EXHIBIT 4.11
EXECUTION COPY
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated as of December 18,
2001, among Allegheny Technologies Incorporated, a Delaware corporation (the
"Issuer") and X.X. Xxxxxx Securities Inc., Banc of America Securities LLC,
Xxxxxxx Xxxxx Barney Inc., PNC Capital Markets, Inc., BNY Capital Markets, Inc.,
Mizuho International plc and Tokyo-Mitsubishi International plc (the "Initial
Purchasers").
The Issuer proposes to issue and sell to the Initial Purchasers upon
the terms set forth in the Purchase Agreement the Securities (as defined
herein). As an inducement to the Initial Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to the obligations of the Initial
Purchasers thereunder, the Issuer agrees with the Initial Purchasers for the
benefit of holders (as defined herein) from time to time of the Registrable
Securities (as defined herein) as follows:
1. Certain Definitions.
For purposes of this Exchange and Registration Rights Agreement, the
following terms shall have the following respective meanings:
The term "broker-dealer" shall mean any broker or dealer registered
with the Commission under the Exchange Act.
"Closing shall mean the date of the closing of the issuance and sale of
the Securities pursuant to the Purchase Agreement.
"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 Resale Registration, shall mean
the time and date as of which the Commission declares the Resale Registration
Statement effective or as of which the Resale Registration Statement otherwise
becomes effective.
"Electing Holder" shall mean any holder of Registrable Securities that
has returned a completed and signed Notice and Questionnaire to the Issuer in
accordance with Section 3(d)(ii) or 3(d)(iii) hereof.
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"Exchange Act" shall mean the United States Securities Exchange Act of
1934, or any successor thereto, as the same shall be amended from time to time.
"Exchange Offer" shall have the meaning assigned thereto in Section
2(a) hereof.
"Exchange Offer Registration Statement" 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 Securities" shall have the meaning assigned thereto in
Section 2(a) hereof.
The term "holder" shall mean each of the Initial Purchasers and other
persons who acquire Registrable Securities from time to time (including any
successors or assigns), in each case for so long as such person owns any
Registrable Securities.
"Indenture" shall mean the Indenture, dated as of December 18, 2001,
among the Issuer and the Bank of New York, as Trustee, as the same shall be
amended from time to time.
"Issuer" shall have the meaning assigned thereto in the recitals hereof
(together with any successor).
"Notice and Questionnaire" shall mean a Notice of Registration
Statement and Selling Securityholder Questionnaire substantially in the form of
Exhibit A hereto.
"Notice of Transfer" shall mean a Notice of Transfer pursuant to
Registration Statement substantially in the form of Exhibit B 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
December 13, 2001, among the Issuer and the Initial Purchasers relating to the
Securities, as the same shall be amended from time to time.
"Registrable Securities" shall mean the Securities; provided, however,
that a Security shall cease to be a Registrable Security when (i) in the
circumstances contemplated by Section 2(a) hereof, the Security has been
exchanged for an Exchange Security in an Exchange Offer as contemplated in
Section 2(a) hereof (provided that any Exchange Security received by a
broker-dealer in an Exchange Offer in exchange for a Registrable Security that
was not acquired by the broker-dealer directly from the Issuer will also be a
Registrable Security through and including the earlier of the expiration of the
Resale Period or such time as such broker-dealer no longer owns such Security);
(ii) in the circumstances contemplated by Section 2(b) hereof, a Resale
Registration Statement registering such Security under the Securities Act has
been
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declared or becomes effective and such Security has been sold or otherwise
transferred by the holder thereof pursuant to and in a manner contemplated by
such effective Resale Registration Statement; (iii) such Security is sold
pursuant to Rule 144 under circumstances in which any legend borne by such
Security relating to restrictions on transferability thereof, under the
Securities Act or otherwise, is removed by the Issuer or pursuant to the
Indenture; (iv) such Security is eligible to be sold pursuant to paragraph (k)
of Rule 144; or (v) such Security shall cease to be outstanding.
"Registration Default" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in Section 2(a)
hereof.
"Resale Registration" shall have the meaning assigned thereto in
Section 2(b) hereof.
"Resale Registration Statement" shall have the meaning assigned thereto
in Section 2(b) hereof.
"Restricted Holder" shall mean (i) a holder that is an affiliate of the
Issuer within the meaning of Rule 405, (ii) a holder who acquires Exchange
Securities outside the ordinary course of such holders business, (iii) a holder
who has arrangements or understandings with any person to participate in the
Exchange Offer for the purpose of distributing Exchange Securities and (iv) a
holder that is a broker-dealer, but only with respect to Exchange Securities
received by such broker-dealer pursuant to an Exchange Offer in exchange for
Registrable Securities acquired by the broker-dealer directly from the Issuer.
"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 8.375% Notes due 2011 of the
Issuer to be issued and sold to the Initial Purchasers, and securities issued in
exchange therefor or in lieu thereof pursuant to the Indenture.
"Securities Act" shall mean the United States Securities Act of 1933,
or any successor thereto, as the same shall be amended from time to time.
"Trust Indenture Act" shall mean the United States 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.
"Trustee" shall mean The Bank of New York, a national banking
association (together with any successor).
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Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Exchange and Registration Rights Agreement, and the words "herein", "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Issuer agrees to:
(i) file under the Securities Act, no later than 90 days after
the Closing, 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
Securities (other than Exchange Securities) for a like aggregate
principal amount of debt securities issued by the Issuer, which debt
securities are substantially identical to the Securities (and are
entitled to the benefits of a trust indenture which is substantially
identical to the Indenture or is the Indenture and which has been
qualified under the Trust Indenture Act), except that they have been
registered pursuant to an effective registration statement under the
Securities Act and do not contain provisions for the additional
interest contemplated in Section 2(c) below (such new debt securities
hereinafter called "Exchange Securities");
(ii) use its best efforts to cause the Exchange Offer
Registration Statement to become effective under the Securities Act as
soon as practicable, but no later than 150 days after the Closing;
(iii) use its best efforts to commence and complete the
Exchange Offer promptly, but no later than 180 days after the Closing;
and
(iv) hold the Exchange Offer open for at least 30 days (or
longer if required by applicable law) after the notice of the Exchange
Offer is mailed to the holders and issue Exchange Securities for all
Registrable Securities that have been properly tendered and not
withdrawn on or prior to the expiration of the Exchange Offer.
The Exchange Offer will be 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 Exchange Offer will be deemed to have
been "completed" only if the debt securities received by holders other than
Restricted Holders in the Exchange Offer for Registrable Securities are, upon
receipt, transferable by each such holder without need for further compliance
with Section 5 of the Securities Act and the Exchange Act (except for the
requirement to deliver a prospectus included in the Exchange Offer Registration
Statement applicable to resales by any broker-dealer of Exchange Securities
received by such broker-dealer pursuant to the Exchange Offer in exchange for
Registrable Securities other than those acquired by the broker-dealer directly
from the Issuer), and without material restrictions under the blue sky or
securities laws of a substantial majority of the States of the United States of
America.
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Subject to the preceding sentence, the Exchange Offer shall be deemed to
have been completed upon the earlier to occur of (1) the Issuer having
exchanged the Exchange Securities for all outstanding Registrable Securities
(other than those held by Restricted Holders) pursuant to the Exchange Offer and
(2) the Issuer having exchanged, pursuant to the Exchange Offer, Exchange
Securities for all Registrable Securities that have been properly tendered and
not withdrawn before the expiration of the Exchange Offer, which shall be on a
date that is at least 30 days following the commencement of the Exchange Offer.
The Issuer agrees (1) to include in the Exchange Offer Registration
Statement a prospectus for use in connection with any resales of Exchange
Securities by a broker-dealer, other than resales of Exchange Securities
received by a broker-dealer pursuant to an Exchange Offer in exchange for
Registrable Securities acquired by the broker-dealer directly from the Issuer,
and (2) 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 Registrable Securities. With respect to such
Exchange Offer Registration Statement, each broker-dealer that holds Exchange
Securities received in an Exchange Offer in exchange for Registrable Securities
not acquired by it directly from the Issuer 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)(A) existing Commission interpretations are changed
such that the Securities received by holders other than
Restricted Holders in the Exchange Offer for Registrable
Securities are not or would not be, upon receipt, transferable
by each such holder without need for further compliance with
Section 5 of the Securities Act (except for the requirement to
deliver a prospectus included in the Exchange Offer Registration
Statement applicable to resales by a broker-dealer of Exchange
Securities received by such broker-dealer pursuant to the
Exchange Offer in exchange for Registrable Securities other than
those acquired by the broker-dealer directly from the Issuer) or
(B) for any reason, the Issuer does not consumate the Exchange
Offer within 180 days of the Closing; or
(ii) a holder of the Securities shall notify the Issuer
that:
(A) the holder is prohibited by law or Commission
policy from participating in the Exchange Offer,
(B)(1) the holder may not resell the Exchange
Securities acquired by it in the Exchange Offer to the
public without delivering a prospectus and (2) the
prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales
by the holder, or
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(C) the holder is a broker-dealer and holds
Securities that are part of an unsold allotment from the
initial sale of Securities;
then the Issuer shall, as promptly as practicable, file a "shelf" registration
statement providing for the registration of, and the sale on a continuous or
delayed basis by the holders of, all of the Registrable Securities, pursuant to
Rule 415 or any similar rule that may be adopted by the Commission (such
registration, the "Resale Registration" and such registration statement, the
"Resale Registration Statement").
In addition, in the event that, after consummation of the Exchange
Offer, the Initial Purchasers shall not have resold all of the Securities
initially purchased by them from the Issuer pursuant to the Purchase Agreement
and the Initial Purchasers shall so request after the consummation of the
Exchange Offer, the Issuer shall file under the Securities Act as soon as
practicable a Resale Registration Statement covering such unsold Registrable
Securities. (In the case of any Resale Registration required only by the second
sentence of this Section 2(b), references herein to "Registrable Securities"
mean those Securities that the Initial Purchasers shall have purchased from the
Issuer pursuant to the Purchase Agreement and shall not have resold.)
The Issuer agrees:
(I) to cause the Resale Registration Statement to
become or be declared effective;
(II) to keep such Resale Registration Statement
continuously effective until the earliest of (A) two years
from the Closing or (B) the date on which all Registrable
Securities registered under the Resale Registration Statement
are disposed of in accordance therewith, in order to permit
the prospectus forming a part thereof to be usable by holders
for resales of Registrable Securities, provided, however, that
no holder shall be entitled to be named as a selling
securityholder in the Resale Registration Statement or to use
the prospectus forming a part thereof for resales of
Registrable Securities unless such holder is an Electing
Holder, and
(III) after the Effective Time of the Resale
Registration Statement and for so long as the Resale
Registration Statement is required to be kept continuously
effective pursuant to clause (II) above, promptly upon the
request of any holder of Registrable Securities that is not
then an Electing Holder, and provided that such holder shall
have returned a completed and signed Notice and Questionnaire
to the Issuer in accordance with Section 3(d)(iii) hereof, to
take any action reasonably necessary to enable such holder to
use the prospectus forming a part thereof for resales of
Registrable Securities, including any action necessary to
identify such holder as a selling securityholder in the Resale
Registration Statement.
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The Issuer further agrees to supplement or make amendments to the
Resale Registration Statement, as and when required by the rules, regulations or
instructions applicable to the registration form used by the Issuer for such
Resale Registration Statement or by the Securities Act or rules and regulations
thereunder for shelf registration, and the Issuer agrees to furnish to each
Electing Holder copies of any such supplement or amendment prior to its being
used or promptly following its filing with the Commission.
(c) In the event that:
(i) the Issuer has not filed the Exchange Offer
Registration Statement on or before the 90th day after the
Closing,
(ii) such Exchange Offer Registration Statement has
not become effective or been declared effective by the
Commission on or prior to the 150th day after the Closing,
(iii) the Exchange Offer has not been completed on or
prior to the 180th day after the Closing (if the Exchange
Offer is then required to be made),
(iv) the Issuer is obligated to file the Resale
Registration Statement and the Issuer fails to do so on or
prior to the 30th day after the obligation arises,
(v) the Issuer is obligated to file the Resale Shelf
Registration Statement and such Resale Shelf Registration
Statement is not declared effective on or prior to the 90th
day after the obligation to file such Resale Registration
Statement arises, or
(vi) any Exchange Offer Registration Statement or
Resale Registration Statement required by Section 2(a) or 2(b)
hereof is filed and declared effective but shall thereafter
either be withdrawn by the Issuer, become subject to an
effective stop order issued pursuant to Section 8(d) of the
Securities Act suspending the effectiveness of such
registration statement or otherwise cease to be available for
resales of Registrable Securities covered thereby (except as
specifically permitted herein) without being succeeded
promptly by an additional registration statement filed,
declared effective and available for such purposes (each such
event referred to in clauses (i) through (vi), a "Registration
Default"),
then, as liquidated damages for such Registration Default, subject to the
provisions of Section 9(b), the Issuer will pay additional interest (in addition
to the interest otherwise due on the Securities) to each holder of Securities
during the first 90-day period immediately following the occurrence of the first
such Registration Default, regardless of the number of Registration Defaults, in
an amount equal to 0.25% per annum. The amount of additional interest will
increase by an additional 0.25% per annum for each subsequent 90-day period
until all Registration Defaults have been cured, up to a maximum amount of
additional interest of 1.00%
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per annum. Such additional interest will cease accruning on such Securities with
respect to any Registration Default when such Registration Default has been
cured.
(d) The Issuer shall take all reasonable actions necessary or advisable
to be taken to ensure that the transactions contemplated herein are effected as
so contemplated.
(e) Any reference herein to a registration statement as of any time
shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time, and any reference herein to
any 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 Issuer files a registration statement pursuant to Section 2(a)
or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the Resale
Registration, as the case may be, the Issuer shall qualify the Indenture under
the Trust Indenture Act.
(b) In the event that such qualification would require the appointment
of a new trustee under the Indenture, the Issuer shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Indenture.
(c) In connection with the Issuer's obligations with respect to the
registration of Exchange Securities as contemplated by Section 2(a) (the
"Exchange Registration"), if applicable, the Issuer shall, as soon as reasonably
practicable (or as otherwise specified):
(i) prepare and file with the Commission, no later than 90
days after the Closing, an Exchange Offer Registration Statement on any
form which may be utilized by the Issuer 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 reasonable efforts to cause such Exchange Offer
Registration Statement to become effective as soon as practicable
thereafter, but no later than 150 days after the Closing;
(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
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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;
(iii) promptly notify each broker-dealer that has requested or
received copies of the prospectus included in the Exchange Offer
Registration Statement, and confirm such advice in writing, (A) when
such Exchange Offer Registration Statement or the prospectus included
therein, or any amendment or supplement thereto, has been filed, and,
with respect to such Exchange Offer Registration Statement or any
amendment thereto, 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
Issuer contemplated by Section 5 cease to be true and correct in all
material respects, (E) of the receipt by the Issuer 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, or any amendment or supplement thereto, 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 a 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 Issuer would be required, pursuant
to Section 3(c)(iii)(F) above, to notify any broker-dealers holding
Exchange Securities, promptly to 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. Each broker-dealer holding
Exchange Securities during the Resale Period agrees that upon receipt
of any notice from the Issuer pursuant to Section 3(c)(iii)(F) above,
such broker-dealer shall forthwith discontinue disposition of Exchange
Securities pursuant to the Exchange Offer Registration Statement
applicable to such Exchange Securities until such broker-dealer shall
have received copies of such amended or supplemented prospectus, and if
so directed by the Issuer, such broker-dealer shall deliver to the
Issuer (at the Issuer's expense) all copies, other than permanent file
copies, then in such broker-
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dealer's possession of the prospectus covering such Exchange Securities
at the time of receipt of such notice; provided, however, that the
Issuer hereby agrees that if it provides notice to any broker-dealers
pursuant to Section 3(c)(iii)(F) above during the Resale Period, such
Resale Period shall be extended by the number of days in the period
from and including the date of the giving of such notice to and
including the date on which the Issuer shall have made available to
such broker-dealers copies of the amended or supplemented prospectus
necessary to permit such broker-dealers to resume disposition of
Exchange Securities;
(v) use all reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of such Exchange Offer Registration
Statement or any amendment thereto at the earliest practicable date;
(vi) use all 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), if such registration
or qualification is required by such laws, no later than the
commencement of the Exchange Offer, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions
until the expiration of the Resale Period and (C) take any and all
other actions as may be reasonably necessary or advisable to enable
each broker-dealer holding Exchange Securities to consummate the
disposition thereof in such jurisdictions; provided, however, that the
Issuer shall not be required for any such purpose to (1) qualify as a
foreign corporation in any jurisdiction wherein it would not otherwise
be required to qualify but for the requirements of this Section
3(c)(vi) or (2) consent to general service of process in any such
jurisdiction;
(vii) use all reasonable efforts to obtain the consent or
approval of each United States 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 will make generally available to its securityholders as
soon as practicable after the effective date of the Exchange Offer
Registration Statement an earnings statement satisfying the provisions
of Section 11(a) of the Securities Act; provided that in no event shall
such earnings statement be delivered 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 Issuer's first quarter commencing
after the effective date of the Exchange Offer Registration Statement,
which statement shall cover such 12-month period.
(d) In connection with the Issuer's obligations with respect to the
Resale Registration, if applicable, the Issuer shall, as soon as reasonably
practicable (or as otherwise specified):
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(i) prepare and file with the Commission, as soon as
reasonably practicable but in any case within 30 days after the
obligation to file the Resale Registration Statement arises, a Resale
Registration Statement on any form which may be utilized by the Issuer
and which shall register all of the Registrable Securities for resale
by the holders thereof in accordance with such method or methods of
disposition as may be specified by such of the holders as, from time to
time, may be Electing Holders and use its reasonable best efforts to
cause such Resale Registration Statement to become effective as soon as
practicable but in any case within 90 days after the obligation to file
the Resale Registration Statement arises;
(ii) not less than 30 calendar days prior to the Effective
Time of the Resale Registration Statement, mail the Notice and
Questionnaire to the holders of Registrable Securities; no holder shall
be entitled to be named as a selling securityholder in the Resale
Registration Statement as of the Effective Time, and no holder shall be
entitled to use the prospectus forming a part thereof for resales of
Registrable Securities at any time, unless such holder has returned a
completed and signed Notice and Questionnaire to the Issuer by the
deadline for response set forth therein; provided, however, holders of
Registrable Securities shall have at least 30 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 Issuer;
(iii) after the Effective Time of the Resale Registration
Statement, (A) upon the request of any holder of Registrable Securities
that is not then an Electing Holder, promptly send a Notice and
Questionnaire to such holder and (B) upon receipt by the Issuer of a
completed and signed Notice and Questionnaire from any holder of
Registrable Securities that is not then an Electing Holder, take any
action reasonably necessary to cause such holder to be named as a
selling securityholder in the Resale Registration Statement and to
enable such holder to use the prospectus forming a part thereof for
resales of Registrable Securities; provided that the Issuer shall not
be required to take any action contemplated in clause (B) of this
paragraph until such holder has returned a completed and signed Notice
and Questionnaire to the Issuer;
(iv) as soon as reasonably practicable prepare and file with
the Commission such amendments and supplements to such Resale
Registration Statement and the prospectus included therein as may be
necessary to effect and maintain the effectiveness of such Resale
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 Resale
Registration Statement, and furnish to the Electing Holders copies of
any such supplement or amendment simultaneously with or prior to its
being used or filed with the Commission;
(v) comply with the provisions of the Securities Act with
respect to the disposition of all of the Registrable Securities covered
by such Resale Registration
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Statement in accordance with the intended methods of disposition by the
Electing Holders provided for in such Resale 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(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 Resale 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
Resale Registration Statement, and throughout the period specified in
Section 2(b), make available at reasonable times at the Trustee'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 Issuer that they have a current intention to sell the
Registrable Securities pursuant to the Resale Registration such
financial and other information and certified copies of the books and
records of the Issuer, and cause the officers, employees, counsel and
independent certified public accountants of the Issuer to respond to
such inquiries, as shall be reasonably necessary, in the judgment of
the Issuer and its counsel, to conduct a reasonable investigation
within the meaning of Section 11 of the Securities Act; provided,
however, that each such party shall be required to maintain in
confidence and not to disclose to any other person any information or
records reasonably designated by the Issuer in writing as being
confidential, until such time as (A) such information becomes a matter
of public record (whether by virtue of its inclusion in such
registration statement or otherwise), (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 Issuer prompt prior written notice of such
requirement) or (C) such information is required to be set forth in
such Resale Registration Statement or the prospectus included therein
or in an amendment to such Resale Registration Statement or an
amendment or supplement to such prospectus in order that such Resale
Registration Statement, prospectus, amendment or supplement, as the
case may be, complies with applicable requirements of the U.S. 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 Resale Registration Statement or the
prospectus included therein, or any amendment or supplement thereto,
has been filed,
13
and, with respect to such Resale Registration Statement or any
amendment thereto, 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 Resale
Registration Statement or prospectus or for additional information, (C)
of the issuance by the Commission of any stop order suspending the
effectiveness of such Resale Registration Statement or the initiation
or threatening of any proceedings for that purpose, (D) if at any time
the representations and warranties of the Issuer 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 Issuer of any notification
with respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose or (F) if at any time
when a prospectus is required to be delivered under the Securities Act,
such Resale Registration Statement, prospectus, or amendment or
supplement thereto, 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 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 amendment such information as
is required by the applicable rules and regulations of the Commission
and as such managing underwriter or underwriters, such agent or such
Electing Holder specifies should be included therein relating to the
terms of the sale of such Registrable Securities, including information
with respect to the principal amount of Registrable Securities being
sold by such Electing Holder or agent or to any underwriters, the name
and description of such Electing Holder, agent or underwriter, the
offering price of such Registrable Securities and any discount,
commission or other compensation payable in respect thereof, the
purchase price being paid therefor by such underwriters and with
respect to any other terms of the offering of the Registrable
Securities to be sold by such Electing Holder or agent or to such
underwriters; and make all required filings of such prospectus
supplement or amendment promptly after notification of the matters to
be incorporated in such prospectus supplement or amendment;
(xi) furnish to each Electing Holder, each placement or sales
agent, if any, therefor, each underwriter, if any, thereof and the
respective counsel referred to in Section 3(d)(vi) an executed copy
(or, in the case of an Electing Holder, a conformed copy) of such
Resale Registration Statement, each such amendment and supplement
thereto (in each case including all exhibits thereto (in the case of an
Electing Holder of Registrable Securities, upon request) and documents
incorporated by reference therein) and such number of copies of such
Resale Registration Statement (excluding exhibits
14
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
Resale Registration Statement (including each preliminary prospectus
and any summary prospectus), in conformity in all material respects
with the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder, and such other documents, as such Electing Holder, agent,
if any, and underwriter, if any, may reasonably request in order to
facilitate the offering and disposition of the Registrable Securities
owned by such Electing Holder, offered or sold by such agent or
underwritten by such underwriter and to permit such Electing Holder,
agent and underwriter to satisfy the prospectus delivery requirements
of the Securities Act; and the Issuer 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 Issuer, in connection with the offering
and sale of the Registrable Securities covered by the prospectus
(including such preliminary and summary prospectus) or any supplement
or amendment thereto;
(xii) use all reasonable efforts to (A) register or qualify
the Registrable Securities to be included in such Resale 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 Resale
Registration 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 Registrable Securities during the period the
Resale Registration is required to remain effective under Section 2(b)
above; provided, however, that the Issuer shall not be required for any
such purpose to (1) qualify as a foreign corporation in any
jurisdiction wherein it would not otherwise be required to qualify but
for the requirements of this Section 3(d)(xii), (2) consent to general
service of process in any such jurisdiction;
(xiii) use all reasonable efforts to obtain the consent or
approval of each United States governmental agency or authority,
whether federal, state or local, which may be required to effect the
Resale Registration or the offering or sale in connection therewith or
to enable the selling holder or holders to offer, or to consummate the
disposition of, their Registrable Securities;
(xiv) cooperate with the Electing Holders and the managing
underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold, which
certificates shall be printed, lithographed or engraved, or produced by
any combination of such methods, and which shall not bear any
restrictive legends (except in the case of a sale to a Restricted
Holder); and, in the case of an
15
underwritten offering, enable such Registrable 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 Registrable Securities;
(xv) provide a CUSIP number for all Registrable Securities,
not later than the applicable Effective Time;
(xvi) enter into one or more underwriting agreements,
engagement letters, agency agreements, "best efforts" underwriting
agreements or similar agreements, as appropriate, including customary
provisions relating to indemnification and contribution, and take such
other actions in connection therewith as any Electing Holders
aggregating at least 25% in aggregate principal amount of the
Registrable Securities at the time outstanding shall reasonably request
in order to expedite or facilitate the disposition of such Registrable
Securities;
(xvii) whether or not an agreement of the type referred to in
Section 3(d)(xvi) hereof is entered into and whether or not any portion
of the offering contemplated by the Resale 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 and customary agreement or to a
registration statement filed on the form applicable to the Resale
Registration; (B) obtain an opinion of counsel to the Issuer 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 25% in aggregate principal amount of
the Registrable 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 Resale Registration
Statement (and if such Resale Registration Statement contemplates an
underwritten offering of a part or all of the Registrable Securities,
dated the date of the closing under the underwriting agreement relating
thereto) (it being agreed that the matters to be covered by such
opinion shall include the due 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 to
such counsel's knowledge of material legal or governmental proceedings
involving the Issuer ; the absence of governmental approvals required
to be obtained in connection with the Resale Registration, the offering
and sale of the Registrable Securities, this Exchange and Registration
Rights Agreement or any agreement of the type referred to in Section
3(d)(xvi) hereof, except such approvals, if any, as may be required
under state securities or blue sky laws; the material compliance as to
form of such Resale 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 Resale Registration Statement
16
or most recent amendment thereto, as the case may be, the absence from
such Resale 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)), such opinion to be subject to customary qualifications and
limitations; (C) obtain a "comfort" letter or letters from the
independent certified public accountants of the Issuer 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 Resale Registration Statement and (ii) the effective date
of any prospectus supplement to the prospectus included in such Resale
Registration Statement or amendment to such Resale 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 Resale
Registration Statement contemplates an underwritten offering pursuant
to any prospectus supplement to the prospectus included in such Resale
Registration Statement or amendment to such Resale Registration
Statement which includes unaudited or audited financial statements as
of a date or for a period subsequent to that of the latest such
statements included in such prospectus, dated the date of the closing
under the underwriting agreement relating thereto), such letter or
letters to be in customary form and covering 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 25% in
aggregate principal amount of the Registrable 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 Issuer;
and (E) undertake such obligations relating to expense reimbursement,
indemnification and contribution as are provided in Section 6 hereof;
(xviii) notify in writing each holder of Registrable
Securities of any proposal by the Issuer to amend or waive any
provision of this Exchange and Registration Rights Agreement pursuant
to Section 9(i) 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 Registrable Securities or participate
as a member of an underwriting syndicate or selling group or "assist in
the distribution" (within the meaning of the Rules of Fair Practice and
the By-Laws of the National Association of Securities Dealers, Inc.
("NASD") or any successor thereto, as amended from time to time)
thereof, whether as a holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a
17
broker or dealer in respect thereof, or otherwise, assist such
broker-dealer in complying with the requirements of such Rules and
By-Laws, including by (A) if such Rules or By-Laws shall so require,
engaging a "qualified independent underwriter" (as defined in Rule 2720
(or any successor thereto)) to participate in the preparation of the
Resale Registration Statement relating to such Registrable Securities,
to exercise usual standards of due diligence in respect thereto and, if
any portion of the offering contemplated by such Resale Registration
Statement is an underwritten offering or is made through a placement or
sales agent, to recommend the yield of such Registrable Securities, (B)
indemnifying any such qualified independent underwriter to the extent
of the indemnification of underwriters provided in Section 6 hereof (or
to such other customary extent as may be requested by such underwriter)
and (C) providing such information to such broker-dealer as may be
required in order for such broker-dealer to comply with the
requirements of the Rules of Fair Practice of the NASD; and
(xx) comply with all applicable rules and regulations of the
Commission and will make generally available to its securityholders as
soon as practicable after the effective date of the Resale Registration
Statement an earnings statement satisfying the provisions of Section
11(a) of the Securities Act; provided that in no event shall such
earnings statement be delivered 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 Issuer's first quarter commencing after the
effective date of the Resale Registration Statement, which statement
shall cover such 12-month period.
(e) In the event that the Issuer 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
Issuer shall promptly prepare and furnish to each of the Electing Holders, to
each placement or sales agent, if any, and to each such underwriter, if any, a
reasonable number of copies of a prospectus supplemented or amended so that, as
thereafter delivered to purchasers of Registrable Securities, such prospectus
shall conform in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder and shall not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the circumstances then
existing. Each Electing Holder agrees that upon receipt of any notice from the
Issuer pursuant to Section 3(d)(viii)(F) hereof, such Electing Holder shall
forthwith discontinue the disposition of Registrable Securities pursuant to the
Resale Registration Statement applicable to such Registrable Securities until
such Electing Holder shall have received copies of such amended or supplemented
prospectus, and if so directed by the Issuer, such Electing Holder shall deliver
to the Issuer (at the Issuer's expense) all copies, other than permanent file
copies, then in such Electing Holder's possession of the prospectus covering
such Registrable Securities at the time of receipt of such notice.
(f) In the event of a Resale Registration, in addition to the
information required to be provided by each Electing Holder in its Notice and
Questionnaire, the Issuer may require such Electing Holder to furnish to the
Issuer such additional information regarding such Electing Holder and such
Electing Holder's intended method of distribution of Registrable Securities as
18
the Issuer may from time to time reasonably request in writing, but only to the
extent that such information is required in order to comply with the Securities
Act or state securities or blue sky laws. Each such Electing Holder agrees to
notify the Issuer as promptly as practicable of any inaccuracy or change in
information previously furnished by such Electing Holder to the Issuer or of the
occurrence of any event in either case as a result of which any prospectus
relating to such Resale Registration contains or would contain an untrue
statement of a material fact regarding such Electing Holder or such Electing
Holder's intended method of disposition of such Registrable Securities or omits
to state any material fact regarding such Electing Holder or such Electing
Holder's intended method of disposition of such Registrable Securities required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances then existing, and promptly to furnish to the
Issuer any additional information required to correct and update any previously
furnished information or required so that such prospectus shall not contain,
with respect to such Electing Holder or the disposition of such Registrable
Securities, an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing. Each Electing Holder
further agrees that in the event the amount of Registrable Securities that are
beneficially owned by such Electing Holder and are registered pursuant to such
Resale Registration is reduced due to a sale of such Registrable Securities
under such Resale Registration, such Electing Holder shall deliver to the Issuer
and the Trustee, at the time of such sale, a Notice of Transfer.
(g) Until the earlier of (i) the expiration of two years after the
Closing or (ii) such time as the Exchange Offer has been completed or the Resale
Registration Statement has become or been declared effective by the Commission,
the Issuer will not, and will not permit any of its affiliates (as defined in
Rule 144) to, re-issue or resell any of the Securities that have been acquired
by any of them.
4. Registration Expenses.
The Issuer agrees to bear and to pay or cause to be paid promptly all
expenses incident to the Issuer's performance of or compliance with this
Exchange and Registration Rights Agreement, including (a) all Commission and any
NASD registration, filing and review fees and expenses including reasonable fees
and disbursements of 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 and determination of their
eligibility for investment under the laws of such jurisdictions as any managing
underwriters or the Electing Holders may reasonably designate, including any
reasonable fees and disbursements of counsel for the Electing Holders (subject
to the limitations of Clause (i) below) 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
19
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 (f) internal expenses (including all salaries and
expenses of the Issuer's officers and employees performing legal or accounting
duties), (g) reasonable fees, disbursements and expenses of counsel and
independent certified public accountants of the Issuer (including the expenses
of any opinions or "comfort" letters required by or incident to such performance
and compliance), (h) reasonable fees, disbursements and expenses of any
"qualified independent underwriter" engaged pursuant to Section 3(d)(xix)
hereof, (i) fees, disbursements and expenses of one counsel for the Electing
Holders retained in connection with a Resale Registration, as selected by the
Electing Holders of at least a majority in aggregate principal amount of the
Registrable Securities held by Electing Holders (which counsel shall be
reasonably satisfactory to the Issuer ) and (l) any fees charged by securities
rating services for rating the Securities as required by the Indenture
(collectively, the "Registration Expenses"). To the extent that any Registration
Expenses are incurred, assumed or paid by any holder of Registrable Securities
or any placement or sales agent therefor or underwriter thereof, the Issuer
shall reimburse such person for the full amount of the Registration Expenses so
incurred, assumed or paid promptly after receipt of a request therefor
(accompanied by receipts, invoices or other documentary evidence, as
appropriate). Notwithstanding the foregoing, the holders of the Registrable
Securities being registered shall pay all agency fees and commissions and
underwriting discounts and commissions attributable to the sale of such
Registrable Securities and the fees and disbursements of any counsel or other
advisors or experts retained by such holders (severally or jointly), other than
the counsel and experts specifically referred to above.
5. Representations and Warranties.
The Issuer represents and warrants to, and agrees with, each Initial
Purchaser and each of the holders from time to time of Registrable Securities
that:
(a) Each registration statement covering Registrable Securities and
each prospectus (including any preliminary or summary prospectus) contained
therein or furnished pursuant to Section 3(c) or Section 3(d) hereof and any
further amendments or supplements to any such registration statement or
prospectus, when it becomes effective or is filed with the Commission, as the
case may be, and, in the case of an underwritten offering of Registrable
Securities, at the time of the closing under the underwriting agreement relating
thereto, will conform in all material respects to the applicable 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 from (i) such time as a notice has been given to
holders of Registrable Securities pursuant to Section 3(c)(iii)(F) or Section
3(d)(viii)(F) hereof until (ii) such time as the Issuer furnishes an amended or
supplemented prospectus pursuant to Section 3(c)(iv) or Section 3(e) hereof,
each such registration statement, and each prospectus (including any summary
20
prospectus) contained therein or furnished pursuant to Section 3(c) or Section
3(d) hereof, as then amended or supplemented, will 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
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 Issuer by or on behalf of a holder of Registrable
Securities expressly for use therein.
(b) Any documents incorporated by reference in any prospectus referred
to in Section 5(a) hereof, when they become or became effective or are or were
filed with the Commission, as the case may be, will conform or conformed in all
material respects to the requirements of the Securities Act or the Exchange Act,
as applicable, and none of such documents will contain or contained an untrue
statement of a material fact or will omit or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Issuer by or on behalf of a holder
of Registrable Securities expressly for use therein.
(c) The compliance by the Issuer with all of the provisions of this
Exchange and Registration Rights Agreement and the consummation of the
transactions herein contemplated will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Issuer or any of its subsidiaries is a party or by which the Issuer or
any such subsidiary is bound or to which any of the property or assets of the
Issuer or any such subsidiary is subject, nor will such action result in any
violation of the provisions of the certificate of incorporation and by-laws of
the Issuer or any statute or any order, rule or regulation of any United States
court or governmental agency or body having jurisdiction over the Issuer or any
such subsidiary or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such court or
governmental agency or body is required for the consummation by the Issuer 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, if any, as may be
required under State securities or blue sky laws in connection with the offering
and distribution of the Securities.
(d) This Exchange and Registration Rights Agreement has been duly
authorized, executed and delivered by the Issuer.
6. Indemnification.
(a) Indemnification by the Issuer. In the event of a registration of
the Registrable Securities pursuant to Section 2(a) or 2(b) hereof, the Issuer
shall, and hereby agrees to,
21
indemnify and hold harmless each of the holders of Registrable Securities
included in an Exchange Offer Registration Statement, each of the Electing
Holders of Registrable Securities included in a Resale Registration Statement
and each person who participates as a placement or sales agent or as an
underwriter in any offering or sale of such Registrable 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 Resale Registration Statement, as the case may be, under which such
Registrable Securities were registered under the Securities Act, or any
preliminary, final or summary prospectus contained therein or furnished by the
Issuer 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 the
Issuer shall, and hereby agrees to, reimburse such holder, such Electing Holder,
such agent and such underwriter for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such action
or claim as such expenses are incurred; provided, however, that the Issuer shall
not be liable to any such person in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
such registration statement, or preliminary, final or summary prospectus, or
amendment or supplement thereto, in reliance upon and in conformity with written
information furnished to the Issuer by or on behalf of such person expressly for
use therein;
(b) Indemnification by the Holders and any Agents and Underwriters. The
Issuer may require, as a condition to including any Registrable Securities in
any registration statement filed pursuant to Section 2(b) hereof and to entering
into any underwriting agreement with respect thereto, that it shall have
received an undertaking reasonably satisfactory to it from the Electing Holder
of such Registrable Securities and from each underwriter named in any such
underwriting agreement, severally and not jointly, to (i) indemnify and hold
harmless the Issuer, and all other holders of Registrable Securities, against
any losses, claims, damages or liabilities to which the Issuer or such other
holders of Registrable Securities may become subject, under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in such registration
statement, or any preliminary, final or summary prospectus contained therein or
furnished by the Issuer to any 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 Issuer by or on behalf
of such Electing Holder or underwriter expressly for use therein, and (ii)
reimburse the Issuer for any legal or other expenses reasonably incurred by it
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
22
this Section 6(b) for any amounts in excess of the dollar amount of the proceeds
to be received by such Electing Holder from the sale of such Electing Holder's
Registrable Securities pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of written notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party pursuant to the indemnification provisions of
or contemplated by this Section 6, notify such indemnifying party in writing of
the commencement of such action; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party other 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, which shall not be unreasonably withheld, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) are unavailable to or insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
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
23
allocation (even if the holders or any agents or underwriters or all of them
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 6(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), no holder shall be required to contribute any
amount in excess of the amount by which the dollar amount of the proceeds
received by such holder from the sale of any Registrable Securities (after
deducting any fees, discounts and commissions applicable thereto) exceeds the
amount of any damages which such holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission, and no underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The holders' and any underwriters' obligations in this
Section 6(d) to contribute shall be several in proportion to the principal
amount of Registrable Securities registered or underwritten, as the case may be,
by them and not joint.
(e) The obligations of the Issuer under this Section 6 shall be in
addition to any liability which the Issuer may otherwise have and shall extend,
upon the same terms and conditions, to each officer, director and partner of
each holder, agent and underwriter and each person, if any, who controls any
holder, agent or underwriter within the meaning of the Securities Act; and the
obligations of the holders and any agents or underwriters contemplated by this
Section 6 shall be in addition to any liability which the respective holder,
agent or underwriter may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Issuer (including any person
who, with his consent, is named in any registration statement as about to become
a director of the Issuer) and to each person, if any, who controls the Issuer
within the meaning of the Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable Securities
covered by the Resale Registration are to be sold pursuant to an underwritten
offering, the managing underwriter or underwriters thereof shall be designated
by Electing Holders holding at least a majority in aggregate principal amount of
the Registrable Securities to be included in such offering, provided that such
designated managing underwriter or underwriters is or are reasonably acceptable
to the Issuer.
(b) Participation by Holders. Each holder of Registrable Securities
hereby agrees with each other such holder that no such holder may participate in
any underwritten offering hereunder unless such holder (i) agrees to sell such
holder's Registrable Securities on the basis
24
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.
The Issuer covenants to the holders of Registrable Securities that to
the extent it shall be required to do so under the Exchange Act, the Issuer
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
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such holder to sell Registrable Securities without
registration under the Securities Act within the limitations of the exemption
provided by 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 Registrable Securities in
connection with that holder's sale pursuant to Rule 144, the Issuer shall
deliver to such holder a written statement as to whether it has complied with
such requirements. The Issuer shall not be required to comply with this Section
8 if the Exchange Offer has been completed.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Issuer represents, warrants,
covenants and agrees that it has not granted, and shall not grant, registration
rights with respect to Registrable Securities or any other securities which
would be inconsistent with the terms contained in this Exchange and Registration
Rights Agreement.
(b) Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if the Issuer failed to perform any of its
obligations hereunder and that the Initial Purchasers and the holders from time
to time of the Registrable Securities may be irreparably harmed by any such
failure, and accordingly agree that the Initial 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
Issuer under this Exchange and Registration Rights Agreement in accordance with
the terms and conditions of this Exchange and Registration Rights Agreement, in
any court of the United States or any State thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when (i) delivered by hand, if delivered personally or by courier,
(ii) transmitted by any standard form of telecommunication upon receipt of a
signal confirming receipt or (iii) three days after being deposited in the mail
(registered or certified mail, postage prepaid, return receipt requested) as
follows: If to the Issuer, to Allegheny Technologies Incorporated, 0000 Xxx XXX
Xxxxx,
00
Xxxxxxxxxx, XX 00000-0000 (telefax: (000) 000-0000, Attention: Xxx X. Xxxxxx,
Senior Vice President, Chief Legal and Administrative Officer, with a copy to
Xxxxxxxxxxx & Xxxxxxxx LLP, 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000
(telefax: (000) 000-0000), Attention: Xxxxxx X. Xxxx, Esq., and if to a holder,
to the address of such holder set forth in the security register or other
records of the Issuer, or to such other address as the Issuer, or any such
holder may have furnished to the other in writing in accordance herewith, except
that notices of change of address shall be effective only upon receipt.
(d) Parties in Interest. All the terms and provisions of this Exchange
and Registration Rights Agreement shall be binding upon, shall inure to the
benefit of and shall be enforceable by, the parties hereto and the holders from
time to time of the Registrable Securities and the respective successors and
assigns of the parties hereto and such holders. In the event that any transferee
of any holder of Registrable Securities shall acquire Registrable Securities, in
any manner, whether by gift, bequest, purchase, operation of law or otherwise,
such transferee shall, without any further writing or action of any kind, be
deemed a beneficiary hereof for all purposes and such Registrable Securities
shall be held subject to all of the terms of this Exchange and Registration
Rights Agreement, and by taking and holding such Registrable Securities such
transferee shall be entitled to receive the benefits of, and be conclusively
deemed to have agreed to be bound by, all of the applicable terms and provisions
of this Exchange and Registration Rights Agreement. If the Issuer shall so
request, any such successor, assign or transferee shall agree in writing to
acquire and hold the Registrable Securities subject to all of the applicable
terms hereof.
(e) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Exchange and Registration
Rights Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof) made by
or on behalf of any holder of Registrable Securities, any director, officer or
partner of such holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and shall
survive delivery of and payment for the Registrable Securities pursuant to the
Purchase Agreement and the transfer and registration of Registrable Securities
by such holder and the consummation of an Exchange Offer.
(f) LAW GOVERNING. THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK.
(g) Jurisdiction, Venue and Service of Process. Each of the parties
hereto hereby submits to the jurisdiction of any Federal or State court in the
City, County and State of New York, or to the courts of its own corporate
domicile, in respect of actions brought against it as a defendant, in any legal
suit, action or proceeding based on or arising under this Exchange and
Registration Rights Agreement and agrees that all claims in respect of such suit
or proceeding may be determined in any such court. The Issuer waives, to the
extent permitted by law, the defense of an inconvenient forum or objections to
personal jurisdiction with respect to the maintenance of such legal suit, action
or proceeding.
26
(h) Headings. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement are inserted for
convenience only, do not constitute a part of this Exchange and Registration
Rights Agreement and shall not affect in any way the meaning or interpretation
of this Exchange and Registration Rights Agreement.
(i) 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 Issuer and the
holders of at least a majority in aggregate principal amount of the Registrable
Securities at the time outstanding. Each holder of any Registrable Securities at
the time or thereafter outstanding shall be bound by any amendment or waiver
effected pursuant to this Section 9(h), whether or not any notice, writing or
marking indicating such amendment or waiver appears on such Registrable
Securities or is delivered to such holder.
(j) 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 Registrable
Securities shall be made available for inspection and copying on any business
day by any holder of Registrable Securities for proper purposes only (which
shall include any purpose related to the rights of the holders of Registrable
Securities under the Securities, the Indenture and this Agreement) at the
offices of the Issuer at the address thereof set forth in Section 9(c) above and
at the office of the Trustee under the Indenture.
(k) 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.
27
Agreed to and accepted as of the date referred to above.
Allegheny Technologies Incorporated
as Issuer
By: /s/ Xxx X. Xxxxxx
---------------------------
Name: Xxx X. Xxxxxx
Title: Senior Vice President, Chief Legal
and Administrative Officer
X.X. Xxxxxx Securities Inc.
Banc of America Securities LLC
Xxxxxxx Xxxxx Barney Inc.
PNC Capital Markets, Inc.
BNY Capital Markets, Inc.
Mizuho International plc
Tokyo-Mitsubishi International plc
By: X.X. Xxxxxx Securities Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
By: Banc of America Securities LLC
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Principal
28
Exhibit A
ALLEGHENY TECHNOLOGIES INCORPORATED
(the "Issuer")
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE] (1)
---------------------------------
The Depository Trust Issuer ("DTC") has identified you as a
DTC Participant through which beneficial interests in the Issuer's 8.375% Notes
due 2011, (the "Securities"), are held.
The Issuer 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 as of the date and
time such registration statement becomes or is declared effective by the
Securities and Exchange Commission 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 Allegheny Technologies
Incorporated 0000 Xxx XXX Xxxxx, Xxxxxxxxxx, XX 00000-0000 (telefax: (412)
394-2837), Attention: Xxx X. Xxxxxx, Senior Vice President, Chief Legal and
Administrative Officer.
--------
(1) Not less than 30 calendar days from date of mailing.
29
ALLEGHENY TECHNOLOGIES INCORPORATED
(the "Issuer")
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" among the
Issuer and the Initial Purchasers named therein. Pursuant to the Exchange and
Registration Rights Agreement, the Issuer has filed with the United States
Securities and Exchange Commission (the "Commission") a registration statement
on Form [___] (the "Resale Registration Statement") for the registration and
resale under Rule 415 of the Securities Act of 1933, as amended (the "Securities
Act"), of the Issuer's 8.375% Notes due 2011 (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 Registrable Securities is entitled to
have the Registrable Securities beneficially owned by it included in the Resale
Registration Statement. In order to have Registrable Securities included in the
Resale Registration Statement as of its Effective Time, this Notice of
Registration Statement and Selling Securityholder Questionnaire ("Notice and
Questionnaire") must be completed, executed and delivered to the Issuer's
counsel at the address set forth herein for receipt ON OR BEFORE [DEADLINE FOR
RESPONSE]. Any beneficial owner of Registrable Securities who does not complete,
execute and return this Notice and Questionnaire by such date (i) will not be
named as a selling securityholder in the Resale Registration Statement and (ii)
may not use the Prospectus forming a part thereof for resales of Registrable
Securities; provided, however, that if any such beneficial owner delivers this
Notice and Questionnaire to the Issuer after such date, the Issuer shall take
any action reasonably necessary to cause such beneficial owner to be named as a
selling securityholder in the Resale Registration Statement and to enable such
beneficial owner to use the prospectus forming a part thereof for resales of
Registrable Securities, in each case, as soon as reasonably practicable after
the Effective Time.
Certain legal consequences arise from being named as a selling
securityholder in the Resale Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Registrable 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 Resale Registration
Statement and related Prospectus.
30
ELECTION
The undersigned holder (the "Selling Securityholder") of
Registrable Securities hereby elects to include in the Resale Registration
Statement the Registrable 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 Registrable Securities by
the terms and conditions of this Notice and Questionnaire and the Exchange and
Registration Rights Agreement, including Section 6 of the Exchange and
Registration Rights Agreement, as if the undersigned Selling Securityholder were
an original party thereto.
Upon any sale of Registrable Securities pursuant to the Resale
Registration Statement, the Selling Securityholder will be required to deliver
to the Issuer 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 Issuer and represents and warrants that such information is
accurate and complete:
31
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 Registrable 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 Registrable Securities Listed in Item
(3) below are Held:
(2) Address for Notices to Selling Securityholder:
Telephone:
--------------------------
Fax:
--------------------------
Contact Person:
--------------------------
(3) 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 Registrable Securities beneficially owned:
CUSIP No(s). of such Registrable Securities:
(b) Principal amount of Securities other than Registrable
Securities beneficially owned:
CUSIP No(s). of such other Securities:
32
(c) Principal amount of Registrable Securities which the
undersigned wishes to be included in the Shelf Registration Statement:
CUSIP No(s). of such Registrable Securities to be included in
the Shelf Registration Statement:
(4) Relationships with the Issuer: 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 Issuer (or any of their predecessors or
affiliates) during the past three years.
State any exceptions here:
(5) Plan of Distribution: Except as set forth below, the undersigned Selling
Securityholder intends to distribute the Registrable Securities listed above in
Item (3) only as follows (if at all): Such Registrable Securities may be sold
from time to time directly by the undersigned Selling Securityholder or,
alternatively, through underwriters, broker-dealers or agents. Such Registrable
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 Registrable Securities or otherwise,
the Selling Securityholder may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the Registrable
Securities in the course of hedging the positions they assume. The Selling
Securityholder may also sell Registrable Securities short and deliver
Registrable Securities to close out such short positions, or loan or pledge
Registrable Securities to broker-dealers that in turn may sell such securities.
State any exceptions here:
33
(6) Whether you are a corporation or not, the following three questions should
be answered. If you are a corporation these questions should also be answered
with respect to your officers, directors and holders of 5% or more of your
equity securities; if you are a partnership such questions should also be
answered with respect to your general partners.
(a) Except as set forth below in this Item (6)(a), neither the
undersigned nor any of its affiliates(2) is a member(3) of the National
Association of Securities Dealers, Inc. (the "NASD") or a person
associated with a member** of the NASD.
State any exceptions here:
--------
(2) NASD Rule 2720 defines the term "affiliate" to mean a company which
controls, is controlled by or is under common control with a member. The term
affiliate is presumed to include the following:
(i) a company will be presumed to control a member if the company
beneficially owns 10 percent or more of the outstanding voting securities of a
member which is a corporation, or beneficially owns a partnership interest in 10
percent or more of the distributable profits or losses of a member which is a
partnership;
(ii) a member will be presumed to control a company if the member and
persons associated with the member beneficially own 10 percent or more of the
outstanding voting securities of a company which is a corporation, or
beneficially own a partnership interest in 10 percent or more of the
distributable profits or losses of a company which is a partnership;
(iii) a company will be presumed to be under common control with a
member if:
(1) the same natural person or company controls both the member and
company by beneficially owning 10 percent or more of the outstanding voting
securities of a member or company which is a corporation, or by beneficially
owning a partnership interest in 10 percent or more of the distributable profits
or losses of a member or company which is a partnership; or
(2) a person having the power to direct or cause the direction of the
management or policies of the member or the company also has the power to direct
or cause the direction of the management or policies of the other entity in
question.
(3) Article I of the NASD's By-Laws defines the term "member" to mean any broker
or dealer admitted to membership in the NASD and defines the term "person
associated with a member" to mean every sole proprietor, partner, officer,
director or branch Initial Purchaser of any member, or any natural person
occupying a similar status or performing similar functions, or any natural
person engaged in the investment banking or securities business who is directly
or indirectly controlling or controlled by such member (for example, any
employee), whether or not such person is registered or exempt from registration
with the NASD.
34
(b) Except as set forth below in this Item (6)(b), the undersigned does
not own stock or other securities of any NASD member not purchased in
the open market.
State any exceptions here:
(c) Except as set forth below in this Item (6)(c), the undersigned has
not made any outstanding subordinated loans to any NASD member.
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 (which governs manipulation, stabilization and trading
activity during a distribution of securities).
In the event that the Selling Securityholder transfers all or any
portion of the Registrable Securities listed in Item (3) above after the date on
which such information is provided to the Issuer, 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 Resale Registration Statement
and related Prospectus. The Selling Securityholder understands that such
information will be relied upon by the Issuer and any underwriters in an
underwritten offering of such Selling Securityholder's Registrable Securities
listed in Item(3) above, in connection with the preparation of the Resale
Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under
Sections 3(d) and (f) of the Exchange and Registration Rights Agreement to
provide such information as may be required by law for inclusion in the Resale
Registration Statement, the Selling Securityholder agrees to promptly notify the
Issuer of any inaccuracies or changes in the information provided herein which
may occur subsequent to the date hereof at any time while the Resale
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:
35
(i) To the Issuer:
Allegheny Technologies Incorporated
0000 Xxx XXX Xxxxx
Xxxxxxxxxx, XX 00000-0000
(telefax: (000) 000-0000)
Attention: Xxx X. Xxxxxx,
(ii) with a copy to:
Xxxxxxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
(telefax: (000) 000-0000)
Attention: Xxxxxx X. Xxxx, Esq.
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Issuer'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
Issuer and the Selling Securityholder (with respect to the Registrable
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.
36
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 Registrable Securities)
By:
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE ISSUER'S COUNSEL AT:
Xxxxxxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
(telefax: (000) 000-0000)
Attention: Xxxxxx X. Xxxx, Esq.
37
Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
Attention: Trust Officer
Re: Allegheny Technologies Incorporated (the "Issuer")
8.375% Notes due 2011
Dear Sirs:
Please be advised that _____________________ has transferred
$___________ aggregate principal amount of the above-referenced Notes pursuant
to an effective Registration Statement on Form [___] (File No. 333-____) filed
by the Issuer.
We hereby certify that the above-named beneficial owner of the
Notes is named as a "Selling Holder" in the Prospectus dated ___________, 20__
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)
