EXHIBIT 4.1
CONFORMED COPY
REGISTRATION RIGHTS AGREEMENT
Dated as of September 20, 1996
by and among
COMMONWEALTH ALUMINUM CORPORATION
and
XXXXXX XXXXXXX & CO. INCORPORATED
and
NATWEST CAPITAL MARKETS LIMITED
_________________________________
10 3/4% Senior Subordinated Notes Due 2006
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into as of September 20, 1996, by and among Commonwealth Aluminum
Corporation, a Delaware corporation (the "Company"), Xxxxxx Xxxxxxx & Co.
Incorporated and Natwest Capital Markets Limited (the "Purchasers").
This Agreement is made pursuant to the Placement Agreement dated
September 16, 1996 (the "Placement Agreement") between the Company and the
Purchasers which provides for the sale by the Company to the Purchasers of
$125,000,000 aggregate principal amount of the Company's 10 3/4% Senior
Subordinated Notes Due 2006 (the "Notes"). In order to induce the Purchasers to
enter into the Placement Agreement and purchase the Notes, the Company has
agreed to provide the registration rights set forth in this Agreement. The
execution of this Agreement is a condition to the purchase of the Notes under
the Placement Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
Capitalized terms used herein without definition shall have their
respective meanings set forth in the Placement Agreement. As used in this
Agreement, the following terms shall have the following meanings:
"BUSINESS DAY" means any day except (i) a Saturday, Sunday or other
day in The City of New York on which banks are required or authorized to close
or (ii) any other day on which the Commission is closed.
"COMMISSION" means the Securities and Exchange Commission.
"COMPANY" has the meaning set forth in the first paragraph of this
Agreement and also includes the Company's successors.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"EXCHANGE NOTES" means 10 3/4% Senior Subordinated Notes Due 2006
issued by the Company under the Indenture and containing terms identical to the
Notes (except that (i) interest thereon shall accrue from the last date on which
interest was paid on the Notes or, if no such interest has been paid, from
September 20, 1996, (ii) the Exchange Notes will not contain restrictions on
transfer, and (iii) the
Exchange Notes will not contain provisions relating to an increase in their
interest rate under certain circumstances) to be offered to Holders of Notes
pursuant to the Exchange Offer.
"EXCHANGE OFFER" means the exchange offer by the Company of Exchange
Notes for Registrable Notes pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION" means a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" means an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form) pursuant to the provisions of Section 2(a) of this Agreement which covers
all of the Exchange Notes and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference or deemed to be incorporated by reference
therein.
"HOLDER" means each of the Purchasers, for so long as they own any
Registrable Notes, and each of their successors, assigns and direct and indirect
transferees who become registered owners of Registrable Notes under the
Indenture; PROVIDED that for purposes of Sections 4 and 6 of this Agreement, the
term "Holder" shall include Participating Broker-Dealers as defined in Section
4(a).
"INDENTURE" means the Indenture relating to the Notes dated as of
September 20, 1996 among the Company, certain subsidiaries of the Company, as
Guarantors and Xxxxxx Bank and Trust Company, as Trustee, as amended or
supplemented from time to time in accordance with the terms thereof.
"PERSON" means an individual, partnership, corporation, limited
liability company, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"PLACEMENT AGREEMENT" has the meaning set forth in the first paragraph
of this Agreement.
"PROSPECTUS" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any amendment or supplement
thereto, with respect to the terms of the offering of any portion of the
Registrable Notes covered by such Registration Statement or of the Exchange
Notes, as the case may be, and all other amendments and supplements to the
Prospectus, including post-effective amendments
2
and all material incorporated by reference or deemed to be incorporated by
reference therein.
"PURCHASERS" has the meaning set forth in the first paragraph of this
Agreement.
"REGISTRABLE NOTES" means the Notes; PROVIDED that any Note shall
cease to be a Registrable Note upon the earlier to occur of (i) when a
Registration Statement with respect to such Note has been declared effective
under the Securities Act and such Note has been disposed of pursuant to such
Registration Statement, (ii) when such Note has become eligible for resale
pursuant to Rule 144(k) (or any similar provision then in force, but not Rule
144A) under the Securities Act, (iii) except with respect to any Note held by a
Holder described in clause (iii) of Section 2(b) hereof, an Exchange Offer has
been consummated, or (iv) such Notes shall cease to be outstanding.
"REGISTRATION EXPENSES" has the meaning set forth in Section 4 hereof.
"REGISTRATION STATEMENT" means any registration statement that covers
any of the Exchange Notes or Registrable Notes pursuant to the provisions of
this Agreement and all amendments and supplements to any such Registration
Statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference or deemed to be incorporated by reference therein.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the Commission thereunder.
"SHELF REGISTRATION" means a registration under the Securities Act
effected pursuant to Section 2(b) hereof.
"SHELF REGISTRATION STATEMENT" means a "shelf" registration statement
on Form S-3 (or, if applicable, on another appropriate form) pursuant to the
provisions of Section 2(b) of this Agreement which covers all of the Registrable
Notes under Rule 415 under the Securities Act, or any similar rule that may be
adopted by the Commission, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference or deemed to be incorporated by reference
therein.
"SPECIAL COUNSEL" means Xxxxx Xxxx & Xxxxxxxx, special counsel to the
Purchasers or such other special counsel as may be designated by the Holders of
a majority in aggregate principal amount of Registrable Notes outstanding.
3
"TRUSTEE" means the trustee with respect to the Notes under the
Indenture.
2. REGISTRATION UNDER THE SECURITIES ACT
(a) EXCHANGE OFFER REGISTRATION. To the extent not prohibited by any
applicable law or applicable interpretation of the Staff of the Commission, the
Company shall use its reasonable best efforts to cause to be filed after the
Closing Date an Exchange Offer Registration Statement covering an offer by the
Company to the Holders to exchange all of the Registrable Notes (except
Registrable Notes held by the Purchasers and acquired directly from the Company
if the Purchasers are not permitted, pursuant to applicable law or any
applicable interpretation of the Staff of the Commission, to participate in the
Exchange Offer) for Exchange Notes and to have such Registration Statement
remain effective until the closing of the Exchange Offer. The Company shall
commence the Exchange Offer promptly after the Exchange Offer Registration
Statement has been declared effective by the Commission and use its reasonable
best efforts to have the Exchange Offer consummated not later than April 1,
1997. The Company shall commence the Exchange Offer by mailing the related
exchange offer Prospectus and accompanying documents to each Holder stating, in
addition to such other disclosures required by applicable law or the Indenture:
(i) that the Exchange Offer is being made pursuant to this
Agreement and that all Registrable Notes validly tendered will be accepted
for exchange;
(ii) the dates of acceptance for exchange (which shall be a
period of not less than 20 Business Days from the date such notice is first
mailed) (the "Exchange Dates");
(iii) that any Registrable Note entitled to be exchanged in the
Exchange Offer not tendered or tendered and validly withdrawn will remain
outstanding and continue to accrue interest (but not at any increased rate
provided for under certain circumstances in such Notes), but will not
retain any rights under this Agreement;
(iv) that each Holder electing to have a Registrable Note
exchanged pursuant to the Exchange Offer will be required to surrender such
Registrable Note, together with letters of transmittal, to the institution
and at the address (located in the Borough of Manhattan, The City of New
York) specified in the notice prior to the close of business on the last
Exchange Date; and
4
(v) that each Holder will be entitled to withdraw its election
not later than the close of business on the last Exchange Date, by sending
to the institution and at the address (located in the Borough of Manhattan,
The City of New York) specified in the notice, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the principal
amount of Registrable Notes delivered for exchange and a statement that
such Holder is withdrawing its election to have such Registrable Notes
exchanged.
As soon as reasonably practicable after the last Exchange Date, the
Company shall:
(i) accept for exchange Registrable Notes or portions thereof
tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Notes or portions thereof so accepted for
exchange by the Company and issue, and cause the Trustee to promptly
authenticate and mail to each Holder, Exchange Notes equal in principal
amount to the principal amount of the Registrable Notes surrendered by such
Holder.
The Company shall use its reasonable best efforts to complete the
Exchange Offer as provided above and shall comply with the applicable
requirements of the Securities Act, the Exchange Act and other applicable laws
and regulations in connection with the Exchange Offer. The Exchange Offer shall
not be subject to any conditions, other than (i) that the Exchange Offer does
not violate applicable law or any applicable interpretation of the Staff of the
Commission, (ii) that no action or proceeding shall have been instituted or
threatened in any court or by or before any governmental agency or body with
respect to the Exchange Offer, (iii) that there shall not have been adopted or
enacted any law, statute, rule or regulation that would render the Exchange
Offer illegal, and (iv) such other conditions as may be reasonably acceptable to
the Purchasers which, in the Company's judgement, would reasonably be expected
to impair the ability of the Company to proceed with the Exchange Offer.
(b) SHELF REGISTRATIONS. In the event that (i) the Company
determines that the Exchange Offer Registration provided in Section 2(a) above
is not available or may not be consummated as soon as reasonably practicable
after the last Exchange Date, (ii) the Exchange Offer is not for any other
reason consummated by April 1, 1997 or (iii) the Exchange Offer has been
completed, and within 60 days following the consummation of the Exchange Offer,
a Holder notifies the Company that in the opinion of Special Counsel a
Registration Statement must be filed and a Prospectus must be delivered by it
because (x) such Registrable Notes represent an unsold allotment of the
Registrable Notes purchased by the Purchasers from the Company, (y) such Holder
is a Participating Broker-Dealer, or (z) such Holder was
5
otherwise not permitted to participate in the Exchange Offer, unless the Company
has previously done so, the Company shall use its reasonable best efforts to
cause to be filed as soon as reasonably practicable after such determination,
date or notice of such Special Counsel's opinion is given to the Company, as the
case may be, a Shelf Registration Statement providing for the sale by the
Holders of all of the Registrable Notes and to have such Shelf Registration
Statement declared effective by the Commission. The Company shall use its
reasonable best efforts to keep the Shelf Registration Statement continuously
effective for a period of three years from the Closing Date or such shorter
period which will terminate when all the Registrable Notes covered by the Shelf
Registration have been sold pursuant to the Shelf Registration Statement. The
Company shall also supplement or amend such Shelf Registration Statement if
required by the rules, regulations or instructions applicable to the
registration form used by the Company or if required by the Securities Act or by
any other rules and regulations thereunder for shelf registration or if
reasonably requested by a Holder with respect to information relating to such
Holder, and to use reasonable efforts to cause any such amendment to become
effective and such Shelf Registration Statement to become usable as soon as
thereafter reasonably practicable. The Company agrees to furnish to the Holders
of Registrable Notes copies of any such supplement or amendment promptly after
its being used or filed with the Commission.
(c) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will
not be deemed to have become effective unless it has been declared effective by
the Commission; PROVIDED that, if, after it has been declared effective, the
offering of Registrable Notes pursuant to a Shelf Registration Statement is
interfered with by any stop order, injunction or other order or requirement of
the Commission or any other governmental agency or court, such Registration
Statement will be deemed not to have become effective during the period of such
interference until the offering of Registrable Notes pursuant to such
Registration Statement may legally resume. In the event that either the
Exchange Offer is not consummated or a Shelf Registration Statement is not
declared effective on or prior to April 1, 1997, then the annual interest rate
borne by the Notes shall be increased by 0.5% beginning at such time. If either
such Exchange Offer is not consummated or such Shelf Registration Statement is
not declared effective on or prior to October 1, 1997, then the annual interest
rate borne by the Notes shall be increased by an additional 0.5% beginning at
such time. Upon consummation of such Exchange Offer or the effectiveness of
such Shelf Registration Statement, the interest borne by the Notes will revert
to the original rate.
(d) Without limiting the remedies available to the Purchasers and the
Holders, the Company acknowledges that any failure by the Company to comply with
its obligations under Section 2(a) and Section 2(b) hereof may result in
material irreparable injury to the Purchasers or the Holders for which there is
no adequate
6
remedy at law, that it will not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the Purchasers or any
Holder may obtain such relief as may be required to specifically enforce the
Company's obligations under Sections 2(a) and 2(b) hereof.
7
3. REGISTRATION PROCEDURES
(a) In connection with the obligations of the Company pursuant to
Sections 2(a) and 2(b) hereof, the Company shall:
(i) prepare and file with the Commission, within the applicable time
period specified in Section 2(a) and Section 2(b), a Registration Statement
or Registration Statements on the appropriate form under the Securities
Act, which form (A) shall be selected by the Company and (B) shall, in the
case of a Shelf Registration Statement, be available for the sale of the
Registrable Notes in accordance with the intended method or methods of
distribution as the Company is so advised of by the selling Holders thereof
and (C) shall comply as to form in all material respects with the
requirements of the applicable form and include (including through
incorporation by reference) all financial statements required by the
Commission to be filed therewith, and the Company shall use its reasonable
best efforts to cause each such Registration Statement to become effective
and remain effective in accordance with Section 2 hereof;
(ii) prepare and file with the Commission such amendments and post-
effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable
period and cause each Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented, to be filed pursuant to Rule
424 (or any similar provisions then in force) under the Securities Act; and
to keep each Prospectus current during the period described under Section
4(3) and Rule 174 under the Securities Act that is applicable to
transactions by brokers or dealers with respect to the Registrable Notes or
Exchange Notes;
(iii) use its reasonable best efforts to register or qualify the
Exchange Notes or Registrable Notes for the exchange or offer and sale, as
the case may be, under all applicable state securities or "blue sky" laws
of such jurisdictions as any Holder covered by a Registration Statement
shall reasonably request in writing by the time the applicable Registration
Statement is declared effective by the Commission, keep each such
registration or qualification effective during the period such Registration
Statement is required to be kept effective and do any and all other acts
and things which may be necessary or advisable to enable such Holder to
consummate the disposition in each such jurisdiction of such Registrable
Notes or Exchange Notes owned by such Holder; PROVIDED that the Company
will not be required to (A) qualify as a foreign corporation or as a dealer
in securities in any jurisdiction where it would not otherwise be required
to qualify but for this Section 3(a)(iii), (B) take any action which would
subject it to general service of process in any such jurisdiction where it
8
is not then so subject or (C) take any action which would subject it to
taxation in any such jurisdiction where it is not then so subject;
(iv) use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement and provide
prompt notice to each Holder or the Special Counsel of the withdrawal of
any such order;
(v) use its reasonable best efforts to obtain the consent or approval
of each United States governmental agency or authority, whether federal,
state or local, required to be obtained by the Company as may be necessary
to enable the Holders thereof to consummate the disposition of such
Registrable Notes or Exchange Notes and cooperate with each seller of
Registrable Notes in connection with any filings required to be made by
such seller with the National Association of Securities Dealers, Inc.;
(vi) provide a trustee for the Registrable Notes or Exchange Notes, as
the case may be, and cause the Indenture (or the indenture governing the
Exchange Notes, if any) to be qualified under the Trust Indenture Act of
1939, as amended (the "TIA") not later than the effective date of any
registration; and in connection therewith, cooperate with the Trustee and
the Holders to effect such changes to such indenture as may be required for
such indenture to be so qualified in accordance with the terms of the TIA
and execute, and use its reasonable best efforts to cause the Trustee to
execute, all documents as may be required to effect such changes, and all
other forms and documents required to be filed with the Commission to
enable such indenture to be so qualified in a timely manner;
(vii) comply with all applicable rules and regulations of the
Commission and, in the case of a Shelf Registration, make generally
available to its security holders earning statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act); no later than
45 days after the end of any 12-month period (or 90 days after the end of
any 12-month period if such period is a fiscal year), commencing on the
first day of the first fiscal quarter of the Company commencing after the
effective date of a Registration Statement, which statement shall cover
said 12-month period;
(viii) obtain a CUSIP number for all Exchange Notes or Registrable
Notes, as the case may be, not later than the effective date of a
Registration Statement; and
(ix) use its reasonable best efforts to cause the Exchange Notes or
Registrable Notes, as the case may be, to be rated by two nationally
9
recognized statistical rating organizations (as such term is defined in
Rule 436(g)(2) under the Securities Act) unless such Notes are already so
rated.
(b) In addition to the obligations set forth above in Section 3(a),
in the case of a Shelf Registration pursuant to Section 2(b) hereof, the Company
shall as expeditiously as possible:
(i) notify each Holder of Registrable Notes and the Special Counsel
promptly, and (if requested by any such Person) confirm such notice in
writing, (A) when a Prospectus, any Prospectus supplement, a Registration
Statement or post-effective amendment related to such Registrable Notes has
been filed, and, with respect to a Registration Statement or any post-
effective amendment related to such Registrable Notes, when the same has
become effective, (B) of any request by the Commission or any federal or
state governmental authority for amendments or supplements to a
Registration Statement or related Prospectus or for additional information,
(C) of the issuance by the Commission or any federal or state governmental
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation or threatening of any proceedings for that
purpose, (D) if, between the effective date of a Registration Statement and
the closing of any sale of Registrable Notes covered thereby, the
representations and warranties of the Company contained in any underwriting
agreement, securities sales agreement or other similar agreement, if any,
relating to the offering cease to be true and correct in all material
respects, (E) of the receipt by the Company of any notification with
respect to the suspension of the qualification of any of the Registrable
Notes for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (F) of the existence of any fact or happening
of any event during the period a Shelf Registration Statement is effective
which makes any statement made in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated
therein by reference untrue in any material respect or which requires the
making of any changes in a Registration Statement or related Prospectus in
order that, in the case of the Registration Statement, it will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and that, in the case of the Prospectus, it will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, and (G) of the Company's determination that a post-
effective amendment to a Registration Statement would be appropriate;
(ii) if reasonably requested by any Holder of Registrable Notes
covered by a Registration Statement, (A) incorporate in a Prospectus
10
supplement or post-effective amendment to a Registration Statement such
information as such Holder reasonably requests to be included therein, (B)
make all required filings of such Prospectus supplement or such post-
effective amendment as soon as reasonably practicable after the Company has
received notification of the matters to be incorporated in such filings and
(C) supplement or make amendments to any Registration Statement if
reasonably requested by any Holder of Registrable Notes covered by such
Registration Statement;
(iii) furnish to each Holder of Registrable Notes and the Special
Counsel and to each underwriter of an underwritten offering of Registrable
Notes, if any, without charge, at least one conformed copy of each
Registration Statement or Statements and any amendment thereto, including
financial statements and schedules, all documents incorporated therein by
reference or deemed incorporated therein by reference and all exhibits
(including those previously furnished or incorporated by reference), as
soon as reasonably practicable after the filing of such documents with the
Commission;
(iv) furnish to each Holder of Registrable Notes, the Special Counsel
and to each underwriter of an underwritten offering of Registrable Notes,
if any, without charge, as many copies of each Prospectus or Prospectuses
(including each preliminary Prospectus) and any amendment or supplement
thereto and such other documents as such Persons may reasonably request in
order to facilitate the public sale or other disposition of the Registrable
Notes; and the Company hereby consents to the use of such Prospectus or any
amendment or supplement thereto in accordance with applicable law by each
of the selling Holders of Registrable Notes and any such underwriter in
connection with the offering and sale of the Registrable Notes covered by
and in the manner described in such Prospectus or any amendment or
supplement thereto in accordance with applicable law;
(v) cooperate with the selling Holders of Registrable Notes to
facilitate the timely preparation and delivery of certificates representing
Registrable Notes to be sold, which certificates shall not bear any
restrictive legends; and enable such Registrable Notes to be in such
denominations and registered in such names, in all cases consistent with
the requirements set forth in the Indenture, as the Holders may request at
least two Business Days prior to the closing of any sale of Registrable
Notes;
(vi) a reasonable time prior to the filing of any Registration
Statement or Prospectus or any amendments or supplements thereto or any
document which is to be incorporated or deemed to be incorporated therein
by reference and amendments to such documents, provide copies of such
document to the Holders and the Special Counsel and make such of the
11
representatives of the Company as shall be reasonably requested by the
Holders or the Special Counsel available for discussion of such document,
and, except with respect to a Shelf Registration filed pursuant to Section
2(b) (iii), shall not at any time file or make any amendment to the
Registration Statement, any Prospectus or any amendment of or supplement to
a Registration Statement or a Prospectus or any document which is to be
incorporated by reference into a Registration Statement or a Prospectus, of
which the Holders and the Special Counsel shall not have previously been
advised and furnished a copy or to which the Holders or the Special Counsel
shall reasonably object, except for any amendment or supplement or document
(a copy of which has been previously furnished to the Holders and the
Special Counsel) which counsel to the Company shall advise the Company in
writing is required in order to comply with applicable law; PROVIDED, that
the requirements of this paragraph shall not apply to the Company's Annual
Report on Form 10-K, its Quarterly Reports on Form 10-Q, its Current
Reports on Form 8-K or any other documents filed pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act (the "Exchange Act
Documents"); and PROVIDED, FURTHER, that the Company shall promptly notify
Holders of the filing of any Exchange Act Documents other than such
Exchange Act Documents specifically related to the offering of other
securities and not to the Registrable Notes;
(vii) upon becoming aware of the occurrence of any event
contemplated by paragraph 4(i)(F) or 4(i)(G) above, use its reasonable best
efforts to, as promptly as practicable thereafter, prepare and file with
the Commission a post-effective amendment to the applicable Registration
Statement or a supplement to the related Prospectus or any document
incorporated therein by reference or file any other required document that
would be incorporated by reference into the Registration Statement so that
the Registration Statement shall not contain any untrue statement or omit
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading and so that the Prospectus 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, in light of the circumstances under which they were
made, not misleading, as thereafter delivered to the purchasers of the
Registrable Notes being sold thereunder, and, in the case of a post-
effective amendment to a Registration Statement, use its reasonable best
efforts to cause it to become effective as promptly as is practicable. The
Company agrees to notify the Holders or the Special Counsel to suspend use
of the Prospectus as promptly as practicable after becoming aware of the
occurrence of such an event, and the Holders hereby agree to suspend use of
the Prospectus upon receipt of such notice until the Company has amended or
supplemented the Prospectus to correct such misstatement or omission;
12
(viii) enter into such customary agreements and take all such other
customary actions in connection therewith (including those reasonably
requested by the Holders of a majority of the Registrable Notes being sold)
as are reasonably required to expedite or facilitate the disposition of
such Registrable Notes including, but not limited to, an underwritten
offering and in connection therewith, (A) to the extent reasonably
practicable, make such representations and warranties to the Holders and
any underwriters of such Registrable Notes with respect to the business of
the Company and its subsidiaries, the Registration Statement, Prospectus
and documents incorporated by reference or deemed incorporated by
reference, if any, in each case, in form, substance and scope as are
customarily made by issuers to underwriters in underwritten offerings and
confirm the same if and when requested, (B) obtain opinions of counsel to
the Company and updates thereof addressed to the selling Holder and
underwriter of Registrable Notes, covering the matters customarily covered
in opinions requested in underwritten offerings, (C) obtain "cold comfort"
letters and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other certified public
accountant of any subsidiary of the Company, or of any business acquired or
to be acquired by the Company for which financial statements and financial
data is or is required to be included in the Registration Statement)
addressed to the selling Holder and underwriter of Registrable Notes, such
letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten offerings and (D) deliver such documents and certificates as
may be reasonably requested by the Holders of a majority in principal
amount of the Registrable Notes being sold and the Special Counsel to
evidence the continued validity of the representations and warranties of
the Company made pursuant to clause (A) above and to evidence compliance
with any customary conditions contained in the underwriting agreement or
other agreement entered into by the Company. The above shall be done at
each closing under such underwriting or similar agreement as and to the
extent required thereunder;
(ix) upon reasonable notice, make available for inspection by a
representative of the Holders of Registrable Notes, Special Counsel, any
underwriter participating in any disposition pursuant to such Shelf
Registration Statement, and any attorney and accountant designated by such
selling Holders or underwriters, at reasonable times and in a reasonable
manner, all financial and other records, pertinent documents and properties
of the Company and its subsidiaries and cause the officers, directors and
employees of the Company and its subsidiaries to supply all information
reasonably requested by any such representative, underwriter, attorney or
accountant in connection with such disposition; PROVIDED that, such
underwriters shall be nationally recognized investment banking firms, and
such underwriters, attorneys or accountants shall agree to enter into a
written confidentiality agreement reasonably
13
acceptable to the Company regarding any records, information or documents,
unless (A) such records, information or documents are in the public domain
or otherwise publicly available, (B) disclosure of such records,
information or documents is required by court or administrative order after
exhaustion of all appeals therefrom, (C) disclosure of such records,
information or documents, in the written opinion of counsel to such person,
is otherwise required by law (including, without limitation, pursuant to
the requirements of the Securities Act), (D) disclosure of such records,
information or document is necessary to avoid or correct a misstatement or
omission in the Registration Statement, Prospectus supplement or any post-
effective amendment or (E) any required consents are obtained; and
(x) use its reasonable best efforts to cause all Registrable Notes to
be listed on any securities exchange or any automated quotation system on
which similar securities issued by the Company are then listed if requested
by the Holders of a majority in aggregate principal amount, to the extent
such Registrable Notes satisfy applicable listing requirements.
In the case of a Shelf Registration Statement, the Company may require
each Holder of Registrable Notes to furnish to the Company such information
regarding the Holder and the distribution of such Registrable Notes by such
Holder as the Company may from time to time reasonably request in writing. Each
Holder of Registrable Notes as to which any registration is being effected will
be required to notify the Company as promptly as practicable of any inaccuracy
or change in information previously furnished by such Holder to the Company
pursuant to Section 2 to the Company or of the happening of any event, in either
case as a result of which any Prospectus relating to such registration contains
an untrue statement of a material fact regarding such Holder or the distribution
of such Registrable Notes required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and to furnish to the Company promptly any additional
information required to correct and update any previously furnished information
or required such that such Prospectus shall not contain, with respect to such
Holder or the distribution of such Registrable Notes, 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, in the light of the circumstances
under which they were made, not misleading.
In the case of a Shelf Registration Statement, each Holder agrees
that, upon receipt of any (i) notice from the Company of the happening of any
event of the kind described in Section 3(b)(i)(F) or 3(b)(i)(G) hereof, (ii)
notice from the Company that it is in possession of material information that
has not been disclosed to the public and the Company reasonably deems it
to be advisable not to disclose such information in a registration statement or
(iii) notice from the Company that it is in the process of a registered offering
of securities and the Company reasonably deems it
14
to be advisable to temporarily discontinue disposition of Registrable Notes
pursuant to the Shelf Registration Statement (in each case, such notice being
hereinafter referred to as a "Suspension Notice"), such Holder will forthwith
discontinue disposition of Registrable Notes pursuant to any Shelf
Registration Statement and shall not be entitled to the benefits provided
under Section 6 hereof with respect to any sales made by it in contravention
of this paragraph, until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(b)(vi) hereof or
a notice that any order suspending the effectiveness of the Shelf
Registration Statement has been withdrawn, or, in the case of (ii) or (iii)
above, until further notice from the Company that disposition of Registrable
Notes may resume, provided that (except with respect to a Shelf Registration
filed pursuant to Section 2(b) (iii)) such further notice will be given
within 90 days of the Suspension Notice in the case of (ii) above and within
120 days of the Suspension Notice in the case of (iii) above, and provided
further that in the case of (ii) and (iii) above that any Suspension Notice
must be based upon a good faith determination of the Board of Directors of
the Company that such Suspension Notice is necessary; and, if so directed by
the Company, such Holder will deliver to the Company (at the expense of the
Company) all copies in its possession, other than permanent file copies then
in such Holder's possession, of the Prospectus covering such Registrable
Notes current at the time of receipt of such notice. If the Company shall
give any Suspension Notice relating to the disposition of Registrable Notes
pursuant to any Shelf Registration Statement, the Company shall extend the
period during which such Shelf Registration Statement shall be maintained
effective pursuant to this Agreement by the number of days during the period
from and including the date of the giving of such Notice to and including the
date when the Holders shall have received copies of the supplemented or
amended Prospectus necessary to resume such dispositions or received such
Notice that any order suspending dispositions of the Notes has been
withdrawn. Notwithstanding the foregoing, in the case of clauses (ii) or
(iii) above, the Company may not deliver a Suspension Notice if a period of
90 days in the case of (ii) above and 120 days in the case of (iii) above has
not elapsed since the termination of any prior period during which a
Suspension Notice was in effect.
4. PARTICIPATION OF BROKER-DEALERS IN EXCHANGE OFFER
(a) The Staff of the Commission has taken the position that any
broker-dealer that receives Exchange Notes for its own account in the Exchange
Offer in exchange for Notes that were acquired by such broker-dealer as a result
of market-making or other trading activities (a "Participating Broker-Dealer"),
may be deemed to be an "underwriter" within the meaning of the Securities Act
and must deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Notes.
The Company understands that it is the Staff's position that if the
Prospectus contained in the Exchange Offer Registration Statement includes a
plan of
15
distribution containing a statement to the above effect and the means by which
Participating Broker-Dealers may resell the Exchange Notes, without naming the
Participating Broker-Dealers or specifying the amount of Exchange Notes owned by
them, such Prospectus may be delivered by Participating Broker-Dealers to
satisfy their prospectus delivery obligation under the Securities Act in
connection with resales of Exchange Notes for their own accounts, so long as the
Prospectus otherwise meets the requirements of the Securities Act.
(b) In light of the above, notwithstanding the other provisions of
this Agreement, the Company agrees that the provisions of this Agreement as they
relate to a Shelf Registration shall also apply to an Exchange Offer
Registration to the extent, and with such reasonable modifications thereto as
may be, reasonably requested by the Purchasers or by one or more Participating
Broker-Dealers, in each case as provided in clause (ii) below, in order to
expedite or facilitate the disposition of any Exchange Notes by Participating
Broker-Dealers consistent with the positions of the Staff of the Commission
recited in Section 4(a) above; PROVIDED that:
(i) the Company shall not be required to amend or supplement the
Prospectus contained in the Exchange Offer Registration Statement, as would
otherwise be contemplated by Section 3(b)(vi), for a period exceeding 90
days after the last Exchange Date (as such period may be extended pursuant
to the last paragraph of Section 3 of this Agreement) and Participating
Broker-Dealers shall not be authorized by the Company to deliver and shall
not deliver such Prospectus after such period in connection with resales
contemplated by this Section 4; and
(ii) in connection with such application of the Shelf Registration
procedures set forth in Section 3 to an Exchange Offer Registration, the
Company shall be obligated (A) to deal only with one entity representing
the Participating Broker-Dealers, which shall be Xxxxxx Xxxxxxx & Co.
Incorporated unless it elects not to act as such representative, (B) to pay
the fees and expense of only one counsel representing the Participating
Broker-Dealers, which shall be the Special Counsel unless such counsel
elects not to so act and (C) to cause to be delivered only one, if any,
"cold comfort" letter or set of letters, as the case may be, with respect
to the Prospectus in the form existing on the last Exchange Date and with
respect to each subsequent amendment or supplement, if any, effected during
the period specified in clause (i) above; PROVIDED, that the provisions of
clauses (B) and (C) of this Section 4(b)(ii) shall apply only if one or
more Participating Broker-Dealers holding at least $5,000,000 in aggregate
principal amount of Registrable Notes shall request that the provisions of
this Agreement as they relate to a Shelf Registration also apply to an
Exchange Offer Registration Statement for the disposition of Exchange Notes
by Participating Broker-Dealers.
16
5. REGISTRATION EXPENSES
The Company shall pay all fees and expenses incident to the
performance of or compliance with this Agreement by the Company including,
without limitation, (i) all Commission, stock exchange or National Association
of Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of counsel in connection
with blue sky qualification of any of the Exchange Notes or Registrable Notes),
(iii) all expenses of any Persons acting on behalf of the Company in preparing
or assisting in preparing, word processing, printing and distributing any
Registration Statement, any Prospectus, any amendments or supplements thereto,
any underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with this Agreement, (iv) all
rating agency fees, (v) all fees and disbursements relating to the qualification
of the Indenture under applicable securities laws, (vi) the reasonable fees and
disbursements of the Trustee (including the reasonable fees and disbursements of
its counsel), (vii) the fees and disbursements of counsel for the Company, the
Special Counsel (in the case of a Shelf Registration Statement) and of the
independent public accountants of the Company, including the expenses of any
special audits or "cold comfort" letters required by or incident to such
performance and compliance, but excluding fees of counsel to the underwriters or
the Holders and underwriting discounts and commissions and transfer taxes, if
any, relating to the sale or disposition of Registrable Notes by a Holder.
6. INDEMNIFICATION AND CONTRIBUTION
(a) The Company agrees to indemnify and hold harmless the Purchasers
and each Holder and each person, if any, who controls the Purchasers or any
Holder within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended and supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by 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,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to the Purchasers or any Holder, or requested in
writing to be included by any Holder pursuant to Section 2, furnished to the
Company in writing by the Purchasers or any Holder expressly for use therein.
The Company also agrees to indemnify any underwriters of the Registrable Notes,
their officers and directors and each Person
17
who controls such underwriters on substantially the same basis as that of the
indemnification of the Purchasers and the Holders provided in this Section 6.
(b) In connection with any Shelf Registration in which a Holder is
participating, in furnishing information relating to such Holder, or requested
in writing to be included by any Holder pursuant to Section 2, to the Company in
writing expressly for use in such Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto, the Holders
agree severally and not jointly, to indemnify and hold harmless the Purchasers
and each person, if any, who controls the Purchasers within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act and
the Company, its directors, its officers who sign a Registration Statement and
each person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or any amendment thereof, any preliminary prospectus or
the Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), or caused by 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, but only with reference
to such information relating to such Holder, or requested in writing to be
included by any Holder pursuant to Section 2, furnished in writing by or on
behalf of such Holder expressly for use in such Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(c) The Purchasers agree, severally and not jointly, to indemnify and
hold harmless the Company, the Holders, the directors of the Company, the
officers of the Company who sign the Registration Statement and each person, if
any, who controls the Company or any Holder within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act from and against any
and all losses, claims, damages and liabilities (including, without limitation,
any legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement or any amendment thereof, any preliminary prospectus or the Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto), or arising out of or based upon 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, but only with reference
to information relating to the Purchasers, or requested in writing to be
included by any Purchaser pursuant to Section 2,
18
furnished to the Company in writing expressly for use in such Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto.
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to any of the three preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to the actual or
potential differing interest between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (i) the fees and expenses of
more than one separate firm (in addition to any local counsel) for the
Purchasers and all persons, if any, who control the Purchasers within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, (ii) the fees and expenses of more than one separate firm (in addition to
any local counsel) for the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act and (iii) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Holders and all persons, if any, who
control any Holders within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, and that all such fees and expenses shall
be reimbursed as they are incurred. In such case involving the Purchasers and
such control persons of the Purchasers, such firm shall be designated in writing
by Xxxxxx Xxxxxxx & Co. Incorporated. In such case involving the Holders and
such controlling persons of Holders, such firm shall be designated in writing by
Holders of a majority in aggregate principal amount of Registrable Notes. In
all other cases, such firm shall be designated by the Company. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement
19
of any pending or threatened proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(e) If the indemnification provided for in the first, second or third
paragraphs of this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate to reflect the
relative fault of the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative fault of the
Holders on the one hand and of the Company on the other hand shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Holders or by the Company
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Holders'
respective obligations to contribute pursuant to this Section 6(e) are several
in proportion to the respective number of Registrable Notes of such Holder that
were registered pursuant to a Registration Statement.
(f) The parties hereto agree that it would not be just or equitable
if contribution pursuant to this Section 6 were determined by PRO RATA
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other 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, an indemnifying party that is
a Holder shall not be required to indemnify or contribute any amount in excess
of the amount by which the total price at which the Registrable Notes sold by
such indemnifying party and distributed to the public were offered to the public
exceeds the amount of any damages that such indemnifying party 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 remedies provided for in this Section 6 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any
20
indemnified party at law or in equity. The provisions of this Section 6 shall
survive so long as Registrable Notes remain outstanding, notwithstanding any
transfer of the Registrable Notes by any Holder or any termination of this
Agreement.
(g) The indemnity and contribution provisions contained in this
Section 6 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of the Purchasers or any person controlling the Purchasers, any Holder or any
person controlling the Holder, or the Company, its officers or directors or any
person controlling the Company, and (iii) the sale of any Registrable Notes by
any Holder.
7. SELECTION OF UNDERWRITERS
The Holders of Registrable Notes covered by the Shelf Registration
Statement who desire to do so may sell such Registrable Notes in an underwritten
offering. In any such underwritten offering, the investment banker or
investment bankers and manager or managers (the "underwriters") that will
administer the offering will be selected by the Holders of a majority of the
aggregate principal amount of outstanding Registrable Notes included in such
offering; PROVIDED that such underwriters must be nationally recognized
investment banking firms.
8. MISCELLANEOUS
(a) REMEDIES. In the event of a breach by the Company of any of its
obligations under this Agreement, each Holder, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. The
Company agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, they shall waive the defense
that a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Company has not, as of the date
hereof, and shall not, on or after the date of this Agreement, enter into any
agreement with respect to its securities which is inconsistent with the rights
granted to the Holders in this Agreement. The Company represents and warrants
that the rights granted to the Holders hereunder do not in any way conflict with
the rights granted to the holders of the Company's securities under any other
agreements.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of Holders
of a majority of the then outstanding aggregate principal amount of Registrable
Notes
21
affected by such amendment, modification, supplement, waiver or departure;
PROVIDED, HOWEVER, no amendment, modification or supplement, waiver or consent
with respect to the provisions of Section 6 hereof shall be effective as against
any Holder of Registrable Notes unless consented to in writing by such Holder.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter which relates exclusively to the rights of
Holders whose securities are being sold pursuant to a Registration Statement and
which does not directly or indirectly affect the rights of other Holders may be
given by Holders of at least a majority in aggregate principal amount of the
Registrable Notes being sold by such Holders; provided, that the provisions of
this sentence may not be amended, modified, or supplemented except in accordance
with the provisions of the immediately preceding sentence.
(d) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, telex, telecopier or any courier guaranteeing overnight delivery :
(i) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this Section
7(d), which address initially is, with respect to the Purchasers as
follows:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Legal Department
Natwest Capital Markets Limited
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx
(ii) if to the Company, initially at its address as follows:
Commonwealth Aluminum Corporation
Xxxxxxxxx Tower
000 Xxxxx 0xx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Xx.
and thereafter by such other address, notice of which is given in accordance
with the provision of this Section 7(d); and
22
(iii) if to Special Counsel, initially at its address as
follows:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxx, Xx.
and thereafter by such other address, notice of which is given in accordance
with the provision of this Section 7(d).
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; two business days after
being deposited in the mail, postage prepaid, if mailed; the next business day
if timely delivered to an air courier guaranteeing overnight delivery; when
answered back, if telexed; and when receipt acknowledged, if telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the person giving the same to the Trustee under the
Indenture at the address specified in such Indenture.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Registrable Notes.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
(i) SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions set forth herein shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated thereby, and the parties hereto shall use their reasonable best
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
23
provisions, covenants and restrictions without including any of such which may
be hereafter declared invalid, void or unenforceable.
(j) ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement, and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. Except as provided in the
Placement Agreement, there are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein, with respect to
the registration rights granted by the Company with respect to the securities
sold pursuant to the Placement Agreement. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
24
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
COMMONWEALTH ALUMINUM CORPORATION
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
XXXXXX XXXXXXX & CO. INCORPORATED
NATWEST CAPITAL MARKETS LIMITED
By: XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Principal
25
