Exhibit 4.2
NOVELIS INC.
7-1/4% SENIOR NOTES DUE 2015
REGISTRATION RIGHTS AGREEMENT
February 3, 2005
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
UBS Securities LLC
677 Washington Boulevard
Stamford, Connecticut 06901
As Representatives of the Initial Purchasers
Ladies and Gentlemen:
Novelis Inc., a corporation organized under the laws of Canada (the
"COMPANY"), proposes to issue and sell to certain purchasers (the "INITIAL
PURCHASERS"), for whom you (the "REPRESENTATIVES") are acting as
representatives, $1,400,000,000 aggregate principal amount of its 7-1/4% Senior
Notes due 2015 (the "NOTES"), upon the terms and conditions set forth in a
Purchase Agreement, dated January 28, 2005, by and among the Company, the
Guarantors (as defined below) and the Initial Purchasers (the "PURCHASE
AGREEMENT") relating to the initial placement of the Notes (the "INITIAL
PLACEMENT"). The Notes will be unconditionally guaranteed (the "GUARANTEES" and,
together with the Notes, the "SECURITIES") on an unsecured senior basis by the
entities set forth on Schedule 1 hereto (collectively, the "GUARANTORS"). To
induce the Initial Purchasers to enter into the Purchase Agreement and to
satisfy a condition to your obligations thereunder, the Company and the
Guarantors agree with you for your benefit and the benefit of the holders from
time to time of the Securities (including the Initial Purchasers) (each a
"HOLDER" and, collectively, the "HOLDERS"), as follows:
1. Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized defined terms shall have the following
meanings:
"AFFILIATE" shall have the meaning specified in Rule 405 under the
Securities Act and the terms "controlling" and "controlled" shall have meanings
correlative thereto.
"BROKER-DEALER" shall mean any broker or dealer registered as such under
the Exchange Act.
"BUSINESS DAY" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City or the City of
Montreal.
"CLOSING DATE" shall mean the date of the first issuance of the
Securities.
"COMMISSION" shall mean the Securities and Exchange Commission.
"DEFERRAL PERIOD" shall have the meaning indicated in Section 4(k)(ii)
hereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"EXCHANGE OFFER REGISTRATION PERIOD" shall mean the one year period
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement, or such shorter
period as will terminate when (i) all of the New Securities covered by the
Exchange Offer Registration Statement have been distributed pursuant thereto and
(ii) an Exchanging Dealer is no longer required to deliver a prospectus in
connection with sales of the New Securities.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean a registration
statement of the Company and the Guarantors on an appropriate form under the
Securities Act with respect to the Registered Exchange Offer, all amendments and
supplements to such registration statement, including post-effective amendments
thereto, in each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"EXCHANGING DEALER" shall mean any Holder (which may include any Initial
Purchaser) that is a Broker-Dealer and elects to exchange for New Securities any
Securities that it acquired for its own account as a result of market-making
activities or other trading activities (but not directly from the Company or any
Affiliate of the Company) for New Securities.
"FINAL MEMORANDUM" shall mean the offering memorandum, dated January 28,
2005 relating to the Securities, including any and all exhibits thereto and any
information incorporated by reference therein as of such date.
"HOLDER" shall have the meaning set forth in the preamble hereto.
"INDENTURE" shall mean the Indenture relating to the Securities, dated as
of January [ ], 2005, between the Company, the Guarantors and The Bank of New
York Trust Company, N.A, as trustee, as the same may be amended from time to
time in accordance with the terms thereof.
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"INITIAL PLACEMENT" shall have the meaning set forth in the preamble
hereto.
"INITIAL PURCHASER" shall have the meaning set forth in the preamble
hereto.
"LOSSES" shall have the meaning set forth in Section 6(d) hereof.
"MAJORITY HOLDERS" shall mean, on any date, Holders of a majority of the
aggregate principal amount of Securities registered under a Registration
Statement.
"MANAGING UNDERWRITERS" shall mean the investment banker or investment
bankers and manager or managers that administer an underwritten offering, if
any, under a Registration Statement.
"NASD RULES" shall mean the Conduct Rules and the By-Laws of the National
Association of Securities Dealers, Inc.
"NEW SECURITIES" shall mean debt securities of the Company and the
Guarantors evidencing the same continuing indebtedness as the Securities and
identical in all material respects to the Securities (except that the transfer
restrictions shall be modified or eliminated, as appropriate) to be issued under
the New Securities Indenture.
"NEW SECURITIES INDENTURE" shall mean an indenture between the Company,
the Guarantors and the New Securities Trustee, identical in all material
respects to the Indenture (except that the transfer restrictions shall be
modified or eliminated, as appropriate), which may be the Indenture if in the
terms thereof appropriate provision is made for the New Securities.
"NEW SECURITIES TRUSTEE" shall mean a bank or trust company reasonably
satisfactory to the Initial Purchasers, as trustee with respect to the New
Securities under the New Securities Indenture.
"PROSPECTUS" shall mean the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Securities or the New Securities covered
by such Registration Statement, and all amendments and supplements thereto,
including any and all exhibits thereto and any information incorporated by
reference therein.
"PURCHASE AGREEMENT" shall have the meaning set forth in the preamble
hereto.
"REGISTERED EXCHANGE OFFER" shall mean the proposed offer of the Company
and the Guarantors to issue and deliver to the Holders of the Securities that
are not prohibited by any law or policy of the Commission from participating in
such offer, in exchange for the Securities, a like aggregate principal amount of
the New Securities evidencing the same continuing indebtedness.
"REGISTRABLE SECURITIES" shall mean (i) Securities other than those that
have been (A) registered under a Registration Statement and disposed of in
accordance therewith or (B)
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distributed to the public pursuant to Rule 144 under the Securities Act or any
successor rule or regulation thereto that may be adopted by the Commission and
(ii) any New Securities resale of which by the Holder thereof requires
compliance with the prospectus delivery requirements of the Securities Act.
"REGISTRATION DEFAULT" shall have the meaning set forth in Section 8
hereto.
"REGISTRATION STATEMENT" shall mean any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Securities or
the New Securities pursuant to the provisions of this Agreement, any amendments
and supplements to such registration statement, including post-effective
amendments (in each case including the Prospectus contained therein), all
exhibits thereto and all material incorporated by reference therein.
"SECURITIES" shall have the meaning set forth in the preamble hereto.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"SHELF REGISTRATION" shall mean a registration effected pursuant to
Section 3 hereof.
"SHELF REGISTRATION PERIOD" has the meaning set forth in Section 3(b)
hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf" registration statement
of the Company and the Guarantors pursuant to the provisions of Section 3 hereof
which covers some or all of the Securities or New Securities, as applicable, on
an appropriate form under Rule 415 under the Securities Act, or any similar rule
that may be adopted by the Commission, amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"SPECIAL INTEREST" shall have the meaning set forth in Section 8 hereof.
"TRUSTEE" shall mean the trustee with respect to the Securities under the
Indenture.
"TRUST INDENTURE ACT" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"UNDERWRITER" shall mean any underwriter of Securities in connection with
an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer. (a) Unless the Company and the Guarantors
determine, upon the advice of counsel, that they are not permitted to effect a
Registered Exchange Offer due to any change in law or applicable interpretations
thereof by the Commission or its staff, the Company and the Guarantors shall
prepare, at their cost, and, not later than 180 days following the Closing Date,
and shall file with the Commission the Exchange Offer Registration Statement
with respect to the Registered Exchange Offer. The Company and
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the Guarantors shall use their respective reasonable best efforts to cause the
Exchange Offer Registration Statement to become effective under the Securities
Act not later than 270 days of the Closing Date.
(b) Upon the effectiveness of the Exchange Offer Registration Statement,
the Company and the Guarantors shall as promptly as practicable commence the
Registered Exchange Offer, it being the objective of such Registered Exchange
Offer to enable each Holder electing to exchange Securities for New Securities
(assuming that such Holder is (i) not an Affiliate of the Company, (ii) acquires
the New Securities in the ordinary course of such Holder's business, (iii) has
no arrangements or understandings with any person to participate in the
distribution of the New Securities, (iv) is not an Initial Purchaser holding the
Securities that have the status of an unsold allotment remaining from an initial
distribution of the Securities and (v) is not otherwise prohibited by any law or
policy of the Commission from participating in the Registered Exchange Offer) to
trade such New Securities from and after their receipt without any limitations
or restrictions under the Securities Act and without material restrictions under
the securities laws of a substantial proportion of the several states of the
United States, provided, that Broker-Dealers receiving New Securities in the
Registered Exchange Offer will have a prospectus delivery requirement with
respect to resales of such New Securities. Notwithstanding anything contained
herein, the Company and the Guarantors shall not be required to make a
Registered Exchange Offer in any province or territory of Canada or to accept
Securities surrendered by residents of Canada in the Registered Exchange Offer
unless the distribution of New Securities pursuant to such offer can be effected
pursuant to exemptions from the registration and prospectus requirements of the
applicable securities laws of such province or territory and, as a condition to
the sale of their Securities pursuant to a Registered Exchange Offer, such
Holders of Securities in Canada will be required to make certain representations
to the Company, including a representation that they are entitled under the
applicable securities laws of such province or territory to acquire the New
Securities without the benefit of a prospectus qualified under such securities
laws.
(c) In connection with the Registered Exchange Offer, the Company and
the Guarantors shall:
(i) mail, or cause to be mailed, to each Holder a copy of the
Prospectus forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and related documents,
and in the case of Holders in Canada, any "wrapped" version thereof used
in connection with the private placement of the New Securities;
(ii) keep the Registered Exchange Offer open for not less than 30
days and not more than 45 days after the date notice thereof is mailed to
the Holders (or, in each case, longer if required by applicable law);
(iii) use their respective reasonable best efforts to keep the
Exchange Offer Registration Statement continuously effective under the
Securities Act, supplemented and amended as required, under the Securities
Act to ensure that it is available for sales of New Securities by
Exchanging Dealers during the Exchange Offer Registration Period;
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(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan in New York
City, which may be the Depository Trust Company, Trustee, the New
Securities Trustee or an Affiliate of any of them;
(v) permit Holders to withdraw tendered Securities at any time
prior to 5:00 p.m., New York time, on the last Business Day on which the
Registered Exchange Offer is open;
(vi) prior to effectiveness of the Exchange Offer Registration
Statement, provide a supplemental letter to the Commission (A) stating
that the Company and the Guarantors are conducting the Registered Exchange
Offer in reliance on the position of the Commission in Exxon Capital
Holdings Corporation (pub. avail. May 13, 1988), Morgan Stanley and Co.,
Inc. (pub. avail. June 5, 1991), as interpreted by Shearman & Sterling
(dated July 2, 1993); and (B) including a representation that the Company
and the Guarantors have not entered into any arrangement or understanding
with any person to distribute the New Securities to be received in the
Registered Exchange Offer and that, to the best of the Company's and the
Guarantors' information and belief, each Holder participating in the
Registered Exchange Offer is acquiring the New Securities in the ordinary
course of business and has no arrangement or understanding with any person
to participate in the distribution of the New Securities; and
(vii) comply in all respects with all laws applicable to the
Registered Exchange Offer.
(d) As soon as reasonably practicable after the close of the Registered
Exchange Offer, the Company and the Guarantors shall:
(i) accept for exchange all Securities tendered and not validly
withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation in accordance with
Section 4(r) all Securities so accepted for exchange; and
(iii) cause the New Securities Trustee promptly to authenticate and
deliver to each Holder of Securities a principal amount of New Securities
equal to the principal amount of the Securities of such Holder so accepted
for exchange.
(e) Each Holder hereby acknowledges and agrees that any Broker-Dealer
and any such Holder using the Registered Exchange Offer to participate in a
distribution of the New Securities (x) can not under Commission policy as in
effect on the date of this Agreement rely on the position of the Commission in
Exxon Capital Holdings Corporation (pub. avail. May 13, 1988) and Morgan Stanley
and Co., Inc. (pub. avail. June 5, 1991), as interpreted in the Commission's
letter to Shearman & Sterling dated July 2, 1993 and similar no-action letters;
and (y) must comply with the registration and prospectus delivery requirements
of the Securities Act in connection with any secondary resale transaction, which
must be covered by an effective registration statement containing the selling
security holder information required by Item 507 or
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508, as applicable, of Regulation S-K or any successor provisions under the
Securities Act if the resales are of New Securities obtained by such Holder in
exchange for Securities acquired by such Holder directly from the Company, the
Guarantors or one of its or their Affiliates. Accordingly, each Holder
participating in the Registered Exchange Offer shall be required to represent to
the Company and the Guarantors that, at the time of the consummation of the
Registered Exchange Offer:
(i) any New Securities received by such Holder will be acquired in
the ordinary course of business;
(ii) such Holder is not engaged in and does not intend to engage
in, and shall have no arrangement or understanding with any person to
participate in the distribution of the Securities or the New Securities
within the meaning of the Securities Act;
(iii) such Holder is not an Affiliate of the Company or any
Guarantor; and
(iv) if such Holder is an Exchanging Dealer, then such Holder will
deliver a Prospectus in connection with a sale of any Securities received
by such Holder pursuant to the Registered Exchange Offer.
(f) If any Initial Purchaser determines that it is not eligible to
sparticipate in the Registered Exchange Offer with respect to the exchange of
Securities constituting any portion of an unsold allotment, at the written
request of such Initial Purchaser, the Company and the Guarantors shall issue
and deliver to such Initial Purchaser or the person purchasing New Securities
registered under a Shelf Registration Statement as contemplated by Section 3
hereof from such Initial Purchaser, in exchange for such Securities, a like
principal amount of New Securities. The Company and the Guarantors shall use
their respective reasonable best efforts to cause the CUSIP Service Bureau to
issue the same CUSIP number for such New Securities as for New Securities issued
pursuant to the Registered Exchange Offer.
3. Shelf Registration. (a) If (i) due to any change in law or
applicable interpretations thereof by the Commission or its staff, the Company
and the Guarantors determine upon advice of their outside counsel that they are
not permitted to effect the Registered Exchange Offer as contemplated by Section
2 hereof; (ii) for any other reason the Exchange Offer Registration Statement is
not declared effective within 270 days after the Closing Date or the Registered
Exchange Offer is not consummated within 45 days of the date the Commission
first declared the Exchange Offer Registration Statement effective; (iii) any
Initial Purchaser so requests with respect to Securities that are not eligible
to be exchanged for New Securities in the Registered Exchange Offer and that are
held by it following consummation of the Registered Exchange Offer; (iv) any
Holder (other than an Initial Purchaser) is not eligible to participate in the
Registered Exchange Offer or does not receive freely tradeable New Securities in
the Registered Exchange Offer other than by reason of such Holder being an
affiliate of the Company (it being understood that the requirement that a
Participating Broker-Dealer deliver the prospectus contained in the Exchange
Offer Registration Statement in connection with sales of New Securities shall
not result in such New Securities being not "freely
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tradeable"); or (v) in the case of any Initial Purchaser that participates in
the Registered Exchange Offer or acquires New Securities pursuant to Section
2(f) hereof, such Initial Purchaser does not receive freely tradeable New
Securities in exchange for Securities constituting any portion of an unsold
allotment (it being understood that (x) the requirement that an Initial
Purchaser deliver a Prospectus containing the information required by Item 507
or 508 of Regulation S-K under the Securities Act in connection with sales of
New Securities acquired in exchange for such Securities shall result in such New
Securities being not "freely tradeable"; and (y) the requirement that an
Exchanging Dealer deliver a Prospectus in connection with sales of New
Securities acquired in the Registered Exchange Offer in exchange for Securities
acquired as a result of market-making activities or other trading activities
shall not result in such New Securities being not "freely tradeable"), the
Company and the Guarantors shall effect, at their cost, a Shelf Registration
Statement in accordance with subsection (b) below.
(b) (i) The Company and the Guarantors shall as promptly as
practicable (but in no event more than 180 days after so required or requested
pursuant to this Section 3), file with the Commission and shall use their
respective reasonable best efforts to cause to be declared effective under the
Securities Act within 270 days after so required or requested, a Shelf
Registration Statement relating to the offer and sale of the Securities or the
New Securities, as applicable, by the Holders thereof from time to time in
accordance with the methods of distribution elected by such Holders and set
forth in such Shelf Registration Statement; provided, however, that no Holder
(other than an Initial Purchaser) shall be entitled to have the Securities held
by it covered by such Shelf Registration Statement unless such Holder agrees in
writing to be bound by all of the provisions of this Agreement applicable to
such Holder; and provided further, that with respect to New Securities received
by an Initial Purchaser in exchange for Securities constituting any portion of
an unsold allotment, the Company and the Guarantors may, if permitted by current
interpretations by the Commission's staff, file a post-effective amendment to
the Exchange Offer Registration Statement containing the information required by
Item 507 or 508 of Regulation S-K, as applicable, in satisfaction of their
obligations under this subsection with respect thereto, and any such Exchange
Offer Registration Statement, as so amended, shall be referred to herein as, and
governed by the provisions herein applicable to, a Shelf Registration Statement.
(ii) The Company and the Guarantors shall use their respective
reasonable best efforts to keep the Shelf Registration Statement continuously
effective, supplemented and amended as required by the Securities Act, in order
to permit the Prospectus forming part thereof to be usable by Holders for a
period (the "SHELF REGISTRATION PERIOD") from the date the Shelf Registration
Statement is declared effective by the Commission until (A) the second
anniversary thereof, (B) the date upon which all the Securities or New
Securities, as applicable, covered by the Shelf Registration Statement have been
sold or distributed pursuant to the Shelf Registration Statement or (C) the date
upon which the Securities or New Securities , as applicable, covered by the
Shelf Registration Statement become eligible for resale, without regard to
volume, manner of sale or other restrictions contained in Rule 144 under the
Securities Act pursuant to paragraph (k) thereof. The Company and the Guarantors
shall be deemed not to have used their respective reasonable best efforts to
keep the Shelf Registration Statement effective during the Shelf Registration
Period if they voluntarily take any action that would result in Holders of
Securities covered thereby not being able to offer and sell such Securities at
any time during the Shelf Registration Period, unless such action is (x)
required by applicable law or otherwise undertaken
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by the Company in good faith and for valid business reasons (not including
avoidance of the Company's obligations hereunder), including the acquisition or
divestiture of assets, and (y) permitted pursuant to Section 4(k)(ii) hereof.
(iii) The Company and the Guarantors shall cause the Shelf
Registration Statement and the related Prospectus and any amendment or
supplement thereto, as of the effective date of the Shelf Registration Statement
or such amendment or supplement, (A) to comply in all material respects with the
applicable requirements of the Securities Act; and (B) not to contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein (in the case
of the Prospectus, in the light of the circumstances under which they were made)
not misleading.
4. Additional Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply.
(a) The Company and the Guarantors shall:
(i) furnish to each of the Representatives and to counsel for the
Holders, not less than three Business Days prior to the filing thereof
with the Commission, a copy of any Exchange Offer Registration Statement
and any Shelf Registration Statement, and each amendment thereof and each
amendment or supplement, if any, to the Prospectus included therein
(including all documents incorporated by reference therein after the
initial filing) and shall use their reasonable best efforts to reflect in
each such document, when so filed with the Commission, such comments as
the Representatives reasonably propose;
(ii) include the information set forth in Annex A hereto on the
facing page of the Exchange Offer Registration Statement, in Annex B
hereto in the forepart of the Exchange Offer Registration Statement in a
section setting forth details of the Exchange Offer, in Annex C hereto in
the underwriting or plan of distribution section of the Prospectus
contained in the Exchange Offer Registration Statement, and in Annex D
hereto in the letter of transmittal delivered pursuant to the Registered
Exchange Offer;
(iii) if requested by an Initial Purchaser, include the information
required by Item 507 or 508 of Regulation S-K, as applicable, in the
Prospectus contained in the Exchange Offer Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include the
names of the Holders that propose to sell Securities pursuant to the Shelf
Registration Statement as selling security holders.
(b) The Company and the Guarantors shall ensure that:
(i) any Registration Statement and any amendment thereto and any
Prospectus forming part thereof and any amendment or supplement thereto
complies in all material respects with the Securities Act; and
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(ii) any Registration Statement and any amendment thereto does not,
when it becomes effective, 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.
(c) The Company shall advise the Representatives, the Holders of
Securities covered by any Shelf Registration Statement and any Exchanging Dealer
under any Exchange Offer Registration Statement that has provided in writing to
the Company and the Guarantors a telephone or facsimile number and address for
notices, and, if requested by any Representative or any such Holder or
Exchanging Dealer, shall confirm such advice in writing (which notice pursuant
to clauses (ii)-(v) hereof shall be accompanied by an instruction to suspend the
use of the Prospectus until the Company and the Guarantors shall have remedied
the basis for such suspension):
(i) when a Registration Statement and any amendment thereto has
been filed with the Commission and when the Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for
additional information;
(iii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose;
(iv) of the receipt by the Company or the Guarantors of any
notification with respect to the suspension of the qualification of the
securities included therein for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires any change in the
Registration Statement or the Prospectus so that, as of such date, they
(A) do not contain any untrue statement of a material fact and (B) do not
omit to state a material fact required to be stated therein or necessary
to make the statements therein (in the case of the Prospectus, in the
light of the circumstances under which they were made) not misleading.
(d) The Company and the Guarantors shall use their respective reasonable
best efforts to prevent the issuance of any order suspending the effectiveness
of any Registration Statement and, if issued, to obtain as soon as possible the
withdrawal thereof.
(e) The Company shall furnish to each Holder of Securities covered by
any Shelf Registration Statement, without charge, at least one copy of such
Shelf Registration Statement and any post-effective amendment thereto, including
all material incorporated therein by reference, and, if the Holder so requests
in writing, all exhibits thereto (including exhibits incorporated by reference
therein). Such materials may be furnished by the Company in electronic format.
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(f) The Company shall, during the Shelf Registration Period, deliver to
each Holder of Securities covered by any Shelf Registration Statement, without
charge, as many copies of the Prospectus (including the Preliminary Prospectus)
included in such Shelf Registration Statement and any amendment or supplement
thereto as such Holder may reasonably request. The Company and the Guarantors
consent to the use of the Prospectus or any amendment or supplement thereto by
each of the selling Holders of Securities in connection with the offering and
sale of the Securities covered by the Prospectus, or any amendment or supplement
thereto, included in the Shelf Registration Statement.
(g) The Company shall furnish to each Exchanging Dealer which so
requests, without charge, at least one copy of the Exchange Offer Registration
Statement and any post-effective amendment thereto, including all material
incorporated by reference therein, and, if the Exchanging Dealer so requests in
writing, all exhibits thereto (including exhibits incorporated by reference
therein).
(h) The Company and the Guarantors shall as promptly as reasonably
practicable deliver to each Initial Purchaser, each Exchanging Dealer and each
other person required to deliver a Prospectus during the Exchange Offer
Registration Period, without charge, as many copies of the Prospectus included
in such Exchange Offer Registration Statement and any amendment or supplement
thereto as any such person may reasonably request. The Company and the
Guarantors consent to the use of the Prospectus or any amendment or supplement
thereto by any Initial Purchaser, any Exchanging Dealer and any such other
person that may be required to deliver a Prospectus following the Registered
Exchange Offer in connection with the offering and sale of the New Securities
covered by the Prospectus, or any amendment or supplement thereto, included in
the Exchange Offer Registration Statement.
(i) Prior to the Registered Exchange Offer or any other offering of
Securities pursuant to any Registration Statement, the Company and the
Guarantors shall arrange, if necessary, for the qualification of the Securities
or the New Securities for sale under the laws of such jurisdictions as any
Holder shall reasonably request and shall maintain such qualification in effect
so long as required; provided that in no event shall the Company and the
Guarantors be obligated to qualify to do business in any jurisdiction where they
are not then so qualified or to take any action that would subject them to
service of process in suits, other than those arising out of the Initial
Placement, the Registered Exchange Offer or any offering pursuant to a Shelf
Registration Statement, in any such jurisdiction where they are not then so
subject or to subject itself to taxation in respect of doing business in any
jurisdiction.
(j) The Company and the Guarantors shall cooperate with the Holders of
Securities to facilitate the timely preparation and delivery of certificates
representing New Securities or Securities to be issued or sold pursuant to any
Registration Statement free of any restrictive legends and in such denominations
and registered in such names as Holders may request in writing at least three
(3) Business Days prior to the closing date of any sales of New Securities.
(k) (i) Upon the occurrence of any event contemplated by subsections
(c)(ii) through (v) above, the Company and the Guarantors shall promptly (or
within the time period provided for by clause (ii) hereof, if applicable)
prepare a post-effective amendment to the
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applicable Registration Statement or an amendment or supplement to the related
Prospectus or file any other required document so that, as thereafter delivered
to Initial Purchasers of the securities included therein, the Prospectus will
not include an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading. In
such circumstances, the period of effectiveness of the Exchange Offer
Registration Statement provided for in Section 2 shall be extended by the number
of days from and including the date of the giving of a notice of suspension
pursuant to Section 4(c) to and including the date when the Initial Purchasers,
the Holders of the Securities and any known Exchanging Dealer shall have
received such amended or supplemented Prospectus pursuant to this Section.
(ii) Upon the occurrence or existence of any pending corporate
development or any other material event that, in the reasonable judgment
of the Company, makes it appropriate to suspend the availability of a
Shelf Registration Statement and the related Prospectus, the Company and
the Guarantors shall give notice (without notice of the nature or details
of such events) to the Holders that the availability of the Shelf
Registration is suspended and, upon actual receipt of any such notice,
each Holder agrees not to sell any Registrable Securities pursuant to the
Shelf Registration until such Holder's receipt of copies of the
supplemented or amended Prospectus provided for in Section 4(a)(i) hereof,
or until it is advised in writing by the Company and the Guarantors that
the Prospectus may be used, and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by
reference in such Prospectus. The period during which the availability of
the Shelf Registration and any Prospectus is suspended (the "DEFERRAL
PERIOD") shall not exceed 60 days in any three-month period or 120 days in
any twelve-month period.
(l) Not later than the effective date of any Registration Statement, the
Company and the Guarantors shall provide a CUSIP number for the Securities or
the New Securities, as the case may be, registered under such Registration
Statement and provide the Trustee with printed certificates for such Securities
or New Securities, in a form eligible for deposit with The Depository Trust
Company.
(m) The Company and the Guarantors shall comply with all applicable
rules and regulations of the Commission and shall make generally available to
their security holders an earnings statement satisfying the provisions of
Section 11(a) of the Securities Act as soon as practicable after the effective
date of the applicable Registration Statement and in any event no later than 45
days after the end of a 12-month period (or 90 days, if such period is a fiscal
year) beginning with the first month of the Company's first fiscal quarter
commencing after the effective date of the applicable Registration Statement.
(n) The Company and the Guarantors shall cause the New Securities
Indenture to be qualified under the Trust Indenture Act as required by
applicable law in a reasonably timely manner.
12
(o) The Company and the Guarantors may require each Holder of securities
to be sold pursuant to any Shelf Registration Statement to furnish to the
Company and the Guarantors such information regarding the Holder and the
distribution of such securities as the Company and the Guarantors may from time
to time reasonably require for inclusion in such Registration Statement. The
Company and the Guarantors may exclude from such Shelf Registration Statement
the Securities of any Holder that unreasonably fails to furnish such information
within a reasonable time after receiving such request.
(p) In the case of any Shelf Registration Statement, upon the written
request of the Majority Holders, the Company and the Guarantors shall enter into
customary agreements (including, if requested, an underwriting agreement in
customary form) and take all other appropriate actions, if any, as the Majority
Holders shall reasonably request, in order to expedite or facilitate the
registration or the disposition of the Securities, and in connection therewith,
if an underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those set forth
in Section 6 hereof.
(q) In the case of any Shelf Registration Statement, the Company shall:
(i) make all relevant financial and other records and pertinent
corporate documents of the Company and its subsidiaries reasonably
available for inspection at a location where such records and documents
are normally kept and during normal business hours by the Majority Holders
of Securities to be registered thereunder, any underwriter participating
in any disposition pursuant to such Registration Statement, and any
attorney, accountant or other agent retained by the Majority Holders or
any such underwriter;
(ii) use its commercially reasonable best efforts to cause the
Company's and each of the Guarantors' officers, directors, employees,
accountants and auditors to supply all relevant information reasonably
requested by the Holders or any such underwriter, attorney, accountant or
agent (each, an "INSPECTOR") in connection with any such Registration
Statement as is customary for similar due diligence examinations;
provided, however, that such Inspector shall first agree in writing with
the Company and each of the Guarantors that any information that is
reasonably designated by the Company or any Guarantor as confidential at
the time of delivery of such information shall be kept confidential by
such Inspector, unless (1) disclosure of such information is required by a
court or administrative order or is necessary to respond to inquiries of
regulatory authorities, (2) disclosure of such information is required by
law (including any disclosure requirements pursuant to federal securities
laws in connection with the filing of such Registration Statement or of
any Prospectus) or (3) such information becomes generally available to the
public other than as a result of an unauthorized disclosure or failure to
safeguard such information by such Inspector.
(iii) make such representations and warranties to the Holders of
Securities registered thereunder and the underwriters, if any, in form,
substance
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and scope as are customarily made by issuers to underwriters in primary
underwritten offerings;
(iv) obtain opinions of counsel to the Company and the Guarantors
and updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the Managing Underwriters,
if any) addressed to each selling Holder and the underwriters, if any,
covering such matters as are customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably
requested by such Holders and underwriters;
(v) obtain "comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company for
which financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to each selling Holder
of Securities registered thereunder and the underwriters, if any, in
customary form and covering matters of the type customarily covered in
"comfort" letters in connection with primary underwritten offerings; and
(vi) deliver such documents and certificates as may be reasonably
requested by the Majority Holders or the Managing Underwriters, if any,
including those to evidence compliance with Section 4(k) and with any
customary conditions contained in the underwriting agreement or other
agreement entered into by the Company and the Guarantors.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this paragraph (q)
shall be performed at (A) the effectiveness of such Registration Statement and
each post-effective amendment thereto; and (B) each closing under any
underwriting or similar agreement as and to the extent required thereunder.
(r) If a Registered Exchange Offer is to be consummated, upon delivery
of the Securities by Holders to the Company (or to such other person as directed
by the Company) in exchange for the New Securities, the Company shall mark, or
caused to be marked, on the Securities so exchanged that such Securities are
being cancelled in exchange for the New Securities. In no event shall the
Securities be marked as paid or otherwise satisfied.
(s) The Company and the Guarantors shall use their respective reasonable
best efforts if the Securities have been rated prior to the initial sale of such
Securities, to confirm such ratings will apply to the Securities or the New
Securities, as the case may be, covered by a Registration Statement.
(t) In the event that any Broker-Dealer shall underwrite any Securities
or participate as a member of an underwriting syndicate or selling group or
"assist in the distribution" (within the meaning of the NASD Rules) thereof,
whether as a Holder of such Securities or as an underwriter, a placement or
sales agent or a broker or dealer in respect
14
thereof, or otherwise, the Company and the Guarantors shall assist such
Broker-Dealer in complying with the NASD Rules.
(u) The Company and the Guarantors shall use their respective reasonable
best efforts to take all other steps necessary to effect the registration of the
Securities or the New Securities, as the case may be, covered by a Registration
Statement.
5. Registration Expenses. The Company and the Guarantors shall bear all
expenses incurred in connection with the performance of its obligations under
Sections 2, 3 and 4 hereof and, in the event of any Shelf Registration
Statement, will reimburse the Holders for the reasonable fees and disbursements
of one firm or counsel (not to exceed $10,000) to act as counsel for the Holders
in connection therewith for the reasonable fees.
6. Indemnification and Contribution. (a) The Company and the
Guarantors, jointly and severally, agree to indemnify and hold harmless each
Holder of Securities or New Securities, as the case may be, covered by any
Registration Statement, each Initial Purchaser and, with respect to any
Prospectus delivery as contemplated in Section 4(h) hereof, each Exchanging
Dealer, the directors, officers, employees, Affiliates and agents of each such
Holder, Initial Purchaser or Exchanging Dealer and each person who controls any
such Holder, Initial Purchaser or Exchanging Dealer within the meaning of either
the Securities Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Securities Act, the Exchange Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement as originally filed or in
any amendment thereof, or in any preliminary Prospectus or the Prospectus, or in
any amendment thereof 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 (in the case of any
preliminary Prospectus or the Prospectus, in the light of the circumstances
under which they were made) not misleading, and agree to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by it in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company and the
Guarantors will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company and the Guarantors by or on behalf of the party claiming
indemnification specifically for inclusion therein. This indemnity agreement
shall be in addition to any liability that the Company or the Guarantors may
otherwise have. No indemnifying party shall be liable under this Section 6 to
any indemnified party regarding any settlement or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
is consented to by the indemnifying party, which consent shall not be
unreasonably withheld.
15
The Company and the Guarantors also, jointly and severally, agree to
indemnify as provided in this Section 6(a) or contribute as provided in Section
6(d) hereof to Losses of each underwriter, if any, of Securities or New
Securities, as the case may be, registered under a Shelf Registration Statement,
their directors, officers, employees, Affiliates or agents and each person who
controls such underwriter on substantially the same basis as that of the
indemnification of the Initial Purchasers and the selling Holders provided in
this Section 6(a) and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement, as provided in Section 4(p)
hereof.
(b) Each Holder of securities covered by a Registration Statement
(including each Initial Purchaser that is a Holder, in such capacity) severally
and not jointly agrees to indemnify and hold harmless the Company and the
Guarantors, each of its or their directors, each of its or their officers who
signs such Registration Statement and each person who controls the Company
within the meaning of either the Securities Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company and the Guarantors to each
such Holder, but only with reference to written information relating to such
Holder furnished to the Company and the Guarantors by or on behalf of such
Holder specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability that
any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 6
or notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of any material rights and defenses; and (ii) will not, in
any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint
counsel (including local counsel) of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel,
other than local counsel if not appointed by the indemnifying party, retained by
the indemnified party or parties except as set forth below); provided, however,
that such counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel (including
local counsel) to represent the indemnified party in an action, the indemnified
party shall have the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest; (ii) the actual or potential defendants in, or targets of, any such
action include (based on the advice of counsel to the indemnified party) both
the indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded (based on the advice of counsel to the indemnified
party) that there may be legal defenses available to it and/or other indemnified
parties that are different from or additional to those available to the
indemnifying party; (iii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of
16
such action; or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. It is
understood and agreed that the indemnifying party shall not, in connection with
any proceeding or related proceeding in the same jurisdiction, be liable for the
reasonable fees and expense of more than one separate firm (in addition to any
local counsel) for all indemnified parties. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section is unavailable to or insufficient to hold harmless an indemnified
party for any reason, then each applicable indemnifying party shall have a joint
and several obligation to contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending any loss, claim, liability, damage or
action) (collectively "LOSSES") to which such indemnified party may be subject
in such proportion as is appropriate to reflect the relative benefits received
by such indemnifying party, on the one hand, and such indemnified party, on the
other hand, from the Initial Placement and the Registration Statement which
resulted in such Losses; provided, however, that in no case shall any Initial
Purchaser be responsible, in the aggregate, for any amount in excess of the
purchase discount or commission applicable to such Security, or in the case of a
New Security, applicable to the Security that was exchangeable into such New
Security, as set forth in the Final Memorandum, nor shall any underwriter be
responsible for any amount in excess of the underwriting discount or commission
applicable to the securities purchased by such underwriter under the
Registration Statement which resulted in such Losses. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the
indemnifying party and the indemnified party shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of such indemnifying party, on the one hand, and such indemnified
party, on the other hand, in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Company or any of the Guarantors shall be deemed to be
equal to the total net proceeds from the Initial Placement (before deducting
expenses) as set forth in the Final Memorandum. Benefits received by the Initial
Purchasers shall be deemed to be equal to the total purchase discounts and
commissions as set forth on the cover page of the Final Memorandum, and benefits
received by any other Holders shall be deemed to be equal to the value of
receiving Securities or New Securities, as applicable, registered under the
Securities Act. Benefits received by any underwriter shall be deemed to be equal
to the total underwriting discounts and commissions, as set forth on the cover
page of the Prospectus forming a part of the Registration Statement which
resulted in such Losses. Relative fault shall be determined by reference to,
among other things, whether any untrue or any alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information provided by the indemnifying party, on the one hand, or by the
indemnified party, on the other hand, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The parties agree that it would not be just
and equitable if contribution were determined by pro rata allocation (even if
the Holders were treated
17
as one entity for such purpose) or any other method of allocation which does not
take account of the equitable considerations referred to above. Notwithstanding
the provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each person who
controls a Holder within the meaning of either the Securities Act or the
Exchange Act and each director, officer, employee and agent of such Holder shall
have the same rights to contribution as such Holder, and each person who
controls the Company or any of the Guarantors within the meaning of either the
Securities Act or the Exchange Act, each officer of the Company or any of the
Guarantors who shall have signed the Registration Statement and each director of
the Company or any of the Guarantors shall have the same rights to contribution
as the Company and the Gurantors, subject in each case to the applicable terms
and conditions of this paragraph (d).
(e) The provisions of this Section will remain in full force and effect,
regardless of any investigation made by or on behalf of any Holder or the
Company or any of the indemnified persons referred to in this Section 6, and
will survive the sale by a Holder of securities covered by a Registration
Statement.
7. Underwritten Registrations. (a) If any of the Securities or New
Securities, as the case may be, covered by any Shelf Registration Statement are
to be sold in an underwritten offering, the Managing Underwriters shall be
selected by the Majority Holders subject to the consent of the Company (which
shall not be unreasonably withheld), and the Holder of Securities or New
Securities covered by such Shelf Registration Statement shall be responsible for
all underwriting commissions and discounts.
(b) No person may participate in any underwritten offering pursuant to
any Shelf Registration Statement, unless such person (i) agrees to sell such
person's Securities or New Securities, as the case may be, on the basis
reasonably 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. Special Interest. If (a) on or prior to the 180th day following the
Closing Date, neither the Exchange Offer Registration Statement nor the Shelf
Registration Statement has been filed with the Commission, (b) on or prior to
the 270th day following Closing Date, neither the Exchange Offer Registration
Statement nor the Shelf Registration Statement has been declared effective by
the Commission, (c) on or prior to the 45th day following the date the
Commission first declared the Exchange Offer Registration Statement effective,
neither the Registration Exchange Offer has been consummated nor has the Shelf
Registration Statement been declared effective, or (d) after either the Exchange
Offer Registration Statement or the Shelf Registration Statement has been
declared effective, such Registration Statement thereafter ceases to be
effective or usable in connection with resales of Securities or New Securities
in accordance with and during the periods specified in this Agreement (each such
event referred to in clauses (a) through (d), a "REGISTRATION DEFAULT"),
interest ("SPECIAL INTEREST") will accrue on the principal amount of the
Transfer Restricted Securities then outstanding (in addition to the
18
stated interest on the Securities and New Securities) from and including the
date on which any such Registration Default shall occur to but excluding the
date on which all Registration Defaults have been cured. Special Interest will
accrue at a rate of 0.25% per annum during the 90-day period immediately
following the occurrence of such Registration Default and shall increase by
0.25% per annum at the end of each subsequent 90-day period, but in no event
shall such rate exceed 1.00% per annum.
The Special Interest provided for in this Section 8 shall be the exclusive
monetary remedy available to the Holders of Registrable Securities for such
Registration Default. In no event shall the Company be required to pay
liquidated damages in excess of the applicable maximum rate per annum of one
percent (1.00%) set forth above, regardless of whether one or multiple
Registration Defaults exist. Notwithstanding the foregoing, the parties agree
that the Initial Purchasers and Holders may pursue specific performance of this
Agreement under Section 12.
All obligations of the Company and the Guarantors set forth in the preceding
paragraph that are outstanding with respect to any Security at the time such
Security is exchanged for a New Security shall survive until such time as all
such obligations with respect to such Security have been satisfied in full.
As used herein, the term "TRANSFER RESTRICTED SECURITIES" means (i) each
Security until the date on which such Security has been exchanged for a freely
transferable Exchange Security in the Registered Exchange Offer, (ii) each
Security until the date on which it has been effectively registered under the
Securities Act and disposed of in accordance with the Shelf Registration
Statement or (iii) each Security until the date on which it is distributed to
the public pursuant to Rule 144 under the Securities Act or is saleable pursuant
to Rule 144(k) under the Securities Act. Notwithstanding anything to the
contrary in this Section 8, Special Interest shall not accrue on, and the
Company and the Guarantors shall not be required to pay Special Interest to a
Holder of Transfer Restricted Securities if the cause of such Registration
Default is the failure of such Holder to provide the Company and the Guarantors
with the information required of such Holder pursuant to Item 507 or 508 of
Regulation S-K under the Securities Act.
9. No Inconsistent Agreements. The Company has not entered into, and
agrees not to enter into, any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders herein or that otherwise
conflicts with the provisions hereof.
10. Amendments and Waivers. The provisions of this Agreement may not be
amended, qualified, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the Company and
the Guarantors have obtained the written consent of the Holders of a majority of
the principal amount of Registrable Securities outstanding; provided that, with
respect to any matter that directly or indirectly affects the rights of any
Initial Purchaser hereunder, the Company and the Guarantors shall obtain the
written consent of each such Initial Purchaser against which such amendment,
qualification, supplement, waiver or consent is to be effective; provided,
further, that no amendment, qualification, supplement, waiver or consent with
respect to Section 8 hereof shall be effective as against any Holder of
Registered Securities unless consented to in writing by such Holder; and
provided, further, that the provisions of this Article 10 may not be amended,
qualified, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be
19
given, unless the Company and the Guarantors have obtained the written consent
of the Initial Purchasers and each Holder. Notwithstanding the foregoing (except
the foregoing provisos), a waiver or consent to departure from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders whose Securities or New Securities, as the case may be, are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect the rights of other Holders may be given by the Majority Holders,
determined on the basis of Securities or New Securities, as the case may be,
being sold rather than registered under such Registration Statement.
11. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such holder to
the Company and the Guarantors in accordance with the provisions of this Section
11, which address initially is, with respect to each Holder, the address of such
Holder maintained by the Registrar under the Indenture;
(b) if to the Representatives, initially at the address or addresses set
forth in the Purchase Agreement; and
(c) if to the Company and the Guarantors, initially at its address set
forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received.
The Initial Purchasers or the Company and the Guarantors by notice to the
other parties may designate additional or different addresses for subsequent
notices or communications.
12. Remedies. The Company and the Guarantors agree that there would be
no adequate remedy at law if the Company and the Guarantors fail to perform any
of their respective obligations hereunder and that the Initial Purchasers and
the Holders from time to time may be irreparably harmed by any such failure, and
that monetary damages would not be adequate compensation for any loss incurred
by reason of a breach by it of the provisions of this Agreement. The Company and
the Guarantors accordingly hereby agree (i) that Initial Purchasers and any
Holder may pursue specific performance of this Agreement and (ii) waive in any
action for specific performance the defense that a remedy at law would be
adequate.
13. Successors. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their respective successors and assigns,
including, without the need for an express assignment or any consent thereto by
the Company and the Guarantors, subsequent Holders of Securities and the New
Securities, or the indemnified persons referred to in Section 6 hereof. The
Company and the Guarantors hereby agree to extend the benefits of this Agreement
to any Holder of Securities and the New Securities, and any such Holder may
specifically enforce the provisions of this Agreement as if an original party
hereto.
20
14. Jurisdiction. The Company and the Guarantors agree that any suit,
action or proceeding against the Company or any of the Guarantors brought by any
Holder or Initial Purchaser, the directors, officers, employees, Affiliates and
agents of any Holder or Initial Purchaser, or by any person who controls any
Holder or Initial Purchaser, arising out of or based upon this Agreement or the
transactions contemplated hereby may be instituted in any State or U.S. federal
court in The City of New York and County of New York, and waive any objection
which they may now or hereafter have to the laying of venue of any such
proceeding, and irrevocably submits to the non-exclusive jurisdiction of such
courts in any suit, action or proceeding. The Company and the Guarantors hereby
appoint Corporation Service Company, 1133 Avenue of the Americas, Suite 3100,
New York, NY as their authorized agent (the "AUTHORIZED AGENT") upon whom
process may be served in any suit, action or proceeding arising out of or based
upon this Agreement or the transactions contemplated herein which may be
instituted in any State or U.S. federal court in The City of New York and County
of New York, by any Holder or Initial Purchaser, the directors, officers,
employees, Affiliates and agents of any Holder or Initial Purchaser, or by any
person who controls any Holder or Initial Purchaser, and expressly accepts the
non-exclusive jurisdiction of any such court in respect of any such suit, action
or proceeding. The Company and the Guarantors hereby represent and warrant that
the Authorized Agent has accepted such appointment and has agreed to act as said
agent for service of process, and the Company and the Guarantors agree to take
any and all action, including the filing of any and all documents that may be
necessary to continue such appointment in full force and effect as aforesaid.
Service of process upon the Authorized Agent shall be deemed, in every respect,
effective service of process upon the Company and the Guarantors. The Company
and the Guarantors further agree to take any and all action, including the
execution and filing of any and all such documents and instruments, as may be
necessary to continue such designation and appointment in full force and effect
so long as any of the Securities shall be outstanding. To the extent that the
Company and the Guarantors may acquire any immunity from jurisdiction of any
court or from any legal process (whether through service of notice, attachment
prior to judgment, attachment in aid of execution, execution or otherwise) with
respect to itself or its property, it hereby irrevocably waives such immunity in
respect of this Agreement, to the fullest extent permitted by law.
Notwithstanding the foregoing, any action arising out of or based upon this
Agreement may be instituted by any Holder or Initial Purchaser, the directors,
officers, employees, Affiliates and agents of any Holder or Initial Purchaser,
or by any person who controls any Holder or Initial Purchaser, in any court of
competent jurisdiction in the Province of Quebec. The parties hereto each hereby
waive any right to trial by jury in any action, proceeding or counterclaim
arising out of or relating to this Agreement.
15. Currency. Each reference in this Agreement to U.S. dollars (the
"relevant currency") is of the essence. To the fullest extent permitted by law,
the obligation of the Company and the Guarantors in respect of any amount due
under this Agreement will, notwithstanding any payment in any other currency
(whether pursuant to a judgment or otherwise), be discharged only to the extent
of the amount in the relevant currency that the party entitled to receive such
payment may, in accordance with its normal procedures, purchase with the sum
paid in such other currency (after any premium and costs of exchange) on the
Business Day immediately following the day on which such party receives such
payment. If the amount in the relevant currency that may be so purchased for any
reason falls short of the amount originally due, the Company and the Guarantors
will pay such additional amounts, in the relevant currency, as may be necessary
to compensate for the shortfall. Any obligation of the Company
21
and the Guarantors not discharged by such payment will, to the fullest
extent permitted by applicable law, be due as a separate and independent
obligation and, until discharged as provided herein, will continue in full force
and effect.
16. Waiver of Immunity. To the extent that the Company and the
Guarantors, the Initial Purchasers or the Holders have or hereafter may acquire
any immunity (sovereign or otherwise) from any legal action, suit or proceeding,
from jurisdiction of any court or from set-off or any legal process (whether
service or notice, attachment in aid or otherwise) with respect to itself or any
of its property, the Company, the Guarantors, Initial Purchasers and the Holders
hereby irrevocably waive and agree not to plead or claim such immunity in
respect of its obligations under this Agreement.
17. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
18. Headings. The section headings used herein are for convenience only
and shall not affect the construction hereof.
19. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed in the State of New York. The parties hereto each hereby
waive any right to trial by jury in any action, proceeding or counterclaim
arising out of or relating to this Agreement.
20. Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
21. Securities Held by the Company, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
or New Securities is required hereunder, Securities or New Securities, as
applicable, held by the Company, the Guarantors or its or their Affiliates
(other than subsequent Holders of Securities or New Securities if such
subsequent Holders are deemed to be Affiliates solely by reason of their
holdings of such Securities or New Securities) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
22
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Company, the Guarantors and the several Initial Purchasers.
Very truly yours,
COMPANY:
NOVELIS INC.
By: /s/ Geoffrey P. Batt
--------------------------------------
Name: Geoffrey P. Batt
Title: Senior Vice President and Chief
Financial Officer
US GUARANTORS:
NOVELIS CORPORATION
By: /s/ Geoffrey P. Batt
--------------------------------------
Name: Geoffrey P. Batt
Title: Attorney-in-Fact
EUROFOIL INC. (USA)
By: /s/ Geoffrey P. Batt
--------------------------------------
Name: Geoffrey P. Batt
Title: Attorney-in-Fact
NOVELIS PAE CORPORATION
By: /s/ Geoffrey P. Batt
--------------------------------------
Name: Geoffrey P. Batt
Title: Attorney-in-Fact
CANADIAN GUARANTORS:
NOVELIS CAST HOUSE TECHNOLOGY LTD.
By: /s/ Geoffrey P. Batt
--------------------------------------
Name: Geoffrey P. Batt
Title: Attorney-in-Fact
Signature Page to Novelis Inc.'s Registration Rights Agreement
4260848 CANADA INC.
By: /s/ Geoffrey P. Batt
---------------------------------------
Name: Geoffrey P. Batt
Title: Attorney-in-Fact
4260856 CANADA INC.
By: /s/ Geoffrey P. Batt
---------------------------------------
Name: Geoffrey P. Batt
Title: Attorney-in-Fact
UK SUBSIDIARY GUARANTORS:
NOVELIS EUROPE HOLDINGS LTD.
By its duly appointed attorney:
/s/ Geoffrey P. Batt
---------------------------------------
Name: Geoffrey P. Batt
NOVELIS UK LTD.
By its duly appointed attorney:
/s/ Geoffrey P. Batt
---------------------------------------
Name: Geoffrey P. Batt
Signature Page to Novelis Inc.'s Registration Rights Agreement
BRAZILIAN GUARANTOR:
NOVELIS DO BRASIL LTDA.
By: /s/ Geoffrey P. Batt
---------------------------------------
Name: Geoffrey P. Batt
Title: Attorney-in-Fact
Witnesses:
1. /s/ Alejandra V.Hernandez
-----------------------------------
Name Alejandra V. Hernandez
ID
-----------------------------------
2. /s/ Marlena Crippin
-----------------------------------
Name Marlena Crippin
ID
-----------------------------------
Signature Page to Novelis Inc.'s Registration Rights Agreement
SWISS GUARANTORS:
NOVELIS AG
By: /s/ Geoffrey P. Batt
---------------------------------------
Name: Geoffrey P. Batt
Title: Attorney-in-Fact
NOVELIS VALAIS S.A.
By: /s/ Geoffrey P. Batt
---------------------------------------
Name: Geoffrey P. Batt
Title: Attorney-in-Fact
NOVELIS TECHNOLOGY AG
By: /s/ Geoffrey P. Batt
---------------------------------------
Name: Geoffrey P. Batt
Title: Attorney-in-Fact
IRISH GUARANTOR:
Signed Sealed and Delivered by:
By: /s/ Geoffrey P. Batt
---------------------------------------
Name: Geoffrey P. Batt
Title: Attorney-in-Fact
duly appointed attorney for and on
behalf of:
NOVELIS ALUMINIUM HOLDING
COMPANY
in the presence of:
/s/ Alejandra V. Hernandez
---------------------------------------
Name: Alejandra V. Hernandez
Address: 125 Broad Street
New York, NY 10036
Occupation
Signature Page to Novelis Inc.'s Registration Rights Agreement
GERMAN SUBSIDIARY GUARANTOR:
NOVELIS DEUTSCHLAND GMBH
By: /s/ Verschuer
--------------------------------
Name: Verschuer
Title: Managing Director
Signature Page to Novelis Inc.'s Registration Rights Agreement
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
By: CITIGROUP GLOBAL MARKETS INC.
By: /s/ Whitner Marshall
-------------------------
Name: Whitner Marshall
Title: Director
By: MORGAN STANLEY & CO. INCORPORATED
By: /s/ Kenneth G. Pott
-------------------------
Name: Kenneth G. Pott
Title: Managing Director
By: UBS SECURITIES LLC
By: /s/ Allen Yates
-------------------------
Name: Allen Yates
Title: Associate Director
By: /s/ John Kim
-------------------------
Name: John Kim
Title: Associate Director
For themselves and the other several Initial
Purchasers named in Schedule I to
the Purchase Agreement.
Signature Page to Novelis Inc.'s Registration Rights Agreement
SCHEDULE I
Novelis Corporation
Novelis PAE Corporation
Eurofoil Inc. (USA)
Novelis do Brasil Ltda
4260848 Canada Inc.
4260856 Canada Inc.
Novelis Cast House Technology, Ltd.
Novelis Deutschland GmbH
Novelis Aluminium Holding Company
Novelis A.G.
Novelis Technology A.G.
Novelis Valais S.A.
Novelis UK Ltd.
Novelis Europe Holdings Ltd.
ANNEX A
Each broker-dealer that receives new securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such new securities. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of new securities received in exchange for securities where such
securities were acquired by such broker-dealer as a result of market-making
activities or other trading activities. The company has agreed that, starting on
the expiration date and ending on the close of business one year after the
expiration date, or such shorter period as will terminate when (i) all of the
New Securities covered by the Exchange Offer Registration Statement have been
distributed pursuant thereto and (ii) an Exchanging Dealer is no longer required
to deliver a prospectus in connection with sales of the New Securities and, it
will make this prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
A-1
ANNEX B
Each broker-dealer that receives new securities for its own account in
exchange for securities, where such securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such new securities. See "Plan of Distribution."
B-1
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives new securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such new securities. This
prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of new securities received in
exchange for securities where such securities were acquired as a result of
market-making activities or other trading activities. The company has agreed
that, starting on the expiration date and ending on the close of business one
year after the expiration date, or such shorter period as will terminate when
(i) all of the New Securities covered by the Exchange Offer Registration
Statement have been distributed pursuant thereto and (ii) an Exchanging Dealer
is no longer required to deliver a prospectus in connection with sales of the
New Securities, it will make this prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In
addition, until __________, ______, all dealers effecting transactions in the
new securities may be required to deliver a prospectus.
The company will not receive any proceeds from any sale of new securities
by brokers-dealers. New securities received by broker-dealers for their own
account pursuant to the Exchange Offer may be sold from time to time in one or
more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the new securities or a combination of such
methods of resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may
receive compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such new securities. Any
broker-dealer that resells new securities that were received by it for its own
account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such new securities may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit of any
such resale of new securities and any commissions or concessions received by any
such persons may be deemed to be underwriting compensation under the Securities
Act. The Letter of Transmittal states that by acknowledging that it will deliver
and by delivering a prospectus, a broker-dealer will not be deemed to admit that
it is an "underwriter" within the meaning of the Securities Act.
For a period of one year after the expiration date, or such shorter period
as will terminate when (i) all of the New Securities covered by the Exchange
Offer Registration Statement have been distributed pursuant thereto and (ii) an
Exchanging Dealer is no longer required to deliver a prospectus in connection
with sales of the New Securities, the company will promptly send additional
copies of this prospectus and any amendment or supplement to this prospectus to
any broker-dealer that requests such documents in the Letter of Transmittal. The
company has agreed to pay all expenses incident to the Exchange Offer (including
the expenses of one counsel for the holder of the securities) other than
commissions or concessions of any brokers or dealers and will indemnify the
holders of the securities (including any broker-dealers) against certain
liabilities, including liabilities under the Securities Act.
C-1
ANNEX D
Rider A
PLEASE FILL IN YOUR NAME AND ADDRESS BELOW IF YOU ARE A BROKER-DEALER AND WISH
TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name: _____________________________________________
Address: __________________________________________
__________________________________________
Rider B
If the undersigned is not a broker-dealer, the undersigned represents that it
acquired the new securities in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of new securities
and it has no arrangements or understandings with any person to participate in a
distribution of the new securities. If the undersigned is a broker-dealer that
will receive new securities for its own account in exchange for securities, it
represents that the securities to be exchanged for new securities were acquired
by it as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such new securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.