummation of the
Exchange Offer, as the case may be; cause the related Prospectus to be
supplemented by any Prospectus supplement required by applicable law, and
as so supplemented to be filed pursuant to Rule 424; and comply with the
provisions of the Securities Act and the Exchange Act 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 and with respect to the subsequent resale of any securities
being sold by an Participating Broker-Dealer covered by any such
Prospectus. The Issuers shall be deemed not to have used their reasonable
best efforts to keep a Registration Statement effective if any Issuer
voluntarily takes any action that would result in selling Holders of the
Registrable Notes covered thereby or Participating Broker-Dealers seeking
to sell Exchange Notes not being able to sell such Registrable Notes or
such Exchange Notes during that period unless such action is required by
applicable law or permitted by this Agreement (including as permitted
pursuant to the final provision of Section 5(k) hereof).
(c) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period relating thereto from
whom any Issuer has received written notice that it will be a
Participating Broker-Dealer in the Exchange Offer, notify the selling
Holders of Registrable Notes (with respect to a Registration Statement
filed pursuant to Section 3 hereof), or each such Participating
Broker-Dealer (with respect to any such Registration Statement), as the
case may be, their counsel and the managing underwriters, if any and in
each case of which the Issuers have notice, promptly (but in any event
within one business day), and confirm such notice in writing, (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 under the
Securities Act (including in such notice a written statement that any
Holder may, upon request, obtain, at the sole expense of the Issuers, one
conformed copy of such Registration Statement or post-effective amendment
including financial
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statements and schedules, documents incorporated or deemed to be
incorporated by reference and exhibits), (ii) of the issuance by the SEC
of any stop order suspending the effectiveness of a 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) if
at any time when a prospectus is required by the Securities Act to be
delivered in connection with sales of the Registrable Notes or resales of
Exchange Notes by Participating Broker-Dealers the representations and
warranties of the Issuers contained in any agreement (including any
underwriting agreement) contemplated by Section 5(n) hereof cease to be
true and correct, (iv) of the receipt by any Issuer of any notification
with respect to the suspension of the qualification or exemption from
qualification of a Registration Statement or any of the Registrable Notes
or the Exchange Notes to be sold by any Participating Broker-Dealer for
offer or sale in any jurisdiction, or the initiation or threatening of any
proceeding for such purpose, (v) 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 or amendments or supplements to such Registration
Statement, Prospectus or documents so that, in the case of the
Registration Statement, 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 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
(vi) of the Issuers' determination that a post-effective amendment to a
Registration Statement would be appropriate.
(d) Use its reasonable 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 Registrable
Notes or the Exchange Notes to be sold by any Participating Broker-Dealer,
for sale in any jurisdiction, and, if any such order is issued, to use its
reasonable best efforts to obtain the withdrawal of any such order at the
earliest practicable moment.
(e) If a Shelf Registration is filed pursuant to Section 3 and if
requested during the Effectiveness Period by the managing underwriter or
underwriters (if any), the Holders of a majority in aggregate principal
amount of the Registrable Notes being sold in connection with an
underwritten offering or any Participating Broker-Dealer, (i) as promptly
as practicable incorporate in a prospectus supplement or post-effective
amendment such information as the managing underwriter or underwriters (if
any),
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such Holders, any Participating Broker-Dealer or counsel for any of them
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 Company has 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.
(f) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, furnish to each selling
Holder of Registrable Notes (with respect to a Registration Statement
filed pursuant to Section 3 hereof) and to each such Participating
Broker-Dealer who so requests (with respect to any such Registration
Statement) and to their respective counsel and each managing underwriter,
if any and in each case of which the Issuers have notice, at the sole
expense of the Issuers, one conformed copy of the Registration Statement
or Registration Statements 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) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, deliver to each selling
Holder of Registrable Notes (with respect to a Registration Statement
filed pursuant to Section 3 hereof), or each such Participating
Broker-Dealer (with respect to any such Registration Statement), as the
case may be, their respective counsel, and the underwriters, if any, at
the sole expense of the Issuers, as many copies of the Prospectus or
Prospectuses (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 5, the Issuers hereby consent to the
use of such Prospectus and each amendment or supplement thereto by each of
the selling Holders of Registrable Notes or each such Participating
Broker-Dealer, as the case may be, and the underwriters or agents, if any,
and dealers, if any, in connection with the offering and sale of the
Registrable Notes covered by, or the sale by Participating Broker-Dealers
of the Exchange Notes pursuant to, such Prospectus and any amendment or
supplement thereto.
(h) Prior to any public offering of Registrable Notes or any
delivery of a Prospectus contained in the Exchange Offer Registration
Statement by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, use its
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reasonable best efforts to register or qualify, and to cooperate with the
selling Holders of Registrable Notes or each such Participating
Broker-Dealer, as the case may be, the managing underwriter or
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Notes for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States
as any selling Holder, Participating Broker-Dealer, or the managing
underwriter or underwriters reasonably request in writing; provided,
however, that where Exchange Notes held by Participating Broker-Dealers or
Registrable Notes are offered other than through an underwritten offering,
the Issuers agree to cause their counsel to perform Blue Sky
investigations and file registrations and qualifications required to be
filed pursuant to this Section 5(h), keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and all
other acts or things necessary or advisable to enable the disposition in
such jurisdictions of the Exchange Notes held by Participating
Broker-Dealers or the Registrable Notes 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) subject itself to taxation in excess of a nominal dollar
amount in any such jurisdiction where it is not then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3 hereof,
cooperate with the selling Holders of Registrable Notes and the managing
underwriter or underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Notes 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; and enable
such Registrable Notes to be in such denominations (subject to applicable
requirements contained in the Indenture) and registered in such names as
the managing underwriter or underwriters, if any, or Holders may request.
(j) Use its reasonable best efforts to cause the Registrable Notes
covered by the Registration Statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof or the underwriter or underwriters,
if any, to consummate the disposition of such Registrable Notes, except as
may be required solely as a consequence of the nature of such selling
Holder's business, in which case the Issuers will cooperate in all
respects with the filing of such Registration Statement and the granting
of such approvals.
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(k) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, upon the occurrence of
any event contemplated by paragraph 5(c)(v) or 5(c)(vi) hereof, as
promptly as practicable prepare and (subject to Section 5(a) hereof) file
with the SEC, at the sole expense 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 Registrable Notes
being sold thereunder (with respect to a Registration Statement filed
pursuant to Section 3 hereof) or to the purchasers of the Exchange Notes
to whom such Prospectus will be delivered by a Participating Broker-Dealer
(with respect to any such Registration Statement), any 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; provided that the Issuers shall not be required
to amend or supplement such Registration Statement, Prospectus or document
incorporated therein by reference, for a period not to exceed an aggregate
of 30 days in any calendar year, if the Issuers determine in good faith
that the disclosure of such event at such time would have a material
adverse effect on the business, operations, or prospects of the Issuers or
the disclosure otherwise related to a pending material business
transaction that has not yet been publicly disclosed.
(l) Use its reasonable best efforts to cause the Registrable Notes
covered by a Registration Statement or the Exchange Notes, as the case may
be, to be rated with the appropriate rating agencies, if so requested by
the Holders of a majority in aggregate principal amount of Registrable
Notes covered by such Registration Statement or the Exchange Notes, as the
case may be, or the managing underwriter or underwriters, if any.
(m) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the Trustee with
certificates for the Registrable Notes in a form eligible for deposit with
The Depository Trust Company and (ii) provide a CUSIP number for the
Registrable Notes.
(n) In connection with any underwritten offering of Registrable
Notes pursuant to a Shelf Registration, enter into an underwriting
agreement as is customary in underwritten offerings of debt securities
similar to the Securities, and take all such other actions as are
reasonably requested by the managing underwriter or underwriters in order
to expedite or facilitate the registration or the disposition of such
Registrable
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Notes and, in such connection, (i) make such representations and
warranties to, and covenants with, the underwriters with respect to the
business of the Issuers (including any acquired business, properties or
entity, if applicable), 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 to underwriters
in underwritten offerings of debt securities similar to the Securities,
and confirm the same in writing if and when requested; (ii) obtain the
written opinions of counsel to the Issuers, and written updates thereof in
form, scope and substance reasonably satisfactory to the managing
underwriter or underwriters, addressed to the underwriters covering the
matters customarily covered in opinions reasonably requested in
underwritten offerings; (iii) obtain "cold comfort" letters and updates
thereof in form, scope 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 the Issuers, or of any business acquired
by the Issuers, for which financial statements and financial data are, or
are required to be, included or incorporated by reference 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 debt securities similar to the Securities; and
(iv) if an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable to the sellers
and underwriters, if any, than those set forth in Section 7 hereof (or
such other provisions and procedures reasonably acceptable to Holders of a
majority in aggregate principal amount of Registrable Notes covered by
such Registration Statement and the managing underwriter or underwriters
or agents, if any). The above shall be done at each closing under such
underwriting agreement, or as and to the extent required thereunder.
(o) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof 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 Initial Purchaser, any selling Holder of such
Registrable Notes being sold (with respect to a Registration Statement
filed pursuant to Section 3 hereof), or each such Participating
Broker-Dealer, as the case may be, any underwriter participating in any
such disposition of Registrable Notes, if any, and any attorney,
accountant or other agent retained by any such selling Holder or each such
Participating Broker-Dealer (with respect to any such Registration
Statement), as the case may be, or underwriter (any such Initial
Purchasers, Holders, Participating Broker-Dealers, underwriters,
attorneys, accountants or agents, collectively, the "Inspectors"), upon
written request, at the offices where normally kept, during reasonable
business hours, all pertinent financial and other records, pertinent
corporate documents
-19-
and instruments of the Issuers and subsidiaries of the Issuers
(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 Issuers and any of their
respective subsidiaries to supply all information ("Information")
reasonably requested by any such Inspector in connection with such due
diligence responsibilities. Each Inspector shall agree in writing that it
will keep the Records and Information confidential and that it will not
disclose any of the Records or Information that any Issuer determines, in
good faith, to be confidential and notifies the Inspectors in writing are
confidential unless (i) the disclosure of such Records or Information is
necessary to avoid or correct a misstatement or omission in such
Registration Statement or Prospectus and the Issuers have neither timely
disclosed such Records or Information nor delayed such disclosure in
accordance the final provision of Section 5(k) hereof, (ii) the release of
such Records or Information is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction, (iii) disclosure of such
Records or Information is necessary or advisable, in the opinion of
counsel for any Inspector, in connection with any action, claim, suit or
proceeding, directly or indirectly, involving or potentially involving
such Inspector and arising out of, based upon, relating to, or involving
this Agreement or the Purchase Agreement, or any transactions contemplated
hereby or thereby or arising hereunder or thereunder, or (iv) the
information in such Records or Information has been made generally
available to the public other than by an Inspector or an "affiliate" (as
defined in Rule 405) thereof; provided, however, that prior notice shall
be provided as soon as practicable to any Issuer of the potential
disclosure of any information by such Inspector pursuant to clauses (i) or
(ii) of this sentence to permit the Issuers to obtain a protective order
(or waive the provisions of this paragraph (o)) and that such Inspector
shall take such actions as are reasonably necessary to protect the
confidentiality of such information (if practicable) to the extent such
action is otherwise not inconsistent with, an impairment of or in
derogation of the rights and interests of the Holder or any Inspector.
(p) Provide an indenture trustee for the Registrable Notes or the
Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(a) hereof, as the case may be, to be
qualified under the TIA not later than the effective date of the first
Registration Statement relating to the Registrable Notes; and in
connection therewith, cooperate with the trustee under any such indenture
and the Holders of the Registrable Notes, to effect such changes (if any)
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
reasonable 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.
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(q) Comply with all applicable rules and regulations of the SEC
and make generally available to its securityholders with regard to any
applicable Registration Statement, a consolidated earning statement
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 fiscal quarter (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 Notes 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.
(r) Upon consummation of the Exchange Offer or a Private Exchange,
obtain an opinion of counsel to the Issuers, in a form customary for
underwritten transactions, addressed to the Trustee for the benefit of all
Holders of Registrable Notes participating in the Exchange Offer or the
Private Exchange, as the case may be, that the Exchange Notes or Private
Exchange Notes, as the case may be, the related guarantee and the related
indenture constitute legal, valid and binding obligations of the Issuers,
enforceable against the Issuers in accordance with their respective terms,
subject to customary exceptions and qualifications, provided that, as to
matters of New York law, such counsel may assume that the relevant laws of
the state of Michigan are substantially similar to those of the state of
New York. If the Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the
Company (or to such other Person as directed by the Company), in exchange
for the Exchange Notes or the Private Exchange Notes, as the case may be,
the Issuers shall mark, or cause to be marked, on such Registrable Notes
that such Registrable Notes are being cancelled in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may be; in no
event shall such Registrable Notes be marked as paid or otherwise
satisfied.
(s) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Notes and their respective counsel in
connection with any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD").
(t) Use its reasonable best efforts to take all other steps
necessary to effect the registration of the Exchange Notes and/or
Registrable Notes covered by a Registration Statement contemplated hereby.
The Issuers may require each seller of Registrable Notes as to which
any registration is being effected to furnish to the Issuers such information
regarding such seller and the
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distribution of such Registrable Notes as the Issuers may, from time to time,
reasonably request. The Issuers may exclude from such registration the
Registrable Notes of any seller so long as such seller fails to furnish such
information within a reasonable time after receiving such request. Each seller
as to which any Shelf Registration is being effected agrees to furnish promptly
to the Issuers all information required to be disclosed in order to make the
information previously furnished to the Issuers by such seller not materially
misleading.
If any such Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Company, then such Holder shall
have the right to require (i) the insertion therein of language, in form and
substance reasonably satisfactory to such Holder, to the effect that the holding
by such Holder of such securities is not to be construed as a recommendation by
such Holder of the investment quality of the securities covered thereby and that
such holding does not imply that such Holder will assist in meeting any future
financial requirements of the Company, or (ii) in the event that such reference
to such Holder by name or otherwise is not required by the Securities Act or any
similar federal statute then in force, the deletion of the reference to such
Holder in any amendment or supplement to the Registration Statement filed or
prepared subsequent to the time that such reference ceases to be required.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by its acquisition of such Registrable Notes or Exchange
Notes to be sold by such Participating Broker-Dealer, as the case may be, that,
upon actual receipt of any notice from the Company of the happening of any event
of the kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi)
hereof, such Holder will forthwith discontinue disposition of such Registrable
Notes covered by such Registration Statement or Prospectus or Exchange Notes to
be sold by such Holder or Participating Broker-Dealer, as the case may be, until
such Holder's or Participating Broker-Dealer's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 5(k) hereof, or until
it is advised in writing (the "Advice") by the Issuers that the use of the
applicable Prospectus may be resumed, and has received copies of any amendments
or supplements thereto. In the event that the Issuers shall give any such
notice, each of the Applicable Period and the 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
Registrable Notes covered by such Registration Statement or Exchange Notes to be
sold by such Participating Broker-Dealer, as the case may be, shall have
received (x) the copies of the supplemented or amended Prospectus contemplated
by Section 5(k) hereof or (y) the Advice.
6. Registration Expenses
All fees and expenses incident to the performance of or compliance
with this Agreement by the Issuers shall be borne by the Issuers, whether or not
the Exchange Offer
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Registration Statement or any Shelf Registration Statement is filed or becomes
effective or the Exchange Offer is consummated, 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, fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Notes or Exchange Notes and determination of the eligibility of the
Registrable Notes or Exchange Notes for investment under the laws of such
jurisdictions (x) where the holders of Registrable Notes are located, in the
case of the Exchange Notes, or (y) as provided in Section 5(h) hereof, in the
case of Registrable Notes or Exchange Notes to be sold by a Participating
Broker-Dealer during the Applicable Period)), (ii) printing expenses, including,
without limitation, expenses of printing certificates for Registrable Notes or
Exchange Notes in a form eligible for deposit with The Depository Trust Company
and of printing prospectuses if the printing of prospectuses is requested by the
managing underwriter or underwriters, if any, by the Holders of a majority in
aggregate principal amount of the Registrable Notes included in any Registration
Statement or in respect of Registrable Notes or Exchange Notes to be sold by any
Participating Broker-Dealer during the Applicable Period, as the case may be,
(iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Issuers and, in the case of a Shelf Registration, reasonable
fees and disbursements of one special counsel for all of the sellers of
Registrable Notes selected by the Holder of a majority in aggregate principal
amount of Registrable Notes covered by such Shelf Registration (exclusive of any
counsel retained pursuant to Section 7 hereof), (v) fees and disbursements of
all independent certified public accountants referred to in Section 5(n)(iii)
hereof (including, without limitation, the expenses of any "cold comfort"
letters required by or incident to such performance), (vi) Securities Act
liability insurance, if the Issuers desire such insurance, (vii) fees and
expenses of all other Persons retained by the Issuers, (viii) internal expenses
of the Issuers (including, without limitation, all salaries and expenses of
officers and employees of the Issuers performing legal or accounting duties),
(ix) the expense of any annual audit, (x) any fees and expenses incurred in
connection with the listing of the securities to be registered on any securities
exchange, and the obtaining of a rating of the securities, in each case, if
applicable, but excluding fees and expenses of counsel to the underwriters or
the Holders (other than fees and expenses set forth in clause (iv) above) and
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of Notes by a Holder and (xi) the expenses relating to
printing, word processing and distributing all Registration Statements,
underwriting agreements, indentures and any other documents necessary in order
to comply with this Agreement.
7. Indemnification and Contribution. (a) Each of the Issuers agree,
jointly and severally, to indemnify and hold harmless each Holder of Registrable
Notes and each Participating Broker-Dealer selling Exchange Notes during the
Applicable Period, and each Person, if any, who controls such Person or its
affiliates within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act (each, a "Participant") against any losses, claims,
-23-
damages or liabilities to which any Participant may become subject under the
Act, the Exchange Act or otherwise, insofar as any such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by any
Issuer contained in any application or any other document or any amendment
or supplement thereto executed by any Issuer based upon written
information furnished by or on behalf of any Issuer filed in any
jurisdiction in order to qualify the Notes under the securities or "Blue
Sky" laws thereof or filed with the SEC or any securities association or
securities exchange (each, an "Application");
(ii) any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement (or any amendment
thereto) or Prospectus (as amended or supplemented if any of the Issuers
shall have furnished any amendments or supplements thereto) or any
preliminary prospectus; or
(iii) the omission or alleged omission to state, in any Registration
Statement (or any amendment thereto) or Prospectus (as amended or
supplemented if any of the Issuers shall have furnished any amendments or
supplements thereto) or any preliminary prospectus or any Application or
any other document or any amendment or supplement thereto, a material fact
required to be stated therein or necessary to make the statements therein
not misleading;
and will reimburse, as incurred, the Participant for any reasonable
legal or other expenses incurred by the Participant in connection with
investigating, defending against or appearing as a third-party witness pursuant
to a lawful subpoena in connection with any such loss, claim, damage, liability
or action; provided, however, the Issuers will not be liable in any such case to
the extent that any such loss, claim, damage, or liability arises out of or is
based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in any Registration Statement (or any amendment thereto)
or Prospectus (as amended or supplemented if any of the Issuers shall have
furnished any amendments or supplements thereto) or any preliminary prospectus
or Application or any amendment or supplement thereto in reliance upon and in
conformity with information relating to any Participant furnished to the Issuers
by such Participant specifically for use therein; and provided, further, that
the Issuers shall not be liable in any such case to a Participant to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from a Preliminary Prospectus and such Participant sold Securities to a person
to whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the Final Prospectus or of the Final Prospectus as then
amended or supplemented (excluding documents incorporated by reference),
whichever is most recent, if the Issuers have previously timely furnished copies
thereof to such Participant
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that corrected such untrue statement or alleged untrue statement in or omission
or alleged omission from such Preliminary Memorandum. The indemnity provided for
in this Section 7 will be in addition to any liability that the Issuers may
otherwise have to the indemnified parties. The Issuers shall not be liable under
this Section 7 for any settlement of any claim or action effected without its
prior written consent, which shall not be unreasonably withheld. No Participant
shall, without the prior written consent of an Issuer, effect any settlement or
compromise of any pending or threatened proceeding in respect of which such
Issuer is or could have been a party, or indemnity could have been sought
hereunder by such Issuer, unless such settlement (A) includes an unconditional
written release of such Issuer, in form and substance reasonably satisfactory to
such Issuer, from all liability on claims that are the subject matter of such
proceeding and (B) does not include any statement as to an admission of fault,
culpability or failure to act by or on behalf of such Issuer.
(b) Each Participant, severally and not jointly, agrees to
indemnify and hold harmless the Issuers, their directors, their officers and
each person, if any, who controls the Issuers within the meaning of Section 15
of the Act or Section 20 of the Exchange Act against any losses, claims, damages
or liabilities to which the Issuers or any such director, officer or controlling
person may become subject under the Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement or
Prospectus, any amendment or supplement thereto, or any preliminary prospectus,
or (ii) the omission or the alleged omission to state therein a material fact
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information concerning such Participant, furnished to
the Issuers by the Participant, specifically for use therein; and subject to the
limitation set forth immediately preceding this clause, will reimburse, as
incurred, any reasonable legal or other expenses incurred by the Issuers or any
such director, officer or controlling person in connection with investigating or
defending against or appearing as a third party witness pursuant to a lawful
subpoena in connection with any such loss, claim, damage, liability or action in
respect thereof. The indemnity provided for in this Section 7 will be in
addition to any liability that the Participants may otherwise have to the
indemnified parties. The Participants shall not be liable under this Section 7
for any settlement of any claim or action effected without their consent, which
shall not be unreasonably withheld. The Issuers shall not, without the prior
written consent of such Participant, effect any settlement or compromise of any
pending or threatened proceeding in respect of which such Participant is or
could have been a party, or indemnity could have been sought hereunder by such
Participant, unless such settlement (A) includes an unconditional written
release of such Participant, in form and substance reasonably satisfactory to
such Participant, from all liability on claims that are the subject matter of
such proceeding and (B) does not include any
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statement as to an admission of fault, culpability or failure to act by or on
behalf of such Participant.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action for which such indemnified
party is entitled to indemnification under this Section 7, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 7, notify the indemnifying party of the commencement
thereof in writing; but the omission to so notify the indemnifying party (i)
will not relieve it from any liability under paragraph (a) or (b) above unless
and to the extent such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraphs (a) and (b)
above. In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party; provided, however, that if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, or (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after receipt by the indemnifying party of notice of the institution of
such action, then, in each such case, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, the indemnifying party will
not be liable to such indemnified party under this Section 7 for any legal or
other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof,
unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the immediately preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by Participants who sold a majority in
interest of the Registrable Notes and Exchange Notes sold by all such
Participants in the case of paragraph (a) of this Section 7 or the Issuers in
the case of paragraph (b) of this Section 7, representing the indemnified
parties under such paragraph (a) or
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paragraph (b), as the case may be, who are parties to such action or actions) or
(ii) the indemnifying party has authorized in writing the employment of counsel
for the indemnified party at the expense of the indemnifying party. All fees and
expenses reimbursed pursuant to this paragraph (c) shall be reimbursed as they
are incurred. After such notice from the indemnifying party to such indemnified
party, the indemnifying party will not be liable for the costs and expenses of
any settlement of such action effected by such indemnified party without the
prior written consent of the indemnifying party (which consent shall not be
unreasonably withheld), unless such indemnified party waived in writing its
rights under this Section 7, in which case the indemnified party may effect such
a settlement without such consent.
(d) In circumstances in which the indemnity agreement provided for
in the preceding paragraphs of this Section 7 is unavailable to, or insufficient
to hold harmless, an indemnified party in respect of any losses, claims, damages
or liabilities (or actions in respect thereof), each indemnifying party, in
order to provide for just and equitable contribution, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect (i) the relative benefits received by
the indemnifying party or parties on the one hand and the indemnified party on
the other from the offering of the Notes or (ii) if the allocation provided by
the foregoing clause (i) is not permitted by applicable law, not only such
relative benefits but also the relative fault of the indemnifying party or
parties on the one hand and the indemnified party on the other in connection
with the statements or omissions or alleged statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof). The relative benefits received by the Issuers on the one hand and such
Participant on the other shall be deemed to be in the same proportion as the
total proceeds from the offering (before deducting expenses) of the Notes
received by the Issuers bear to the total net profit received by such
Participant in connection with the sale of the Notes. 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 the Participants on the other, the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission or alleged statement or omission, and any other equitable
considerations appropriate in the circumstances. The parties agree that it would
not be equitable if the amount of such contribution were determined by pro rata
or per capita allocation or by any other method of allocation that does not take
into account the equitable considerations referred to in the first sentence of
this paragraph (d). Notwithstanding any other provision of this paragraph (d),
no Participant shall be obligated to make contributions hereunder that in the
aggregate exceed the total net profit received by such Participant in connection
with the sale of the Notes, less the aggregate amount of any damages that such
Participant has otherwise been required to pay by reason of the untrue or
alleged untrue statements or the omissions or alleged omissions to state a
material fact, and no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall
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be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this paragraph (d), each person,
if any, who controls a Participant within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act shall have the same rights to contribution as
the Participants, and each director of any Issuer, each officer of any Issuer
and each person, if any, who controls any Issuer within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, shall have the same rights to
contribution as the Issuers.
8. Rules 144 and 144A
Each of the Issuers covenants and agrees that it will file the
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the SEC thereunder in a timely manner
in accordance with the requirements of the Securities Act and the Exchange Act
and, if at any time such Issuer is not required to file such reports, such
Issuer will, upon the request of any Holder or beneficial owner of Registrable
Notes, make available such information necessary to permit sales pursuant to
Rule 144A. Each of the Issuers further covenants and agrees, for so long as any
Registrable Notes remain outstanding that it will take such further action as
any Holder of Registrable Notes may reasonably request, all to the extent
required from time to time to enable such holder to sell Registrable Notes
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144(k) under the Securities Act and Rule 144A.
9. Underwritten Registrations
If any of the Registrable Notes 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 such Registrable
Notes included in such offering and shall be reasonably acceptable to the
Issuers.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
10. Miscellaneous
(a) No Inconsistent Agreements. The Issuers have not, as of the
date hereof, and the Issuers shall not, after the date of this Agreement, enter
into any agreement with respect to any of their securities that is inconsistent
with the rights granted to the Holders of
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Registrable Notes 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 are not inconsistent with the rights granted to the holders of the
Issuers' other issued and outstanding securities under any such agreements. The
Issuers will not enter into any agreement with respect to any of their
securities which will grant to any Person piggy-back registration rights with
respect to any Registration Statement.
(b) Adjustments Affecting Registrable Notes. The Issuers shall
not, directly or indirectly, take any action with respect to the Registrable
Notes as a class that would adversely affect the ability of the Holders of
Registrable Notes to include such Registrable Notes in a registration undertaken
pursuant to this Agreement.
(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 (I) the Company, and (II)(A) the Holders of not less than a
majority in aggregate principal amount of the then outstanding Registrable Notes
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 7 and this Section
10(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 Notes or
Exchange Notes, as the case may be, disposed of pursuant to any Registration
Statement) affected by any such amendment, modification or supplement.
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 Notes 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 Notes may be
given by Holders of at least a majority in aggregate principal amount of the
Registrable Notes being sold pursuant to such Registration Statement.
(d) Notices. All notices and other communications (including,
without limitation, any notices or other communications to the Trustee) provided
for or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or facsimile:
(i) if to a Holder of the Registrable Notes or any Participating
Broker-Dealer, at the most current address of such Holder or Participating
Broker-Dealer, as the case may be, set forth on the records of the
registrar under the Indenture, with a copy in like manner to the Initial
Purchasers as follows:
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Deutsche Bank Securities Inc.
31 West 52nd Street
New York, New York 10019
Facsimile No.: (646) 324-7467
Attention: Corporate Finance Department
with a copy to:
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
Facsimile No.: (212) 269-5420
Attention: John A. Tripodoro, Esq.
(ii) if to the Initial Purchasers, at the address specified in
Section 10(d)(i);
(iii) if to the Issuers, at the address as follows:
INTERMET Corporation
5445 Corporate Drive
Troy, Michigan 48098
Facsimile No.: (248) 952-2501
Attention: Alan J. Miller, Esq.
with a copy to:
Foley & Lardner
150 W. Jefferson Avenue
Suite 1000
Detroit, Michigan 48226
Facsimile No.: (313) 963-9308
Attention: Patrick Daugherty, 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 upon written
confirmation, if sent by facsimile.
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 and in the manner specified in such Indenture.
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(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto, the Holders and the Participating Broker-Dealers; provided, however,
that nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Notes in violation of the terms of the Purchase
Agreement or the Indenture.
(f) 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.
(g) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW THAT WOULD REQUIRE THE APPLICATION OF
ANY OTHER LAW.
(i) 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.
(j) Securities Held by the Issuers or Their Affiliates. Whenever
the consent or approval of Holders of a specified percentage of Registrable
Notes is required hereunder, Registrable Notes 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.
(k) Third-Party Beneficiaries. Holders of Registrable Notes and
Participating Broker-Dealers are intended third-party beneficiaries of this
Agreement, and this Agreement may be enforced by such Persons.
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(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, conversations and memoranda between the Holders on the one hand
and the Issuers 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.
S-1
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
INTERMET CORPORATION
By: /s/ John Doddridge
-----------------------------------
Name: John Doddridge
Title: Chairman of the Board
and Chief Executive Officer
By: /s/ Doretha Christoph
-----------------------------------
Name: Doretha Christoph
Title: Vice President Finance
and Chief Financial Officer
S-2
THE GUARANTORS:
LYNCHBURG FOUNDRY COMPANY
NORTHERN CASTINGS CORPORATION
IRONTON IRON, INC.
INTERMET U.S. HOLDING, INC.
COLUMBUS FOUNDRY, L.P.
BY: INTERMET U.S. HOLDING, INC.,
its General Partner
SUDM, INC.
ALEXANDER CITY CASTING COMPANY, INC.
TOOL PRODUCTS, INC.
SUDBURY, INC.
CAST-MATIC CORPORATION
FRISBY P.M.C., INCORPORATED
WAGNER CASTINGS COMPANY
WAGNER HAVANA, INC.
DIVERSIFIED DIEMAKERS, INC.
GANTON TECHNOLOGIES, INC.
By: /s/ Alan J. Miller
-----------------------------------
Name: Alan J. Miller
Title: Vice President and Secretary
By: /s/ Michael Skrzypczak
-----------------------------------
Name: Michael Skrzypczak
Title: Treasurer
S-3
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
DEUTSCHE BANK SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
SCOTIA CAPITAL (USA) INC.
SUNTRUST CAPITAL MARKETS, INC.
BANC ONE CAPITAL MARKETS, INC.
COMERICA SECURITIES, INC.
ABN AMRO INCORPORATED
By: DEUTSCHE BANK SECURITIES INC.
By: /s/ William Frauen
-------------------------------
Name: William Frauen
Title: Director
By: /s/ David Flannery
-------------------------------
Name: David Flannery
Title: Managing Director