Exhibit 4.5
INTERNATIONAL STEEL GROUP INC.
6.500% SENIOR NOTES DUE 2014
UNCONDITIONALLY GUARANTEED AS TO THE
PAYMENT OF PRINCIPAL, PREMIUM,
IF ANY, AND INTEREST BY
THE GUARANTORS REFERRED TO IN ANNEX A HERETO
-------------------------
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
April 14, 2004
Goldman, Sachs & Co.,
UBS Securities LLC
Citigroup Global Markets Inc.
J.P. Morgan Securities Inc.
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
International Steel Group Inc., 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) its 6.500% Senior Notes
due 2014 (the "Senior Notes"), which are unconditionally guaranteed by the
Guarantors referred to in Annex A hereto. 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 and the Guarantors,
jointly and severally, agree with the Purchasers for the benefit of holders (as
defined herein) from time to time of the Transfer Restricted 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 Offer Registration Statement effective or as of which the
Exchange Offer 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 Transfer Restricted
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.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, 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 Offer 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.
"Guarantors" shall have the meaning assigned thereto in the
Indenture.
The term "holder" shall mean each of the Purchasers and other
persons who acquire Transfer Restricted Securities from time to time
(including any successors or assigns), in each case for so long as such
person owns any Transfer Restricted Securities.
"Indenture" shall mean the Indenture, dated as of April 14,
2004, between the Company, the Guarantors and The Bank of New York, 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 April 8, 2004, between the Purchasers, the Guarantors and the
Company relating to the Securities.
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"Purchasers" shall mean the Purchasers named in Schedule I to
the Purchase Agreement.
"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 Transfer Restricted 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, the 6.500% Senior Notes
due 2014 of the Company to be issued and sold to the Purchasers, and
securities issued in exchange therefor or in lieu thereof pursuant to
the Indenture. Each Security is entitled to the benefit of the
guarantee provided for in the Indenture (the "Guarantee") and, unless
the context otherwise requires, any reference herein to a "Security,"
an "Exchange Security" or a "Transfer Restricted Security" shall
include a reference to the related Guarantee.
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any successor thereto, as the same shall be amended from
time to time.
"Senior Notes" shall have the meaning assigned thereto in the
first paragraph of this agreement.
"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.
"Transfer Restricted Securities" means each Senior Note until
the earliest to occur of (i) the date on which Senior Note has been
exchanged by a Person other than a broker-dealer for an Exchange
Security in the Exchange Offer; (ii) following the exchange by a
broker-dealer in the Exchange Offer of a Senior Note for an Exchange
Security, the date on which such Exchange Security is sold to a
purchaser who receives from such broker-dealer on or prior to the date
of such sale a copy of the prospectus contained in the Exchange Offer
Registration Statement; (iii) the date on which such Senior Note has
been effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement; (iv) the date on
which such Senior Note is distributed to the public
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pursuant to Rule 144 under the Securities Act; or (v) the date on which
such Senior Note ceases to be outstanding.
"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.
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.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Company and
the Guarantors agree to use commercially reasonable efforts to file
under the Securities Act, no later than 150 days after the Closing
Date, a registration statement relating to an offer to exchange (such
registration statement, the "Exchange Offer Registration Statement",
and such offer, the "Exchange Offer") any and all of the Transfer
Restricted Securities for a like aggregate principal amount of debt
securities issued by the Company and guaranteed by the Guarantors,
which debt securities and guarantees are substantially identical to the
Securities and the related Guarantees, respectively (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 and the
Guarantors agree to use all commercially reasonable efforts to cause
the Exchange Offer Registration Statement to become effective under the
Securities Act 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 and the Guarantors
further agree to use all commercially reasonable efforts to commence
and complete the Exchange Offer no later than 40 business days after
such registration statement has become effective, hold the Exchange
Offer open for at least 20 business days and exchange Exchange
Securities for all Transfer Restricted 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 and related guarantee received
by holders other than Restricted Holders in the Exchange Offer for
Transfer Restricted 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 Transfer Restricted
Securities pursuant to the Exchange Offer and (ii) the Company having
exchanged, pursuant to the Exchange Offer, Exchange Securities for all
Transfer Restricted Securities that have been properly tendered and not
validly withdrawn before the expiration of the Exchange Offer, which
shall be on a date that is at least 20 business days following the
commencement of the Exchange Offer.
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The Company agrees (x) to include in the Exchange Offer 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 Offer
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 Transfer Restricted Securities. With
respect to such Exchange Offer 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) the Company is not permitted to file the Exchange
Registration Statement or complete the Exchange Offer because the
Exchange Offer is not permitted by applicable law or Commission policy,
or (ii) any holder of Transfer Restricted Securities notifies the
Company prior to the 20th business day following the consummation of
the Exchange Offer that such holder (A) is prohibited by law or
Commission policy from participating in the Exchange Offer, (B) may not
resell the Exchange Securities acquired by it in the Exchange Offer
without delivering a prospectus and the prospectus contained in the
Exchange Registration Statement is not appropriate or available for
such resales (it being understood that the requirement that a holder
deliver a prospectus containing the information required by Item 507
and/or Item 508 of Regulation S-K under the Securities Act shall not
result in the prospectus contained in the Exchange Registration
Statement being not appropriate or not available) or (C) is a
broker-dealer and owns Exchange Securities acquired directly from the
Company or an affiliate of the Company, then the Company shall, in lieu
of (or, in the case of clause (ii), in addition to) conducting the
Exchange Offer contemplated by Section 2(a), use all commercially
reasonable efforts to file under the Securities Act no later than the
later of 45 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 such
Transfer Restricted 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 and the Guarantors agree to use all
commercially reasonable efforts (x) to cause the Shelf Registration
Statement to become or be declared effective no later than 120 days
after the time such obligation to file the Shelf Registration Statement
arises 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 Transfer
Restricted 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 Transfer Restricted 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
Transfer Restricted 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 Transfer Restricted
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 and the
Guarantors further agree to supplement or make amendments to the Shelf
Registration Statement, as and when required by the rules, regulations
or instructions
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applicable to the registration form used by the Company and the
Guarantors 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. Notwithstanding anything to the
contrary in this Section 2(b), upon notice to the Electing Holders, the
Company and the Guarantors may suspend use or the effectiveness of such
Shelf Registration Statement, or extend the time period in which it is
required to file the Shelf Registration Statement, for up to 90 days in
the aggregate in any 12-month period (the "Suspension Period") if the
Board of Directors of the Company determines that such registration
would require (i) disclosure of an event at such time as could
reasonably be expected to have a material adverse effect on the
business, operations or prospects of the Company or the Guarantors or
(ii) disclosure of material information relating to a pending corporate
development; provided, that the Company and the Guarantors shall
promptly notify the Electing Holders when the Shelf Registration
Statement may once again be used or is effective. The exercise by the
Company of its right to suspend or delay the use or effectiveness of
the Shelf Registration Statement shall not give rise to any obligation
to pay Special Interest (as defined below) pursuant to Section 2(c)
during such Suspension Period.
(c) In the event that (i) the Company and the Guarantors have
not filed the Exchange Offer Registration Statement or, if applicable,
the 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 Offer Registration
Statement or, if applicable, the 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
40 business days after the initial effective date of the Exchange Offer
Registration Statement relating to the Exchange Offer (if the Exchange
Offer is then required to be made) or (iv) any Exchange Offer
Registration Statement or, if applicable, the 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
including, without limitation, during the Suspension Period) 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 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 $0.05 per week for the first 90 days of the
Registration Default Period. The amount of the Special Interest will
increase by an additional $0.05 per week per $1,000 principal amount of
notes with respect to each subsequent 90-day period until all
Registration Defaults have been cured, up to a maximum amount of
Special Interest for all Registration Defaults of $0.50 per week per
$1,000 principal amount of notes.
(d) The Company shall take, and shall cause each Guarantor to
take, all actions necessary or advisable to be taken by it to ensure
that the transactions contemplated herein are effected as so
contemplated, including all actions necessary or desirable to register
the
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Guarantees under the registration statement contemplated in Section
2(a) or 2(b) hereof, as applicable.
(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.
3. Registration Procedures.
If the Company and the Guarantors file 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 and the Guarantors'
obligations with respect to the registration of Exchange Securities as
contemplated by Section 2(a) (the "Exchange Registration"), if
applicable, the Company and the Guarantors shall:
(i) use all commercially reasonable efforts to
prepare and file with the Commission, no later than 150 days
after the Closing Date, an Exchange Offer Registration
Statement on any form which may be utilized by the Company and
the Guarantors 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 all commercially reasonable efforts to cause such
Exchange Offer Registration Statement to become effective 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 Offer Registration Statement and the prospectus
included therein as may be necessary to effect and maintain
the effectiveness of such Exchange Offer 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 Offer 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 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;
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(iii) promptly notify each broker-dealer that has
requested or received copies of the prospectus included in
such registration statement, and confirm such advice in
writing, (A) when such Exchange Offer 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 Offer 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 Offer 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 Offer Registration
Statement or the initiation or threatening of any proceedings
for that purpose, (D) if at any time 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 during the
Resale Period when a prospectus is required to be delivered
under the Securities Act, that such Exchange Offer
Registration Statement, prospectus, prospectus amendment or
supplement or post-effective amendment does not 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 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 and the
Guarantors would be required, pursuant to Section 3(c)(iii)(F)
above, to notify any broker-dealers holding Exchange
Securities, and except as otherwise permitted during any
Suspension Period, 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 all commercially reasonable efforts to
obtain the withdrawal of any order suspending the
effectiveness of such Exchange Offer Registration Statement or
any post-effective amendment thereto at the earliest
practicable date;
(vi) use all commercially reasonable efforts to
(A) register or qualify the Exchange Securities under the
securities laws or blue sky laws of such jurisdictions 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-
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dealer holding Exchange Securities to consummate the
disposition thereof in such jurisdictions; provided, however,
that neither the Company nor the Guarantors shall 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, (3) make any changes to its certificate of
incorporation or by-laws or any agreement between it and its
stockholders;
(vii) use all commercially reasonable 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; and
(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
Offer Registration Statement, an earnings 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 and the Guarantors'
obligations with respect to the Shelf Registration, if applicable, the
Company and the Guarantors shall, as soon as practicable (or as
otherwise specified):
(i) prepare and file with the Commission, within
the time period 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 Transfer
Restricted 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 all commercially reasonable
efforts to cause such Shelf Registration Statement to become
effective within the time period 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 Transfer Restricted
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 Transfer
Restricted 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 Transfer Restricted Securities
shall have at least 15 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
Transfer Restricted 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 Transfer Restricted 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 Transfer
Restricted 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 shall certify to the Company that
they have a current intention to sell the Transfer Restricted
Securities pursuant to the Shelf Registration such financial
and other information and books and records of the Company,
and 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, not to
use as the basis for any market transactions in any securities
of the Company or for any other business purposes other than
in connection with a registration hereunder, and not to
disclose to any other person, any information or records
reasonably designated by the Company as being confidential,
until such time as (A) such information becomes a
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matter of public record (whether by virtue of its inclusion in
such registration statement or otherwise), (B) such person
shall be required so to 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), or (C) such information is required to be set
forth in such Shelf Registration Statement or the prospectus
included therein or in an amendment to such Shelf Registration
Statement or an amendment or supplement to such prospectus in
order that such Shelf Registration Statement, prospectus,
amendment or supplement, as the case may be, complies with
applicable requirements of the federal securities laws and the
rules and regulations of the Commission and does not contain
an untrue statement of a material fact or omit to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in
light of the circumstances then existing;
(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 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 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 Transfer Restricted
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, or (F) if at
any time when a prospectus is required to be delivered under
the Securities Act, that such Shelf Registration Statement,
prospectus, prospectus amendment or supplement or
post-effective amendment does not 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 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 all commercially reasonable 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
11
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 Transfer Restricted Securities,
including information with respect to the principal amount of
Transfer Restricted 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 Transfer Restricted 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 Transfer Restricted Securities to be sold by
such Electing Holder or agent or to such underwriters; and
make all required filings 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) promptly 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 (in each case including all exhibits thereto (in the
case of an Electing Holder of Transfer Restricted Securities,
upon request) and documents incorporated by reference therein)
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 Transfer Restricted 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 Transfer Restricted
Securities covered by the prospectus (including such
preliminary and summary prospectus) or any supplement or
amendment thereto;
(xii) use all commercially reasonable efforts
promptly to (A) register or qualify the Transfer Restricted
Securities to be included in such Shelf Registration Statement
under such securities laws or 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
12
distribution of Securities pursuant to such Shelf Registration
Statement, but not beyond the period the Shelf Registration
Statement is required to remain effective under Section 2(b)
above, 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 Transfer
Restricted Securities; provided, however, that neither the
Company nor the Guarantors shall 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) 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;
(xiii) use all commercially reasonable 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 Transfer Restricted Securities;
(xiv) unless any Transfer Restricted Securities
shall be in book-entry only form, cooperate with the Electing
Holders and the managing underwriters, if any, to facilitate
the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold, which
certificates, if so required by any securities exchange upon
which any Transfer Restricted Securities are listed, shall be
penned, lithographed or engraved, or produced by any
combination of such methods, on steel engraved borders, and
which certificates shall not bear any restrictive legends;
and, in the case of an underwritten offering, enable such
Transfer Restricted Securities to be in such denominations and
registered in such names as the managing underwriters may
request at least two business days prior to any sale of the
Transfer Restricted Securities;
(xv) provide a CUSIP number for all Transfer
Restricted 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 20% in aggregate principal amount of the Transfer
Restricted Securities at the time outstanding shall request in
order to expedite or facilitate the disposition of such
Transfer Restricted 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;
13
(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 20% in aggregate
principal amount of the Transfer Restricted Securities at the
time outstanding 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
Transfer Restricted 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 valid existence and good standing of the Company
and its subsidiaries; the qualification of the Company and its
subsidiaries to transact business as foreign corporations; 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 Securities; the
absence of material legal or governmental proceedings
involving the Company; the absence of a breach by the Company
or any of its subsidiaries of, or a default under, specified
material agreements binding upon the Company or any subsidiary
of the Company; the absence of specified governmental
approvals required to be obtained in connection with the Shelf
Registration, the offering and sale of the Transfer Restricted
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
14
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 20% in aggregate principal amount of the
Transfer Restricted Securities at the time outstanding 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 or the Guarantors; 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 Transfer
Restricted 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;
(xix) in the event that any broker-dealer
registered under the Exchange Act shall underwrite any
Transfer Restricted 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
Transfer Restricted 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 Transfer Restricted 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 Transfer Restricted 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 earnings 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).
15
(e) In the event that the Company would be required, pursuant
to Section 3(d)(viii)(F) 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 Transfer Restricted 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)(F) hereof, such Electing Holder shall forthwith discontinue
the disposition of Transfer Restricted Securities pursuant to the Shelf
Registration Statement applicable to such Transfer Restricted
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
Transfer Restricted 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 Questionnaire, the Company may require such Electing Holder to
furnish to the Company such additional information regarding such
Electing Holder and such Electing Holder's intended method of
distribution of Transfer Restricted Securities as may be required in
order to comply with the Securities Act. 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 Transfer Restricted Securities
or omits to state any material fact regarding such Electing Holder or
such Electing Holder's intended method of disposition of such Transfer
Restricted 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 Transfer Restricted 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.
4. Registration Expenses.
16
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 fees and
disbursements of 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 and determination of their eligibility for investment under the laws of
such jurisdictions as any managing underwriters or the Electing Holders may
designate, including any fees and disbursements of counsel for the Electing
Holders or underwriters in connection with such qualification and determination,
(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) the reasonable fees, disbursements and
expenses of any "qualified independent underwriter" engaged pursuant to Section
3(d)(xix) hereof, (i) the reasonable 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 Transfer Restricted Securities held by
Electing Holders (which counsel shall be reasonably satisfactory to the
Company), (j) any fees charged by securities rating services for rating the
Securities, and (k) fees, expenses and disbursements of any other persons,
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 Transfer
Restricted Securities or any placement or sales agent therefor or underwriter
thereof, 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 Transfer
Restricted Securities being registered shall pay all agency fees and commissions
and underwriting discounts and commissions attributable to the sale of such
Transfer Restricted 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.
5. Representations and Warranties.
Each of the Company and the Guarantors, jointly and severally,
represents and warrants to, and agrees with, each Purchaser and each of the
holders from time to time of Transfer Restricted Securities that:
17
(a) Each registration statement covering Transfer Restricted
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 Transfer Restricted 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)
during any Suspension Period, or (ii) from (A) such time as a notice
has been given to holders of Transfer Restricted Securities pursuant to
Section 3(d)(viii)(F) or Section 3(c)(iii)(F) hereof until (B) 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, 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 Transfer Restricted
Securities or any placement or sales agent or underwriter 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 Transfer Restricted Securities or any placement or sales
agent or underwriter 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 (i) 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, (ii) will not
result in any violation of the provisions of the certificate of
incorporation, as amended, or the by-laws of the Company or the
Guarantors, (iii) will not result in any violation of 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
18
their properties, and (iv) does not require any consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body for the consummation by the
Company and the Guarantors of 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, except in the case of clauses (i),
(iii) and (iv), for such conflicts, breaches, defaults or violations,
or the absence of such consents, approvals, authorizations, orders,
registrations or qualifications, that would not reasonably be expected
to, individually or in the aggregate, have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(d) This Exchange and Registration Rights Agreement has been
duly authorized, executed and delivered by the Company.
6. Indemnification.
(a) Indemnification by the Company and the Guarantors. Each of
the Company and the Guarantors, jointly and severally, will indemnify
and hold harmless each of the holders of Transfer Restricted Securities
included in an Exchange Offer Registration Statement, each of the
Electing Holders of Transfer Restricted Securities included in a Shelf
Registration Statement and each person who participates as a placement
or sales agent or as an underwriter in any offering or sale of such
Transfer Restricted Securities 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
Offer Registration Statement or Shelf Registration Statement, as the
case may be, under which such Transfer Restricted 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 neither the
Company nor the Guarantors shall 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
Transfer Restricted 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 Transfer Restricted Securities
19
and from each underwriter named in any such underwriting agreement,
severally and not jointly, to (i) indemnify and hold harmless the
Company, the Guarantors, and all other holders of Transfer Restricted
Securities, against any losses, claims, damages or liabilities to which
the Company, the Guarantors or such other holders of Transfer
Restricted 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 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 and the Guarantors for any
legal or other expenses reasonably incurred by the Company and the
Guarantors 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 Transfer Restricted 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 not relieve it from any liability which it may
have to any indemnified party otherwise than under the indemnification
provisions of or contemplated by Section 6(a) or 6(b) hereof. 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 (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying 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. 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
20
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 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 Transfer Restricted 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 Transfer Restricted 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', sales
agents' and placement agents' obligations in this Section 6(d) to
contribute shall be several in proportion to the principal amount of
Transfer Restricted Securities registered or underwritten, as the case
may be, by them and not joint.
(e) The obligations of the Company and the Guarantors under
this Section 6 shall be in addition to any liability which the Company
or the Guarantors 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,
21
upon the same terms and conditions, to each officer and director of the
Company or the Guarantors (including any person who, with his consent,
is named in any registration statement as about to become a director of
the Company or the Guarantors) and to each person, if any, who controls
the Company within the meaning of the Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Transfer
Restricted 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 Transfer
Restricted Securities to be included in such offering, provided that
such designated managing underwriter or underwriters is or are
reasonably acceptable to the Company.
(b) Participation by Holders. Each holder of Transfer
Restricted 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 Transfer Restricted
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.
8. Rule 144.
So long as any Transfer Restricted Securities remain
outstanding, the Company covenants to the holders of Transfer Restricted
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 shall take such further
action as any holder of Transfer Restricted Securities may reasonably request,
all to the extent required from time to time to enable such holder to sell
Transfer Restricted Securities without registration under the Securities Act
within the limitations of the exemption provided by Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or any similar or
successor rule or regulation hereafter adopted by the Commission. Upon the
request of any holder of Transfer Restricted Securities in connection with that
holder's sale pursuant to Rule 144, the Company shall deliver to such holder a
written statement as to whether it has complied with such requirements.
9. Miscellaneous.
(c) No Inconsistent Agreements. The Company represents,
warrants, covenants and agrees that it has not granted, and shall not
grant, registration rights with respect to Transfer Restricted
Securities or any other securities which would be inconsistent with the
terms contained in this Exchange and Registration Rights Agreement.
(d) 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 Transfer Restricted Securities
22
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.
(e) 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 3250 Interstate
Drive, Richfield, Ohio 44286, Attention: Secretary, and if to a holder,
to 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.
(f) 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 Transfer Restricted Securities
and the respective successors and assigns of the parties hereto and
such holders. In the event that any transferee of any holder of
Transfer Restricted Securities shall acquire Transfer Restricted
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 Transfer Restricted Securities shall be held
subject to all of the terms of this Exchange and Registration Rights
Agreement, and by taking and holding such Transfer Restricted
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
Transfer Restricted Securities subject to all of the applicable terms
hereof.
(g) 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 Transfer Restricted 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 Transfer
Restricted Securities pursuant to the Purchase Agreement and the
transfer and registration of Transfer Restricted Securities by such
holder and the consummation of an Exchange Offer.
(h) 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.
(i) Headings. The descriptive headings of the several Sections
and paragraphs of this Exchange and Registration Rights Agreement are
inserted for convenience only, do not
23
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.
(j) 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 Transfer
Restricted Securities at the time outstanding. Each holder of any
Transfer Restricted Securities at the time or thereafter outstanding
shall be bound by any amendment or waiver effected pursuant to this
Section 9(h), whether or not any notice, writing or marking indicating
such amendment or waiver appears on such Transfer Restricted Securities
or is delivered to such holder.
(k) Inspection. For so long as this Exchange and Registration
Rights Agreement shall be in effect, this Exchange and Registration
Rights Agreement and a complete list of the names and addresses of all
the holders of Transfer Restricted Securities shall be made available
for inspection and copying on any business day by any holder of
Transfer Restricted Securities for proper purposes only (which shall
include any purpose related to the rights of the holders of Transfer
Restricted Securities under the Securities, the Indenture and this
Agreement) at the offices of the Company at the address thereof set
forth in Section 9(c) above and at the office of the Trustee under the
Indenture.
(l) 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.
[Remainder of page intentionally left blank]
24
If the foregoing is in accordance with your understanding, please
sign and return to us six (6) 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, the Guarantors 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,
INTERNATIONAL STEEL GROUP INC.
By: /s/ Lonnie A. Arnett
--------------------------------------------------
Name: Lonnie A. Arnett
Title: Vice President, Chief
Accounting Officer and Controller
ISG ACQUISITION INC.
ISG CLEVELAND INC.
ISG CLEVELAND WEST INC.
ISG CLEVELAND WEST PROPERTIES INC.
ISG CLEVELAND WORKS RAILWAY COMPANY
ISG HENNEPIN INC.
ISG INDIANA HARBOR INC.
ISG RIVERDALE INC.
ISG SOUTH CHICAGO & INDIANA HARBOR RAILWAY COMPANY
ISG WARREN INC.
ISG/EGL HOLDING COMPANY
ISG BURNS HARBOR LLC (FKA ISG BURNS HARBOR INC.)
ISG LACKAWANNA LLC (FKA ISG LACKAWANNA INC.)
ISG PIEDMONT LLC (FKA PIEDMONT INC.)
ISG PLATE LLC (FKA ISG PLATE INC.)
ISG RAILWAYS INC
ISG REAL ESTATE INC.
ISG SALES INC.
ISG SPARROWS POINT LLC (FKA ISG SPARROWS POINT INC.)
ISG STEELTON LLC (FKA ISG STEELTON INC.)
ISG STEELTON SERVICES LLC
ISG VENTURE INC.
ISG TECHNOLOGIES INC.
25
ISG HIBBING INC.
HIBBING TACONITE HOLDING INC.
ISG LACKAWANNA SERVICES LLC
ISG SPARROWS POINT SERVICES LLC
ISG PLATE SERVICES LLC
ISG BURNS HARBOR SERVICES LLC
By: /s/ Lonnie A. Arnett
---------------------------------------------------
Name: Lonnie A. Arnett
Title: Vice President and Assistant
Secretary
Accepted as of the date hereof:
Goldman, Sachs & Co.
UBS Securities LLC
Citigroup Global Markets Inc.
J.P. Morgan Securities Inc.
By: /s/ Goldman, Sachs & Co.
------------------------------
(Goldman, Sachs & Co.)
26
EXHIBIT A
INTERNATIONAL STEEL GROUP INC.
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE] *
The Depository Trust Company ("DTC") has identified you as a DTC Participant
through which beneficial interests in the International Steel Group Inc. (the
"Company") 6.500% Senior Notes due 2014 (the "Securities") are held.
The Company is in the process of registering the Securities under the Securities
Act of 1933 for resale by the beneficial owners thereof. In order to have their
Securities included in the registration statement, beneficial owners must
complete and return the enclosed Notice of Registration Statement and Selling
Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy of the
enclosed materials as soon as possible as their rights to have the Securities
included in the registration statement depend upon their returning the Notice
and Questionnaire by [Deadline For Response]. Please forward a copy of the
enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact International Steel
Group Inc., International Steel Group, Inc., 3250 Interstate Drive, Richfield,
Ohio 44286, (330) 659-9100, Attention: [Investor Relations].
- --------
*Not less than 15 calendar days from date of mailing.
A-1
International Steel Group Inc.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Exchange and Registration Rights Agreement (the
"Exchange and Registration Rights Agreement") between International Steel Group
Inc. (the "Company"), the Guarantors named therein and the Purchasers named
therein. Pursuant to the Exchange and Registration Rights Agreement, the Company
has filed with the United States Securities and Exchange Commission (the
"Commission") a registration statement on Form S-4 (the "Shelf Registration
Statement") for the registration and resale under Rule 415 of the Securities Act
of 1933, as amended (the "Securities Act"), of the Company's 6.500% Senior Notes
due 2014 (the "Securities"). A copy of the Exchange and Registration Rights
Agreement is attached hereto. All capitalized terms not otherwise defined herein
shall have the meanings ascribed thereto in the Exchange and Registration Rights
Agreement.
Each beneficial owner of Transfer Restricted Securities (as defined below) is
entitled to have the Transfer Restricted Securities beneficially owned by it
included in the Shelf Registration Statement. In order to have Transfer
Restricted Securities included in the Shelf Registration Statement, this Notice
of Registration Statement and Selling Securityholder Questionnaire ("Notice and
Questionnaire") must be completed, executed and delivered to the Company's
counsel at the address set forth herein for receipt ON OR BEFORE [Deadline for
Response]. Beneficial owners of Transfer Restricted Securities who do not
complete, execute and return this Notice and Questionnaire by such date (i) will
not be named as selling securityholders in the Shelf Registration Statement and
(ii) may not use the Prospectus forming a part thereof for resales of Transfer
Restricted Securities.
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and related Prospectus. Accordingly, holders
and beneficial owners of Transfer Restricted Securities are advised to consult
their own securities law counsel regarding the consequences of being named or
not being named as a selling securityholder in the Shelf Registration Statement
and related Prospectus.
The term "Transfer Restricted Securities" is defined in the Exchange and
Registration Rights Agreement.
A-2
ELECTION
The undersigned holder (the "Selling Securityholder") of Transfer Restricted
Securities hereby elects to include in the Shelf Registration Statement the
Transfer Restricted Securities beneficially owned by it and listed below in Item
(3). The undersigned, by signing and returning this Notice and Questionnaire,
agrees to be bound with respect to such Transfer Restricted Securities by the
terms and conditions of this Notice and Questionnaire and the Exchange and
Registration Rights Agreement, including, without limitation, Section 6 of the
Exchange and Registration Rights Agreement, as if the undersigned Selling
Securityholder were an original party thereto.
Upon any sale of Transfer Restricted Securities pursuant to the Shelf
Registration Statement, the Selling Securityholder will be required to deliver
to the Company and Trustee the Notice of Transfer set forth in Appendix A to the
Prospectus and as Exhibit B to the Exchange and Registration Rights Agreement.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
A-3
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
(b) Full Legal Name of Registered Holder (if not the same as in
(a) above) of Transfer Restricted Securities Listed in Item
(3) below:
(c) Full Legal Name of DTC Participant (if applicable and if not
the same as (b) above) Through Which Transfer Restricted
Securities Listed in Item (3) below are Held:
(2) Address for Notices to Selling Securityholder:
_______________________
_______________________
_______________________
Telephone: _____________________________________________
Fax: _____________________________________________
Contact Person: _____________________________________________
(3) Is the Selling Securityholder a broker-dealer?
Yes [ ] No [ ]
(4) Is the Selling Securityholder an affiliate of a broker-dealer?
Yes [ ] No [ ]
(5) If the Selling Securityholder is an affiliate of a
broker-dealer, will the Selling Securityholder certify that
the Transfer Restricted Securities were bought in the ordinary
course of business, and at the time of the purchase of the
Transfer Restricted Securities to be resold, no agreements or
understandings, directly or indirectly, with any person to
distribute the Transfer Restricted Securities existed?
Yes [ ] No [ ]
(6) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned
does not beneficially own any Securities.
(a) Principal amount of Transfer Restricted Securities
beneficially owned: _____________
CUSIP No(s). of such Transfer Restricted Securities: _________
A-4
(b) Principal amount of Securities other than Transfer Restricted
Securities beneficially owned:
______________________________________________________________
CUSIP No(s). of such other Securities: _______________________
(c) Principal amount of Transfer Restricted Securities which the
undersigned wishes to be included in the Shelf Registration
Statement:____________________________________________________
CUSIP No(s). of such Transfer Restricted Securities to be
included in the Shelf Registration Statement: ________________
(7) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned
Selling Securityholder is not the beneficial or registered
owner of any other securities of the Company, other than the
Securities listed above in Item (3).
State any exceptions here:
(8) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder
nor any of its affiliates, officers, directors or principal
equity holders (5% or more) has held any position or office or
has had any other material relationship with the Company (or
its predecessors or affiliates) during the past three years.
State any exceptions here:
(9) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Transfer Restricted Securities listed above in Item
(3) only as follows (if at all): Such Transfer Restricted Securities may be sold
from time to time directly by the undersigned Selling Securityholder or,
alternatively, through underwriters, broker-dealers or agents. Such Transfer
Restricted Securities may be sold in one or more transactions at fixed prices,
at prevailing market prices at the time of sale, at varying prices determined at
the time of sale, or at negotiated prices. Such sales may be effected in
transactions (which may involve crosses or block transactions) (i) on any
national securities exchange or quotation service on which the Registered
Securities may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such exchanges
or services or in the over-the-counter market, or (iv) through the writing of
options. In connection with sales of the Transfer Restricted Securities or
otherwise, the Selling Securityholder may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the Transfer
Restricted Securities in the course of hedging the positions they assume. The
Selling Securityholder may also sell Transfer Restricted Securities short and
deliver Transfer Restricted
A-5
Securities to close out such short positions, or loan or pledge Transfer
Restricted Securities to broker-dealers that in turn may sell such securities.
A-6
EXHIBIT A-1
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
In the event that the Selling Securityholder transfers all or any portion of the
Transfer Restricted Securities listed in Item (3) above after the date on which
such information is provided to the Company, the Selling Securityholder agrees
to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section 3(d) of
the Exchange and Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Securityholder agrees to promptly notify the Company of any inaccuracies
or changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Exchange and Registration
Rights Agreement shall be made in writing, by hand-delivery, first-class mail,
or air courier guaranteeing overnight delivery as follows:
(i) To the Company:
International Steel Group Inc.
3250 Interstate Drive,
Richfield, Ohio 44286
(ii) With a copy to:
_______________________
_______________________
_______________________
_______________________
_______________________
A-7
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Company and the
Selling Securityholder (with respect to the Transfer Restricted Securities
beneficially owned by such Selling Securityholder and listed in Item (3) above.
This Agreement shall be governed in all respects by the laws of the State of New
York.
[Remainder of page intentionally left blank]
A-8
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated: _____________________
______________________________________________________________
Selling Securityholder
(Print/type full legal name of beneficial owner of Transfer
Restricted Securities)
By: __________________________________________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
_______________________
_______________________
_______________________
_______________________
_______________________
A-9
EXHIBIT B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
The Bank of New York
International Steel Group Inc.
c/o The Bank of New York
Corporate Trust Administration
101 Barclay Street, Floor 8W
New York, NY 10286
Attention: Trust Officer
Re: International Steel Group Inc. (the "Company")
6.500% Senior Notes due 2014
Dear Sirs:
Please be advised that __________________ has transferred $ ___________________
aggregate principal amount of the above-referenced Notes pursuant to an
effective Registration Statement on Form S__ (File No. 333- ____________ ) filed
by the Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Notes is named as a "Selling Holder" in the Prospectus
dated [date] or in supplements thereto, and that the aggregate principal amount
of the Notes transferred are the Notes listed in such Prospectus opposite such
owner's name.
Dated:
Very truly yours,
_______________________________
(Name)
By: ______________________________
(Authorized Signature)
B-1