Exhibit S
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is
made as of November 22, 1999 between Kaiser Ventures Inc., a
Delaware corporation (the "Company") and New Kaiser Voluntary
Employees' Beneficiary Association, a tax exempt trust formed
pursuant to Section 501(a) and 501(c)(9) of the Internal
Revenue Code of 1986, as amended ("VEBA") and the Pension Benefit
Guaranty Corporation ("PBGC").
WHEREAS, the Company, and VEBA, and the Company and PBGC,
are each parties to two separate Stock Purchase Agreements dated
as of even date herewith pursuant to which the Company is
purchasing certain shares of its stock from VEBA and from PBGC
(the "Stock Purchase Agreements"). However, VEBA will be
receiving a warrant to purchase up to 460,000 shares of the
common stock (the "Common Stock") of the Company and PBGC will be
receiving a warrant to purchase up to 285,260 shares of Common
Stock (collectively, the "Warrants") pursuant to the Stock
Purchase Agreements.
WHEREAS, pursuant to the Stock Purchase Agreements, the
parties agreed to enter into this Agreement, pursuant to which
the Company will grant to VEBA and PBGC (the "Sellers") certain
registration rights with respect to the Shares and the Warrant.
Unless otherwise provided in this Agreement, capitalized terms
used in this Agreement will have the meanings set forth in
paragraph 8 hereof.
NOW, THEREFORE, for good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the Company
and the Sellers agree as follows:
1. Demand Registration.
(a) Notice of Demand. At any one time after September
30, 2001, the Sellers may be written notice request (a "Demand
Registration") that the Company register Registrable Securities
under the Securities Act of 1933, as amended (the "Securities
Act") so long as the registration may be accomplished through the
use of a Form S-3 or comparable form. The notice shall set forth
(i) the number of shares to be included; (ii) the names of
the Sellers and the amounts to be sold by each; and (iii) the
proposed manner of sale.
(b) Registration. Promptly after receipt of the
notice pursuant to Section 1(a), the Company shall prepare and
file with the Securities and Exchange Commission a registration
statement with respect to the Registrable Securities specified in
such notice, and use its best efforts to cause such registration
statement to become effective.
(c) Holdback. In the event that a registration is
demanded pursuant to this Section 1, and in the reasonable
judgment of the Company it cannot be undertaken without serious
injury to the Company (the grounds for which decision shall be
confidentially disclosed to any requesting Holder), the Company
shall have the option to require the Selling Holders to withdraw
such registration demand for a period of up to 180 days (which
may be extended if such facts continue to be in effect).
2. Piggyback Registration Rights.
(a) Right To Piggyback. If the Company proposes to
register any of its common stock under the Securities Act and the
registration form to be used may be used for the registration of
Registrable Securities (as defined below) ("Piggyback
Registration") (Piggyback Registrations and Demand Registrations
are "Registrations"), the Company will give written notice to
the Sellers of its intention to effect such a registration and
will include in such registration all Registrable Securities with
respect to which the Company has received a written request from
either Seller for inclusion therein within 15 days after the
receipt of the Company's notice, subject to subparagraph 2(c)
below.
(c) Priority on Registrations. If the managing
underwriters of the Piggyback Registration determined in their
sole but good faith discretion and advise the Company in writing
that in their reasonable opinion the number of securities
requested to be included in such registration exceeds the
number which can be sold in such offering without adversely
affecting the marketability of the offering, the Company will
include in such registration (i) first, the securities the
Company proposes to sell, (ii) second, the Registrable Securities
requested by the Sellers to be included in such registration (in
proportion to their overall holdings of Common Stock) and
(iii) third, other securities requested to be included in such
registration.
3. Procedures.
(a) Piggyback Expenses. The Registration Expenses (as
defined below) of the Sellers will be paid by the Company in a
Registration.
(b) Remedies. Neither Seller will not seek an
injunction restraining or otherwise delaying any Registration as
the result of any controversy that might arise with respect to
the interpretation or implementation of this Agreement.
(c) Availability of Documents. The Company shall
furnish to the Sellers such number of copies of prospectuses,
including preliminary prospectuses, reasonably necessary to
conform with the requirements of the Securities Act, and such
other documents as the Sellers may reasonably request, to
facilitate the disposition of the Registrable Securities being
sold by the Sellers upon exercise of the Registration rights
contained in this Agreement.
(d) Blue Sky Compliance. The Company shall use its
reasonable efforts to register and qualify securities covered by
the Registration rights contained in this Agreement under such
other securities or Blue Sky laws of such jurisdictions as shall
be reasonably appropriate for the distribution of the securities
covered by the Registration; provided, however, that the Company
will not be required to qualify as a foreign corporation or to
take any action which would subject it to the service of process
in such state or jurisdiction, other than as to matters and
transactions relating to the offer and sale of the offered
securities, in any jurisdiction where it is not now
so subject.
4. Holdback Agreements. Each Seller agrees not to effect
any sale, transfer or other distribution (including sales
pursuant to Rule 144 or Rule 144A) of equity securities of the
Company, or any securities convertible into or exchangeable or
exercisable for such securities, for the period commencing seven
days prior to and ending on the first to occur of the (i) six
months from the effective date of any Registration in which
Registrable Securities are included (except as part of such
underwritten registration) or (ii) the Date on which any similar
lock-up imposed upon the Company in such Registration terminates,
unless the underwriters managing the registered public offering
otherwise agree.
5. Conditions Of Obligation To Register Shares. The
obligations of the Company under this Agreement are subject to
the following conditions:
(a) If a Piggyback Registration is underwritten, the
Company will not be required to include any Registrable
Securities in a Piggyback Registration unless the Seller involved
accepts, in writing, the terms of the underwriting as agreed upon
between the Company and the underwriters selected by the Company.
If either Seller does not accept the terms of the underwriting as
agreed upon between the Company and the underwriter, that
Seller shall withdraw.
(b) Each Seller will cooperate with the Company in
connection with the preparation of the registration statement,
and for so long as the Company is obligated to file and keep
effective the registration statement, will provide to the
Company, in writing, for use in the registration statement, all
information regarding that Seller as may be necessary to
enable the Company to prepare the registration statement and
prospectus covering the Registrable Securities, to maintain the
currency and effectiveness thereof and otherwise to comply with
all applicable requirements of law in connection therewith.
(c) During such time as a Seller may be engaged in a
distribution of Registrable Securities, such Seller will comply
with Rules 10b-7 promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and pursuant thereto, the
Seller will, among other things, cause to be furnished to each
broker through whom Registrable Securities may be offered, or to
the offeree if an offer is not made through a broker, such
copies of the prospectus covering the Registrable Securities and
any amendment or supplement thereto and documents incorporated by
reference therein as may be required by law and the Seller shall
not bid for or purchase any shares of the Company or attempt to
induce any other person to purchase any securities of the Company
other than as permitted under Exchange Act.
6. Certain Limitation on Future Rights. From and after
the date of this Agreement, the Company shall not enter into any
agreement with any other holder or prospective holder of any
securities of the Company providing for the grant to any such
prospective holder of registration rights unless such agreement
includes the substantial equivalent of (a) Section 2(c) of this
Agreement as a term of such agreement and in such section, the
agreement provides that the Sellers will have a priority with
respect to Piggyback Registration superior to any other holder of
securities of the Company, excluding, in all cases, the Company,
and (b) Section 3 of this Agreement as a term of such agreement.
7. Registration Expenses. All expenses incident to the
Company's performance of or compliance with this Agreement,
including without limitation all registration and filing fees,
fees and expenses of compliance with securities or blue sky laws,
printing expenses, messenger and delivery expenses, and fees and
disbursements of counsel for the Company and all independent
certified public accountants, underwriters (if any) (excluding
discounts and commissions) and other Persons retained by the
Company (all such expenses being herein called "Registration
Expenses"), will be borne as provided in this Agreement.
8. Indemnification.
(a) The Company agrees to indemnify, to the extent
permitted by law, the Sellers, their trustees, officers,
directors, counsel and each Person who controls the Sellers
(within the meaning of the Securities Act) against all losses,
claims, damages, liabilities and expenses caused by any untrue or
alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or
any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading,
except insofar as the same are caused by or contained in any
information furnished in writing to the Company by the
Sellers for use therein or by the Seller's failure to deliver a
copy of the registration statement or prospectus or any
amendments or supplements thereto after the Company has furnished
the Sellers with a sufficient number of copies of the same. In
connection with an underwritten offering, the Company will
indemnify such underwriters, their officers and directors and
each Person who controls such underwriters (within the meaning of
the Securities Act) to the same extent as provided above with
respect to the indemnification of the Sellers.
(b) In connection with any registration statement in
which the Sellers are participating, the Sellers will furnish to
the Company in writing such information, affidavits instruments
and other documents as the Company reasonably requests for use in
connection with any such registration statement or prospectus
and, to the extent permitted by law, indemnify the Company, its
directors, officers, counsel, accountants and each Person who
controls the Company (within the meaning of the Securities Act)
against all losses, claims, damages, liabilities and expenses
resulting from any untrue or alleged untrue statement of material
fact contained in the registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement
thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements
therein not misleading, but only to the extent that such untrue
statement or omission is contained in any information or
affidavit so furnished in writing by the Sellers.
(c) Any Person entitled to indemnification hereunder
will (i) give prompt written notice to the indemnifying party of
any claim with respect to which it seeks indemnification and (ii)
unless in such indemnified party's reasonable judgment a conflict
of interest between such indemnified and indemnifying parties may
exist with respect to such claim, permit such indemnifying party
to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is
assumed, the indemnifying party will not be subject to any
liability for any settlement made by the indemnified party
without its consent (but such consent will not be unreasonably
withheld, conditioned or delayed). An indemnifying party who is
not entitled to, or elects not to, assume the defense of a claim
will not be obligated to pay the fees and expenses of more than
one counsel for all parties indemnified by such indemnifying
party with respect to such claim, unless in the reasonable
judgment of any indemnified party a conflict of interest may
exist between such indemnified party and any other of such
indemnified parties with respect to such claim.
(d) The indemnification provided for under this
Agreement will remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or
any officer, director or controlling Person of such indemnified
party and will survive the transfer of securities.
9. Participation in Underwritten Registrations. No Seller
may not participate in any registration hereunder which is
underwritten unless it (a) agrees to sell its securities on the
basis provided in any underwriting arrangements approved by the
Person or Persons entitled hereunder to approve such arrangements
and (b) completes and executes all questionnaires, powers
of attorney, indemnities, underwriting agreements and other
documents required under the terms of such underwriting
arrangements.
10. Definitions.
"Person" means any individual, corporation, partnership,
limited liability company, limited liability partnership, firm,
joint venture, association, joint-stock company, trust or
unincorporated organization
"Registrable Securities" means (i) any Common Stock issued
or issuable with respect to the Warrants (the "Warrant Shares")
and (ii) any Common Stock issued or issuable with respect to the
Warrant Shares by way of a stock dividend, stock split or in
connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization. As to any
particular Registrable Securities, such securities will cease to
be Registrable Securities when they have been distributed to the
public or may be immediately sold to the public through a broker,
dealer or market maker in compliance with Rule 144 or Rule 144A
under the Securities Act (or any similar rule then in force).
11. Termination. This Agreement shall automatically
terminate and be of no further force or effect upon the first to
occur of (i) that Seller's failure to participate in two
underwritten public offerings in which Piggyback Registration
rights were offered to it and there was no material restriction
on the number of Registrable Securities proposed to be registered
on behalf of the Company, or (ii) the seventh anniversary date of
this Agreement. The termination of this Agreement does not
eliminate any liability of the parties for prior breaches.
12. Miscellaneous.
(a) Amendments and Waivers. Except as otherwise
provided herein, the provisions of this Agreement may be amended
or waived only upon the prior written consent of the Company and
the Sellers. In any instance where a single decision by Sellers
is reasonably necessary, Sellers shall act by majority based on
the Registrable Securities then held or covered by
Warrant.
(b) Successors and Assigns. This Agreement and the
respective rights and obligations hereunder shall not be assigned
by either party except with the prior written consent of the
non-assigning party, which consent shall be subject to the sole
discretion of the non-assigning party.
(c) Severability. Whenever possible, each provision
of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of
this Agreement is held to be prohibited by or invalid under
applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without invalidating
the remainder of this Agreement.
(d) Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, any one of which need
not contain the signatures of more than one party, but all such
counterparts taken together will constitute one and the same
Agreement.
(e) Descriptive Headings. The descriptive headings of
this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
(f) Governing Law. All other questions concerning the
construction, validity and interpretation of this Agreement and
the exhibits and schedules hereto will be governed by the
internal law, and not the law of conflicts, of Delaware.
(g) Notices. All notices, demands or other
communications to be given or delivered under or by reason of the
provisions of this Agreement shall be in writing and shall be
deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable express courier
service (charges prepaid) or mailed to the recipient by certified
or registered mail, return receipt requested and postage prepaid.
Such notices, demand and other communications will be sent to the
addresses indicated below:
To: The New Kaiser Voluntary Employees' Beneficiary
Association
0000 Xxxxxx Xxxxxx, Xxxxx X
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000)000-0000
To:
Pension Benefit Guaranty Corporation
c/o Pacholder Associates, Inc., as Agent
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, XX
Senior Vice President and
Associate General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxxxx, Esq.
Xxxx, Xxxxxxxxxx & Xxxxxxxxx
1800 Firstar Tower
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To:
Kaiser Ventures Inc.
0000 X. Xxxxxx Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: President
With a copy to:
Xxxxx X. Xxxx, Esq.
c/x Xxxxxx Ventures Inc.
0000 X. Xxxxxx Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address or to the attention of such other person
as the recipient party has specified by prior written notice to
the sending party.
[Next page is signature page]
[Signature Page to Registration Rights Agreement]
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
"VEBA" "Kaiser"
New Kaiser Voluntary Employees' Xxxxxx Ventures Inc.
Beneficiary Association
By: By:
Xxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxxx
Chairman, Administrative President, Chief
Committee Executive Officer
& Chairman of the Board
By: Xxxxx Fargo Bank of California, as trustee
By: __________________________
Xxxxx Xxxxxxxx
Assistant Vice President
Institutional Trust Group
By: ______________________________
Xxxxxxx Xxxx
Vice President and Area Manager
Los Angeles Office
Institutional Trust Group
"PBGC"
Pension Benefit Guaranty Corporation
By: Pacholder Associates, Inc., as Agent
By:
Xxxxxx X. Xxxxxxxx. II
Senior Vice President and
Associate General Counsel
