EXHIBIT 4(i)h
COMMERCIAL METALS COMPANY
$200,000,000
5.625% Senior Notes
due 2013
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
November 12, 2003
Goldman, Sachs & Co.,
Banc of America Securities LLC
Tokyo-Mitsubishi International plc
ABN AMRO Incorporated
As representatives of the several Purchasers
named in Schedule I to the Purchase Agreement
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Commercial Metals Company, a Delaware corporation (the "Company"),
proposes to issue and sell to the Purchasers (as defined herein) upon the terms
set forth in the Purchase Agreement (as defined herein) $200,000,000 aggregate
principal amount of its 5.625% Senior Notes due 2013. As an inducement to the
Purchasers to enter into the Purchase Agreement and in satisfaction of a
condition to the obligations of the Purchasers thereunder, the Company agrees
with the Purchasers for the benefit of holders (as defined herein) from time to
time of the Registrable Securities (as defined herein) as follows:
1. Certain Definitions. For purposes of this Exchange and Registration
Rights Agreement, the following terms shall have the following respective
meanings:
"Base Interest" shall mean the interest that would otherwise accrue on
the Securities under the terms thereof and the Indenture, without giving
effect to the provisions of this Agreement.
The term "broker-dealer" shall mean any broker or dealer registered
with the Commission under the Exchange Act.
"Closing Date" shall mean the date on which the Securities are
initially issued.
"Commission" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the
Exchange Act or the Securities Act, whichever is the relevant statute for
the particular purpose.
"Effective Time," in the case of (i) an Exchange Registration, shall
mean the time and date as of which the Commission declares the Exchange
Registration Statement effective or as of which the Exchange Registration
Statement otherwise becomes effective and (ii) a Shelf Registration, shall
mean the time and date as of which the Commission declares the Shelf
Registration Statement effective or as of which the Shelf Registration
Statement otherwise becomes effective.
"Electing Holder" shall mean any holder of Registrable Securities that
has returned a completed and signed Notice and Questionnaire to the Company
in accordance with Section 3(d)(ii) or 3(d)(iii) hereof and any
Supplemental Holder Information requested by the Company.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any
successor thereto, as the same shall be amended from time to time.
"Exchange Offer" shall have the meaning assigned thereto in Section
2(a) hereof.
"Exchange Registration" shall have the meaning assigned thereto in
Section 3(c) hereof.
"Exchange Registration Statement" shall have the meaning assigned
thereto in Section 2(a) hereof.
"Exchange Securities" shall have the meaning assigned thereto in
Section 2(a) hereof.
The term "holder" shall mean each of the Purchasers and other persons
who acquire Registrable Securities from time to time (including any
successors or assigns), in each case for so long as such person owns any
Registrable Securities.
"Indenture" shall mean the Indenture, dated as of July 31, 1995,
between the Company and JPMorgan Chase Bank (formerly Chase Manhattan Bank,
NA.), as Trustee, as the same shall be amended from time to time.
"Notice and Questionnaire" means a Notice of Registration Statement
and Selling Securityholder Questionnaire substantially in the form of
Exhibit A hereto.
The term "person" shall mean a corporation, association, partnership,
organization, business, individual, government or political subdivision
thereof or governmental agency.
"Purchase Agreement" shall mean the Purchase Agreement, dated as of
November 6, 2003, between the Purchasers and the Company relating to the
Securities.
"Purchasers" shall mean the Purchasers named in Schedule I to the
Purchase Agreement.
"Registrable Securities" shall mean the Securities; provided, however,
that a Security shall cease to be a Registrable Security when (i) in the
circumstances contemplated by Section 2(a) hereof, the Security has been
exchanged for an Exchange Security in an Exchange Offer as contemplated in
Section 2(a) hereof (provided that any Exchange Security that, pursuant to
the last two sentences of Section 2(a), is included in a prospectus
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for use in connection with resales by broker-dealers shall be deemed to be
a Registrable Security with respect to Sections 5, 6 and 9 until resale of
such Registrable Security has been effected within the 210-day period
referred to in Section 2(a)); (ii) in the circumstances contemplated by
Section 2(b) hereof, a Shelf Registration Statement registering such
Security under the Securities Act has been declared or becomes effective
and such Security has been sold or otherwise transferred by the holder
thereof pursuant to and in a manner contemplated by such effective Shelf
Registration Statement; (iii) such Security is sold pursuant to Rule 144
under circumstances in which any legend borne by such Security relating to
restrictions on transferability thereof, under the Securities Act or
otherwise, is removed by the Company or pursuant to the Indenture; (iv)
such Security is eligible to be sold pursuant to paragraph (k) of Rule 144;
or (v) such Security shall cease to be outstanding.
"Registration Default" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in Section
2(a) hereof.
"Restricted Holder" shall mean (i) a holder that is an affiliate of
the Company within the meaning of Rule 405, (ii) a holder who acquires
Exchange Securities outside the ordinary course of such holder's business,
(iii) a holder who has arrangements or understandings with any person to
participate in the Exchange Offer for the purpose of distributing Exchange
Securities and (iv) a holder that is a broker-dealer, but only with respect
to Exchange Securities received by such broker-dealer pursuant to an
Exchange Offer in exchange for Registrable Securities acquired by the
broker-dealer directly from the Company.
"Rule 144," "Rule 405" and "Rule 415" shall mean, in each case, such
rule promulgated under the Securities Act (or any successor provision), as
the same shall be amended from time to time.
"Securities" shall mean, collectively, $200,000,000 aggregate
principal amount of the Company's 5.625% Senior Notes due 2013 to be issued
and sold to the Purchasers, and securities issued in exchange therefor or
in lieu thereof pursuant to the Indenture.
"Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto in
Section 2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned thereto
in Section 2(b) hereof.
"Special Interest" shall have the meaning assigned thereto in Section
2(c) hereof.
"Supplemental Holder Information" shall have the meaning assigned
thereto in Section 3(f) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
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Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Exchange and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision.
Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Company agrees to
file under the Securities Act, as soon as practicable, but no later than 90
days after the Closing Date, a registration statement relating to an offer
to exchange (such registration statement, the "Exchange Registration
Statement", and such offer, the "Exchange Offer") any and all of the
Securities for a like aggregate principal amount of debt securities issued
by the Company, which debt securities are substantially identical to the
Securities (and are entitled to the benefits of a trust indenture which is
substantially identical to the Indenture or is the Indenture and which has
been qualified under the Trust Indenture Act), except that they have been
registered pursuant to an effective registration statement under the
Securities Act and do not contain provisions for the additional interest
contemplated in Section 2(c) below (such new debt securities hereinafter
called "Exchange Securities"). The Company agrees to use its reasonable
best efforts to cause the Exchange Registration Statement to become
effective under the Securities Act as soon as practicable, but no later
than 210 days after the Closing Date. The Exchange Offer will be registered
under the Securities Act on the appropriate form and will comply with all
applicable tender offer rules and regulations under the Exchange Act. The
Company further agrees to use its reasonable best efforts to commence and
complete the Exchange Offer promptly, but no later than 45 days after such
registration statement has become effective, hold the Exchange Offer open
for at least 30 days and exchange Exchange Securities for all Registrable
Securities that have been properly tendered and not withdrawn on or prior
to the expiration of the Exchange Offer. The Exchange Offer will be deemed
to have been "completed" only if the debt securities received by holders
other than Restricted Holders in the Exchange Offer for Registrable
Securities are, upon receipt, transferable by each such holder without
restriction under the Securities Act and the Exchange Act and without
material restrictions under the blue sky or securities laws of a
substantial majority of the States of the United States of America. The
Exchange Offer shall be deemed to have been completed upon the earlier to
occur of (i) the Company having exchanged the Exchange Securities for all
outstanding Registrable Securities pursuant to the Exchange Offer and (ii)
the Company having exchanged, pursuant to the Exchange Offer, Exchange
Securities for all Registrable Securities that have been properly tendered
and not withdrawn before the expiration of the Exchange Offer, which shall
be on a date that is at least 30 days following the commencement of the
Exchange Offer. The Company agrees (x) to include in the Exchange
Registration Statement a prospectus for use in any resales by any holder of
Exchange Securities that is a broker-dealer and (y) to keep such Exchange
Registration Statement effective for a period (the "Resale Period")
beginning when Exchange Securities are first issued in the Exchange Offer
and ending upon the earlier of the expiration of the 180th day after the
Exchange Offer has been completed or such time as such broker-dealers no
longer own any Registrable Securities. With respect to such Exchange
Registration Statement, such holders shall have the benefit of the rights
of indemnification and contribution set forth in Sections 6(a), (c), (d)
and (e) hereof.
(b) If (i) on or prior to the time the Exchange Offer is completed
existing Commission interpretations are changed such that the debt
securities received by holders other than
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Restricted Holders in the Exchange Offer for Registrable Securities are not
or would not be, upon receipt, transferable by each such holder without
restriction under the Securities Act, (ii) the Exchange Offer has not been
completed within 255 days following the Closing Date or (iii) any holder of
the Securities is not eligible under interpretations of the Commission to
participate in the Exchange Offer, the Company shall, in lieu of (or, in
the case of clause (iii), in addition to) conducting the Exchange Offer
contemplated by Section 2(a), file under the Securities Act as soon as
practicable, but in any case by the later of (A) 90 days after the Closing
Date or (B) 30 days after the time such obligation to file arises, a
"shelf" registration statement providing for the registration of, and the
sale on a continuous or delayed basis by the holders of, all of the
Registrable Securities, pursuant to Rule 415 or any similar rule that may
be adopted by the Commission (such filing, the "Shelf Registration" and
such registration statement, the "Shelf Registration Statement"). The
Company agrees to use its reasonable best efforts (x) to cause the Shelf
Registration Statement to become or be declared effective no later than 120
days after such Shelf Registration Statement is filed and to keep such
Shelf Registration Statement continuously effective for a period ending on
the earlier of the second anniversary of the Effective Time or such time as
there are no longer any Registrable Securities outstanding, provided,
however, that no holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement or to use the prospectus
forming a part thereof for resales of Registrable Securities unless such
holder is an Electing Holder, and (y) after the Effective Time of the Shelf
Registration Statement, promptly upon the request of any holder of
Registrable Securities that is not then an Electing Holder, to take any
action reasonably necessary to enable such holder to use the prospectus
forming a part thereof for resales of Registrable Securities, including,
without limitation, any action necessary to identify such holder as a
selling securityholder in the Shelf Registration Statement, provided,
however, that nothing in this Clause (y) shall relieve any such holder of
the obligation to return a completed and signed Notice and Questionnaire to
the Company in accordance with Section 3(d)(iii) hereof. The Company
further agrees to supplement or make amendments to the Shelf Registration
Statement, as and when 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 rules and regulations
thereunder for shelf registration, and the Company agrees to furnish to
each Electing Holder copies of any such supplement or amendment prior to
its being used or promptly following its filing with the Commission.
(c) In the event that (i) the Company has not filed the Exchange
Registration Statement or Shelf Registration Statement on or before the
date on which such registration statement is required to be filed pursuant
to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration
Statement or Shelf Registration Statement has not become effective or been
declared effective by the Commission on or before the date on which such
registration statement is required to become or be declared effective
pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer
has not been completed within 45 days after the initial effective date of
the Exchange Registration Statement relating to the Exchange Offer (if the
Exchange Offer is then required to be made) or (iv) any Exchange
Registration Statement or Shelf Registration Statement required by Section
2(a) or 2(b) hereof is filed and declared effective but shall thereafter
either be withdrawn by the Company or shall become subject to an effective
stop order issued pursuant to Section 8(d) of the Securities Act suspending
the effectiveness of such registration statement (except as specifically
permitted herein) without being succeeded immediately by an additional
registration statement filed and declared effective (each such event
referred to in clauses (i) through (iv), a "Registration Default" and each
period during which a Registration Default has occurred and is continuing,
a "Registration Default Period"), then, as liquidated damages for
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such Registration Default, subject to the provisions of Section 9(b),
special interest ("Special Interest"), in addition to the Base Interest,
shall accrue at a per annum rate of 0.25% for the first 90 days of the
Registration Default Period, at a per annum rate of 0.50% for the second 90
days of the Registration Default Period, at a per annum rate of 0.75% for
the third 90 days of the Registration Default Period and at a per annum
rate of 1.0% thereafter for the remaining portion of the Registration
Default Period; provided, that Special Interest shall cease to accrue upon
such time as there are no Registrable Securities outstanding.
(d) The Company shall take all actions necessary to be taken by it to
ensure that the transactions contemplated herein are effected as so
contemplated.
(e) Any reference herein to a registration statement as of any time
shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time and any reference herein
to any post-effective amendment to a registration statement as of any time
shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time.
2. Registration Procedures.
If the Company files a registration statement pursuant to Section 2
(a) or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, the Company shall qualify the Indenture
under the Trust Indenture Act of 1939.
(b) In the event that such qualification would require the appointment
of a new trustee under the Indenture, the Company shall appoint a new
trustee thereunder pursuant to the applicable provisions of the Indenture.
(c) In connection with the Company's obligations with respect to the
registration of Exchange Securities as contemplated by Section 2(a) (the
"Exchange Registration"), if applicable, the Company shall, as soon as
practicable (or as otherwise specified):
(i) prepare and file with the Commission, as soon as
practicable but no later than 90 days after the Closing Date, an
Exchange Registration Statement on any form which may be utilized
by the Company and which shall permit the Exchange Offer and
resales of Exchange Securities by broker-dealers during the
Resale Period to be effected as contemplated by Section 2(a), and
use its reasonable best efforts to cause such Exchange
Registration Statement to become effective as soon as practicable
thereafter, but no later than 210 days after the Closing Date;
(ii) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Exchange
Registration Statement and the prospectus included therein as may
be necessary to effect and maintain the effectiveness of such
Exchange Registration Statement for the periods and purposes
contemplated in Section 2(a) hereof and as may be required by the
applicable rules and regulations of the Commission and the
instructions applicable to the form of such Exchange Registration
Statement, and promptly provide each broker-dealer holding
Exchange Securities with such number of copies of the prospectus
included therein (as then amended or supplemented), in conformity
in all material respects with the requirements of the Securities
Act and the Trust Indenture
6
Act and the rules and regulations of the Commission thereunder,
as such broker-dealer reasonably may request prior to the
expiration of the Resale Period, for use in connection with
resales of Exchange Securities;
(iii) promptly notify each broker-dealer (1) that has
requested or received copies of the prospectus included in such
registration statement and (2) has provided the Company with a
telephone number, facsimile number and address for notices, and,
if requested by such broker-dealer, confirm such advice in
writing, (A) when such Exchange Registration Statement or the
prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed, and, with
respect to such Exchange Registration Statement or any
post-effective amendment, when the same has become effective, (B)
of any comments by the Commission and by the blue sky or
securities commissioner or regulator of any state with respect
thereto or any request by the Commission for amendments or
supplements to such Exchange Registration Statement or prospectus
or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of such
Exchange Registration Statement or the initiation or threatening
of any proceedings for that purpose, (D) if at any time during
the Resale Period when a prospectus is required to be delivered
under the Securities Act, the representations and warranties of
the Company contemplated by Section 5 cease to be true and
correct in all material respects, (E) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Exchange Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding
for such purpose, or (F) at any time subsequent to the Effective
Time when a prospectus is required to be delivered under the
Securities Act, that such Exchange Registration Statement and
each prospectus (including summary prospectus), prospectus
amendment or supplement or post-effective amendment does not
conform in all material respects to the requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder or contains an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then
existing;
(iv) in the event that the Company would be required,
pursuant to Section 3(e)(iii)(F) above, to notify any
broker-dealers holding Exchange Securities, without delay prepare
and furnish to each such holder a reasonable number of copies of
a prospectus supplemented or amended so that, as thereafter
delivered to purchasers of such Exchange Securities during the
Resale Period, such prospectus shall conform in all material
respects to the applicable requirements of the Securities Act and
the Trust Indenture Act and the rules and regulations of the
Commission thereunder and shall not contain an untrue statement
of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(v) use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of such Exchange
Registration Statement or any post-effective amendment thereto at
the earliest practicable date;
(vi) if necessary, use its reasonable best efforts to (A)
register or qualify the Exchange Securities under the securities
laws or blue sky laws of such jurisdictions
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as are contemplated by Section 2(a) no later than the
commencement of the Exchange Offer, (B) keep such registrations
or qualifications in effect and comply with such laws so as to
permit the continuance of offers, sales and dealings therein in
such jurisdictions until the expiration of the Resale Period and
(C) take any and all other actions as may be reasonably necessary
or advisable to enable each broker-dealer holding Exchange
Securities to consummate the disposition thereof in such
jurisdictions; provided, however, that the Company shall not be
required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be
required to qualify but for the requirements of this Section
3(c)(vi), (2) consent to general service of process in any such
jurisdiction or (3) make any changes to its certificate of
incorporation or by-laws or any agreement between it and its
stockholders;
(vii)use its reasonable best efforts to obtain the consent
or approval of each governmental agency or authority, whether
federal, state or local, which may be required to effect the
Exchange Registration, the Exchange Offer and the offering and
sale of Exchange Securities by broker-dealers during the Resale
Period;
(viii) provide a CUSIP number for all Exchange Securities,
not later than the applicable Effective Time;
(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders
as soon as practicable but no later than eighteen months after
the effective date of such Exchange Registration Statement, an
earning statement of the Company and its subsidiaries complying
with Section 11(a) of the Securities Act (including, at the
option of the Company, Rule 158 thereunder).
(d) In connection with the Company's obligations with respect to the
Shelf Registration, if applicable, the Company shall, as soon as
practicable (or as otherwise specified):
(i) prepare and file with the Commission, as soon as
practicable but in any case within the time periods specified in
Section 2(b), a Shelf Registration Statement on any form which
may be utilized by the Company and which shall register all of
the Registrable Securities for resale by the holders thereof in
accordance with such method or methods of disposition as may be
specified by such of the holders as, from time to time, may be
Electing Holders and use its reasonable best efforts to cause
such Shelf Registration Statement to become effective as soon as
practicable but in any case within the time periods specified in
Section 2(b);
(ii) not less than 30 calendar days prior to the Effective
Time of the Shelf Registration Statement, mail the Notice and
Questionnaire to the holders of Registrable Securities; no holder
shall be entitled to be named as a selling securityholder in the
Shelf Registration Statement as of the Effective Time, and no
holder shall be entitled to use the prospectus forming a part
thereof for resales of Registrable Securities at any time, unless
such holder has returned a completed and signed Notice and
Questionnaire to the Company by the deadline for response set
forth therein; provided, however, holders of Registrable
Securities shall have at least 21 calendar days from the date on
which the Notice and Questionnaire is first mailed to such
holders to return a completed and signed Notice and Questionnaire
to the Company;
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(iii)after the Effective Time of the Shelf Registration
Statement, upon the request of any holder of Registrable
Securities that is not then an Electing Holder, promptly send a
Notice and Questionnaire to such holder; provided that the
Company shall not be required to take any action to name such
holder as a selling securityholder in the Shelf Registration
Statement or to enable such holder to use the prospectus forming
a part thereof for resales of Registrable Securities until such
holder has returned a completed and signed Notice and
Questionnaire to the Company;
(iv) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Shelf
Registration Statement and the prospectus included therein as may
be necessary to effect and maintain the effectiveness of such
Shelf Registration Statement for the period specified in Section
2(b) hereof and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to
the form of such Shelf Registration Statement, and furnish to the
Electing Holders copies of any such supplement or amendment
simultaneously with or prior to its being used or filed with the
Commission;
(v) comply with the provisions of the Securities Act with
respect to the disposition of all of the Registrable Securities
covered by such Shelf Registration Statement in accordance with
the intended methods of disposition by the Electing Holders
provided for in such Shelf Registration Statement;
(vi) provide (A) the Electing Holders, (B) the underwriters
(which term, for purposes of this Exchange and Registration
Rights Agreement, shall include a person deemed to be an
underwriter within the meaning of Section 2(a)(11) of the
Securities Act), if any, thereof, (C) any sales or placement
agent therefor, (D) counsel for any such underwriter or agent and
(E) not more than one counsel for all the Electing Holders the
opportunity to participate in the preparation of such Shelf
Registration Statement, each prospectus included therein or filed
with the Commission and each amendment or supplement thereto;
(vii) for a reasonable period prior to the filing of such
Shelf Registration Statement, and throughout the period specified
in Section 2(b), make available at reasonable times at the
Company's principal place of business or such other reasonable
place for inspection by the persons referred to in Section
3(d)(vi) who, in the case of the Electing Holders, shall certify
to the Company that they have a current intention to sell the
Registrable Securities pursuant to the Shelf Registration such
relevant financial and other information and books and records of
the Company, and use its reasonable best efforts to cause the
officers, employees, counsel and independent certified public
accountants of the Company to respond to such inquiries, as shall
be reasonably necessary, in the judgment of the respective
counsel referred to in such Section, to conduct a reasonable
investigation within the meaning of Section 11 of the Securities
Act; provided, however, that each such party shall be required to
maintain in confidence and not to disclose to any other person
any information or records reasonably designated by the Company
as being confidential, and to enter into a confidentiality
agreement with respect to such information if reasonably
requested by the Company, until such time as (A) such information
becomes a matter of public record (whether by virtue of its
inclusion in such registration statement or otherwise), or (B)
such person shall be required so to
9
disclose such information pursuant to a subpoena or order of any
court or other governmental agency or body having jurisdiction
over the matter (subject to the requirements of such order, and
only after such person shall have given the Company prompt prior
written notice of such requirement);
(viii) promptly notify each of the Electing Holders, any
sales or placement agent therefor and any underwriter thereof
(which notification may be made through any managing underwriter
that is a representative of such underwriter for such purpose)
and, if so requested by such a person, confirm such advice in
writing, (A) when such Shelf Registration Statement or the
prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed, and, with
respect to such Shelf Registration Statement or any
post-effective amendment, when the same has become effective, (B)
of any comments by the Commission and by the blue sky or
securities commissioner or regulator of any state with respect
thereto or any request by the Commission for amendments or
supplements to such Shelf Registration Statement or prospectus or
for additional information, (C) of the issuance by the Commission
of any stop order suspending the effectiveness of such Shelf
Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time when a
prospectus is required to be delivered under the Securities Act,
the representations and warranties of the Company contemplated by
Section 3(d)(xvii) or Section 5 cease to be true and correct in
all material respects, (E) of the receipt by the Company of any
notification with respect to the suspension of the qualification
of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, or
(F) if at any time subsequent to the Effective Time when a
prospectus is required to be delivered under the Securities Act,
that such Shelf Registration Statement and each prospectus
(including any summary prospectus), prospectus amendment or
supplement or post-effective amendment does not conform in all
material respects to the requirements of the Securities Act and
the Trust Indenture Act and the rules and regulations of the
Commission thereunder or contains an untrue statement of a
material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(ix) use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of such
registration statement or any post-effective amendment thereto at
the earliest practicable date;
(x) if requested by any managing underwriter or
underwriters, any placement or sales agent or any Electing
Holder, promptly incorporate in a prospectus supplement or
post-effective amendment such information as is required by the
applicable rules and regulations of the Commission and as such
managing underwriter or underwriters, such agent or such Electing
Holder specifies should be included therein relating to the terms
of the sale of such Registrable Securities, including information
with respect to the principal amount of Registrable Securities
being sold by such Electing Holder or agent or to any
underwriters, the name and description of such Electing Holder,
agent or underwriter, the offering price of such Registrable
Securities and any discount, commission or other compensation
payable in respect thereof, the purchase price being paid
therefor by such underwriters and with respect to any other terms
of the offering of the Registrable Securities to be sold by such
Electing Holder or agent or to such underwriters; and make all
required filings
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of such prospectus supplement or post-effective amendment
promptly after notification of the matters to be incorporated in
such prospectus supplement or post-effective amendment;
(xi) furnish to each Electing Holder, each placement or
sales agent, if any, therefor, each underwriter, if any, thereof
and the respective counsel referred to in Section 3(d)(vi) an
executed copy (or, in the case of an Electing Holder, a conformed
copy) of such Shelf Registration Statement, each such amendment
and supplement thereto excluding all exhibits thereto and
documents incorporated by reference therein unless specifically
requested) and such number of copies of such Shelf Registration
Statement (excluding exhibits thereto and documents incorporated
by reference therein unless specifically so requested by such
Electing Holder, agent or underwriter, as the case may be) and of
the prospectus included in such Shelf Registration Statement
(including each preliminary prospectus and any summary
prospectus), in conformity in all material respects with the
applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder, and such other documents, as such Electing Holder,
agent, if any, and underwriter, if any, may reasonably request in
order to facilitate the offering and disposition of the
Registrable Securities owned by such Electing Holder, offered or
sold by such agent or underwritten by such underwriter and to
permit such Electing Holder, agent and underwriter to satisfy the
prospectus delivery requirements of the Securities Act; and the
Company hereby consents to the use of such prospectus (including
such preliminary and summary prospectus) and any amendment or
supplement thereto by each such Electing Holder and by any such
agent and underwriter, in each case in the form most recently
provided to such person by the Company, in connection with the
offering and sale of the Registrable Securities covered by the
prospectus (including such preliminary and summary prospectus) or
any supplement or amendment thereto;
(xii) use reasonable best efforts to (A) register or qualify
the Registrable Securities to be included in such Shelf
Registration Statement under such securities laws or, if
necessary, blue sky laws of such jurisdictions as any Electing
Holder and each placement or sales agent, if any, therefor and
underwriter, if any, thereof shall reasonably request, (B) keep
such registrations or qualifications in effect and comply with
such laws so as to permit the continuance of offers, sales and
dealings therein in such jurisdictions during the period the
Shelf Registration is required to remain effective under Section
2(b) above and for so long as may be necessary to enable any such
Electing Holder, agent or underwriter to complete its
distribution of Securities pursuant to such Shelf Registration
Statement or as otherwise provided herein and (C) take any and
all other actions as may be reasonably necessary or advisable to
enable each such Electing Holder, agent, if any, and underwriter,
if any, to consummate the disposition in such jurisdictions of
such Registrable Securities; provided, however, that the Company
shall not be required for any such purpose to (1) qualify as a
foreign corporation in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of this
Section 3(d)(xii), (2) subject itself to taxation in any
jurisdiction where it is not otherwise so subject, (3) consent to
general service of process in any such jurisdiction or (4) make
any changes to its certificate of incorporation or by-laws or any
agreement between it and its stockholders;
11
(xiii) use its reasonable best efforts to obtain the consent
or approval of each governmental agency or authority, whether
federal, state or local, which may be required to effect the
Shelf Registration or the offering or sale in connection
therewith or to enable the selling holder or holders to offer, or
to consummate the disposition of, their Registrable Securities;
(xiv)cooperate with the Electing Holders and the managing
underwriters, if any, to facilitate the timely preparation and
delivery of a new global note (with a new CUSIP number) that is
identical to the global note issued in connection with the sale
of the Securities (the "Restricted Global Note") except that the
new global note shall be free of restrictive legends (the "New
Global Note"). At the Effective Time, the Trustee shall
authenticate the New Global Note in the amount of zero dollars.
Upon the receipt of the Notice to Transfer Pursuant to the
Registration Statement (a copy of which is attached hereto as
Exhibit B), make an appropriate credit to the New Global Note and
a corresponding deduction to the Restricted Global Note.
(xv) provide a CUSIP number for all Registrable Securities,
not later than the applicable Effective Time;
(xvi)enter into one or more underwriting agreements,
engagement letters, agency agreements, "best efforts"
underwriting agreements or similar agreements, as appropriate,
including customary provisions relating to indemnification and
contribution, and take such other actions in connection therewith
as any Electing Holders aggregating at least 50% of the aggregate
principal amount of the Registrable Securities to be included in
such offering shall request in order to expedite or facilitate
the disposition of such Registrable Securities;
(xvii) whether or not an agreement of the type referred to
in Section 3(d)(xvi) hereof is entered into and whether or not
any portion of the offering contemplated by the Shelf
Registration is an underwritten offering or is made through a
placement or sales agent or any other entity, (A) make such
representations and warranties to the Electing Holders and the
placement or sales agent, if any, therefor and the underwriters,
if any, thereof in form, substance and scope as are customarily
made in connection with an offering of debt securities pursuant
to any appropriate agreement or to a registration statement filed
on the form applicable to the Shelf Registration; (B) obtain an
opinion of counsel to the Company in customary form and covering
such matters, of the type customarily covered by such an opinion,
as the managing underwriters, if any, or as any Electing Holders
of at least 50% in aggregate principal amount of the Registrable
Securities to be included in such offering may reasonably
request, addressed to such Electing Holder or Electing Holders
and the placement or sales agent, if any, therefor and the
underwriters, if any, thereof and dated the effective date of
such Shelf Registration Statement (and if such Shelf Registration
Statement contemplates an underwritten offering of a part or all
of the Registrable Securities, dated the date of the closing
under the underwriting agreement relating thereto) (it being
agreed that the matters to be covered by such opinion shall
include the due incorporation and good standing of the Company
and its subsidiaries; the due authorization, execution and
delivery of the relevant agreement of the type referred to in
Section 3(d)(xvi) hereof; the due authorization, execution,
authentication and issuance, and the validity and enforceability,
of the Indenture; the Securities are valid, binding and entitled
to the benefits of the Indenture; the absence of material legal
or governmental proceedings involving the
12
Company; the absence of a breach by the Company or any of its
subsidiaries of, or a default under, material agreements binding upon
the Company or any subsidiary of the Company; the absence of
governmental approvals required to be obtained in connection with the
Shelf Registration, the offering and sale of the Registrable
Securities, this Exchange and Registration Rights Agreement or any
agreement of the type referred to in Section 3(d)(xvi) hereof, except
such approvals as may be required under state securities or blue sky
laws; the material compliance as to form of such Shelf Registration
Statement and any documents incorporated by reference therein and of
the Indenture with the requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder, respectively; and, as of the date of the opinion and of the
Shelf Registration Statement or most recent post-effective amendment
thereto, as the case may be, the absence from such Shelf Registration
Statement and the prospectus included therein, as then amended or
supplemented, and from the documents incorporated by reference therein
(in each case other than the financial statements and other financial
information contained therein) of an untrue statement of a material
fact or the omission to state therein a material fact necessary to make
the statements therein not misleading (in the case of such documents,
in the light of the circumstances existing at the time that such
documents were filed with the Commission under the Exchange Act)); (C)
obtain a "cold comfort" letter or letters from the independent
certified public accountants of the Company addressed to the selling
Electing Holders, the placement or sales agent, if any, therefor or the
underwriters, if any, thereof, dated (i) the effective date of such
Shelf Registration Statement and (ii) the effective date of any
prospectus supplement to the prospectus included in such Shelf
Registration Statement or post-effective amendment to such Shelf
Registration Statement which includes unaudited or audited financial
statements as of a date or for a period subsequent to that of the
latest such statements included in such prospectus (and, if such Shelf
Registration Statement contemplates an underwritten offering pursuant
to any prospectus supplement to the prospectus included in such Shelf
Registration Statement or post-effective amendment to such Shelf
Registration Statement which includes unaudited or audited financial
statements as of a date or for a period subsequent to that of the
latest such statements included in such prospectus, dated the date of
the closing under the underwriting agreement relating thereto), such
letter or letters to be in customary form and covering such matters of
the type customarily covered by letters of such type; (D) deliver such
documents and certificates, including officers' certificates, as may be
reasonably requested by any Electing Holders of at least 50% in
aggregate principal amount of the Registrable Securities to be included
in such offering or the placement or sales agent, if any, therefor and
the managing underwriters, if any, thereof to evidence the accuracy of
the representations and warranties made pursuant to clause (A) above or
those contained in Section 5(a) hereof and the compliance with or
satisfaction of any agreements or conditions contained in the
underwriting agreement or other agreement entered into by the Company;
and (E) undertake such obligations relating to expense reimbursement,
indemnification and contribution as are provided in Section 6 hereof;
(xviii) notify in writing each holder of Registrable
Securities of any proposal by the Company to amend or waive any
provision of this Exchange and Registration Rights Agreement pursuant
to Section 9(h) hereof and of any amendment or waiver effected pursuant
thereto, each of which notices shall contain the text of the amendment
or waiver proposed or effected, as the case may be;
13
(xix) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or participate
as a member of an underwriting syndicate or selling group or "assist in
the distribution" (within the meaning of the Conduct Rules (the
"Conduct Rules) of the National Association of Securities Dealers, Inc.
("NASD") or any successor thereto, as amended from time to time)
thereof, whether as a holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, assist such broker-dealer in complying
with the requirements of such Conduct Rules, including by (A) if such
Conduct Rules shall so require, engaging a "qualified independent
underwriter" (as defined in such Conduct Rules) to participate in the
preparation of the Shelf Registration Statement relating to such
Registrable Securities, to exercise usual standards of due diligence in
respect thereto and, if any portion of the offering contemplated by
such Shelf Registration Statement is an underwritten offering or is
made through a placement or sales agent, to recommend the yield of such
Registrable Securities, (B) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters
provided in Section 6 hereof (or to such other customary extent as may
be requested by such underwriter), and (C) providing such information
to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Conduct Rules; and
(xx) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as soon
as practicable but in any event not later than eighteen months after
the effective date of such Shelf Registration Statement, an earning
statement of the Company and its subsidiaries complying with Section
11(a) of the Securities Act (including, at the option of the Company,
Rule 158 thereunder).
(e) In the event that the Company would be required, pursuant to Section
3(d)(viii) above, to notify the Electing Holders, the placement or sales
agent, if any, therefor and the managing underwriters, if any, thereof, the
Company shall without delay prepare and furnish to each of the Electing
Holders, to each placement or sales agent, if any, and to each such
underwriter, if any, a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to purchasers of
Registrable Securities, such prospectus shall conform in all material
respects to the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission thereunder and
shall not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing. Each Electing Holder agrees that upon receipt of any notice from
the Company pursuant to Section 3(d)(viii) hereof, such Electing Holder shall
forthwith discontinue the disposition of Registrable Securities pursuant to
the Shelf Registration Statement applicable to such Registrable Securities
until such Electing Holder shall have received copies of such amended or
supplemented prospectus, and if so directed by the Company, such Electing
Holder shall deliver to the Company (at the Company's expense) all copies,
other than permanent file copies, then in such Electing Holder's possession
of the prospectus covering such Registrable Securities at the time of receipt
of such notice.
(f) In the event of a Shelf Registration, in addition to the information
required to be provided by each Electing Holder in its Notice and
Questionnaire, the Company may require such Electing Holder to furnish to the
Company such additional information regarding such
14
Electing Holder and such Electing Holder's intended method of distribution of
Registrable Securities as may be required in order to comply with the
Securities Act ("Supplemental Holder Information"). Notwithstanding anything
to the contrary contained herein, the Company's obligation to register the
Registrable Securities of any Electing Holder pursuant to a Shelf
Registration shall be subject to the delivery of any Supplemental Holder
Information requested by the Company of such Electing Holder. Each such
Electing Holder agrees to notify the Company as promptly as practicable of
any inaccuracy or change in information previously furnished by such Electing
Holder to the Company or of the occurrence of any event in either case as a
result of which any prospectus relating to such Shelf Registration contains
or would contain an untrue statement of a material fact regarding such
Electing Holder or such Electing Holder's intended method of disposition of
such Registrable Securities or omits to state any material fact regarding
such Electing Holder or such Electing Holder's intended method of disposition
of such Registrable Securities required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing, and promptly to furnish to the Company any additional information
required to correct and update any previously furnished information or
required so that such prospectus shall not contain, with respect to such
Electing Holder or the disposition of such Registrable Securities, an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing.
(g) Until the expiration of two years after the Closing Date, the Company
will not, and will not permit any of its "affiliates" (as defined in Rule
144) to, resell any of the Securities that have been reacquired by any of
them except pursuant to an effective registration statement under the
Securities Act and not otherwise prohibited or restricted under the Purchase
Agreement.
(h) Notwithstanding the foregoing, in the event of a potential acquisition
or business combination or other transaction, business development or event
involving the Company that may require disclosure in an Exchange Registration
Statement or a Shelf Registration Statement, if the Company shall determine
in the exercise of its reasonable judgment that disclosure of such potential
acquisition or business combination or other transaction, business
development or event is not in the best interests of the Company and its
stockholders or that obtaining any financial statements relating to an
acquisition or business combination required to be included in such
Registration Statement would be impracticable, the Company shall have the
right to suspend the effectiveness of such registration statement for no more
than two periods, each of up to 45 consecutive days (each, a "Suspension
Period"), during any 365-day period, provided that no such registration
statement may be suspended for more than an aggregate of 75 days in any
12-month period. In any such event, the Company shall promptly notify each
broker-dealer holding Exchange Securities of the suspension of the
effectiveness of such Registration Statement, provided that the Company shall
not be required to disclose in such notice the possible acquisition or
business combination or other transaction, business development or event if
it determines in good faith that such disclosure would not be in the best
interests of the Company and its stockholders. Any Special Interest payable
pursuant to Section 2(c) shall continue to accrue and be payable during any
Suspension Period. Any Suspension Period shall terminate upon the later of
(i) the abandonment, consummation or termination of such acquisition or
business combination or other transaction, business development or event or
the availability of the required financial statements with respect to a
possible acquisition or business combination and (ii) any required amendment
or supplement to such registration statement, and the Company shall promptly
notify broker-dealers holding Exchange
15
Securities that the use of the prospectus contained in such registration
statement, as amended or supplemented, may resume. The Company shall
provide sufficient copies of the most recent version of such prospectus to
broker-dealers holding Exchange Securities promptly upon written request,
and in no event later than one business day after such request.
3. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly all
expenses incident to the Company's performance of or compliance with this
Exchange and Registration Rights Agreement, including (a) all Commission and any
NASD registration, filing and review fees and expenses including reasonable fees
and disbursements of one counsel for the placement or sales agent or
underwriters in connection with such registration, filing and review, (b) all
fees and expenses in connection with the qualification of the Securities for
offering and sale under the State securities and blue sky laws referred to in
Section 3(d)(xii) hereof,, including any reasonable fees and disbursements of
one counsel for the Electing Holders in connection with such qualification, (c)
all expenses relating to the preparation, printing, production, distribution and
reproduction of each registration statement required to be filed hereunder, each
prospectus included therein or prepared for distribution pursuant hereto, each
amendment or supplement to the foregoing, the expenses of preparing the
Securities for delivery and the expenses of printing or producing any
underwriting agreements, agreements among underwriters, selling agreements and
blue sky or legal investment memoranda and all other documents in connection
with the offering, sale or delivery of Securities to be disposed of (including
certificates representing the Securities), (d) messenger, telephone and delivery
expenses relating to the offering, sale or delivery of Securities and the
preparation of documents referred in clause (c) above, (e) fees and expenses of
the Trustee under the Indenture, any agent of the Trustee and any counsel for
the Trustee and of any collateral agent or custodian, (f) internal expenses
(including all salaries and expenses of the Company's officers and employees
performing legal or accounting duties), (g) fees, disbursements and expenses of
counsel and independent certified public accountants of the Company (including
the expenses of any opinions or "cold comfort" letters required by or incident
to such performance and compliance), (h) fees, disbursements and expenses of one
counsel for the Electing Holders retained in connection with a Shelf
Registration, as selected by the Electing Holders of at least a majority in
aggregate principal amount of the Registrable Securities held by Electing
Holders (which counsel shall be reasonably satisfactory to the Company), (i) any
fees charged by securities rating services for rating the Securities, and (j)
fees, expenses and disbursements of any other persons retained by the Company,
including special experts, retained by the Company in connection with such
registration (collectively, the "Registration Expenses"). To the extent that any
Registration Expenses are incurred, assumed or paid by any holder of Registrable
Securities, the Company shall reimburse such person for the full amount of the
Registration Expenses so incurred, assumed or paid promptly after receipt of a
request therefor. Notwithstanding the foregoing, the holders of the Registrable
Securities being registered shall pay all agency fees and commissions and
underwriting discounts and commissions attributable to the sale of such
Registrable Securities and the fees and disbursements of any counsel or other
advisors or experts retained by such holders (severally or jointly), other than
the counsel and experts specifically referred to above.
4. Representations and Warranties.
The Company represents and warrants to, and agrees with, each Purchaser
and each of the holders from time to time of Registrable Securities that:
16
(a) Each registration statement covering Registrable Securities and
each prospectus (including any preliminary or summary prospectus) contained
therein or furnished pursuant to Section 3(d) or Section 3(c) hereof and
any further amendments or supplements to any such registration statement or
prospectus, when it becomes effective or is filed with the Commission, as
the case may be, and, in the case of an underwritten offering of
Registrable Securities, at the time of the closing under the underwriting
agreement relating thereto, will conform in all material respects to the
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder and 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
not misleading; and at all times subsequent to the Effective Time when a
prospectus would be required to be delivered under the Securities Act,
other than (i) from such time as a notice has been given to holders of
Registrable Securities pursuant to Section 3(d)(viii)(F) or Section
3(c)(iii)(F) hereof until (ii) such time as the Company furnishes an
amended or supplemented prospectus pursuant to Section 3(e) or Section
3(c)(iv) hereof, each such registration statement, and each prospectus
(including any summary prospectus) contained therein or furnished pursuant
to Section 3(d) or Section 3(c) hereof, or (ii) during a Suspension Period,
as then amended or supplemented, will conform in all material respects to
the requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder and 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
not misleading in the light of the circumstances then existing; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by a holder of Registrable
Securities expressly for use therein.
(b) Any documents incorporated by reference in any prospectus referred
to in Section 5(a) hereof, when they become or became effective or are or
were filed with the Commission, as the case may be, will conform or
conformed in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and none of such documents will
contain or contained an untrue statement of a material fact or will omit or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by a holder of Registrable Securities expressly for
use therein.
(c) The compliance by the Company with all of the provisions of this
Exchange and Registration Rights Agreement and the consummation of the
transactions herein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any subsidiary of the Company is a
party or by which the Company or any subsidiary of the Company is bound or
to which any of the property or assets of the Company or any subsidiary of
the Company is subject, nor will such action result in any violation of the
provisions of the certificate of incorporation, as amended, or the by-laws
of the Company or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company or any
subsidiary of the Company or any of their properties except for any
breaches, conflicts, violations and defaults that would not have a material
adverse effect on the Company; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the consummation by the Company
of
17
the transactions contemplated by this Exchange and Registration Rights
Agreement, except the registration under the Securities Act of the
Securities, qualification of the Indenture under the Trust Indenture Act and
such consents, approvals, authorizations, registrations or qualifications as
may be required under State securities or blue sky laws in connection with
the offering and distribution of the Securities.
(d) This Exchange and Registration Rights Agreement has been duly
authorized, executed and delivered by the Company.
5. Indemnification.
(a) Indemnification by the Company. The Company will indemnify and hold
harmless each of the holders of Registrable Securities included in an
Exchange Registration Statement, each of the Electing Holders of Registrable
Securities included in a Shelf Registration Statement, each person who
participates as a placement or sales agent or as an underwriter in any
offering or sale of such Registrable Securities and each person, if any, who
controls any of them (within the meaning of the Securities Act or the
Exchange Act) against any losses, claims, damages or liabilities, joint or
several, to which such holder, agent or underwriter may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
any Exchange Registration Statement or Shelf Registration Statement, as the
case may be, under which such Registrable Securities were registered under
the Securities Act, or any preliminary, final or summary prospectus contained
therein or furnished by the Company to any such holder, Electing Holder,
agent or underwriter, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse such holder, such
Electing Holder, such agent and such underwriter for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable to any such person in any such
case 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 or
omission or alleged omission made in such registration statement, or
preliminary, final or summary prospectus, or amendment or supplement thereto,
in reliance upon and in conformity with written information furnished to the
Company by such person expressly for use therein.
(b) Indemnification by the Holders and any Agents and Underwriters. The
Company may require, as a condition to including any Registrable Securities
in any registration statement filed pursuant to Section 2(b) hereof and to
entering into any underwriting agreement with respect thereto, that the
Company shall have received an undertaking reasonably satisfactory to it from
the Electing Holder of such Registrable Securities and from each underwriter
named in any such underwriting agreement, severally and not jointly, to (i)
indemnify and hold harmless the Company, and all other holders of Registrable
Securities, against any losses, claims, damages or liabilities to which the
Company or such other holders of Registrable Securities may become subject,
under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in such registration statement, or any preliminary, final or
summary prospectus contained therein or furnished by the Company to any such
Electing Holder, agent or underwriter, or any amendment or supplement
thereto, or arise out of or are based
18
upon the omission or alleged omission to state therein a material fact
required to be stated therein or 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
furnished to the Company by such Electing Holder or underwriter expressly for
use therein, and (ii) reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that no such Electing Holder shall be required to undertake
liability to any person under this Section 6(b) for any amounts in excess of
the dollar amount of the proceeds to be received by such Electing Holder from
the sale of such Electing Holder's Registrable Securities pursuant to such
registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified party
under subsection (a) or (b) above of written notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to
be made against an indemnifying party pursuant to the indemnification
provisions of or contemplated by this Section 6, notify such indemnifying
party in writing of the commencement of such action; but the omission so to
notify the indemnifying party shall relieve the indemnifying party from
liability which it may have to any indemnified party under Section 6(a) or
(b) to the extent the indemnifying party is materially prejudiced by such
omission. In case any such action shall be brought against any indemnified
party and it shall notify an indemnifying party of the commencement thereof,
such indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party, and, after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, such indemnifying party shall not be liable to such
indemnified party for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation, unless (i) the indemnifying party and the indemnified party
shall have mutually agreed to the contrary, (ii) the use of counsel by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest or (iii) the indemnifying party shall
have failed to within a reasonable time, retain counsel reasonably
satisfactory to the indemnified party. The indemnifying party shall not, in
connection with any proceedings, or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all indemnified parties. No
indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes
an unconditional release of the indemnified party from all liability arising
out of such action 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) Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) are unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party 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 the relative fault of the indemnifying party and the
indemnified party in connection
19
with the statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative fault of such indemnifying
party and indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by such indemnifying party or by such indemnified party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The parties hereto agree that
it would not be just and equitable if contributions pursuant to this Section
6(d) were determined by pro rata allocation (even if the holders or any
agents or underwriters or all of them were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to in this Section 6(d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, or liabilities (or actions in respect thereof) referred to above
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 6(d), no holder shall be required to contribute any amount in excess
of the amount by which the dollar amount of the proceeds received by such
holder from the sale of any Registrable Securities (after deducting any fees,
discounts and commissions applicable thereto) exceeds the amount of any
damages which such holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission, and
no underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The holders' and any underwriters' obligations
in this Section 6(d) to contribute shall be several in proportion to the
principal amount of Registrable Securities registered or underwritten, as the
case may be, by them and not joint.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each officer, director and
partner of each holder, agent and underwriter and each person, if any, who
controls any holder, agent or underwriter within the meaning of the
Securities Act; and the obligations of the holders and any agents or
underwriters contemplated by this Section 6 shall be in addition to any
liability which the respective holder, agent or underwriter may otherwise
have and shall extend, upon the same terms and conditions, to each officer
and director of the Company and to each person, if any, who controls the
Company within the meaning of the Securities Act.
6. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable Securities covered
by the Shelf Registration are to be sold pursuant to an underwritten
offering, the managing underwriter or underwriters thereof shall be
designated by Electing Holders holding at least a majority in aggregate
principal amount of the Registrable Securities to be included in such
offering; provided that such designated managing underwriter or underwriters
is or are reasonably acceptable to the Company.
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(b) Participation by Holders. Each holder of Registrable Securities hereby
agrees with each other such holder that no such holder may participate in any
underwritten offering hereunder unless such holder (i) 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 (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
7. Rules 144 and 144A.
The Company covenants to the holders of Registrable Securities that to
the extent it shall be required to do so under the Exchange Act, the Company
shall timely file the reports required to be filed by it under the Exchange Act
or the Securities Act (including the reports under Section 13 and 15(d) of the
Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted by the
Commission under the Securities Act) and the rules and regulations adopted by
the Commission thereunder, and if at any time the Company is not required to
file such reports, it will, upon the request of any holder of Registrable
Securities, make publicly available other information so long as necessary to
permit sales of their securities pursuant to Rules 144 and 144A. The Company
further covenants to take such further action as any holder of Registrable
Securities may reasonably request, all to the extent required from time to time
to enable such holder to sell Registrable Securities without registration under
the Securities Act within the limitations of the exemption provided by Rules 144
and 144A under the Securities Act (including the requirements of Rule
144A(d)(4)), as such Rules may be amended from time to time, or any similar or
successor rule or regulation hereafter adopted by the Commission. The Company
will provide a copy of this Agreement to prospective purchasers of the
Registrable Securities identified to the Company by the Purchasers upon request.
Upon the request of any holder of Registrable Securities in connection with that
holder's sale pursuant to Rules 144 and 144A, the Company shall deliver to such
holder a written statement as to whether it has complied with such requirements.
8. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents, warrants, covenants
and agrees that it has not granted, and shall not grant, registration rights
with respect to Registrable Securities or any other securities which would be
inconsistent with the terms contained in this Exchange and Registration
Rights Agreement.
(b) Specific Performance. The parties hereto acknowledge that there would
be no adequate remedy at law if the Company fails to perform any of its
obligations hereunder and that the Purchasers and the holders from time to
time of the Registrable Securities may be irreparably harmed by any such
failure, and accordingly agree that the Purchasers and such holders, in
addition to any other remedy to which they may be entitled at law or in
equity, shall be entitled to compel specific performance of the obligations
of the Company under this Exchange and Registration Rights Agreement in
accordance with the terms and conditions of this Exchange and Registration
Rights Agreement, in any court of the United States or any State thereof
having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: If to the Company, to
it at 6565 N. MacArthur Boulevard, Irving, Texas 75039, and if to a holder,
to
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the address of such holder set forth in the security register or other
records of the Company, or to such other address as the Company or any such
holder may have furnished to the other in writing in accordance herewith,
except that notices of change of address shall be effective only upon
receipt.
(d) Parties in Interest. All the terms and provisions of this Exchange and
Registration Rights Agreement shall be binding upon, shall inure to the
benefit of and shall be enforceable by the parties hereto and the holders
from time to time of the Registrable Securities and the respective successors
and assigns of the parties hereto and such holders. In the event that any
transferee of any holder of Registrable Securities shall acquire Registrable
Securities, in any manner, whether by gift, bequest, purchase, operation of
law or otherwise, such transferee shall, without any further writing or
action of any kind, be deemed a beneficiary hereof for all purposes and such
Registrable Securities shall be held subject to all of the terms of this
Exchange and Registration Rights Agreement, and by taking and holding such
Registrable Securities such transferee shall be entitled to receive the
benefits of, and be conclusively deemed to have agreed to be bound by all of
the applicable terms and provisions of this Exchange and Registration Rights
Agreement. If the Company shall so request, any such successor, assign or
transferee shall agree in writing to acquire and hold the Registrable
Securities subject to all of the applicable terms hereof.
(e) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Exchange and
Registration Rights Agreement or made pursuant hereto shall remain in full
force and effect regardless of any investigation (or statement as to the
results thereof) made by or on behalf of any holder of Registrable
Securities, any director, officer or partner of such holder, any agent or
underwriter or any director, officer or partner thereof, or any controlling
person of any of the foregoing, and shall survive delivery of and payment for
the Registrable Securities pursuant to the Purchase Agreement and the
transfer and registration of Registrable Securities by such holder and the
consummation of an Exchange Offer.
(f) GOVERNING LAW. THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAWS PRINCIPLES OF SUCH STATE
THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement are inserted
for convenience only, do not constitute a part of this Exchange and
Registration Rights Agreement and shall not affect in any way the meaning or
interpretation of this Exchange and Registration Rights Agreement.
(h) Entire Agreement; Amendments. This Exchange and Registration Rights
Agreement and the other writings referred to herein (including the Indenture
and the form of Securities) or delivered pursuant hereto which form a part
hereof contain the entire understanding of the parties with respect to its
subject matter. This Exchange and Registration Rights Agreement supersedes
all prior agreements and understandings between the parties with respect to
its subject matter. This Exchange and Registration Rights Agreement may be
amended and the observance of any term of this Exchange and Registration
Rights Agreement may be waived (either generally or in a particular instance
and either retroactively or prospectively) only by a written instrument duly
executed by the Company and the holders of at least a majority in aggregate
principal amount of the Registrable Securities at the time outstanding. Each
holder of any Registrable Securities at the time or thereafter outstanding
shall be bound by any amendment or waiver effected
22
pursuant to this Section 9(h), whether or not any notice, writing or marking
indicating such amendment or waiver appears on such Registrable Securities or
is delivered to such holder.
(i) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
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If the foregoing is in accordance with your understanding, please sign
and return to us one for the Company and each of the Representatives plus one
for each counsel counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Purchasers, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Purchasers and the Company.
It is understood that your acceptance of this letter on behalf of each of the
Purchasers is pursuant to the authority set forth in a form of Agreement among
Purchasers, the form of which shall be submitted to the Company for examination
upon request, but without warranty on your part as to the authority of the
signers thereof.
Very truly yours,
COMMERCIAL METALS COMPANY
By: /s/ William B. Larson
----------------------------
Name: William B. Larson
Title: Vice President and
Chief Financial Officer
Accepted as of the date hereof:
GOLDMAN, SACHS & CO.,
BANC OF AMERICA SECURITIES LLC
TOKYO-MITSUBISHI INTERNATIONAL PLC
ABN AMRO INCORPORATED
BY: /s/ Goldman, Sachs & Co.
------------------------
(Goldman, Sachs & Co.)
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