1
================================================================================
REGISTRATION RIGHTS AGREEMENT
Dated December 23, 1996
among
KAISER ALUMINUM & CHEMICAL CORPORATION
KAISER ALUMINA AUSTRALIA CORPORATION
KAISER FINANCE CORPORATION
ALPART JAMAICA INC.
KAISER JAMAICA CORPORATION
KAISER MICROMILL HOLDINGS, LLC
KAISER SIERRA MICROMILLS, LLC
KAISER TEXAS MICROMILL HOLDINGS, LLC
KAISER TEXAS SIERRA MICROMILLS, LLC
and
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
================================================================================
2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into as of December 23, 1996 among Kaiser Aluminum & Chemical
Corporation, a Delaware corporation (the "Company"), Kaiser Alumina Australia
Corporation, Kaiser Finance Corporation, Alpart Jamaica Inc., Kaiser Jamaica
Corporation, Kaiser Micromill Holdings, LLC, Kaiser Sierra Micromills, LLC,
Kaiser Texas Micromill Holdings, LLC, and Kaiser Texas Sierra Micromills, LLC
(collectively, the "Guarantors"), and Merrill Lynch, Pierce, Fenner & Smith
Incorporated (the "Purchaser").
This Agreement is made pursuant to the Purchase Agreement dated
December 18, 1996 among the Company, the Guarantors and the Purchaser (the
"Purchase Agreement"), which provides for, among other things, the sale by the
Company to the Purchaser of an aggregate of $50,000,000 principal amount of the
Company's 10 7/8% Series C Senior Notes due 2006 (the "Securities"). In order
to induce the Purchaser to enter into the Purchase Agreement, the Company and
the Guarantors have agreed to provide to the Purchaser and certain of its
direct and indirect transferees the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to the
closing of the transactions contemplated by the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"Additional Interest" shall have the meaning set forth in Section 2(e)
hereof.
"Advice" shall have the meaning set forth in the last paragraph of
Section 3 hereof.
"Applicable Period" shall have the meaning set forth in Section 3(s)
hereof.
"Business Day" shall mean a day that is not a Saturday, a Sunday, or a
day on which banking institutions in New York, New York are required to be
closed.
"Closing Time" shall mean the Closing Time as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors and permitted assigns.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; provided, however, that such depositary
must have an address in the Borough of Manhattan, in The City of New York.
"Effectiveness Period" shall have the meaning set forth in Section
2(b) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time,
1
3
and the rules and regulations of the SEC promulgated thereunder.
"Exchange Notes" shall mean the 10 7/8% Series D Senior Notes due
2006, issued by the Company under the Indenture containing terms substantially
identical to the Securities (except that (i) interest thereon shall accrue from
the last date to which interest was paid on the Securities or, if no such
interest has been paid, from December 23, 1996, (ii) the provisions for
Additional Interest thereon shall be eliminated (except as contemplated by
Section 2(e)(v) hereof with respect to Exchange Notes held by Participating
Broker-Dealers) and (iii) the transfer restrictions thereon shall be
eliminated) to be offered to Holders of Securities in exchange for Securities
pursuant to the Exchange Offer.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Notes for Securities pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement, in
each case including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2(a)
hereof.
"Guarantors" shall have the meaning set forth in the Indenture.
"Holder" shall mean the Purchaser, for so long as it owns any
Registrable Securities, and each of its successors, assigns and direct and
indirect transferees who become registered owners of Registrable Securities
under the Indenture.
"Indenture" shall mean the Indenture relating to the Securities dated
as of December 23, 1996 among the Company, as issuer, the Guarantors and First
Trust National Association, as trustee, as the same may be amended or
supplemented from time to time in accordance with the terms thereof.
"Inspectors" shall have the meaning set forth in Section 3(n) hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities.
"Participating Broker-Dealer" shall have the meaning set forth in
Section 3(s) hereof.
"Person" shall mean an individual, trustee, partnership, corporation,
trust or unincorporated organization, or a government or agency or political
subdivision thereof, or other legal entity.
2
4
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to a prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
to this Agreement.
"Purchaser" shall have the meaning set forth in the preamble to this
Agreement.
"Records" shall have the meaning set forth in Section 3(n) hereof.
"Registrable Securities" shall mean the Securities; provided, however,
that Securities shall cease to be Registrable Securities when (i) a
Registration Statement with respect to such Securities for the resale thereof,
shall have been declared effective under the Securities Act and such Securities
shall have been disposed of pursuant to such Registration Statement, (ii) such
Securities shall have been sold to the public in compliance with Rule 144 (or
any similar provision then in force) under the Securities Act, (iii) such
Securities shall have ceased to be outstanding or (iv) with respect to the
Securities, such Securities have been exchanged for Exchange Notes upon
consummation of the Exchange Offer and are thereafter freely tradeable (and,
for the purpose only of Section 2(e) hereof, not subject to a prospectus
delivery requirement) by the holder thereof not an affiliate of the Company or
any Guarantor.
"Registration Default" shall have the meaning set forth in Section
2(e) hereof.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company and the Guarantors with this
Agreement, including without limitation: (i) all SEC, stock exchange or
National Association of Securities Dealers, Inc. (the "NASD") registration and
filing fees, including, if applicable, the fees and expenses of any "qualified
independent underwriter" (and its counsel) that is required to be retained by
any Holder of Registrable Securities in accordance with the rules and
regulations of the NASD, (ii) all fees and expenses incurred in connection with
compliance with state securities or blue sky laws (including reasonable fees
and disbursements of counsel for any underwriters or Holders in connection with
blue sky qualification of any of the Exchange Notes or Registrable Securities)
and compliance with the rules of the NASD, (iii) all expenses of any Persons
retained with the consent of the Company in preparing or assisting in
preparing, word processing, printing and distributing any Registration
Statement, any Prospectus and any amendments or supplements thereto, and in
preparing or assisting in preparing, printing and distributing any underwriting
agreements, securities sales agreements and other documents relating to the
performance of and compliance with this Agreement, (iv) all rating agency fees,
(v) the fees and disbursements of counsel for the Company and the Guarantors
and of the independent certified public accountants of the Company and the
Guarantors, including the expenses of any "cold comfort" letters required by or
incident to such performance and compliance, (vi) the fees and expenses of the
Trustee, and any exchange agent or custodian, (vii) all fees and expenses
incurred in connection with the listing, if any, of any of the Registrable
Securities or Exchange Notes on any securities exchange or exchanges, and
(viii) any fees and disbursements of any underwriter customarily required to be
paid by issuers or sellers of securities and the reasonable fees and
3
5
expenses of any special experts, in each case, retained by the Company or any
Guarantor in connection with any Registration Statement, but excluding fees of
counsel to the underwriters and underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of Registrable
Securities by a Holder.
"Registration Statement" shall mean any registration statement of the
Company which covers any of the Exchange Notes or Registrable Securities
pursuant to the provisions of this Agreement, and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference, or deemed to be
incorporated by reference, therein.
"SEC" shall mean the Securities and Exchange Commission.
"Securities" shall have the meaning set forth in the preamble to this
Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended
from time to time and the rules and regulations of the SEC promulgated
thereunder.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth in Section
2(b) hereof.
"Shelf Registration Event Date" shall have the meaning set forth in
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) hereof
which covers Registrable Securities in respect of which a Shelf Registration
Statement is required to be filed pursuant to this Agreement on an appropriate
form under Rule 415 under the Securities Act, or any similar rule that may be
adopted by the SEC, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference or deemed to be incorporated by reference therein.
"TIA" shall have the meaning set forth in Section 3(l) hereof.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
2. Registration Under the Securities Act.
a. Exchange Offer. To the extent not prohibited by any law
or applicable interpretations of the staff of the SEC, the Company and
the Guarantors shall, for the benefit of the Holders, at the Company's
expense, (i) cause to be filed with the SEC within 30 days after the
Closing Time an Exchange Offer Registration Statement on an
appropriate form under the Securities Act covering the offer by the
Company and the Guarantors to the Holders to exchange any and all of
the Registrable Securities for a like principal amount of Exchange
Notes, (ii) use their reasonable best efforts to have such Exchange
Offer Registration Statement declared effective under the Securities
Act by the SEC not later than the date which is 135 days after the
Closing
4
6
Time, (iii) use their reasonable best efforts to have such
Registration Statement remain effective until the closing of the
Exchange Offer and (iv) use their reasonable best efforts to cause the
Exchange Offer to be consummated not later than 165 days after the
Closing Time. The Exchange Notes will be issued under the Indenture.
Upon the effectiveness of the Exchange Offer Registration Statement,
the Company and the Guarantors shall as soon as practicable commence
the Exchange Offer, it being the objective of such Exchange Offer to
enable each Holder eligible and electing to exchange Registrable
Securities for Exchange Notes (assuming that such Holder is not an
affiliate of the Company or any Guarantor within the meaning of Rule
405 under the Securities Act and is not a broker-dealer tendering
Registrable Securities acquired directly from the Company or any
Guarantor or any affiliate of the Company or any Guarantor for its own
account, and has no arrangements or understandings with any Person to
participate in the Exchange Offer for the purpose of distributing
(within the meaning of the Securities Act) the Exchange Notes) to
transfer such Exchange Notes from and after their receipt, subject to
the prospectus delivery requirements of Participating Broker-Dealers
as contemplated by Section 3(s) hereof, without any limitations or
restrictions under the Securities Act or under state securities or
blue sky laws.
In connection with the Exchange Offer, the Company and the
Guarantors shall:
(a) mail to each Holder a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(b) keep the Exchange Offer open for acceptance for a
period of not less than 30 days after the date notice thereof is
mailed to the Holders (or longer if required by applicable law) (such
period referred to herein as the "Exchange Period");
(c) utilize the services of a Depositary for the
Exchange Offer;
(d) permit Holders to withdraw tendered Securities at
any time prior to the close of business, New York time, on the last
Business Day of the Exchange Period, by sending to the institution
specified in the notice, a telegram, telex, facsimile transmission or
letter setting forth the name of such Holder, the principal amount of
Securities delivered for exchange, and a statement that such Holder is
withdrawing his election to have such Securities exchanged;
(e) notify each Holder that any Security not tendered
will remain outstanding and continue to accrue interest, but will not
retain any rights under this Agreement (except as otherwise provided
herein); and
(f) otherwise comply in all material respects with all
applicable laws relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer
the Company shall (i) accept for exchange all Securities or portions
thereof tendered and not validly withdrawn pursuant to the Exchange
Offer and (ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Securities or portions thereof so accepted for
exchange by the Company, and issue, and cause
5
7
the Trustee under the Indenture to promptly authenticate and deliver
to each Holder, a new Exchange Security equal in principal amount to
the principal amount of the Securities surrendered by such Holder.
To the extent not prohibited by any law or applicable
interpretations of the staff of the SEC, the Company and the
Guarantors shall use their reasonable best efforts to complete the
Exchange Offer as provided above, and shall comply with the applicable
requirements of the Securities Act, the Exchange Act and other
applicable laws in connection with the Exchange Offer. The Exchange
Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate any law or applicable interpretations
of the staff of the SEC. Each Holder of Registrable Securities who
wishes to exchange such Registrable Securities for Exchange Notes in
the Exchange Offer will be required to make certain customary
representations in connection therewith, including representations
that (i) it is not an affiliate of the Company or any Guarantor, (ii)
it is not a broker-dealer tendering Securities acquired directly from
the Company or any Guarantor or an affiliate of the Company or any
Guarantor, (iii) any Exchange Notes to be received by it will be
acquired in the ordinary course of business, (iv) it has no
arrangement or understanding with any person to participate in the
distribution (within the meaning of the Securities Act) of the
Exchange Notes in violation of the Securities Act and (v) it is not
acting on behalf of any person who could not truthfully make the
foregoing representations.
Upon consummation of the Exchange Offer in accordance with
this Section 2(a), the provisions of this Agreement shall continue to
apply, mutatis mutandis, solely with respect to Registrable Securities
as to which Section 2(b)(iii) or Section 2(b)(iv) hereof is applicable
and to Exchange Notes held by Participating Broker-Dealers, and the
Company shall have no further obligation to register Registrable
Securities (other than Securities as to which Section 2(b)(iii) or
Section 2(b)(iv) hereof is applicable) pursuant to Section 2(b)
hereof.
b. Shelf Registration. In the event that (i) the
Company reasonably determines, after conferring with counsel (which
may be in-house counsel), that the Exchange Offer Registration
provided in Section 2(a) hereof is not available or may not be
consummated as soon as practicable after the last day of the Exchange
Period because it would violate any law or applicable interpretations
of the staff of the SEC, (ii) the Exchange Offer is not for any reason
consummated or capable of being consummated within 195 days after the
Closing Time, (iii) any Holder of Securities notifies the Company in
writing within 15 days after receipt of the prospectus forming part of
the Exchange Offer Registration Statement required to be mailed to
each Holder as set forth above that (A) in the opinion of
nationally-recognized counsel for such Holder (or counsel acting for
or by reference to all Holders), due to a change in law or SEC staff
interpretation which change occurs subsequent to the date hereof, such
Holder is not entitled to participate in the Exchange Offer or (B) in
the opinion of nationally-recognized counsel for such Holder (or
counsel acting for or by reference to all Holders), due to a change in
law or SEC staff interpretation which change occurs subsequent to the
date hereof, such Holder may not resell the Exchange Notes acquired by
it in the Exchange Offer to the public without delivering a prospectus
and (I) the prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such
Holder and (II) such prospectus is not promptly amended or modified in
order to be suitable for use in connection with resales by such Holder
or (iv) upon the request of the Purchaser with respect to any
Registrable Securities which it
6
8
acquired directly from the Company or any Guarantor or an affiliate of
the Company or any Guarantor and, with respect to other Registrable
Securities held by it, if the Purchaser is not permitted, in the
opinion of nationally-recognized counsel to the Purchaser, pursuant to
any law or applicable interpretations of the staff of the SEC, to
participate in the Exchange Offer and thereby receive securities that
are freely tradeable without restriction (other than a prospectus
delivery requirement) under the Securities Act and applicable blue sky
or state securities laws (any of the events specified in (i)-(iv)
being a "Shelf Registration Event" and the date of occurrence thereof,
the "Shelf Registration Event Date"), the Company and the Guarantors
shall, at the Company's expense, cause to be filed as promptly as
practicable after such Shelf Registration Event Date, as the case may
be, and, in any event, in the case of (i), (iii) and (iv) above,
within 165 days after the Closing Time, and in the case of (ii) above,
as soon as reasonably practicable after the 195 day period set forth
therein (notwithstanding in the case of (ii) above, the Company shall
remain liable for the increases in interest set forth in Section 2(e)
until the effectiveness of the Shelf Registration Statement), a Shelf
Registration Statement providing for the sale by the Holders of any
and all of the Registrable Securities, and shall use their reasonable
best efforts to have such Shelf Registration Statement declared
effective by the SEC as soon as reasonably practicable after its
filing with the SEC. No Holder of Registrable Securities may include
any of its Registrable Securities in any Shelf Registration pursuant
to this Agreement unless and until such Holder furnishes to the
Company in writing such information as the Company may, after
conferring with counsel with regard to information relating to Holders
that would be required by the SEC to be included in such Shelf
Registration Statement or Prospectus included therein, reasonably
request for inclusion in any Shelf Registration Statement or
Prospectus included therein. Each Holder as to which any Shelf
Registration is being effected agrees to furnish to the Company all
information with respect to such Holder necessary to make the
information previously furnished to the Company by such Holder not
materially misleading.
The Company and the Guarantors agree to use their reasonable
best efforts to keep the Shelf Registration Statement continuously
effective for a period until the earlier of 36 months following the
Closing Time (subject to extension pursuant to the last paragraph of
Section 3 hereof) or for such shorter period which will terminate when
all of the Registrable Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement
or otherwise cease to be Registrable Securities (the "Effectiveness
Period"). The Company and the Guarantors shall not permit any
securities other than Registrable Securities to be included in the
Shelf Registration. The Company and the Guarantors further agree, if
necessary, to supplement or amend the Shelf Registration Statement, if
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration
Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registrations, and the Company agrees
to furnish to the Holders of Registrable Securities copies of any such
supplement or amendment promptly after its being used or filed with
the SEC.
c. Expenses. The Company and the Guarantors shall pay
all Registration Expenses in connection with the registration pursuant
to Section 2(a) or 2(b) hereof and will pay the reasonable fees and
disbursements of any one counsel designated in writing by the Majority
Holders to act as counsel for the Holders of the Registrable
Securities in connection with a Shelf
7
9
Registration Statement. Except as provided herein, each Holder shall
pay all expenses of its counsel, underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Securities pursuant to the
Shelf Registration Statement.
d. Effective Registration Statement. An Exchange Offer
Registration Statement pursuant to Section 2(a) hereof or a Shelf
Registration Statement pursuant to Section 2(b) hereof will not be
deemed to have become effective unless it has been declared effective
by the SEC; provided, however, that if, after it has been declared
effective, the effectiveness of a Registration Statement is interfered
with by any stop order, injunction or other order or requirement of
the SEC or any other governmental agency or court, such Registration
Statement will be deemed not to have been effective during the period
of such interference. The Company and the Guarantors will be deemed
not to have used their reasonable best efforts to cause the Exchange
Offer Registration Statement or the Shelf Registration Statement, as
the case may be, to become, or to remain, effective during the
requisite period if they voluntarily take any action that would result
in any such Registration Statement not being declared effective or in
the Holders of Registrable Securities covered thereby not being able
to exchange or offer and sell such Registrable Securities during that
period unless (i) such action is required by applicable law or
interpretations of the staff of the SEC or (ii) such action is taken
by them in good faith and for valid business reasons (not including
avoidance of their obligations hereunder).
e. Additional Interest. In the event that (i) the
Exchange Offer Registration Statement has not been filed with the SEC
on or prior to the 30th calendar day after the Closing Time, (ii) the
Exchange Offer Registration Statement is not declared effective on or
prior to the 135th calendar day after the Closing Time, (iii) the
Exchange Offer is not consummated on or prior to the 165th calendar
day after the Closing Time, (iv) if a Shelf Registration Event shall
have occurred and if the Shelf Registration Statement is not declared
effective on or prior to the 165th calendar day after the Closing Time
or (v) the Exchange Offer Registration Statement or the Shelf
Registration Statement is declared effective but thereafter ceases to
be effective or usable during the period specified herein (each such
event referred to in (i) through (v), a "Registration Default"), the
interest rate borne by the Securities or Exchange Notes which are
Registrable Securities shall be increased (the "Additional Interest")
by one-quarter of one percent (0.25%) per annum for the first 90-day
period immediately after the first such Registration Default. The
interest rate borne by such Registrable Securities shall increase by
an additional one-quarter of one percent (0.25%) per annum for each
subsequent 90-day period, in each case, until all Registration
Defaults have been cured (provided that in the event the Company has
abandoned the Exchange Offer because of the circumstances described in
Section 2(b)(i) or Section 2(b)(ii) hereof, then the effectiveness of
the Shelf Registration Statement shall be deemed a cure of such
Registration Defaults); provided, that the aggregate increase in such
interest rate pursuant to this Section 2(e) will in no event exceed
one percent (1.00%) per annum. Notwithstanding any of the above, it
is understood that additional interest pursuant to a Registration
Default under clause (v) above, as such clause (v) relates to an
Exchange Offer Registration Statement, shall only be payable to a
Participating Broker-Dealer that holds Registrable Securities subject
to a prospectus delivery requirement; provided, that such a
Registration Default may only be deemed to be occurring during the
period following the 135th day after Closing Time until, subject to an
extension of the relevant 180 day period pursuant to
8
10
the last sentence of Section 3 hereof, 180 days after the
effectiveness of the Exchange Offer Registration Statement. Following
the cure of all Registration Defaults, the interest rate borne by such
Registrable Securities will be reduced to the original interest rate.
The Company shall notify the Trustee within three Business
Days after each and every date on which a Registration Default occurs.
Additional Interest shall be paid by depositing with the Trustee, in
trust, for the benefit of the Holders of Securities on or before the
applicable semiannual interest payment date, immediately available
funds in sums sufficient to pay the Additional Interest then due. The
Additional Interest due shall be payable on each interest payment date
to the record Holder of Securities entitled to receive the interest
payment to be paid on such date as set forth in the Indenture. Each
obligation to pay Additional Interest shall be deemed to accrue from
and including the day following the applicable Registration Default.
f. Specific Enforcement. Without limiting the remedies
available to the Purchaser and the Holders, the Company and the
Guarantors acknowledge that any failure by the Company and the
Guarantors to comply with their obligations under Section 2(a) and
Section 2(b) hereof may result in material irreparable injury to the
Purchaser or the Holders for which there is no adequate remedy at law,
that it would not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the Purchaser or
any Holder may obtain such relief as may be required to specifically
enforce the Company's and the Guarantors' obligations under Section
2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with the
obligations of the Company and the Guarantors with respect to the Registration
Statements pursuant to Sections 2(a) and 2(b) hereof, the Company and the
Guarantors shall:
a. prepare and file with the SEC a Registration
Statement or Registration Statements as prescribed by Sections 2(a)
and 2(b) hereof within the relevant time period specified in Section 2
hereof on the appropriate form under the Securities Act, which form
(i) shall be selected by the Company, (ii) shall, in the case of a
Shelf Registration, be available for the sale of the relevant
Registrable Securities by the selling Holders thereof and (iii) shall
comply as to form in all material respects with the requirements of
the applicable form and include all financial statements required by
the SEC to be filed therewith; and use their reasonable best efforts
to cause such Registration Statement to become effective and remain
effective in accordance with Section 2 hereof; provided, however, that
if (1) such filing is pursuant to Section 2(b), or (2) a Prospectus
contained in an Exchange Offer Registration Statement filed pursuant
to Section 2(a) is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Notes,
before filing any Registration Statement or Prospectus or any
amendments or supplements thereto, the Company shall furnish to and
afford the Holders of the Registrable Securities covered by the
relevant Shelf Registration Statement and each such Participating
Broker-Dealer, as the case may be, covered by such Registration
Statement, their counsel and the managing underwriters, if any, a
reasonable opportunity to review copies of all such documents
(including copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed (at least 5
Business Days prior to such filing). The Company and the Guarantors
shall not file any Registration Statement or Prospectus or any
amendments or supplements thereto in respect of which the Holders must
be pursuant to this
9
11
Section 3(a) afforded an opportunity to review prior to the filing of
such document if the Majority Holders or such Participating
Broker-Dealer, as the case may be, their counsel or the managing
underwriters, if any, shall reasonably and promptly object in writing;
b. prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement effective for the
Effectiveness Period or the Applicable Period, as the case may be; and
cause each Prospectus to be supplemented by any required prospectus
supplement and as so supplemented to be filed pursuant to Rule 424 (or
any similar provision then in force) under the Securities Act, and
comply with the provisions of the Securities Act, the Exchange Act and
the rules and regulations promulgated thereunder applicable to it with
respect to the disposition of all securities covered by such
Registration Statement during the Effectiveness Period or the
Applicable Period, as the case may be, in accordance with the intended
method or methods of distribution by the selling Holders thereof
described in this Agreement (including sales by any Participating
Broker-Dealer);
c. in the case of a Shelf Registration, (i) notify each
Holder of Registrable Securities covered by such Shelf Registration
Statement, at least 10 days prior to filing, that a Shelf Registration
Statement with respect to the Registrable Securities is being filed
and advising such Holder that the distribution of Registrable
Securities will be made in accordance with the method selected by the
Majority Holders; and (ii) furnish to each Holder of Registrable
Securities covered by such Shelf Registration Statement and to each
underwriter of an underwritten offering of Registrable Securities, if
any, without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto and
such other documents as such Holder or underwriter may reasonably
request, in order to facilitate the public sale or other disposition
of the Registrable Securities (it being understood that the Company
and the Guarantors hereby consent to the use of the Prospectus or any
amendment or supplement thereto by each of the selling Holders of
Registrable Securities in accordance with the terms hereof, in
connection with the offering and sale of the Registrable Securities
covered by the Prospectus or any amendment or supplement thereto);
d. in the case of a Shelf Registration, use their
reasonable best efforts to register or qualify the Registrable
Securities under all applicable state securities or "blue sky" laws of
such jurisdictions by the time the applicable Registration Statement
is declared effective by the SEC as any Holder of Registrable
Securities covered by a Registration Statement and each underwriter of
an underwritten offering of Registrable Securities shall reasonably
request in advance of such date of effectiveness, and do any and all
other acts and things which may be reasonably necessary or advisable
to enable such Holder and underwriter to consummate the disposition in
each such jurisdiction of such Registrable Securities owned by such
Holder; provided, however, that the Company and the Guarantors shall
not be obligated to qualify as foreign corporations in any
jurisdiction in which they are not so qualified or to take any action
that would subject them to general consent to service of process in
any jurisdiction in which they are not now so subject or to subject
them to general taxation in any such jurisdiction in which they are
not now so subject;
10
12
e. in the case of (1) a Shelf Registration or (2)
Participating Broker-Dealers who have notified the Company that they
will be utilizing the Prospectus contained in the Exchange Offer
Registration Statement as provided in Section 3(s) hereof, notify each
Holder of Registrable Securities covered by such Shelf Registration
Statement, or such Participating Broker-Dealers, as the case may be,
their counsel and the managing underwriters, if any, promptly and
promptly confirm such notice in writing (i) when a Registration
Statement has become effective and when any post-effective amendments
and supplements thereto become effective, (ii) of any request by the
SEC or any state securities authority for amendments and supplements
to a Registration Statement or Prospectus or for additional
information after the Registration Statement has become effective,
(iii) of the issuance by the SEC or any state securities authority of
any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (iv)
if the Company or the Guarantors receive any notification with respect
to the suspension of the qualification of the Registrable Securities
or the Exchange Notes to be sold by any Participating Broker-Dealer
for offer or sale in any jurisdiction or the initiation of any
proceeding for such purpose, (v) of the happening of any event or the
failure of any event to occur or the discovery of any facts, during
the period a Registration Statement is effective which makes any
statement made in such Registration Statement or the related
Prospectus untrue in any material respect or which causes such
Registration Statement or Prospectus to omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and (vi) the
Company's reasonable determination that a post-effective amendment to
the Registration Statement would be appropriate;
f. make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement
at the earliest possible moment;
g. in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities covered by such Shelf Registration
Statement, without charge, at least one conformed copy of each
Registration Statement relating to such Shelf Registration and any
post-effective amendment thereto (without documents incorporated
therein by reference or exhibits thereto, unless requested);
h. in the case of a Shelf Registration, cooperate with
the selling Holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends; and
cause such Registrable Securities to be in such denominations
(consistent with the provisions of the Indenture) and registered in
such names as the selling Holders or the underwriters may reasonably
request at least two Business Days prior to the closing of any sale of
Registrable Securities;
i. in the case of a Shelf Registration or an Exchange
Offer Registration, upon the occurrence of any circumstance
contemplated by Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi)
hereof, use their reasonable best efforts to prepare a supplement or
post-effective amendment to a Registration Statement or the related
Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, such Prospectus will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light
of the
11
13
circumstances under which they were made, not misleading; and to
notify each Holder to suspend use of the Prospectus as promptly as
practicable after the occurrence of such an event, and each Holder
hereby agrees to suspend use of the Prospectus until the Company has
amended or supplemented the Prospectus to correct such misstatement or
omission;
j. in the case of a Shelf Registration, a reasonable
time prior to the filing of any document which is to be incorporated
by reference into a Registration Statement or a Prospectus after the
initial filing of a Registration Statement, provide a reasonable
number of copies of such document to the Holders of Registrable
Securities covered by such Shelf Registration Statement; and make such
of the representatives of the Company and the Guarantors as shall be
reasonably requested by such Holders of Registrable Securities or the
Purchaser on behalf of such Holders available for discussion of such
document;
k. obtain a CUSIP number for all Exchange Notes or
Registrable Securities, as the case may be, not later than the
effective date of a Registration Statement, and provide the Trustee
with printed certificates for the Exchange Notes or the Registrable
Securities, as the case may be, in a form eligible for deposit with
the Depositary;
l. cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), in connection with the
registration of the Exchange Notes or Registrable Securities, as the
case may be, cooperate with the Trustee and the Holders to effect such
changes to the Indenture as may be required for the Indenture to be so
qualified in accordance with the terms of the TIA and execute, and use
their reasonable best efforts to cause the Trustee to execute, all
documents as may be required to effect such changes, and all other
forms and documents required to be filed with the SEC to enable the
Indenture to be so qualified in a timely manner;
m. in the case of a Shelf Registration, enter into such
agreements as are customary in shelf registrations and take all such
other appropriate actions as are reasonably requested in order to
expedite or facilitate the registration or the disposition of such
Registrable Securities, and in such connection, whether or not an
underwriting agreement is entered into and whether or not the
registration is an underwritten registration: (i) make such
representations and warranties to Holders of such Registrable
Securities and the underwriters (if any), with respect to the business
of the Company and its subsidiaries as then conducted or proposed to
be conducted and the Registration Statement, Prospectus and documents,
if any, incorporated or deemed to be incorporated by reference
therein, in each case, as are customarily made by issuers in shelf
registrations to underwriters and selling securityholders, and confirm
the same if and when requested; (ii) obtain opinions of counsel to the
Company and the Guarantors and updates thereof in form and substance
reasonably satisfactory to the managing underwriters (if any) and the
Holders of a majority in principal amount of the Registrable
Securities being sold, addressed to each selling Holder and the
underwriters (if any) covering the matters customarily covered in
opinions requested in shelf registrations and such other matters as
may be reasonably requested by such Holders and underwriters; (iii)
obtain "cold comfort" letters and updates thereof in form and
substance reasonably satisfactory to the recipients from the
independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company
for which
12
14
financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to the selling
Holders of Registrable Securities and to each of the underwriters,
such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with shelf
registrations and such other matters as reasonably requested by such
selling Holders and underwriters (including, without limitation,
negative assurance with respect to any interim financial period
included in the Registration Statement or the Prospectus and with
respect to any period after the date of the latest balance sheet
included therein and up to five days prior to the closing date in
respect of any such sale); and (iv) if an underwriting agreement is
entered into, the same shall contain indemnification provisions and
procedures no less favorable than those set forth in Section 4 hereof
(or such other provisions and procedures acceptable to Holders of a
majority in aggregate principal amount of Registrable Securities
covered by such Registration Statement and the managing underwriters
or agents) with respect to all parties to be indemnified pursuant to
said Section (including, without limitation, such underwriters and
selling Holders). The above shall be done at each closing under such
underwriting agreement, or as and to the extent required thereunder;
n. if (1) a Shelf Registration is filed pursuant to
Section 2(b) or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2(a) is required to
be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the applicable
period, make available for inspection by any selling Holder of such
Registrable Securities being sold, or each such Participating
Broker-Dealer, as the case may be, any underwriter participating in
any such disposition of Registrable Securities, if any, and any
attorney, accountant or other agent retained by any such selling
Holder or each such Participating Broker-Dealer, as the case may be,
or underwriter (collectively, the "Inspectors"), at the offices where
normally kept, during reasonable business hours, all financial and
other records, pertinent corporate documents and properties of the
Company and its subsidiaries (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the officers, directors and
employees of the Company and its subsidiaries to supply all relevant
information in each case reasonably requested by any such Inspector in
connection with such Registration Statement. Records which the
Company determines, in good faith, to be confidential and any Records
which it notifies the Inspectors are confidential shall not be
disclosed by the Inspectors unless (i) the disclosure of such Records
is necessary in the opinion of nationally-recognized counsel to avoid
or correct a misstatement or omission in such Registration Statement,
(ii) the release of such Records is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction or (iii) the
information in such Records has been made generally available to the
public. Each selling Holder of such Registrable Securities and each
such Participating Broker-Dealer will be required to agree that
information obtained by it as a result of such inspections shall be
deemed confidential and shall not be used by it as the basis for any
market transactions in any securities other than for the purposes
expressly set forth in this Agreement unless and until such is made
generally available to the public. Each selling Holder of such
Registrable Securities and each such Participating Broker-Dealer will
be required to further agree that it will, upon learning that
disclosure of such Records is sought in a court of competent
jurisdiction, give prompt notice to the Company and allow the Company
at its expense to undertake appropriate action to prevent disclosure
of the Records deemed confidential (it being understood that the
Holders shall at all times be unrestricted in complying with any order
of any court or tribunal of competent jurisdiction);
13
15
o. comply with all applicable rules and regulations of
the SEC and make generally available to the Company's security holders
earnings statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 days after the
end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing at the end of
any fiscal quarter in which Registrable Securities are sold to
underwriters in a firm commitment or best efforts underwritten
offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company
after the effective date of a Registration Statement, which statements
shall cover said 12-month periods;
p. if an Exchange Offer is to be consummated, upon
delivery of the Registrable Securities by Holders to the Company (or
to such other Person as directed by the Company) in exchange for the
Exchange Notes, the Company shall mark, or cause to be marked, on such
Registrable Securities delivered by such Holders that such Registrable
Securities are being cancelled in exchange for the Exchange Notes; in
no event shall such Registrable Securities be marked as paid or
otherwise satisfied;
q. cooperate with each seller of Registrable Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Securities and
their respective counsel in connection with any filings required to be
made with the NASD;
r. use their reasonable best efforts to take all other
steps necessary to effect the registration of the Registrable
Securities covered by a Registration Statement contemplated hereby;
s. in the case of the Exchange Offer Registration
Statement (i) include in the Exchange Offer Registration Statement a
section entitled "Plan of Distribution," which section shall be
reasonably acceptable to the Purchaser or another representative of
the Participating Broker-Dealers, and which shall contain a summary
statement of the positions taken or policies made by the staff of the
SEC with respect to the potential "underwriter" status of any
broker-dealer (a "Participating Broker-Dealer") that holds Registrable
Securities acquired for its own account as a result of market-making
activities or other trading activities and that will be the beneficial
owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange
Notes to be received by such broker-dealer in the Exchange Offer,
whether such positions or policies have been publicly disseminated by
the staff of the SEC or such positions or policies, in the reasonable
judgment of the Purchaser or such other representative, represent the
prevailing views of the staff of the SEC, including a statement that
any such broker-dealer who receives Exchange Notes for Registrable
Securities pursuant to the Exchange Offer may be deemed a statutory
underwriter and must deliver a prospectus meeting the requirements of
the Securities Act in connection with any resale of such Exchange
Notes, (ii) furnish to each Participating Broker-Dealer who has
delivered to the Company the notice referred to in Section 3(e),
without charge, as many copies of each Prospectus included in the
Exchange Offer Registration Statement, including any preliminary
prospectus, and any amendment or supplement thereto, as such
Participating Broker-Dealer may reasonably request (it being
understood that the Company hereby consents to the use of the
Prospectus forming part of the Exchange Offer Registration Statement
or any amendment or
14
16
supplement thereto, by any Person subject to the prospectus delivery
requirements of the SEC, including all Participating Broker-Dealers,
in connection with the sale or transfer of the Exchange Notes covered
by the Prospectus or any amendment or supplement thereto), (iii) use
their reasonable best efforts to keep the Exchange Offer Registration
Statement effective and to amend and supplement the Prospectus
contained therein in order to permit such Prospectus to be lawfully
delivered by all Persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as such
Persons must comply with such requirements in order to resell the
Exchange Notes; provided, however, that such period shall not be
required to exceed 180 days (or such longer period if extended
pursuant to the last sentence of Section 3 hereof) (the "Applicable
Period"), and (iv) include in the transmittal letter or similar
documentation to be executed by an exchange offeree in order to
participate in the Exchange Offer (x) the following provision or a
provision substantially similar thereto:
"If the exchange offeree is a broker-dealer
holding Registrable Securities acquired for
its own account as a result of market-making activities or
other trading activities, it will deliver a prospectus meeting
the requirements of the Securities Act in connection with any
resale of Exchange Notes received in respect of such
Registrable Securities pursuant to the Exchange Offer";
and (y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus
in connection with the exchange of Registrable Securities, the broker-
dealer will not be deemed to admit that it is an underwriter within
the meaning of the Securities Act.
The Company may require each seller of Registrable Securities
as to which any registration is being effected to furnish to the Company such
information regarding such seller and the proposed distribution of such
Registrable Securities, as the Company may from time to time reasonably request
in writing. The Company may exclude from such registration the Registrable
Securities of any seller who fails to furnish such information within a
reasonable time after receiving such request.
In the case of (1) a Shelf Registration Statement or (2)
Participating Broker-Dealers who have notified the Company that they will be
utilizing the Prospectus contained in the Exchange Offer Registration Statement
as provided in Section 3(s) hereof, each Holder agrees that, upon receipt of
any notice from the Company of the happening of any event of the kind described
in Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to a
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) hereof or until
it is advised in writing (the "Advice") by the Company that the use of the
applicable Prospectus may be resumed, and, if so directed by the Company, such
Holder will deliver to the Company (at the Company's expense) all copies in
such Holder's possession, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Registrable Securities or
Exchange Notes, as the case may be, current at the time of receipt of such
notice. If the Company or the Guarantors shall give any such notice to suspend
the disposition of Registrable Securities or Exchange Notes, as the case may
be, pursuant to a Registration Statement, the Company and the Guarantors shall
file and use their reasonable best efforts to have declared effective (if an
amendment) as soon as practicable an amendment or supplement to the
Registration Statement and
15
17
shall extend the period during which such Registration Statement shall be
maintained effective pursuant to this Agreement by the number of days in the
period from and including the date of the giving of such notice to and
including the date when the Company shall have made available to the Holders
(x) copies of the supplemented or amended Prospectus necessary to resume such
dispositions or (y) the Advice.
4. Indemnification and Contribution. a. The Company and
the Guarantors shall indemnify and hold harmless the Purchaser, each Holder,
each Participating Broker-Dealer, each underwriter who participates in an
offering of Registrable Securities, their respective affiliates, each Person,
if any, who controls any of such parties within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act and each of their
respective directors, officers, employees and agents, as follows:
(a) from and against any and all loss, liability, claim,
damage and expense whatsoever, joint or several, as incurred, arising
out of any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement (or any amendment
thereto), covering Registrable Securities or Exchange Notes, including
all documents incorporated therein by reference, or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(b) from and against any and all loss, liability, claim,
damage and expense whatsoever, joint or several, as incurred, to the
extent of the aggregate amount paid in settlement of any litigation,
or any investigation or proceeding by any court or governmental agency
or body, commenced or threatened, or of any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission; provided that (subject to Section 4(d) below)
any such settlement is effected with the prior written consent of the
Company; and
(c) from and against any and all expenses whatsoever, as
incurred (including the fees and disbursements of counsel chosen by
the Purchaser, such Holder, such Participating Broker-Dealer or any
underwriter (except to the extent otherwise provided in Section 4(c)
hereof)), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
court or governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any
such expense is not paid under subparagraph (i) or (ii) of this
Section 4(a);
provided, however, that this agreement shall not apply to any loss, liability,
claim, damage or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished in writing to the Company by the
Purchaser, any Holder, any Participating Broker-Dealer or any underwriter with
respect to the Purchaser,
16
18
Holder, Participating Broker-Dealer or underwriter, as the case may be,
expressly for use in the Registration Statement (or any amendment thereto) or
any Prospectus (or any amendment or supplement thereto).
b. Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company and the Guarantors, the Purchaser, each
underwriter who participates in an offering of Registrable Securities and the
other selling Holders and each of their respective directors, officers
(including each officer of the Company who signed the Registration Statement),
employees and agents and each Person, if any, who controls the Company and the
Guarantors, the Purchaser, any underwriter or any other selling Holder within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all loss, liability, claim, damage and expense
whatsoever described in the indemnity contained in Section 4(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto)
in reliance upon and in conformity with written information furnished to the
Company by such selling Holder with respect to such Holder expressly for use in
the Registration Statement (or any amendment thereto), or any such Prospectus
(or any amendment or supplement thereto); provided, however, that, in the case
of Shelf Registration Statement, no such Holder shall be liable for any claims
hereunder in excess of the amount of net proceeds received by such Holder from
the sale of Registrable Securities pursuant to such Shelf Registration
Statement.
c. Each indemnified party shall give notice as promptly
as reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any liability hereunder except to the extent it is materially prejudiced
as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of any
such action; provided, however, that counsel to the indemnifying party shall
not (expect with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
in respect of which indemnification or contribution is sought under this
Section 4 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
d. If at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that, unless such
indemnifying party is contesting the payment of such fees and expenses in good
faith, it shall be liable for any settlement of the nature contemplated by
Section 4(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 90 days after receipt by such indemnifying party
17
19
of the aforesaid request, (ii) such indemnifying party shall have received
written notice of all of the terms of such settlement at least 60 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
e. If the indemnification provided for in Section 4(a)
or (b) hereof is for any reason unavailable to or insufficient to hold harmless
an indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Guarantors on the one hand and the Holder of Registrable Securities, the
Participating Broker-Dealer or Purchaser, as the case may be, on the other hand
from the offering of the Securities pursuant to the Purchase Agreement or (ii)
if the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Guarantors on the one hand and of the Holder of Registrable Securities, the
Participating Broker-Dealer or Purchaser, as the case may be, on the other hand
in connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative fault of the Company and the Guarantors on the
one hand and the Holder of Registrable Securities, the Participating
Broker-Dealer or the Purchaser, as the case may be, on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or the
Guarantors, or by the Holder of Registrable Securities, the Participating
Broker-Dealer or the Purchaser, as the case may be, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company, the Guarantors and the Holders of the Registrable
Securities and the Purchaser agree that it would not be just and equitable if
contribution pursuant to this Section 4(e) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 4(e).
No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 4(e), each Person, if any, who
controls a Holder of Registrable Securities, the Purchaser or a Participating
Broker-Dealer within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act shall have the same rights to contribution as such other
Person, and each director of the Company and the Guarantors, each officer of
the Company who signed the Registration Statement, and each Person, if any, who
controls the Company and the Guarantors within the meaning of Section 15 of the
Securities act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Company and the Guarantors.
18
20
5. Participation in Underwritten Registrations. No
Holder may participate in any underwritten registration hereunder unless such
Holder (a) agrees to sell such Holder's Registrable Securities on the basis
provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents reasonably required under the
terms of such underwriting arrangements.
6. Selection of Underwriters. The Holders of
Registrable Securities covered by the Shelf Registration Statement who desire
to do so may sell the securities covered by such Shelf Registration in an
underwritten offering. In any such underwritten offering, the underwriter or
underwriters and manager or managers that will administer the offering will be
selected by the Holders of a majority in aggregate principal amount of the
Registrable Securities included in such offering; provided, however, that such
underwriters and managers must be reasonably satisfactory to the Company.
7. Miscellaneous.
a. Rule 144 and Rule 144A. For so long as the Company
or any Guarantor is subject to the reporting requirements of Section 13 or 15
of the Exchange Act and any Registrable Securities remain outstanding, the
Company and the Guarantors covenant that they will comply with their reporting
obligations under the Securities Act and Section 13(a) or 15(d) of the Exchange
Act and the rules and regulations adopted by the SEC thereunder, that if they
cease to be required to file periodic reports thereunder, they will upon the
request of any Holder of Registrable Securities (a) make publicly available
such information as is necessary to permit sales pursuant to Rule 144 under the
Securities Act, (b) deliver such information to a prospective purchaser as is
necessary to permit sales pursuant to Rule 144A under the Securities Act, and
(c) take such further action that is reasonable in the circumstances, in each
case, to the extent required from time to time to enable such Holder to sell
its Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by (i) Rule 144 under the Securities
Act, as such rule may be amended from time to time, (ii) Rule 144A under the
Securities Act, as such rule may be amended from time to time, or (iii) any
similar rules or regulations hereafter adopted by the SEC. For so long as any
of the Company or the Guarantors is subject to the reporting requirements of
Section 13 or 15 of the Exchange Act and any Registrable Securities remain
outstanding, upon the request of any Holder of Registrable Securities, the
Company and the Guarantors will deliver to such Holder a written statement as
to whether they have complied with such requirements.
b. No Inconsistent Agreements. The Company and the
Guarantors have not entered into nor will the Company and the Guarantors on or
after the date of this Agreement enter into any agreement which may require any
action which would violate the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
The rights granted to the Holders hereunder do not in any way conflict with and
do not under any circumstances require any action which would violate the
rights granted to the Holders of the Company's other issued and outstanding
securities under any such agreements.
19
21
c. Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, otherwise than with
the prior written consent of (A) the Holders of not less than a majority in
aggregate principal amount of the then outstanding Registrable Securities and
(B) in circumstances that would adversely affect the Participating Broker-
Dealers, the Participating Broker-Dealers holding not less than a majority in
aggregate principal amount of the Exchange Notes held by all Participating
Broker-Dealers; provided, however, that Section 4 and this Section 7(c) may not
be amended, modified or supplemented without the prior written consent of each
Holder and each Participating Broker-Dealer (including any Person who was a
Holder or Participating Broker-Dealer of Registrable Securities or Exchange
Notes, as the case may be, disposed of pursuant to any Registration Statement).
Notwithstanding the foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to the
rights of Holders of Registrable Securities whose securities are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect, impair, limit or compromise the rights of other Holders of Registrable
Securities may be given by Holders of at least a majority in aggregate
principal amount of the Registrable Securities being sold by such Holders
pursuant to such Registration Statement.
d. Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telex, telecopier, or any courier guaranteeing
overnight delivery (i) if to a Holder, at the most current address given by
such Holder to the Company by means of a notice given in accordance with the
provisions of this Section 7(d), which address initially is, with respect to
the Purchaser, the address set forth in the Purchase Agreement; and (ii) if to
the Company or the Guarantors, initially at the Company's address set forth in
the Purchase Agreement to the attention of General Counsel and thereafter at
such other address, notice of which is given in accordance with the provisions
of this Section 7(d), with a copy to Kramer, Levin, Naftalis & Frankel, 919
Third Avenue, New York, New York 10022, Attention: Howard A. Sobel, Esq.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied;
and on the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications
shall be concurrently delivered by the Person giving the same to the Trustee,
at the address specified in the Indenture.
e. Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors, assigns and transferees
of the Purchaser, including, without limitation and without the need for an
express assignment, subsequent Holders; provided, however, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of the Purchase Agreement or
the Indenture. If any transferee of any Holder shall acquire Registrable
Securities, in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities, such Person
shall be conclusively deemed to have agreed to be bound by and to perform all
of the terms and provisions of this Agreement and such Person shall be entitled
to receive the benefits hereof.
20
22
f. Third Party Beneficiary. The Purchaser shall be a
third party beneficiary of the agreements made hereunder between the Company
and the Guarantors, on the one hand, and the Holders, on the other hand, and
shall have the right to enforce such agreements directly to the extent it deems
such enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
g. Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
h. Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
i. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO
HAVE BEEN MADE IN THE STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF
THIS AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS. EACH OF
THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT.
j. Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
k. Securities Held by the Company or Its Affiliates.
Whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by
the Company or the Guarantors or their affiliates (as such term is defined in
Rule 405 under the Securities Act) shall not be counted in determining whether
such consent or approval was given by the Holders of such required percentage.
l. Entire Agreement. This Agreement, together with the
Purchase Agreement and the Indenture, is intended by the parties as a final and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein and any and all
prior oral or written agreements, representations, or warranties, contracts,
understandings, correspondence, conversation and memoranda between the
Purchaser on the one hand and the Company and the Guarantors on the other, or
between or among any agents, representatives, parents, subsidiaries,
affiliates, predecessors in interest or successors in interest with respect to
the subject matter hereof and thereof are merged herein and replaced hereby.
[Signature Page Follows]
21
23
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
KAISER ALUMINUM & CHEMICAL CORPORATION
By: /s/ KAREN A. TWITCHELL
----------------------------------------
Name: Karen A. Twitchell
Title: Treasurer
KAISER ALUMINA AUSTRALIA CORPORATION
By: /s/ KAREN A. TWITCHELL
----------------------------------------
Name: Karen A. Twitchell
Title: Treasurer
KAISER FINANCE CORPORATION
By: /s/ KAREN A. TWITCHELL
----------------------------------------
Name: Karen A. Twitchell
Title: Treasurer
ALPART JAMAICA INC.
By: /s/ KAREN A. TWITCHELL
----------------------------------------
Name: Karen A. Twitchell
Title: Treasurer
KAISER JAMAICA CORPORATION
By: /s/ KAREN A. TWITCHELL
----------------------------------------
Name: Karen A. Twitchell
Title: Treasurer
24
KAISER MICROMILL HOLDINGS, LLC
By: /s/ ANTHONY R. PIERNO
----------------------------------------
Name: Anthony R. Piernoi
Title: Manager
KAISER SIERRA MICROMILLS, LLC
By: /s/ KAREN A. TWITCHELL
----------------------------------------
Name: Karen A. Twitchell
Title: Treasurer
KAISER TEXAS MICROMILL HOLDINGS, LLC
By: /s/ KAREN A. TWITCHELL
----------------------------------------
Name: Karen A. Twitchell
Title: Treasurer
KAISER TEXAS SIERRA MICROMILLS, LLC
By: /s/ KAREN A. TWITCHELL
----------------------------------------
Name: Karen A. Twitchell
Title: Treasurer
Confirmed and accepted as of
the date first above
written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
-----------------------------------
Name: Pascal-Andle J. Maeter
Title: Vice-President