Exhibit 4.3
EXECUTION VERSION
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), dated
as of May 6, 2003 (the "EFFECTIVE DATE"), is by and between INTERNATIONAL STEEL
GROUP INC., a Delaware corporation ("ISG") and the PENSION BENEFIT GUARANTY
CORPORATION, a United States governmental corporation ("HOLDER").
WITNESSETH:
WHEREAS, ISG and Bethlehem Steel Corporation, a Delaware
corporation ("BETHLEHEM"), are parties to that certain Asset Purchase Agreement,
dated as of March 12, 2003 (as amended or supplemented from time to time, the
"PURCHASE AGREEMENT"), by and among Bethlehem, certain other Sellers listed on
the signature pages to the Purchase Agreement, and ISG Acquisition Inc., a
Delaware corporation, and a wholly owned subsidiary of ISG, pursuant to which,
among other things, ISG will purchase and acquire substantially all of the
operating assets of Bethlehem and the other Sellers on the terms and conditions
contained therein (all capitalized terms that are not defined herein are used as
defined in the Purchase Agreement);
WHEREAS, the Purchase Agreement provides that, as a condition
to closing the purchase of the Acquired Assets by Buyer, Holder shall have given
a release of certain claims (as more fully described in the Purchase Agreement,
the "PBGC RELEASE");
WHEREAS, ISG and Holder have entered into an Agreement, dated
as of April __, 2003 (the "SETTLEMENT AGREEMENT"), pursuant to which ISG, in
consideration for the PBGC Release, will issue to Holder a Subordinated
Promissory Note (the "NOTE") in the aggregate principal amount of $35,000,000,
which amount is convertible, in accordance with the terms and provisions
contained in the Note, into shares (the "CONVERTIBLE NOTE SHARES") of common
stock of ISG, par value $0.01 per share (the "ISG COMMON STOCK");
WHEREAS, pursuant to the Purchase Agreement, ISG has further
agreed to issue to Bethlehem shares of Class B common stock of ISG, par value
$0.01 per share (the "CLASS B STOCK"), in partial payment of the Purchase Price,
which shares of Class B Stock shall be automatically converted into shares of
ISG Common Stock (the "CONVERTED SHARES") upon the terms and conditions set
forth in ISG's Second Amended and Restated Certificate of Incorporation (the
"RESTATED CERTIFICATE");
WHEREAS, pursuant to the Settlement Agreement, ISG
acknowledges that if the Consideration Shares are returned to Buyer on or before
July 1, 2004, as permitted under Section 5.7 of the Purchase Agreement, ISG
shall deliver to Holder that number of shares of Class B Stock that Holder would
have received as an unsecured creditor of Bethlehem had the Consideration Shares
not been so returned, which shares shall be Converted Shares upon the terms and
conditions set forth in the Restated Certificate (the "ALTERNATIVE CONVERTED
SHARES");
WHEREAS, pursuant to the Settlement Agreement and in
accordance with the terms and conditions provided herein, ISG has agreed to
provide certain registration rights to Holder with respect to the (i)
Convertible Note Shares and (ii) Alternative Converted Shares;
NOW, THEREFORE, in consideration of the premises and the
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound hereby, the parties hereto agree as follows:
1. Definitions. As used herein, the terms below shall
have the following respective meanings:
(a) "BUSINESS DAY" means any day other than a Saturday, Sunday
or legal holiday on which banking institutions in the State of New York are not
required to open.
(b) "COMMISSION" means the U.S. Securities and Exchange
Commission.
(c) "DISADVANTAGEOUS CONDITION" shall mean the existence of a
condition such that the preparation or filing of a registration statement would
(i) have a material adverse effect on the business, properties or financial
condition of ISG or otherwise materially impair the ability of ISG to conduct
its affairs or (ii) require disclosure of non-public material information that
ISG has a bona fide business purpose for preserving as confidential.
(d) "EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended.
(e) "ISG IPO" means the first bona fide underwritten public
offering of ISG Common Stock pursuant to an effective registration statement
under the Securities Act, other than pursuant to a registration statement on
Form S-4 or Form S-8 or any successor or similar form, provided that (i) the
registration statement relating to such offering covers the offer and sale of
ISG Common Stock of which the aggregate net proceeds exceed $30,000,000 and (ii)
ISG Common Stock is listed for trading or quoted on the New York Stock Exchange
or the NASDAQ National Market.
(f) "REGISTRABLE SHARES" means, with respect to any person
holding ISG Common Stock and entitled to registration rights under the terms of
this Agreement (i) the Convertible Note Shares; (ii) the Alternative Converted
Shares; and (iii) any additional shares of ISG Common Stock subsequently paid,
issued or distributed in respect of any such shares by way of stock dividend or
distribution or stock split or in connection with a combination of shares,
recapitalization, reorganization, merger, consolidation, pursuant to the
Restated Certificate or otherwise. As to any particular Registrable Shares, once
issued, such Registrable Shares shall cease to be Registrable Shares when (A) a
registration statement with respect to the sale by Holder of such securities has
become effective under the Securities Act and such securities have been disposed
of in accordance with such registration statement, (B) such securities have been
sold under circumstances in which all of the applicable conditions to Rule 144
are met, (C) in the opinion of counsel acceptable to ISG, such securities may be
sold without any time, volume or manner limitations pursuant to Rule 144(k) (or
any similar provision then in effect under the Securities Act) and upon receipt
of such satisfactory opinion, ISG shall use its reasonable efforts to remove any
legend on the certificates for such shares that purports to restrict transfers
under the Securities Act and applicable state securities laws, (D) such
securities have become eligible for sale in accordance with Rule 1145 of the
Bankruptcy Code, or (E) such securities have ceased to be outstanding.
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(g) "RULE 144" means Rule 144 promulgated by the Commission
under the Securities Act, as such rule may from time to time be amended, or any
successor provision thereof.
(h) "SECURITIES ACT" shall mean the Securities Act of 1933, as
amended.
2. Demand Registration Rights.
(a) Subject to the conditions of this Section 2, at any time
and from time to time following January 1, 2004, Holder may make one (but not
more than one) written request for registration under the Securities Act of all
(but not less than all) of the Registrable Shares held by Holder at the time any
such request is made, provided that the aggregate net proceeds of the offer and
sale of ISG Common Stock in connection therewith exceeds $25,000,000 (the
"DEMAND REGISTRATION"). Any such request for Demand Registration must specify
the (i) number of Registrable Shares proposed to be offered for sale by Holder
and (ii) intended method of disposition thereof.
(b) If Holder so elects, the offering of Holder's Registrable
Shares pursuant to such Demand Registration will be in the form of an
underwritten public offering. A registration will not count as a Demand
Registration until it has become effective.
(c) If the book-runner for any Demand Registration that is to
an underwritten public offering advises ISG in writing that, in its opinion, the
number of shares of ISG Common Stock requested to be included in such offering
by ISG, by any other holder of ISG Common Stock who proposes to participate in
such offering (each an "OTHER HOLDER" and collectively, the "OTHER HOLDERS") and
by Holder exceeds the largest number or amount of ISG Common Stock which can be
sold without adverse effect on that offering (including the price at which such
ISG Common Stock can be sold) the number of shares of ISG Common Stock to be
included in such registration shall be reduced to such extent, and ISG shall
include in such registration the number of shares of ISG Common Stock as
follows: (i) first, to the extent that the number of Registrable Shares which
Holder has requested to be included in such registration is less than the number
or amount of ISG Common Stock which ISG has been advised by the book-runner can
be sold in such offering without having the adverse effect referred to above as
many of the Registrable Shares which Holder proposes to sell for its own
account, if any, as can be sold in such offering without having such adverse
effect referred to above; provided, however, that, if the Holder's shares are
cut back pursuant to this clause (i) to the extent that the aggregate net
proceeds from the offer and sale in connection therewith is less than
$20,000,000, then such shall not count as a Demand Registration; (ii) second,
all the shares of ISG Common Stock requested to be included in such registration
by ISG, which in the opinion of such book-runner can be sold without adverse
effect on the offering; and (iii) third, to the extent that the number of shares
of ISG Common Stock which the Other Holders have requested to be included in
such registration is less than the number or amount of ISG Common Stock which
ISG has been advised by its book-runner can be sold in such offering without
having the adverse effect referred to above, as many of the shares of ISG Common
Stock which the Other Holders propose to sell for their own account, if any, as
can be sold in such offering without having such adverse effect referred to
above, allocated pro rata among the Other Holders (if the amount is less than
all of the shares of
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ISG Common Stock to be sold by the Other Holders) on the basis of the number of
shares of ISG Common Stock proposed to be sold by the Other Holders.
(d) Notwithstanding the foregoing provisions of this Section
2, Holder may not request a Demand Registration if (i) a registration statement
(other than on Form S-4 or Form S-8 or any similar or successor form thereto)
has been filed by ISG with the Commission in connection with an underwritten
primary offering of securities, unless such registration statement has been
withdrawn or has been effective for a period of 90 calendar days, or for such
longer period during which Holder is eligible to sell or otherwise dispose of
Registrable Shares, pursuant to a registration statement that has become
effective as contemplated under Section 3 hereof, (ii) an underwritten offering
of ISG Common Stock (whether for the account of ISG or any other security
holders) has been consummated within the preceding 180 days, or (iii) ISG
furnishes to Holder a certificate signed by the president or any vice president
of the Company stating that, in the good faith judgment of the Company, it would
be detrimental to ISG and its stockholders for such Demand Registration to be
effected at such time due to the Disadvantageous Condition, in which event ISG
shall have the right to defer such filing until the Disadvantageous Condition
ceases to exist, but in no event may the Demand Registration be delayed pursuant
to clauses (i) - (iii) above more than an aggregate of 270 days.
(e) Notwithstanding the foregoing provisions of this Section
2, in the event ISG receives written request for a Demand Registration, ISG may
elect by written notice to Holder within twenty (20) days after receipt of such
notice, to proceed with a registration of ISG Common Stock for ISG's account in
lieu of proceeding with the Demand Registration, in which case the provisions of
Section 3 (and not this Section 2) will apply and in such event, Holder shall
not be deemed to have exercised its Demand Registration.
(f) Holder shall be permitted to remove all or any part of the
Registrable Shares held by Holder from any Demand Registration at any time prior
to the effective date of the registration statement covering such Registrable
Shares; provided, however, if, as a result of the removal of such Registrable
Shares, such registration statement is withdrawn by ISG, such Demand
Registration shall nonetheless count as Holder's sole Demand Registration and
ISG shall be deemed to have satisfied its obligations to Holder under this
Section 2 notwithstanding such election.
(g) ISG shall have the right, upon giving notice to Holder, to
require Holder not to sell any Registrable Shares pursuant to any registration
statement for a period not to exceed 90 days (a "BLACK-OUT PERIOD"), if (i) (A)
ISG is engaged in good faith discussions or negotiations with respect to, or has
proposed or taken a substantial step to commence, or there otherwise is pending,
any merger, acquisition, other form of business combination, divestiture, tender
offer, financing or other transaction, or there is an event or state of facts
relating to ISG, in each case which is material to ISG (as determined in good
faith by the Company) (any such negotiation, step, event or state of facts being
herein called a "MATERIAL ACTIVITY"), (B) in the good faith judgment of the
Company, after consultation with counsel, disclosure of such Material Activity
would be necessary under applicable securities laws and (C) disclosure of such
Material Activity would, in the good faith judgment of the Company, be adverse
to the interests of ISG; provided, however, that the Black-Out Period will
terminate upon public disclosure by ISG of such Material Activity or completion
of the transaction, or (ii) ISG, upon advice of counsel, deems it
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necessary to file a post-effective amendment to any registration statement, or
to prepare a supplement to, or otherwise amend, the form of prospectus contained
therein. In the event ISG gives such notice, ISG shall extend the effectiveness
of the registration statement for a period of time equal to the length of the
Black-Out Period. ISG may not impose more than two Black-Out Periods during any
360-day period; provided, that if the Demand Registration has been delayed
pursuant to Section 2(d) above, ISG may not impose more than one Black-Out
Period in any subsequent 360-day period unless all shares registered pursuant to
such Demand Registration have been sold. During any Black-Out Period, Holder
agrees not to sell any Registrable Shares under any registration statement. ISG
shall promptly provide notice to Holder upon the termination of any Black-Out
Period.
3. Piggyback Rights.
(a) If, other than in connection with the ISG IPO, ISG
proposes to file a registration statement under the Securities Act with respect
to an offering of any shares of ISG Common Stock (i) for its own account (other
than a registration statement on Form S-4 or Form S-8 or any similar or
successor form thereto) or (ii) for the account of any Other Holder, then ISG
will give written notice of such proposed offering to Holder as soon as
practicable (provided that Holder will be given such notice not less than twenty
(20) calendar days prior to the deadline set by ISG for electing to include
Registrable Shares in such offering), and such notice will offer Holder the
opportunity, in accordance with Section 4(b), to register some or all of its
Registrable Shares held by Holder on the same terms and conditions as the
registration of ISG's or such Other Holder's shares of ISG Common Stock. If ISG
so elects, the offering contemplated by this Section 3(a) will be in the form of
an underwritten offering.
(b) Whenever ISG proposes to file a registration statement in
accordance with Section 3(a), ISG will include in such registration statement
all Registrable Shares which Holder or any Other Holder requests to be included
therein; provided, however, that if the managing underwriter of an underwritten
offering under this Section 3(b) advises ISG in writing that the total number of
shares requested to be included in such registration exceeds the number of
shares of ISG Common Stock which can be sold in such offering or that the
success or pricing of the offering would be materially and adversely affected by
the inclusion of all of the shares of Common Stock requested to be included,
then (except in the case of a Demand Registration, as to which Section 3(c) will
govern), ISG will include in such registration (i) first, the shares of ISG
Common Stock ISG proposes to offer for sale for its own account, unless such
registration was initiated by Other Holders pursuant to the exercise of a demand
registration right (in which case the Registrable Shares required to be included
by such Other Holders shall be included prior to shares of ISG Common Stock ISG
proposes to offer for sale for its own account), (ii) second, the Registrable
Shares requested to be included by Holder and such Other Holders of Registrable
Shares exercising registration rights, allocated pro rata among them in
accordance with the number of Registrable Shares held by each of them so that
the total number of Registrable Shares to be included in such offering for the
account of all such persons will not exceed the number recommended by such
managing underwriter, and (iii) third, such number of other shares of ISG Common
Stock as the holders thereof desire to offer for sale and ISG and the managing
underwriter recommend be included in such offering. ISG shall have the right to
terminate or withdraw any registrations initiated by it under this Section 3
prior to the effectiveness of such
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registration statement, whether or not Holder elects to include any Registrable
Shares in such Registration Statement.
(c) A request by Holder to include Registrable Shares in a
proposed underwritten offering pursuant to this Section 3 will not be deemed to
be Holder's request for Demand Registration pursuant to Section 2;
(d) In connection with any underwritten public offering
pursuant to Section 2 or Section 3 hereof in which Holder participates, Holder
agrees that, upon request of the managing underwriter for such offering, Holder
shall comply with the customary "lock-up" provisions requested by the managing
underwriter and imposed on the directors, executive officers and other sellers
of shares included in such underwritten public offering, including not effecting
any sale or distribution, including any sale pursuant to Rule 144 of any
Registrable Shares during the fifteen (15) days prior to, and during such period
as the managing underwriter may request (not to exceed 180 days) beginning on,
the offering date of the Registrable Shares pursuant to an effective
registration statement, except as part of such registration. Holder further
agrees to notify ISG in writing upon the disposition of any Registrable Shares
by Holder pursuant to any such registration statement.
4. Registration Procedures
Whenever Holder requests that any Registrable Shares be
registered pursuant to Section 2 or Section 3 hereof:
(a) Subject to Section 2(d), ISG will as expeditiously as
possible prepare and file with the Commission, and use its reasonable efforts to
cause to be promptly made effective, a registration statement on any form for
which ISG then qualifies and which counsel for ISG deems appropriate and
available for the sale of the Registrable Shares to be registered thereunder in
accordance with the intended method of distribution thereof;
(b) Once a registration statement hereunder has become
effective, ISG will prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
a period of not less than 30 calendar days in connection with an underwritten
public offering, 180 calendar days in connection with a shelf registration
statement or such shorter period which will terminate when all Registrable
Securities covered by such registration statement have been sold, and comply
with the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by Holder set forth in such
registration statement.
(c) ISG will promptly provide notice to Holder (i) when a
prospectus or any prospectus supplement or amendment has been filed and when the
same becomes effective, (ii) of any request by the Commission or any other
federal or state governmental authority for amendments or supplements to any
applicable registration statement, (iii) of the issuance by the Commission or
any other governmental entity of any stop order suspending the effectiveness of
any applicable registration statement or the initiation of any proceedings for
that purpose, and
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ISG will use all commercially reasonable efforts to prevent the issuance of any
stop order or to obtain promptly its withdrawal if such stop order should be
issued, (iv) of the receipt by ISG of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Registrable Shares for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose, or (v) of ISG's reasonable determination
that a post-effective amendment to a registration statement relating to the
Registrable Shares would be appropriate or that there exist circumstances not
yet disclosed to the public which make further sales under such registration
statement inadvisable pending such disclosure and post-effective amendment and
in such event Holder shall cease use of such registration statement until such
disclosure or post-effective amendment.
(d) ISG will prepare and promptly file with the Commission,
and promptly notify Holder of the filing of, any amendment or supplement to any
applicable registration statement or prospectus as may be necessary to correct
any statements or omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the Securities Act, any event shall
have occurred as the result of which any such prospectus would include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances in which they
were made, not misleading and promptly make available to the Holder and to the
underwriters, if any, any such supplement or amendment. The Holder agrees that,
upon receipt of any notice from ISG of the occurrence of any event of the kind
described in the preceding sentence, the Holder will forthwith discontinue the
offer and sale of Registrable Shares pursuant to the registration statement
covering such Registrable Shares until receipt by the Holder and the
underwriters, if any, of the copies of such supplemented or amended prospectus
and, if so directed by ISG, the Holder will deliver to ISG all copies, other
than permanent file copies then in the Holder's possession, of the most recent
prospectus covering such Registrable Shares at the time of receipt of such
notice.
(e) ISG will use reasonable efforts to cause all Registrable
Shares registered hereunder to be listed on each securities exchange, or quoted
in a U.S. automated inter-dealer quotation system, as the case may be, on which
similar securities issued by ISG are then listed or quoted.
(f) ISG will provide a transfer agent and registrar for all
Registrable Shares registered hereunder and a CUSIP number for such Registrable
Shares, in each case not later than the effective date of such registration.
(g) ISG shall furnish to Holder, at ISG's expense, such number
of copies of any prospectus (including any preliminary prospectus, amendment or
prospectus supplement) as Holder may reasonably request in order to effect the
offer and sale of its Registrable Shares, but only while said prospectus remains
current.
(h) ISG shall use reasonable efforts to affect such
qualifications or registrations under applicable blue sky or other state
securities laws as may be necessary to enable Holder to offer and sell their
Registrable Shares; provided, however, that ISG shall not be obligated to
qualify as a foreign corporation to do business under the laws of any
jurisdiction in which it is not then qualified, to subject itself to taxation in
any jurisdiction, or to file any general consent to service of process.
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5. Termination of Registration Rights. All of Holder's
rights under Section 2 and Section 3 of this Agreement shall expire when all
shares of capital stock and securities convertible into shares of capital stock
subject to this Agreement cease to be (i) issued and outstanding or (ii)
Registrable Shares.
6. Indemnification and Contribution.
(a) ISG shall indemnify and hold harmless Holder, its
officers, directors, shareholders or partners and each other person or entity,
if any, who "controls" Holder (within the meaning of such term as defined in the
Securities Act), against any losses, claims, damages or liabilities to which
such officers, directors, shareholders or partners may become subject under the
Securities Act or any other statute or at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in (A) any registration statement, (B) any preliminary prospectus, final
prospectus or summary prospectus contained therein, or (C) any amendment or
supplement to any of the foregoing, or (ii) any 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 the case of a prospectus, in light of
the circumstances under which they were made), and shall pay any reasonable
legal or other expenses reasonably incurred in connection with investigating or
defending any such loss, claim, damage or liability (action or proceeding);
provided, however, that ISG shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
any alleged untrue statement or alleged omission made in any registration
statement, preliminary prospectus, final prospectus, summary prospectus or
amendment or supplement in reliance upon and in conformity with written
information furnished to ISG by Holder expressly for use therein or so furnished
for such purposes.
(b) Indemnification by Holder. ISG may require, as a condition
to including any Registrable Shares in any registration statement filed in
accordance with Section 2 or Section 3 hereof, that ISG shall have received an
undertaking reasonably satisfactory to it from Holder to indemnify and hold
harmless ISG, its officers, directors, stockholders or partners and each other
person or entity, if any, who "controls" ISG (within the meaning of such term as
defined in the Securities Act), against any losses, claims, damages or
liabilities to which ISG or any such officers, directors, stockholders or
partners may become subject under the Securities Act or any other statute or at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions or proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in (A) any registration statement, (B)
any preliminary prospectus, final prospectus or summary prospectus contained
therein, or (C) any amendment or supplement to any of the foregoing, or (ii) any
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
the case of a prospectus, in light of the circumstances under which they were
made), and shall pay any reasonable legal or other expenses reasonably incurred
in connection with investigating or defending any such loss, claim, damage or
liability (or action or proceeding in respect thereof); provided, however, that
Holder shall only be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any alleged untrue
statement or
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alleged omission made in any registration statement, preliminary prospectus,
final prospectus, summary prospectus or amendment or supplement in reliance upon
and in conformity with written information furnished to ISG by Holder expressly
for use therein or so furnished for such purposes; and provided, further, that
Holder shall not be liable under this Section 6 for any amounts in excess of the
amount of proceeds received by Holder from the sale of Registrable Shares.
(c) Each person entitled to indemnification under this Section
6 (the "INDEMNIFIED PARTY") shall give notice to the party required to provide
indemnification (the "INDEMNIFYING PARTY") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought and shall
permit the Indemnifying Party to assume the defense of any such claim and any
litigation resulting therefrom, provided that counsel for the Indemnifying Party
who conducts the defense of such claim or any litigation resulting therefrom
shall be reasonably acceptable to the Indemnified Party and shall have no actual
conflict of interest in representing the Indemnified Party and any other Person,
and the Indemnified Party may participate in such defense at such Indemnified
Party's expense, and, provided further, that the failure of any Indemnified
Party to give notice as provided herein shall not relieve the Indemnifying Party
of its obligations under this Section 6 except to the extent that the
Indemnifying Party is actually prejudiced by such failure to give notice. No
Indemnifying Party, in the defense of any such claim or litigation, shall
consent to entry of any judgment or enter into any settlement without the
consent of Indemnified Party (which consent shall not be unreasonably withheld)
that (i) does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release from all liability
in respect to such claim or litigation, (ii) restricts the future activities or
conduct of the Indemnified Party or (iii) results in any finding adverse to the
Indemnified Party. The parties hereto agree that the matters identified in
clauses (i) - (iii) of this Section 6(c) may be reasonable grounds for
withholding consent. Each Indemnified Party shall furnish such information
regarding itself or the claim in question as an Indemnifying Party may
reasonably request in writing.
(d) To the extent that the indemnification provided for in
this Section 6 from the Indemnifying Party is held by a court of competent
jurisdiction (by the entry of a final judgment or decree and the expiration of
time to appeal or the denial of the last right of appeal) to be unavailable to
an Indemnified Party hereunder in respect of any losses, claims, damages
liabilities or expenses referred to therein, then the Indemnifying Party, in
lieu of indemnifying such Indemnified Party, shall contribute to the amount paid
or payable by such Indemnified Party as a result of such losses, claims,
damages, liabilities or expenses in such proportion as is appropriate to reflect
the relative fault of the Indemnifying Party and Indemnified Party in connection
with the actions which resulted in such losses, claims, damages, liabilities or
expenses, 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 any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been made by, or relates to information
supplied by, such Indemnifying Party or Indemnified Party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with any investigation or proceeding.
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The parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5(d) were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to herein. No person or entity 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.
(e) The foregoing indemnity agreements of ISG and Holder are
subject to the condition that, insofar as they relate to any losses, claims,
damages or liabilities (or actions in respect thereof) that arise out of or are
based upon any alleged untrue statement of any material fact contained in a
prospectus or any alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading (in
the case of a prospectus, in light of the circumstances under which they were
made) but which are eliminated or remedied in an amendment or prospectus
supplement, such indemnity agreement shall not inure to the benefit of Holder
asserting the loss, liability, claim or damage if a copy of the amendment or
prospectus supplement was furnished to Holder and was not thereafter furnished
in accordance with applicable provisions of the Securities Act at or prior to
the time such action is required by the Securities Act.
7. Covenants of Holder. In connection with any
registration statement, Holder agrees:
(a) to provide all such information and material and take all
actions as may be reasonably requested by ISG in order to enable ISG to comply
with all applicable federal and state securities laws requirements;
(b) to enter into and to fully discharge and perform its
obligations under any underwriting agreement entered into in connection with any
underwritten public offering;
(c) not to take any action that would prevent the distribution
of Registrable Shares included in that registration statement to be made in
accordance with the plan of distribution set forth in that registration
statement and with all applicable rules and regulations of the Commission;
(d) not to deliver any form of prospectus in connection with
the sale of any Registrable Shares as to which ISG has advised Holder in writing
that ISG is preparing an amendment or supplement; and
(e) to notify ISG promptly in writing upon the sale by Holder
of any Registrable Shares covered by any registration statement.
8. Expenses.
(a) In connection with any registration statement hereunder,
ISG shall pay fees and expenses of any such registration, including all
registration and filing fees, printing expenses, accounting fees and expenses,
fees and disbursements of counsel for ISG, expenses of complying with the
securities or blue sky laws of any jurisdictions pursuant to Section 4(h) and
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expenses and fees for listing the Registrable Shares on each securities exchange
on which shares of ISG Common Stock are then listed. ISG will pay all of its
internal expenses.
(b) Holder shall bear all underwriter fees, commissions,
spreads and discounts, all brokers' commissions, all transfer taxes with respect
to the Registrable Shares sold by Holder and registered hereunder and the
expenses associated with the opinion of counsel in accordance with Section
1(f)(C).
9. Restrictions on Transfer.
(a) Holder shall not, directly or indirectly, transfer, sell,
assign, pledge, hypothecate, encumber, or otherwise dispose of all or any
portion of any Registrable Shares to any person, except pursuant to (i) an
effective registration statement in accordance with the provisions of this
Agreement or (ii) a transaction pursuant to which such Registrable Shares cease
to be Registrable Shares.
(b) Holder acknowledges and agrees that certificates
evidencing the Registrable Shares will be endorsed with a legend regarding the
transfer restrictions contained in this Section 9; provided, however, that ISG
shall promptly provide Holder with certificates not bearing such legend at such
time as such legend shall no longer apply. Such legend shall be in the following
form:
"THE SECURITY REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS ON TRANSFER AS SET FORTH IN THE
REGISTRATION RIGHTS AGREEMENT, DATED AS OF APRIL ___, 2003, BY
AND BETWEEN INTERNATIONAL STEEL GROUP INC. AND THE PENSION
BENEFIT GUARANTY CORPORATION. THESE SECURITIES HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY
MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN
THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT
TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH
REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE
144. COPIES OF THE AGREEMENT COVERING THESE SECURITIES AND
RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO COST BY
WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS
CERTIFICATE TO THE PRESIDENT OR SECRETARY OF THE COMPANY AT
THE PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY."
10. Miscellaneous.
(a) Severability. If any one or more of the provisions
contained in this Agreement or in any other instrument referred to herein,
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, the parties shall use their reasonable efforts, including the amendment
of this Agreement, to ensure that this Agreement shall reflect as closely as
practicable the intent of the parties hereto on the date hereof.
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(b) Notices. All notices, demands, requests, consents,
approvals or other communications required or permitted to be given hereunder or
that are given with respect to this Agreement shall be in writing and shall be
personally served, delivered by a nationally recognized overnight delivery
service with charges prepaid, or transmitted by hand delivery, or facsimile,
addressed as set forth below, or to such other address as such party shall have
specified most recently by written notice. Notice shall be deemed given on the
date of service or transmission if personally served or transmitted by facsimile
with confirmation of receipt; provided, that, if delivered or transmitted on a
day other than a Business Day or after normal business hours, notice shall be
deemed given on the next Business Day. Notice otherwise sent as provided herein
shall be deemed given on the next Business Day following timely deposit of such
notice with an overnight delivery service:
If to Holder: Pension Benefit Guarantee Corporation
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
If to ISG: International Steel Group Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx Xxxx
Facsimile: (000) 000-0000
With copies to: Xxxxx Day
North Point
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Xx. and
Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
and to:
XX Xxxx & Co. LLC
Xxxxxxxxx Xxxxx (00xx Xxxxx)
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Wax
Facsimile: (000) 000-0000
Rejection of or refusal to accept any notice, or the inability
to deliver any notice because of changed address of which no notice was given,
shall be deemed to be receipt of the notice as of the date of such rejection,
refusal or inability to deliver.
(c) Choice of Law. This Agreement shall be construed and
interpreted, and the rights of the parties shall be determined, in accordance
with the substantive laws of the State of
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New York, without giving effect to any provision thereof that would require the
application of the substantive laws of any other jurisdiction, except to the
extent such laws are superseded by the Bankruptcy Code.
(d) Exclusive Jurisdiction. Without limiting any party's right
to appeal any order of the Bankruptcy Court, (i) the Bankruptcy Court shall
retain exclusive jurisdiction to enforce the terms of this Agreement and to
decide (insofar as they relate to Holder) any claims or disputes which may arise
or result from, or be connected with, this Agreement, any breach or default
hereunder, or the transactions contemplated hereby and (ii) any and all claims,
actions, causes of action, suits and proceeds relating to the foregoing shall be
filed and maintained only in the Bankruptcy Court, and the parties hereby
consent to and submit to the jurisdiction and venue of the Bankruptcy Court.
(e) Selection of Underwriters. In any underwritten offering
contemplated by this Agreement, ISG shall have sole authority to select any
investment banker and book-running manager or co-manager to administer the
offering. If Holder participates in any underwritten offering of Registrable
Shares, the Holder shall enter into an underwriting agreement in customary form
with the underwriter or underwriters selected for such underwriting, as well as
all other documents customary in similar offerings, including, without
limitation, custody agreements, powers of attorney and indemnification
agreements, as applicable.
(f) Amendment; Waiver. This Agreement may be amended,
supplemented or modified, and any of the terms, covenants or conditions may be
waived, only by a written instrument executed by ISG and Holder, or in the case
of a waiver, by the party waiving compliance. No waiver of any of the provisions
of this Agreement shall be deemed or shall constitute a waiver of any other
provision hereof (whether or not similar), and no such waiver shall constitute a
continuing waiver unless otherwise expressly provided.
(g) Assignment. The registration rights under this Agreement
shall inure to the benefit of and be binding upon the successors and permitted
assigns of ISG. ISG may not assign its rights or obligations under this
Agreement without the prior written consent of Holder, which consent will not be
unreasonably withheld. Subject to the foregoing, this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
(h) Beneficiaries. Nothing in this Agreement, express or
implied, is intended to confer upon any other person any rights or remedies of
any nature under or by reason of this Agreement, except as expressly provided
herein.
(i) Counting. If the due date for any action to be taken under
this Agreement (including the delivery of notices) is not a Business Day, then
such action shall be considered timely taken if performed on or prior to the
next Business Day following such due date.
(j) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same Agreement. Counterparts to this
Agreement may be delivered via facsimile. In proving
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this Agreement, it shall not be necessary to produce or account for more than
one such counterpart signed by the party against whom enforcement is sought.
(k) Public Information. Upon consummation of the ISG IPO, ISG
agrees to comply with the public information requirements of Rule 144(c) of the
Securities Act.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, ISG and Holder have executed this
Agreement as of the date first above written.
INTERNATIONAL STEEL GROUP INC.
By: /s/ Xxxxxx Xxxx
-----------------------------------------
Name: Xxxxxx Xxxx
Title: President
PENSION BENEFIT GUARANTY CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Director
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