Exhibit 4.1
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of ______________, 2002 (this
"Agreement"), among STEEL DYNAMICS, INC., an Indiana corporation (the
"Company"), the financial institutions who are parties to this Agreement (the
"Lenders"), and Mellon Bank, N.A., as Agent for the Lenders.
WHEREAS, the parties hereto have entered into an Agreement, dated as
January 28, 2002 (the "Settlement Agreement"), which requires that this
Agreement be entered into; and
WHEREAS, capitalized terms used herein without definition are defined in
Section 10.
NOW, THEREFORE, the parties hereto, in consideration of the [Settlement
Agreement], and intending to be legally bound hereby, agree as follows.
1. Shelf Registration. The Company shall effect the registration under the
Securities Act of the Registrable Securities by the filing, as promptly as
practicable after the date hereof, of a registration statement on Form S-3 or
another form appropriate to permit the disposition by each Lender or its
designee (in accordance with each Lender's intended method or methods of
disposition ) consistent with such registration) of the Registrable Securities
(the "Shelf Registration Statement") and by causing the Shelf Registration
Statement to become effective with respect to particular Registrable Securities
not later than the date of delivery thereof under the [Settlement Agreement ]
and shall cause the Shelf Registration Statement to remain effective as provided
in Section 3 until the earlier of two years from its effective date or until all
Registrable Securities have been sold. Each Lender shall promptly provide to the
Company such information concerning its intended methods of distribution and
such other information concerning such Lender as shall be necessary for
inclusion in such registration statement. The Company will pay all Registration
Expenses in connection with any registration under this Section 1; provided that
any seller thereunder shall pay all Registration Expenses to the extent required
to be paid by such seller under applicable law.
Until the later to occur of June 15, 2002 and the date which is 105
days after the effective date of the Shelf Registration Statement, the Company
shall not initiate a registration of any of its securities for its own account.
Thereafter, subject to the rights of holders of Registrable Securities under
Section 2, (a) if the Board determines in its good faith judgment, after
consultation with a firm of nationally recognized underwriters, that there will
be an adverse effect on a then contemplated public offering of the Company's
equity securities, the Company may, on not less than 10 days' written notice to
the holders of the Registrable Securities, require such holders to cease making
sales under the Shelf Registration Statement during a period not exceeding
ninety days in length, such period to end not later than the thirtieth day
following the effective date of the registration statement relating to the
Company's public offering, provided that at all times the Company is in good
faith using all reasonable efforts to cause such registration statement to
become effective or to maintain such registration statement's effectiveness.
2. Incidental Registrations. If the Company at any time proposes to
register any of its equity securities under the Securities Act (other than
pursuant to Section 1 or a registration on
Form S-4 or S-8 or any successor form), and the registration form to be used may
be used for the registration of Registrable Securities, it will give prompt
written notice to all holders of Registrable Securities of its intention to do
so. Upon the written request of any such holder made within 15 days after the
receipt of any such notice (which request shall specify the number of
Registrable Securities intended to be disposed of by such holder and the
intended method or methods of disposition thereof), the Company will effect the
registration under the Securities Act of all such Registrable Securities in
accordance with such intended method or methods of disposition, provided that
if, at any time after giving written notice of its intention to register any
equity securities and prior to the effective date of the registration statement
filed in connection with such registration, the Company shall determine for any
reason not to register such equity securities, the Company may, at its election,
give written notice of such determination to each holder of Registrable
Securities and, thereupon, shall not be obligated to register any Registrable
Securities in connection with such registration (but shall nevertheless pay the
Registration Expenses in connection therewith), without prejudice, however, to
the obligations of the Company to maintain the effectiveness of, and the rights
of the holders of the Registrable Securities to effect sales under, the Shelf
Registration Statement.
3. Registration Procedures. Whenever the Company is required to effect the
registration of any Registrable Securities under the Securities Act as provided
in Sections 1 and 2, the Company will promptly:
(a) prepare and file with the Commission a registration statement with
respect to such Registrable Securities, make all required filings with the
NASD and cause such registration statement to become effective as promptly
as practicable thereafter;
(b) prepare and promptly file with the Commission such amendments and
post-effective amendments and supplements to such registration statement
and the prospectus used in connection therewith, and such reports under the
Exchange Act to be incorporated by reference therein, as may be necessary
to keep such registration statement effective for so long as is required to
comply with the provisions of the Securities Act and to complete the
disposition of all securities covered by such registration statement in
accordance with the intended method or methods of disposition thereof, and
in the case of the Shelf Registration Statement for the period required by
Section 1 hereof;
(c) furnish to counsel selected by the Agent (whether or not the Agent
is participating as a selling stockholder) and each seller of Registrable
Securities copies of all documents proposed to be filed with the Commission
in connection with such registration (or in the case of the initial filing
of a registration statement with the Commission, within five business days
of such initial filing), which documents will be subject to the review of
such counsel and each seller, and the Company shall not file any amendment
or post-effective amendments or supplement to such registration statement
or the prospectus used in connection therewith to which any such seller
shall have reasonably objected in writing within two days of receipt of
such registration statement, prospectus, amendment or supplement on the
grounds that such document does not comply (explaining why) in all material
respects with the requirements of the Securities Act or of the rules or
regulations thereunder;
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(d) furnish to each seller of Registrable Securities, without charge,
such number of conformed copies of such registration statement and of each
such amendment and supplement thereto (in each case including all exhibits
and documents filed therewith) and such number of copies of the prospectus
included in such registration statement (including each preliminary
prospectus and any summary prospectus) and any other prospectus filed under
Rule 424 under the Securities Act, in conformity with the requirements of
the Securities Act, and such other documents, as such seller may reasonably
request in order to facilitate the disposition of the Registrable
Securities owned by such seller in accordance with the intended method or
methods of disposition thereof;
(e) use its best efforts to register or qualify such Registrable
Securities covered by such registration statement under the securities or
blue sky laws of such jurisdictions as each seller shall reasonably
request, and do any and all other acts and things which may be necessary or
advisable to enable such seller to consummate the disposition of such
Registrable Securities in such jurisdictions in accordance with the
intended method or methods of disposition thereof, provided that the
Company shall not for any such purpose be required to qualify generally to
do business as a foreign corporation in any jurisdiction wherein it is not
so qualified, subject itself to taxation in any jurisdiction wherein it is
not so subject, or take any action which would subject it to general
service of process in any jurisdiction wherein it is not so subject;
(f) use its best efforts to cause all Registrable Securities covered
by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary by virtue of
the business and operations of the Company to enable the seller or sellers
thereof to consummate the disposition of such Registrable Securities in
accordance with the intended method or methods of disposition thereof;
(g) furnish to any seller of Registrable Securities who requests in
writing a signed counterpart, addressed to the seller, of an opinion of
counsel for the Company experienced in securities law matters, dated the
effective date of the registration statement (and, if such registration
includes an underwritten public offering, the date of the closing under the
underwriting agreement), covering such matters as are customarily covered
in opinions of issuer's counsel delivered in connection with non-
underwritten resales of securities registered under Form S-3 or other
comparable form or, if applicable, to the underwriters in an underwritten
public offering of securities and such other matters as the Agent may
reasonably request;
(h) notify each seller of any Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any
event or existence of any fact as a result of which the prospectus included
in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, and, as promptly as
is practicable, prepare and furnish to such seller a reasonable number of
copies of a supplement to or an amendment of such
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prospectus, or prepare and file under the Exchange Act a report to be
incorporated by reference in the prospectus, as may be necessary so that,
as thereafter delivered to the purchasers of such securities, such
prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then
existing;
(i) otherwise comply with all applicable rules and regulations of the
Commission, and make available to its security holders, as soon as
reasonably practicable, an earnings statement of the Company (in form
complying with the provisions of Rule 158 under the Securities Act)
covering the period of at least 12 months, but not more than 18 months,
beginning with the first month after the effective date of the registration
statement;
(j) notify each seller of any Registrable Securities covered by such
registration statement (i) when the prospectus or any prospectus supplement
or post-effective amendment has been filed, and, with respect to such
registration statement or any post-effective amendment, when the same has
become effective, (ii) of any request by the Commission for amendments or
supplements to such registration statement or to amend or to supplement
such prospectus or for additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of such
registration statement or the initiation of any proceedings for that
purpose and (iv) of the suspension of the qualification of such securities
for offering or sale in any jurisdiction, or of the institution of any
proceedings for any of such purposes;
(k) use every reasonable effort to obtain the lifting of any stop
order that might be issued suspending the effectiveness of such
registration statement at the earliest possible moment;
(l) take all actions necessary to (i) (A) to list such Registrable
Securities on any securities exchange on which the equity securities of the
Company are then listed or (B) if no such equity securities are then
listed, to secure designation of such securities as a NASDAQ "national
market system security" within the meaning of Rule 11Aa2-1 under the
Exchange Act or, failing that, to secure NASDAQ authorization for such
Registrable Securities, and, without limiting the foregoing, to arrange for
at least two market makers to register as such with respect to such
Registrable Securities with the NASD, and (ii) to provide a transfer agent
and registrar for such Registrable Securities not later than the effective
date of such registration statement;
(m) enter into such agreements and take such other actions as the
sellers of Registrable Securities or the underwriters reasonably request in
order to expedite or facilitate the disposition of such Registrable
Securities; and
(n) take all other steps necessary to effect the registration of such
Registrable Securities contemplated hereby.
The Company may require each seller of any Registrable Securities as to
which any registration is being effected to execute customary
powers-of-attorney, custody agreements and other customary agreements
appropriate to facilitate the offering and to furnish to the Company
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such information regarding such seller, its ownership of Registrable Securities
and the disposition of such Registrable Securities as the Company may from time
to time reasonably request in writing and as shall be required by law in
connection therewith. Each such holder agrees to furnish promptly to the Company
all information required to be disclosed in order to make the information
previously furnished to the Company by such holder not materially misleading.
The Company agrees not to file or make any amendment to any registration
statement with respect to any Registrable Securities, or any amendment of or
supplement to the prospectus used in connection therewith, which refers to (in a
capacity as a selling stockholder) any seller of any Registrable Securities
covered thereby by name, or otherwise identifies such seller as the holder of
any Registrable Securities, without the consent of such seller, such consent not
to be unreasonably withheld, unless such disclosure is required by law. Each
holder of Registrable Securities agrees that upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 3(h),
such holder will promptly discontinue such holder's disposition of Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until such holder's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 3(h). If so directed by the Company,
each holder of Registrable Securities will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies, in such
holder's possession of the prospectus covering such Registrable Securities at
the time of receipt of such notice. In the event that the Company shall give any
such notice, the period mentioned in Section 1 (if applicable) and Section 3(b)
during which the effectiveness of the registration statement must be maintained
by the Company shall be extended 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 each seller of any Registrable Securities covered by such registration
statement shall have received the copies of the supplemented or amended
prospectus contemplated by Section 3(h).
4. Underwritten Offerings.
4.1. Underwriting Agreement. If requested by the underwriters for any
underwritten offering by holders of Registrable Securities pursuant to Section 1
or Section 2, the Company shall enter into an underwriting agreement with the
underwriters for such offering, such agreement to be reasonably satisfactory in
substance and form to the Agent and to the underwriters and to contain such
representations and warranties by the Company and such other terms and
provisions as are customarily contained in agreements of this type, including,
without limitation, indemnities to the effect and to the extent provided in
Section 9. The holders of Registrable Securities to be distributed by such
underwriters shall be parties to such underwriting agreement and may, at their
option, require that any or all of the representations and warranties by, and
the agreements on the part of, the Company to and for the benefit of such
underwriters be made to and for the benefit of such holders of Registrable
Securities and that any or all of the conditions precedent to the obligations of
such underwriters under such underwriting agreement shall also be conditions
precedent to the obligations of such holders of Registrable Securities. No
underwriting agreement (or other agreement in connection with such offering)
shall require any holder of Registrable Securities (i) to make any
representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding such
holder, the ownership of such holder's Registrable Securities, such
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holder's intended method or methods of disposition, such other customary
representations, warranties and agreements with respect to such holder and such
holder's securities as requested by the underwriters, and any other
representation required by law or (ii) to furnish any indemnity to any Person
including the underwriters, their directors and officers and each Person, if
any, who controls (within Section 15 of the Securities Act or Section 20 of the
Exchange Act) such underwriters which is broader than the indemnity furnished by
such holder in Section 9.2.
4.2. Selection of Underwriters. If the Company at any time proposes to
register any of its securities under the Securities Act for sale for its own
account pursuant to an underwritten offering, the Company will have the right to
select the managing underwriter (which shall be of nationally recognized
standing) to administer the offering.
5. Notice of Sales. Each holder of Registrable Securities shall notify the
Company in writing within 10 days after any sale or other disposition by it of
Registrable Securities, whether or not pursuant to a registration statement
hereunder, of the date of such sale or disposition, the number of shares sold or
disposed of and the method of sale or disposition.
6. Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement registering Registrable
Securities under the Securities Act, the Company will give the holders of such
Registrable Securities and their underwriters, if any, and their respective
counsel and accountants the opportunity to participate in the preparation of
such registration statement, each prospectus included therein or filed with the
Commission, and each amendment thereof or supplement thereto, and will give each
of them such access to the financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries and such
opportunities to discuss the business of the Company with its officers and the
independent public accountants who have issued audit reports on its financial
statements as shall be reasonably requested by such holders in connection with
such registration statement.
7. [Intentionally omitted.]
8. Rule 144 etc. During the period the Company is required to maintain the
effectiveness of the Shelf Registration Statement hereunder, the Company will
file the reports required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations adopted by the Commission thereunder,
and will take such further action as any holder of Registrable Securities may
reasonably request, all to the extent required from time to time to enable such
holder to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by (a) Rule 144 under the
Securities Act, as such rule may be amended from time to time, or (b) any
successor rule or regulation. Upon the request of any holder of Registrable
Securities, the Company will deliver to such holder a written statement as to
whether it has complied with such requirements.
9. Indemnification.
9.1. Indemnification by the Company. In the event of any registration of
any Registrable Securities pursuant to this Agreement, the Company will
indemnify and hold harmless (a) the seller of such Registrable Securities, (b)
the directors, officers, partners, employees, agents and Affiliates of such
seller, (c) each Person who participates as an underwriter in the offering or
sale
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of such securities and (d) each person, if any, who controls (within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act) any such
seller, partner or underwriter against any and all losses, claims, damages or
liabilities (or actions or proceedings in respect thereof), joint or several,
directly or indirectly based upon or arising out of (i) any untrue statement or
alleged untrue statement of a fact contained or incorporated by reference in any
registration statement under which such Registrable Securities were registered
under the Securities Act, any preliminary prospectus, final prospectus or
summary prospectus contained therein or used in connection with the offering of
securities covered thereby, or any amendment or supplement thereto, or (ii) any
omission or alleged omission to state a fact required to be stated or
incorporated by reference therein or necessary to make the statements contained
or incorporated by reference therein not misleading; and the Company will
reimburse each such indemnified party for any legal or any other expenses
reasonably incurred by them in connection with investigating, preparing,
pursuing or defending any such loss, claim, damage, liability, action or
proceeding, except insofar as any such loss, claim, damage, liability, action,
proceeding or expense arises out of or is based upon an untrue statement or
omission made or incorporated by reference in such registration statement, any
such preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by such seller expressly for use in the preparation thereof, it
being agreed that, except for issues pertaining to a specific seller (in which
case this limitation shall not apply), such reimbursement will be limited, as to
legal or accounting fees, to the costs and expenses of a single law firm and/or
a single accounting firm for all the sellers. Such indemnity shall remain in
full force and effect, regardless of any investigation made by such indemnified
party and shall survive the transfer of such Registrable Securities by such
seller. The indemnity agreement contained in this Section 9.1 shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability, action or
proceeding if such settlement is effected without the consent of the Company
(which consent shall not be unreasonably withheld).
9.2. Indemnification by the Sellers. Each seller of Registrable Securities
included in any registration statement filed pursuant to Section 1 or 2 shall
indemnify and hold harmless, severally, not jointly, in the same manner and to
the same extent as set forth in Section 9.1, the Company, its directors and
officers and each person, if any, who controls (within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act) the Company with
respect to any statement or alleged statement in or omission or alleged omission
from such registration statement, any preliminary prospectus, final prospectus
or summary prospectus contained therein, or any amendment or supplement thereto,
if such statement or alleged statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company by such seller expressly for use in the preparation of such registration
statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement. Such indemnity shall remain in full force and effect,
regardless of any investigation made by or on behalf of the Company or any such
director, officer or controlling Person and shall survive the transfer of such
Registrable Securities by such seller. The indemnity agreement contained in this
Section 9.2 shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability, action or proceeding if such settlement is effected
without the consent of such seller (which consent shall not be unreasonably
withheld). The Company and the holders of Registrable Securities hereby
acknowledge and agree that for all purposes of this Agreement the only
information furnished or to be furnished to the Company
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for use in any such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement are statements
specifically relating to (a) the beneficial ownership of shares of Common Stock
by such holder and its Affiliates, (b) the name and address of such holder and
(c) other information with respect to such holder as required by law. The
indemnity provided by each seller of Registrable Securities under this Section
9.2 shall be limited in amount to the net amount of proceeds actually received
by such seller from the sale of Registrable Securities pursuant to such
registration statement.
9.3. Notices of Claims, etc. Promptly after receipt by an indemnified party
of notice of the commencement of any action or proceeding involving a claim
referred to in the preceding paragraphs of this Section 9, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party, give written notice to the latter of the commencement of such action or
proceeding, provided that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its obligations
under the preceding paragraphs of this Section 9, except to the extent that the
indemnifying party is materially prejudiced by such failure to give notice. In
case any such action is brought against an indemnified party, the indemnifying
party will be entitled to participate therein and to assume the defense thereof,
jointly with any other indemnifying party similarly notified, to the extent that
it may wish, with counsel reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof except for the
reasonable fees and expenses of any counsel retained by such indemnified party
to monitor such action or proceeding, subject only to the limitation on the
number of counsel described in Section 9.1. Notwithstanding the foregoing, if
such indemnified party and the indemnifying party reasonably determine, based
upon advice of their respective independent counsel, that a conflict of interest
may exist between the indemnified party and the indemnifying party with respect
to such action and that it is advisable for such indemnified party to be
represented by separate counsel, such indemnified party may retain other
counsel, reasonably satisfactory to the indemnifying party, to represent such
indemnified party, and the indemnifying party shall pay all reasonable fees and
expenses of such counsel. No indemnifying party, in the defense of any such
claim or litigation, shall, except with the consent of such indemnified party,
which consent shall not be unreasonably withheld, consent to entry of any
judgment or enter into any settlement which 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 of such claim or litigation.
9.4. Other Indemnification. Indemnification similar to that specified in
the preceding paragraphs of this Section 9 (with appropriate modifications)
shall be given by the Company and each seller of Registrable Securities with
respect to any required registration (other than under the Securities Act) or
other qualification of such Registrable Securities under any federal or state
law or regulation of any governmental authority.
9.5. Indemnification Payments. Any indemnification required to be made by
an indemnifying party pursuant to this Section 9 shall be made by periodic
payments to the indemnified party during the course of the action or proceeding,
as and when bills are received by such indemnifying party with respect to an
indemnifiable loss, claim, damage, liability or expense incurred by such
indemnified party.
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9.6. Other Remedies. If for any reason the foregoing indemnity is
unavailable, or is insufficient to hold harmless an indemnified party, other
than by reason of the exceptions provided therein, then the indemnifying party
shall contribute to the amount paid or payable by the indemnified party as a
result of such losses, claims, damages, liabilities, actions, proceedings or
expenses in such proportion as is appropriate to reflect the relative benefits
to and faults of the indemnifying party on the one hand and the indemnified
party on the other in connection with the offering of Registrable Securities
(taking into account the portion of the proceeds of the offering realized by
each such party) and the statements or omissions or alleged statements or
omissions which resulted in such loss, claim, damage, liability, action,
proceeding or expense, as well as any other relevant equitable considerations.
The relative fault of the indemnifying party and of the indemnified party shall
be determined by reference to, among other things, whether the untrue statement
of a material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statements or omissions. 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. No party shall be liable for
contribution under this Section 9.6 except to the extent and under such
circumstances as such party would have been liable to indemnify under this
Section 9 if such indemnification were enforceable under applicable law.
10. Definitions. For purposes of this Agreement, the following terms shall
have the following respective meanings:
"Affiliate": A Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with, the Person specified.
"Agent" shall mean Mellon Bank, N. A. or the financial institution
which shall have been designated by the Majority Holders as the Agent for
the Lenders hereunder by written notice to the Company.
"Board": The Board of Directors of the Company.
"Common Stock": The Company's Common Stock, par value $.01 per share.
"Commission": The Securities and Exchange Commission.
"Exchange Act": The Securities Exchange Act of 1934, as amended, or
any successor federal statute, and the rules and regulations thereunder
which shall be in effect at the time.
"Majority Stockholders": Any holder or holders of at least 50% of the
Registrable Securities then outstanding.
"NASD": National Association of Securities Dealers, Inc.
"NASDAQ": The Nasdaq National Market.
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"Person": An individual, corporation, partnership, joint venture,
association, trust or other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"Registrable Securities": The shares of Common Stock (or any successor
class of common stock) beneficially owned (within the meaning of Section
13d-3 of the Exchange Act) by the Lenders (or any other Person made a party
hereto pursuant to Section 11.1) which are to be or shall have been
delivered to the Lenders or their designees pursuant to the [Settlement
Agreement]. As to any particular Registrable Securities, such securities
shall cease to be Registrable Securities when (i) a registration statement
with respect to the sale of such securities shall have become effective
under the Securities Act and such securities shall have been disposed of in
accordance with such registration statement, (ii) they shall have been sold
to the public pursuant to Rule 144 under the Securities Act, (iii) they
shall have been otherwise transferred and subsequent disposition of them
shall not require registration or qualification of them under the
Securities Act of or any similar state law then in force or (iv) they shall
have ceased to be outstanding.
"Registration Expenses": All expenses incident to the Company's
performance of or compliance with Section 1 and Section 2, including,
without limitation, (i) registration, filing and NASD fees, (ii) fees and
expenses of complying with securities or blue sky laws, (iii) fees and
expenses associated with listing securities on an exchange or NASDAQ, (iv)
word processing, duplicating and printing expenses, (v) messenger and
delivery expenses, (vi) fees and disbursements of counsel for the Company
and of its independent public accountants, including the expenses of any
special audits or "cold comfort" letters, (vii) reasonable fees and
disbursements of any one counsel retained by the sellers of Registrable
Securities, which counsel shall be designated by the Agent, and (viii) any
fees and disbursements of underwriters customarily paid by issuers or
sellers of securities, but excluding underwriting discounts and commissions
and transfer taxes, if any.
"Securities Act": The Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations thereunder which
shall be in effect at the time.
11. Miscellaneous.
11.1. Successors, Assigns and Transferees. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns, provided that the Company may not delegate or assign it
obligations and duties hereunder without the written consent of each of the
Lenders which at the time is, or is an Affiliate of, a holder of Registrable
Securities. In addition, and provided that an express assignment and an express
agreement of the assignee to be bound by this Agreement shall have been made,
and a copy thereof shall have been delivered to the Company, the provisions of
this Agreement which are for the benefit of a holder of Registrable Securities
shall be for the benefit of and enforceable by any subsequent holder of any
Registrable Securities.
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11.2. Amendment and Modification. This Agreement may be amended, modified
or supplemented by the Company only with the written consent of the Majority
Stockholders and of each Lender which, at the time in question is, or is an
Affiliate of, a holder of Registrable Securities.
11.3. Governing Law. This Agreement and the rights and obligations of the
parties hereunder and the persons subject hereto shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York,
without giving effect to the choice of law principles thereof.
11.4. Invalidity of Provision. The invalidity or unenforceability of any
provision of this Agreement in any jurisdiction shall not affect the validity or
enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of this Agreement, including that provision, in any
other jurisdiction.
11.5. Notices. All notices, requests, demands, letters, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if (a) delivered
personally, (b) mailed, certified or registered mail with postage prepaid, (c)
sent by next-day or overnight mail or delivery or (d) sent by fax as follows:
(i) If to the Company, to it at:
Steel Dynamics, Inc.
0000 Xxxxxx Xxxxxxxxx Xxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxxxx, CFO.
(ii) If to the Agent, to it at:
Attention:.
(iii) If to any holder of Registrable Securities, to the address of such
holder as set forth in the books and records of the Company or to such other
person or address as any party shall specify by notice in writing to the
Company. All such notices, requests, demands, letters, waivers and other
communications shall be deemed to have been received (w) if by personal delivery
on the day after such delivery, (x) if by certified or registered mail, on the
fifth business day after the mailing thereof, (y) if by next-day or overnight
mail or delivery, on the day delivered or (z) if by fax, on the next day
following the day on which such fax was sent, provided that a copy is also sent
by certified or registered mail.
11.6. Headings; Execution in Counterparts. The headings and captions
contained herein are for convenience and shall not control or affect the meaning
or construction of any provision hereof. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and
which together shall constitute one and the same instrument.
11.7. Injunctive Relief. Each of the parties recognizes and agrees that
money damages may be insufficient and, therefore, in the event of a breach of
any provision of this Agreement the aggrieved party may elect to institute and
prosecute proceedings in any court of competent jurisdiction to enforce specific
performance or to enjoin the continuing breach of this Agreement.
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Such remedies shall, however, be cumulative and not exclusive, and shall be in
addition to any other remedy which such party may have.
11.11. Entire Agreement. This Agreement, together with the [Settlement]
Agreement, is intended by the parties hereto as a final expression of their
agreement and intended to be a complete and exclusive statement of their
agreement and understanding in respect of the subject matter contained herein.
This Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
11.12. Term. This Agreement shall be effective as of the date hereof and
shall continue in effect thereafter until the date when the Company is no longer
required to maintain the effectiveness of the Shelf Registration Statement under
Sections 1, 3(b) and 3(h) hereof, provided that the obligations of the parties
under Section 9 hereof shall survive any termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly
authorized, have executed and delivered this Registration Rights Agreement as of
the date first above written.
STEEL DYNAMICS, INC.
By
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Title:
MELLON BANK, N.A., as Agent
By
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Title:
GE CAPITAL CFE, INC.
By
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Title:
-00-
XXXXXXXXXXXXX XXX XXXXXXXXXXXX
By
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Title:
By
------------------------------------
Title:
COMERICA BANK
By
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Title:
NATIONAL CITY BANK, INDIANA
By
------------------------------------
Title:
LASALLE BANK NATIONAL
ASSOCIATION
By
------------------------------------
Title:
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