Execution Copy
REGISTRATION RIGHTS AGREEMENT
Dated as of August 7, 1997
Among
KEYSTONE CONSOLIDATED INDUSTRIES, INC.
as Issuer
and
XXXXXXXXXXX XXXXXXX SECURITIES, INC.
and
PAINEWEBBER INCORPORATED
as Initial Purchasers
TABLE OF CONTENTS
Page
1. Definitions................................................1
2. Exchange Offer.............................................7
3. Shelf Registration.........................................13
4. Liquidated Damages.........................................15
5. Registration Procedures....................................18
6. Registration Expenses......................................31
7. Indemnification............................................32
8. Rules 144 and 144A.........................................38
9. Underwritten Registrations.................................39
10. Miscellaneous.............................................39
(a) No Inconsistent Agreements..........................39
(b) Adjustments Affecting Registrable Notes.............40
(c) Amendments and Waivers..............................40
(d) Notices.............................................41
(e) Successors and Assigns..............................43
(f) Counterparts........................................43
(g) Headings............................................43
(h) Governing Law.......................................43
(i) Severability........................................44
(j) Third Party Beneficiaries...........................44
(k) Entire Agreement....................................44
(l) Underwriting Agreement..............................45
(m) Termination.........................................45
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated as of
August 7, 1997 among Keystone Consolidated Industries, a Delaware corporation
(the "Company"), Xxxxxxxxxxx Xxxxxxx Securities, Inc. and PaineWebber
Incorporated (the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated August 4, 1997, between the Company and the Initial Purchasers
(the "Purchase Agreement") which provides for the sale by the Company to the
Initial Purchasers of $100,000,000 aggregate principal amount of the Company's 9
5/8% Senior Secured Notes Due 2007 (the "Notes"). In order to induce the
Initial Purchasers to enter into the Purchase Agreement, the Company has agreed
to provide the registration rights set forth in this Agreement for the benefit
of the Initial Purchasers and their respective direct and indirect transferees
and assigns. The execution and delivery of this Agreement is a condition to the
Initial Purchasers' obligation to purchase the Notes under the Purchase
Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Advice: See the last paragraph of Section 5 hereof.
Agreement: See the introductory paragraphs hereto.
Applicable Period: See Section 2(b) hereof.
Company: See the introductory paragraphs hereto.
Effectiveness Date: The 120th day after the Issue Date.
Effectiveness Period: See Section 3(a) hereof.
Event Date: See Section 4(b) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Exchange Offer: See Section 2(a) hereof.
Exchange Offer Registration Statement: See Section 2(a) hereof.
Filing Date: The 45th day after the Issue Date.
Holder: Any holder of a Registrable Note or Registrable Notes.
Indemnified Person: See Section 7(c) hereof.
Indemnifying Person: See Section 7(c) hereof.
Indenture: The Indenture, dated as of August 7, 1997 between the
Company and The Bank of New York, as Trustee, pursuant to which the Notes are
being issued, as amended or supplemented from time to time in accordance with
the terms thereof.
Initial Purchasers: See the introductory paragraphs hereto.
Inspectors: See Section 5(o) hereof.
Issue Date: The date on which the Notes were originally issued under
the Indenture.
Liquidated Damages: See Section 4(a) hereof.
NASD: See Section 5(t) hereof.
New Notes: See Section 2(a) hereof.
Notes: See the introductory paragraphs hereto.
Participant: See Section 7(a) hereof.
Participating Broker-Dealer: See Section 2(b) hereof.
Person: An individual, trustee, corporation, partnership, joint stock
company, trust, unincorporated association, union, business association, firm or
other legal entity.
Private Exchange: See Section 2(b) hereof.
Private New Notes: See Section 2(b) hereof.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any 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
prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
Purchase Agreement: See the introductory paragraphs hereto.
Records: See Section 5(o) hereof.
Registrable Notes: Each Note upon original issuance of the Notes and
at all times subsequent thereto, each New Note as to which Section 2(c)(iv)
hereof is applicable upon original issuance and at all times subsequent thereto
and each Private New Note upon original issuance thereof and at all times
subsequent thereto, until in the case of any such Note, New Note or Private New
Note, as the case may be, the earliest to occur of (i) a Registration Statement
(other than, with respect to any New Note as to which Section 2(c)(iv) hereof is
applicable, the Exchange Offer Registration Statement) covering such Note, New
Note or such Private New Note having been declared effective by the SEC and such
Note or such Private New Note, as the case may be, having been disposed of in
accordance with such effective Registration Statement, (ii) such Note, New Note
or Private New Note, as the case may be, being eligible for sale to the public
pursuant to Rule 144, (iii) such Note having been exchanged for an New Note
pursuant to an Exchange Offer which may be resold without restriction under
state and federal securities laws, or (iv) such Note, New Note or Private New
Note, as the case may be, ceasing to be outstanding for purposes of the
Indenture.
Registration Default: See Section 4(a) hereof.
Registration Statement: Any registration statement of the Company,
including, but not limited to, the Exchange Offer Registration Statement, filed
with the SEC pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such registration statement, including
post-effective amendments, all exhibits, and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
Rule 144: Rule 144 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than Rule 144)
or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c) hereof.
Shelf Registration Statement: See Section 3(a) hereof.
Subsequent Shelf Registration Statement: See Section 3(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and, if existent, the
trustee under any subsequent indenture governing the New Notes and Private New
Notes (if any).
Underwritten registration or underwritten offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
2. Exchange Offer
(a) The Company shall file with the SEC no later than the Filing
Date, a registration statement under the Securities Act with respect to a
registered offer to exchange (the "Exchange Offer") any and all of the
Registrable Notes (other than Private New Notes, if any) for a like aggregate
principal amount of debt securities of the Company which are substantially
similar in all material respects to the Notes (the "New Notes"), except that the
New Notes shall have been registered pursuant to an effective Registration
Statement under the Securities Act and shall contain no restrictive legend
thereon, and which are entitled to the benefits of the Indenture or a trust
indenture which is identical in all material respects to the Indenture (other
than such changes to the Indenture or any such identical trust indenture as are
necessary to comply with any requirements of the SEC to effect or maintain the
qualification thereof under the TIA) and which, in either case, has been
qualified under the TIA. The Exchange Offer shall be registered under the
Securities Act on an appropriate form (the "Exchange Offer Registration
Statement") and shall comply with all applicable tender offer rules and
regulations under the Exchange Act. The Company shall use best efforts to cause
the Exchange Offer Registration Statement to be declared effective under the
Securities Act on or before the Effectiveness Date. Upon the Exchange Offer
Registration Statement being declared effective, the Company will offer the New
Notes in exchange for surrender of the Notes. The Company will keep the
Exchange Offer open for at least 30 days (or longer if required by applicable
law) after the date that notice of the Exchange Offer is mailed to Holders. For
purposes of this Section 2(a) only, if after such Exchange Offer Registration
Statement is initially declared effective by the SEC, the Exchange Offer or the
issuance of the New Notes thereunder is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other governmental
agency or court, such Exchange Offer Registration Statement shall be deemed not
to have become effective for purposes of this Agreement. Each Holder who
participates in the Exchange Offer will be required to represent that any New
Notes received by it will be acquired in the ordinary course of its business,
that at the time of the consummation of the Exchange Offer such Holder will have
no arrangement or understanding with any Person to participate in the
distribution of the New Notes in violation of the provisions of the Securities
Act, and that such Holder is not an affiliate of the Company within the meaning
of the Securities Act. Upon consummation of the Exchange Offer in accordance
with this Section 2, the provisions of this Agreement shall continue to apply,
mutatis mutandis, solely with respect to Registrable Notes that are Private New
Notes and New Notes held by Participating Broker-Dealers, and the Company shall
have no further obligation to register Registrable Notes pursuant to Section 3
hereof (other than Private New Notes and other than in respect of any New Notes
as to which clause 2(c)(iv) hereof applies). No securities other than the New
Notes shall be included in the Exchange Offer Registration Statement.
(b) The Company shall include within the Prospectus contained in the
Exchange Offer Registration Statement certain information necessary to allow a
broker-dealer who holds Notes that were acquired for its own account as a result
of market-making activities or other ordinary course trading activities (other
than Notes acquired directly from the Company or one of the Company's
affiliates) to exchange such Notes pursuant to the Exchange Offer and to satisfy
the prospectus delivery requirements in connection with resales of New Notes
received by such broker-dealer in the Exchange Offer, including a section
entitled "Plan of Distribution," reasonably acceptable to the Initial
Purchasers, which shall contain a summary statement of the positions taken or
policies made by the Staff of the Division of Corporation Finance of the SEC
(the "Staff") with respect to the potential "underwriter" status of any broker-
dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange
Act) of New Notes received by such broker-dealer in the Exchange Offer (a
"Participating Broker-Dealer"), whether such positions or policies have been
publicly disseminated by the Staff or such positions or policies, in the
judgment of the Initial Purchasers, represent the prevailing views of the Staff.
Such "Plan of Distribution" section shall also expressly permit the use of the
Prospectus by all Persons subject to the prospectus delivery requirements of the
Securities Act, including all Participating Broker-Dealers, and include a
statement describing the means by which Participating Broker-Dealers may resell
the New Notes. Each broker-dealer that receives New Notes for its own account
in exchange for Notes where such Notes were acquired by such broker-dealer as a
result of market-making activities must acknowledge that it will comply with any
prospectus delivery requirements under the Securities Act in connection with any
resale of New Notes.
The Company shall use its best efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement the Prospectus
contained therein, in order to permit such Prospectus to be lawfully delivered
by all Persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as is necessary to comply with applicable law in
connection with any resale of the New Notes; provided, however, that such period
shall not exceed 120 days after the Exchange Offer Registration Statement is
declared effective (or such longer period if extended pursuant to the last
paragraph of Section 5 hereof) (the "Applicable Period").
If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Notes acquired by them and having, or which are reasonably
likely to be determined to have, the status of an unsold allotment in the
initial distribution, or any other Holder is not entitled to participate in the
Exchange Offer, the Company upon the request of the Initial Purchasers or any
such Holder shall simultaneously with the delivery of the New Notes in the
Exchange Offer, issue and deliver to the Initial Purchasers and any such Holder,
in exchange (the "Private Exchange") for such Notes held by the Initial
Purchasers and any such Holder, a like principal amount of debt securities of
the Company that are substantially similar in all material respects to the New
Notes except for any such restrictions on transfer that, in the opinion of
counsel for the Company, are required under the Securities Act (the "Private New
Notes") (and which are issued pursuant to the same indenture as the New Notes);
provided, however, the Company shall not be required to effect such exchange if,
in the written opinion of counsel for the Company (a copy of which shall be
delivered to the Initial Purchasers and any Holder affected thereby), such
exchange cannot be effected without registration under the Securities Act. The
Private New Notes shall bear the same CUSIP number as the New Notes.
Interest on the New Notes and the Private New Notes will accrue from
(A) the later of (i) the last interest payment date as of which interest was
paid on the Notes surrendered in exchange therefor or (ii) if the Notes are
surrendered for exchange on a date in a period which includes the record date
for an interest payment date to occur on or after the date of such exchange and
as to which interest will be paid, the date of such interest payment date or (B)
if no interest has been paid on the Notes, from the Issue Date.
In connection with the Exchange Offer, the Company shall:
(1) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with
an address in the Borough of Manhattan, the City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to
the close of business, New York time, on the last business day on which the
Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable
laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer or the
Private Exchange, as the case may be, the Company shall:
(1) accept for exchange all Notes tendered and not validly withdrawn
pursuant to the Exchange Offer or the Private Exchange;
(2) deliver to the Trustee for cancellation all Notes so accepted for
exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each
Holder of Notes, New Notes or Private New Notes, as the case may be, equal
in principal amount to the Notes of such Holder so accepted for exchange.
The Exchange Offer and the Private Exchange shall not be subject to
any conditions, other than that (i) the Exchange Offer or the Private Exchange,
as the case may be, does not violate applicable law or any applicable
interpretation of the Staff, (ii) no action or proceeding is instituted or
threatened in any court or by any governmental agency which might materially
impair the ability of the Company to proceed with the Exchange Offer or the
Private Exchange and no material adverse development has occurred in any
existing action or proceeding with respect to the Company and (iii) all
governmental approvals have been obtained, which approvals the Company deems
necessary for the consummation of the Exchange Offer or Private Exchange.
The New Notes and the Private New Notes may be issued under (i) the
Indenture or (ii) an indenture identical in all material respects to the
Indenture, which in either event shall provide that the New Notes shall not be
subject to the transfer restrictions set forth in the Indenture. The Indenture
or such indenture shall provide that the New Notes, the Private New Notes and
the Notes shall vote and consent together on all matters as one class and that
neither the New Notes, the Private New Notes or the Notes will have the right to
vote or consent as a separate class on any matter.
(c) If (i) the Company determines in reasonably good faith based upon
advice of counsel reasonably acceptable to the Initial Purchasers that (x) any
changes in law or in the applicable interpretations of the Staff of the SEC do
not permit the Company to effect an Exchange Offer prior to the Effectiveness
Date, or (y) that the New Notes would not be tradeable upon receipt by the
Holders that participate in the Exchange Offer without restriction under
applicable state and federal securities laws (other than due solely to the
status of a Holder as an affiliate of the Company within the meaning of the
Securities Act), (ii) the Exchange Offer is not consummated within 150 days of
the Issue Date, (iii) any holder of Private New Notes so requests within 120
days after the consummation of the Private Exchange, or (iv) in the case of any
Holder that participates in the Exchange Offer, such Holder does not receive New
Notes on the date of the exchange that may be sold without restriction under
state and federal securities laws (other than due solely to the status of such
Holder as an affiliate of the Company within the meaning of the Securities Act)
and so notifies the Company within 60 days after such Holder first becomes aware
of any such restriction and provides the Company with a reasonable basis for its
conclusion, in the case of each of clauses (i), (ii), (iii) and (iv) of this
sentence, then the Company shall promptly deliver to the Holders of Registrable
Notes and the Trustee written notice thereof (the "Shelf Notice") and shall file
a Shelf Registration pursuant to Section 3 hereof.
3. Shelf Registration
If a Shelf Notice is delivered as contemplated by Section 2(c) hereof,
then:
(a) Shelf Registration. The Company shall file with the SEC a
Registration Statement for an offering to be made on a continuous basis pursuant
to Rule 415 covering all of the Registrable Notes (the "Shelf Registration
Statement"). If the Company shall not have filed an Exchange Offer Registration
Statement, the Company shall use its best efforts to file with the SEC the Shelf
Registration Statement as promptly as practicable, but no later than 30 days
from the delivery of the Shelf Notice. The Shelf Registration Statement shall
be on Form S-1 or another appropriate form permitting registration of such
Registrable Notes for resale by Holders in the manner or manners designated by
them (including, without limitation, one or more underwritten offerings). The
Company shall not permit any securities other than the Registrable Notes to be
included in the Shelf Registration Statement or any Subsequent Shelf
Registration Statement.
The Company shall use its best efforts to cause the initial Shelf
Registration Statement to be declared effective under the Securities Act by the
60th day after delivery of the Shelf Notice and to keep the Shelf Registration
Statement continuously effective under the Securities Act until the date which
is 24 months from its effective date, subject to extension pursuant to the last
paragraph of Section 5 hereof (the "Effectiveness Period"), or such shorter
period ending when (i) all Registrable Notes covered by the Shelf Registration
Statement have been sold in the manner set forth and as contemplated in the
initial Shelf Registration Statement or (ii) a Subsequent Shelf Registration
Statement covering all of the Registrable Notes has been declared effective
under the Securities Act.
(b) Subsequent Shelf Registrations. If the initial Shelf
Registration Statement or any Subsequent Shelf Registration Statement ceases to
be effective for any reason at any time during the Effectiveness Period (other
than because of the sale of all of the securities registered thereunder), the
Company shall use all reasonable efforts to obtain the prompt withdrawal of any
order suspending the effectiveness thereof, and in any event shall within 45
days of such cessation of effectiveness amend the Shelf Registration Statement
in a manner to obtain the withdrawal of the order suspending the effectiveness
thereof, or file an additional "shelf" Registration Statement pursuant to Rule
415 covering all of the Registrable Notes (a "Subsequent Shelf Registration
Statement"). If a Subsequent Shelf Registration Statement is filed, the Company
shall use its best efforts to cause the Subsequent Shelf Registration to be
declared effective under the Securities Act as soon as practicable after such
filing and to keep such Registration Statement continuously effective for a
period equal to the number of days in the Effectiveness Period less the
aggregate number of days during which the Shelf Registration Statement or any
Subsequent Shelf Registration was previously effective. As used herein the term
"Shelf Registration Statement" means the Shelf Registration Statement and any
Subsequent Shelf Registration Statement.
(c) Supplements and Amendments. The Company shall promptly
supplement and amend the Shelf Registration Statement if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration Statement, if required by the Securities Act, or if
reasonably requested by the Holders of a majority in aggregate principal amount
of the Registrable Notes covered by such Registration Statement or by any
underwriter of such Registrable Notes.
4. Liquidated Damages
(a) The Company and the Initial Purchasers agree that the Holders of
Notes will suffer damages if the Company fails to fulfill its obligations under
Section 2 or Section 3 hereof and that it would not be feasible to ascertain the
extent of such damages with precision. Accordingly, the Company agrees to pay,
liquidated damages to each Holder of Notes, with respect to the first 90-day
period immediately following the occurrence of a Registration Default (as
defined below) in an amount equal to $.05 per week per $1,000 principal amount
of Notes held by such Holder ("Liquidated Damages"). For any portion of a week
that the Registration Default continues, such Liquidated Damages shall be
calculated on a pro-rata basis. The amount of Liquidated Damages will increase
by an additional $.05 per week per $1,000 principal amount of Notes with respect
to each subsequent 90-day period until all Registration Defaults have been
cured, up to a maximum amount of Liquidated Damages of $.25 per week per $1,000
principal amount of Notes. Each event referred to in clauses (i) through (iii)
below will constitute a "Registration Default" and each such event shall be
given independent effect:
(i) if the Exchange Offer Registration Statement has not been
filed on or prior to the 45th calendar day following the Issue Date,
then commencing on the 46th day after the Issue Date, the Company
shall pay Liquidated Damages over and above the accrued interest on
the Notes;
(ii) if the Exchange Offer Registration Statement is not declared
effective by the SEC on or prior to the 120th calendar day following
the Issue Date, then commencing on the 121st day after the Issue Date,
the Company shall pay Liquidated Damages on the Notes included or
which should have been included in such Exchange Offer Registration
Statement over and above the accrued interest on the Notes; and
(iii) if (A) the Exchange Offer is not consummated on or
prior to the 150th calendar day following the Issue Date and a Shelf
Notice has not been delivered with respect to all Notes eligible for
exchange in the Exchange Offer on or prior to such 150th calendar day,
(B) if a Shelf Notice is delivered and the Shelf Registration
Statement is not filed within 30 days or the Shelf Registration
Statement is not declared effective on or prior to the 60th calendar
day following the delivery of the Shelf Notice or (C) if applicable,
the Shelf Registration Statement has been declared effective and
ceases to be effective (except as specifically permitted therein)
without being succeeded within 45 days by an additional registration
statement filed and declared effective, then commencing on the day
immediately following the date of such Registration Default, the
Company shall pay Liquidated Damages over and above the accrued
interest on the Notes;
provided, however, that (1) upon the filing of the Exchange Offer Registration
Statement (in the case of clause (i) of this Section 4(a)), (2) upon the
effectiveness of the Exchange Offer Registration Statement (in the case of
clause (ii) of this Section 4(a)), or (3) upon the consummation of the Exchange
Offer (in the case of clause (iii)(A) of this Section 4(a)), or upon the filing
of or the effectiveness of the Shelf Registration Statement (in the case of
clause (iii)(B) of this Section 4(a)), or upon the effectiveness of the Shelf
Registration Statement which had ceased to remain effective (except as
specifically permitted therein) without being succeeded immediately by an
additional registration statement filed and declared effective (in the case of
clause (iii)(C) of this Section 4(a)), Liquidated Damages on the Notes as a
result of such clause (or the relevant subclause thereof), as the case may be,
shall cease to accrue; and provided further, that no Liquidated Damages shall be
paid with respect to any Note (i) subsequent to the time of the consummation of
the Exchange Offer with respect to such Note, or (ii) at any time that a Shelf
Registration Statement is available with respect to such Note. Notwithstanding
the foregoing, the Company shall not be required to pay Liquidated Damages with
respect to the Notes of a Holder if the applicable Registration Default arises
from the Company's failure to file, or cause to become effective, a Shelf
Registration Statement within the time periods specified in this Section 4 by
reason of the failure of such Holder to provide such information as (i) the
Company may reasonable request, with reasonable prior written notice, for use in
the Shelf Registration Statement or any Prospectus included therein to the
extent the Company reasonably determines that such information is required to be
included therein by applicable law, (ii) the NASD or the SEC may request in
connection with such Shelf Registration Statement or (iii) is required to comply
with the agreements of such Holder as contained in the penultimate paragraph of
Section 5 to the extent compliance thereof is necessary for the Shelf
Registration Statement to be declared effective.
(b) The Company shall notify the Trustee within one business day
after each Registration Default (an "Event Date"). Any amounts of Liquidated
Damages due pursuant to (a)(i), (a)(ii) or (a)(iii) of this Section 4 will be
payable in cash semi-annually on each August 1 and February 1 (to the holders of
record on the August 1 and February 1 immediately preceding such dates),
commencing with the first such date occurring after any such Liquidated Damages
commences to accrue. Any such Liquidated Damages will be paid by the Company to
the Holder of Global Notes (as defined in the Indenture) by wire transfer of
same day funds and to Holders of Certificated Notes (as defined in the
Indenture) by wire transfer to the accounts specified by them or by mailing
checks to their registered addresses if no such accounts have been specified.
Following the cure of all Registration Defaults, the accrual of Liquidated
Damages will cease.
5. Registration Procedures
In connection with the filing of any Registration Statement pursuant
to Sections 2 or 3 hereof, the Company shall effect such registrations to permit
the sale of the securities covered thereby in accordance with the intended
method or methods of disposition thereof, and pursuant thereto and in connection
with any Registration Statement filed by the Company hereunder the Company
shall:
(a) Prepare and file with the SEC on or prior to the Filing Date, a
Registration Statement or Registration Statements as prescribed by Sections 2 or
3 hereof, and use its best efforts to cause each such Registration Statement to
become effective and remain effective as provided herein; provided, however,
that, if (1) such filing is pursuant to Section 3 hereof, or (2) a Prospectus
contained in an Exchange Offer Registration Statement filed pursuant to Section
2 hereof is required to be delivered under the Securities Act by any Par-
ticipating Broker-Dealer who seeks to sell New Notes during the Applicable
Period, before filing any Registration Statement or Prospectus or any amendments
or supplements thereto, the Company shall furnish to and afford the Holders of
the Registrable Notes covered by such Registration Statement or each such
Participating Broker-Dealer, as the case may be, one counsel selected by the
Holders of a majority in aggregate principal amount of the Registrable Notes
(the "Holders' Counsel"), counsel for such Participating Broker-Dealer and the
managing underwriters, if any, a reasonable opportunity to review copies of all
such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed (in each case
at least five business days prior to such filing, or such later date as is
reasonable under the circumstances). The Company shall not file any
Registration Statement or Prospectus or any amendments or supplements thereto if
the Holders of a majority in aggregate principal amount of the Registrable Notes
covered by such Registration Statement and the Holders' Counsel, or any such
Participating Broker-Dealer and its counsel, as the case may be, or the managing
underwriters, if any, shall reasonably object. A Holder or its counsel or any
such Participating Broker-Dealer and its counsel shall be deemed to have
reasonably objected to such filing if such amendment or supplement, as proposed
to be filed, contains a material misstatement or omission.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration Statement or Exchange Offer Registration
Statement, as the case may be, as may be necessary to keep such Registration
Statement continuously effective for the Effectiveness Period or the Applicable
Period, as the case may be; cause the related Prospectus to be supplemented by
any Prospectus supplement required by applicable law, and as so supplemented to
be filed pursuant to Rule 424 (or any similar provisions then in force)
promulgated under the Securities Act; and comply with the provisions of the
Securities Act and the Exchange Act applicable to it with respect to the
disposition of all securities covered by such Registration Statement as so
amended or in such Prospectus as so supplemented and with respect to the
subsequent resale of any securities being sold by a Participating Broker-Dealer
covered by any such Prospectus. The Company shall be deemed not to have used
its best efforts to keep a Registration Statement effective during the
Applicable Period if it voluntarily takes any action that would result in
selling Holders of the Registrable Notes covered thereby or Participating
Broker-Dealers seeking to sell New Notes not being able to sell such Registrable
Notes or such New Notes during that period unless (i) such action is required by
applicable law or (ii) such action is taken by the Company in good faith and for
valid business reasons (not including avoidance of the Company's obligations
hereunder), including the acquisition or divestiture of assets.
(c) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell New Notes during the Applicable Period, notify the selling Holders of
Registrable Notes and Holders' Counsel, or each such Participating Broker-Dealer
and their counsel, as the case may be, and the managing underwriters, if any,
promptly (but in any event within two business days), (i) when a Prospectus or
any Prospectus supplement or post-effective amendment has been filed, and, with
respect to a Registration Statement or any post-effective amendment, when the
same has become effective under the Securities Act (including in such notice a
written statement that any Holder may, upon request, obtain, at the sole expense
of the Company, one conformed copy of such Registration Statement or post-
effective amendment including financial statements and schedules, documents
incorporated or deemed to be incorporated by reference and exhibits), (ii) of
the issuance by the SEC of any stop order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus or the initiation of any proceedings for that purpose,
(iii) if at any time when a prospectus is required by the Securities Act to be
delivered in connection with sales of the Registrable Notes or resales of New
Notes by Participating Broker-Dealers the representations and warranties of the
Company contained in any agreement (including any underwriting agreement),
contemplated by Section 5(n) hereof, to the knowledge of the Company, cease to
be true and correct in all material respects, (iv) of the receipt by the Company
of any notification with respect to the suspension of the qualification or
exemption from qualification of a Registration Statement or any of the
Registrable Notes or the New Notes to be sold by any Participating Broker-Dealer
for offer or sale in any jurisdiction, or the initiation or threatening of any
proceeding for such purpose, (v) of the happening of any event, or any
information becoming known that 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 that
requires the making of any changes in or amendments or supplements to such
Registration Statement, Prospectus or documents so 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, in the light of the circumstances
under which they were made, 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 (vi) of the Company's determination that a post-
effective amendment to a Registration Statement would be appropriate.
(d) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell New Notes during the Applicable Period, use its best efforts to prevent
the issuance of any order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of a Prospectus or
suspending the qualification (or exemption from qualification) of any of the
Registrable Notes or the New Notes to be sold by any Participating Broker-
Dealer, for sale in any jurisdiction, and, if any such order is issued, to use
its best efforts to obtain the withdrawal of any such order at the earliest
possible moment.
(e) If a Shelf Registration Statement is filed pursuant to Section 3
and if requested by the managing underwriter or underwriters (if any), the
Holders of a majority in aggregate principal amount of the Registrable Notes
being sold in connection with an underwritten offering or any Participating
Broker-Dealer shall (i) promptly incorporate in a prospectus supplement or post-
effective amendment such information as the managing underwriter or underwriters
(if any), their counsel, such Holders, Holders' Counsel, any Participating
Broker-Dealer or their counsel reasonably determine is necessary to be included
therein, (ii) make all required filings of such prospectus supplement or such
post-effective amendment as soon as practicable after the Company has received
notification of the matters to be incorporated in such prospectus supplement or
post-effective amendment, and (iii) supplement or make amendments to such
Registration Statement.
(f) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell New Notes during the Applicable Period, furnish to each selling Holder
of Registrable Notes, Holders' Counsel and to each such Participating Broker-
Dealer who so requests and its counsel and each managing underwriter, if any, at
the sole expense of the Company, one conformed copy of the Registration
Statement or Registration Statements and each post-effective amendment thereto,
including financial statements and schedules, and, if requested, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell New Notes during the Applicable Period, deliver to each selling Holder
of Registrable Notes and Holders' Counsel, or each such Participating Broker-
Dealer and its counsel, as the case may be, and the underwriters, if any, at the
sole expense of the Company, as many copies of the Prospectus or Prospectuses
(including each form of preliminary prospectus) and each amendment or supplement
thereto and any documents incorporated by reference therein as such Persons may
reasonably request; and, subject to the last paragraph of this Section 5, the
Company hereby consents to the use of such Prospectus and each amendment or
supplement thereto by each of the selling Holders of Registrable Notes or each
such Participating Broker-Dealer, as the case may be, and the underwriters or
agents, if any, and dealers (if any), in connection with the offering and sale
of the Registrable Notes covered by, or the sale by Participating Broker-Dealers
of the New Notes pursuant to, such Prospectus and any amendment or supplement
thereto.
(h) Prior to any public offering of Registrable Notes or any delivery
of a Prospectus contained in the Exchange Offer Registration Statement by any
Participating Broker-Dealer who seeks to sell New Notes during the Applicable
Period, use its best efforts to cooperate with the selling Holders of
Registrable Notes and Holders' Counsel or each such Participating Broker-Dealer
and its counsel, as the case may be, the managing underwriter or underwriters,
if any, and their counsel in connection with the registration or qualification
(or exemption from such registration or qualification) of such Registrable Notes
for offer and sale under the securities or Blue Sky laws of such jurisdictions
within the United States as any selling Holder, Participating Broker-Dealer, or
the managing underwriter or underwriters reasonably request; provided, however,
that where New Notes held by Participating Broker-Dealers or Registrable Notes
are offered other than through an underwritten offering, the Company agrees to
cause the Company's counsel to perform Blue Sky investigations and file
registrations and qualifications required to be filed pursuant to this Section
5(h); keep each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to be kept
effective and do any and all other acts or things reasonably necessary or
advisable to enable the disposition in such jurisdictions of the New Notes held
by Participating Broker-Dealers or the Registrable Notes covered by the
applicable Registration Statement; provided, however, that the Company shall not
be required (A) to qualify generally to do business in any jurisdiction where it
is not then so qualified, (B) to take any action that would subject it to
general service of process in any such jurisdiction where it is not then so
subject or (C) to subject itself to taxation in excess of a nominal dollar
amount in any such jurisdiction where it is not then so subject.
(i) If a Shelf Registration statement is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Registrable Notes and the managing
underwriter or underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Notes to be sold, which
certificates shall not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Company; and enable such
Registrable Notes to be in such denominations and registered in such names as
the managing underwriter or underwriters, if any, or Holders may request.
(j) Use its best efforts to cause the Registrable Notes covered by
the Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be reasonably necessary to enable
the seller or sellers thereof or the underwriter or underwriters, if any, to
consummate the disposition of such Registrable Notes, except as may be required
solely as a consequence of the nature of such selling Holder's business, in
which case the Company will cooperate in all reasonable respects with the filing
of such registration statement and the granting of such approvals; provided,
however, that the Company shall not be required (A) to qualify generally to do
business in any jurisdiction where it is not then so qualified, (B) to take any
action that would subject it to general service of process in any such
jurisdiction where it is not then so subject or (C) to subject itself to
taxation in excess of a nominal dollar amount in any such jurisdiction where it
is not then so subject.
(k) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell New Notes during the Applicable Period, upon the occurrence of any event
contemplated by paragraph 5(c)(v) or 5(c)(vi) hereof, as promptly as practicable
prepare and (subject to Section 5(a) hereof) file with the SEC, at the sole
expense of the Company, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, or file any
other required document so that, as thereafter delivered to the purchasers of
the Registrable Notes being sold thereunder or to the purchasers of the New
Notes to whom such Prospectus will be delivered by a Participating Broker-
Dealer, any such 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.
(l) Use its best efforts to cause the Registrable Notes covered by a
Registration Statement or the New Notes, as the case may be, to be rated with
the appropriate rating agencies, if so requested by the Holders of a majority in
aggregate principal amount of Registrable Notes covered by such Registration
Statement or the New Notes, as the case may be, or the managing underwriter or
underwriters, if any.
(m) Prior to the effective date of the first Registration Statement
relating to the Registrable Notes, (i) provide the Trustee with certificates for
the Registrable Notes in a form eligible for deposit with The Depository Trust
Company and (ii) provide a CUSIP number for the Registrable Notes.
(n) In connection with any underwritten offering of Registrable Notes
pursuant to a Shelf Registration Statement, enter into an underwriting agreement
as is customary in underwritten offerings of debt securities similar to the
Notes and take all such other actions as are reasonably requested by the
managing underwriter or underwriters in order to expedite or facilitate the
registration or the disposition of such Registrable Notes and, in such
connection, (i) make such representations and warranties to, and covenants with,
the underwriters with respect to the business of the Company and its
subsidiaries (including any acquired business, properties or entity, if
applicable) and the Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein, in each case, as
are customarily made by issuers to underwriters in underwritten offerings of
debt securities similar to the Notes, and confirm the same in writing at the
closing under such underwriting agreement; (ii) use best efforts to obtain the
written opinions of counsel to the Company and written updates thereof in form,
scope and substance reasonably satisfactory to the managing underwriter or
underwriters, addressed to the underwriters covering the matters customarily
covered in opinions requested in underwritten offerings and such other matters
as may be reasonably requested by the managing underwriter or underwriters;
(iii) use best efforts to obtain "cold comfort" letters and updates thereof in
form, scope and substance reasonably satisfactory to the managing underwriter or
underwriters from the independent certified public accountants of the Company
(and, if necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company for which
financial statements and financial data are, or are required to be, included or
incorporated by reference in the Registration Statement), addressed to each of
the underwriters, 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 such other matters as reasonably requested by the
managing underwriter or underwriters as permitted by the Statement on Auditing
Standards No. 72; and (iv) if an underwriting agreement is entered into, the
same shall contain indemnification provisions and procedures no less favorable
than those set forth in Section 7 hereof (or such other provisions and
procedures acceptable to Holders of a majority in aggregate principal amount of
Registrable Notes covered by such Registration Statement and the managing
underwriter or underwriters or agents) with respect to all parties to be
indemnified pursuant to said Section. The above shall be done at each closing
under such underwriting agreement, or as and to the extent required thereunder.
(o) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell New Notes during the Applicable Period, make available for inspection by
any selling Holder of such Registrable Notes being sold, or each such
Participating Broker-Dealer, as the case may be, any underwriter participating
in any such disposition of Registrable Notes, if any, and any attorney,
accountant or other agent retained by any such selling Holder or each such
Participating Broker-Dealer, as the case may be, or underwriter (collectively,
the "Inspectors"), at the offices where normally kept, during reasonable
business hours, all financial and other records, pertinent corporate documents
and instruments of the Company and its subsidiaries (collectively, the
"Records") as shall be reasonably necessary to enable them to exercise any
applicable due diligence responsibilities, and cause the officers, directors and
employees of the Company and its subsidiaries to supply all information
reasonably requested by any such Inspector in connection with such Registration
Statement; provided, however, that all information shall be kept confidential by
each such Inspector, except to the extent that (i) the disclosure of such
Records is necessary to avoid or correct a misstatement or omission in such
Registration Statement, (ii) the release of such Records is ordered pursuant to
a subpoena or other order from a court of competent jurisdiction, (iii)
disclosure of such information is, in the opinion of counsel for any Inspector,
necessary or advisable in connection with any action, claim, suit or proceeding,
directly or indirectly, involving or potentially involving such Inspector and
arising out of, based upon, relating to, or involving this Agreement, or any
transactions contemplated hereby or arising hereunder; provided, however, that
prior notice be provided as soon as practicable to the Company of the potential
disclosure of any information by such Inspector pursuant to clause (ii) or this
clause (iii) to permit the Company to obtain a protective order (or waive the
provisions of this paragraph (o)) and that such Inspector shall take such
actions as are reasonably necessary to protect the confidentiality of such
information to the extent such action is otherwise not inconsistent with, an
impairment of or in derogation of the rights and interests of the Holders or any
Inspector, or (iv) the information in such Records has been made generally
available to the public by the Company. Each selling Holder of such Registrable
Notes and each such Participating Broker-Dealer will be required to agree that
information obtained by it as a result of such inspections shall be deemed
confidential, shall be used only for due diligence purposes pursuant to this
Section 5(p) and shall not be used by it as the basis for any market
transactions in the securities of the Issuer unless and until such information
is generally available to the public. Each selling Holder of such Registrable
Notes and each such Participating Broker-Dealer will be required to further
agree that it will, upon learning that disclosure of such Records is sought in a
court of competent jurisdiction, give notice to the Company and allow the
Company to undertake appropriate action to prevent disclosure of the Records
deemed confidential at the Company's sole expense.
(p) Provide an indenture trustee for the Registrable Notes or the New
Notes, as the case may be, and cause the Indenture or the trust indenture
provided for in Section 2(a) hereof, as the case may be, to be qualified under
the TIA not later than the effective date of the Exchange Offer or the first
Registration Statement relating to the Registrable Notes; and in connection
therewith, cooperate with the trustee under any such indenture and the Holders
of the Registrable Notes, 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 best efforts to cause such 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 SEC to enable such indenture to be so
qualified in a timely manner.
(q) Comply with all applicable rules and regulations of the SEC and
make generally available to its securityholders earnings 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) (i) commencing at the end of any fiscal
quarter in which Registrable Notes are sold to underwriters in a firm commitment
or best efforts underwritten offering and (ii) if not sold to underwriters in
such an offering, commencing on the first day of the first fiscal quarter of the
Company after the effective date of a Registration Statement, which statements
shall cover said 12-month periods.
(r) Upon consummation of an Exchange Offer or a Private Exchange,
obtain an opinion of counsel to the Company, in a form customary for
underwritten transactions, addressed to the Trustee for the benefit of all
Holders of Registrable Notes participating in the Exchange Offer or the Private
Exchange, as the case may be, that the New Notes or Private New Notes, as the
case may be, and the related indenture constitute legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with
their respective terms, subject to customary exceptions and qualifications.
(s) If an Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Registrable Notes by Holders to the Company (or to such
other Person as directed by the Company) in exchange for the New Notes or the
Private New Notes, as the case may be, the Company shall xxxx, or cause to be
marked, on such Registrable Notes that such Registrable Notes are being
cancelled in exchange for the New Notes or the Private New Notes, as the case
may be; in no event shall such Registrable Notes be marked as paid or otherwise
satisfied.
(t) Cooperate with each seller of Registrable Notes covered by any
Registration Statement, Holders' Counsel and each underwriter, if any,
participating in the disposition of such Registrable Notes and its counsel in
connection with any filings required to be made with the National Association of
Securities Dealers, Inc. (the "NASD") .
(u) Use its best efforts to take all other steps necessary or
advisable to effect the registration of the New Notes and/or Registrable Notes
covered by a Registration Statement contemplated hereby.
The Company may require each seller of Registrable Notes as to which
any registration is being effected to furnish to the Company such information
regarding such seller and the distribution of such Registrable Notes as the
Company may, from time to time, reasonably request. The Company may exclude
from such registration the Registrable Notes of any seller who fails to furnish
such information within a reasonable time after receiving such request. Each
seller as to which any registration pursuant to a Shelf Registration Statement
is being effected 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 seller not materially misleading.
Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by acquisition of such Registrable Notes or New Notes to be sold by such
Participating Broker-Dealer, as the case may be, that, upon actual receipt of
any notice from the Company of the happening of any event of the kind described
in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi) hereof, such Holder will
forthwith discontinue disposition of such Registrable Notes covered by such
Registration Statement or Prospectus or New Notes to be sold by such Holder or
Participating Broker-Dealer, as the case may be, until such Holder's or
Participating Broker-Dealer's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(k) hereof, or until it is advised
in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and has received copies of any amendments or
supplements thereto and, if so directed by the Company, such Holder or
Participating Broker-Dealer, as the case may be, will deliver to the Company all
copies, other than permanent file copies, then in such Holder's or Participating
Broker-Dealer's possession, of the Prospectus covering such Registrable Notes
current at the time of receipt of such notice. In the event the Company shall
give any such notice, each of the Effectiveness Period and the Applicable Period
shall be extended by the number of days during such periods from and including
the date of the giving of such notice to and including the date when each seller
of Registrable Notes covered by such Registration Statement or New Notes to be
sold by such Participating Broker-Dealer, as the case may be, shall have
received (x) the copies of the supplemented or amended Prospectus contemplated
by Section 5(k) hereof or (y) the Advice.
6. Registration Expenses
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by the Company
whether or not the Exchange Offer or a Shelf Registration Statement is filed or
becomes effective, including, without limitation, (i) all registration and
filing fees (including, without limitation, (A) fees with respect to filings
required to be made with the NASD in connection with an underwritten offering
and (B) fees and expenses of compliance with state securities or Blue Sky laws
(including, without limitation, reasonable fees and disbursements of counsel in
connection with Blue Sky qualifications of the Registrable Notes or New Notes
and determination of the eligibility of the Registrable Notes or New Notes for
investment under the laws of such jurisdictions (x) where the holders of
Registrable Notes are located, in the case of the New Notes, or (y) as provided
in Section 5(h) hereof, in the case of Registrable Notes or New Notes to be sold
by a Participating Broker-Dealer during the Applicable Period)), (ii) printing
expenses, including, without limitation, expenses of printing certificates for
Registrable Notes or New Notes in a form eligible for deposit with The
Depository Trust Company and of printing prospectuses if the printing of
prospectuses is requested by the managing underwriter or underwriters, if any,
by the Holders of a majority in aggregate principal amount of the Registrable
Notes included in any Registration Statement or in respect of Registrable Notes
or New Notes to be sold by any Participating Broker-Dealer during the Applicable
Period, as the case may be, (iii) messenger, telephone and delivery expenses,
(iv) fees and disbursements of counsel for the Company and reasonable fees and
disbursements of Holders' Counsel (subject to the provisions of Section 6(b)
hereof), (v) fees and disbursements of all independent certified public
accountants referred to in Section 5(n)(iii) hereof (including, without
limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (vi) rating agency fees,
(vii) Securities Act liability insurance, if the Company desires such insurance,
(viii) fees and expenses of all other Persons retained by the Company, (ix)
internal expenses of the Company (including, without limitation, all salaries
and expenses of officers and employees of the Company performing legal or
accounting duties), (x) the expense of any annual audit, (xi) the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange, if applicable, and (xii) the expenses
relating to printing, word processing and distributing all Registration
Statements, underwriting agreements, securities sales agreements, indentures and
any other documents necessary in order to comply with this Agreement.
(b) The Company shall reimburse the Holders of the Registrable Notes
being registered in a Shelf Registration Statement for the reasonable fees and
disbursements of Holders' Counsel (in addition to appropriate local counsel) and
other out-of-pocket expenses of such Holders of Registrable Notes incurred in
connection with the registration and sale of the Registrable Notes.
7. Indemnification
(a) In the event of a Shelf Registration Statement or in connection
with any delivery by any Participating Broker-Dealer who seeks to sell Exchange
Securities during the Applicable Period, the Company agrees to indemnify and
hold harmless each Holder of Registrable Notes and each Participating Broker-
Dealer selling New Notes during the Applicable Period, each Person, if any, who
controls any such Person within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, together with each of their
respective directors, partners, officers, employees, representatives and agents
(each, a "Participant"), from and against any and all losses, claims, damages
and liabilities (including, without limitation, and subject to Section 7(c)
below, the reasonable legal fees and other expenses actually incurred in
connection with any suit, action or proceeding or any claim asserted) caused by,
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in any Registration Statement (or any amendment
thereto) or Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or any preliminary Prospectus,
or caused by, 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, in the case of the Prospectus, in the light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to any Participant furnished to the Company
in writing by such Participant expressly for use therein; provided, however,
that the Company shall not be required to indemnify any such Person if such
untrue statement or omission or alleged untrue statement or omission was
contained or made in any preliminary prospectus and corrected in the Prospectus
or any amendment or supplement thereto and the Prospectus does not contain any
other untrue statement or omission or alleged untrue statement or omission of a
material fact that was the subject matter of the related proceeding and any such
loss, liability, claim, damage or expense suffered or incurred by the
Participants resulted from any action, claim or suit by any Person who purchased
Registrable Notes or New Notes which are the subject thereof from such
Participant and it is established in the related proceeding that such
Participant failed to deliver or provide a copy of the Prospectus (as amended or
supplemented) to such Person with or prior to the confirmation of the sale of
such Registrable Notes or New Notes sold to such Person if required by
applicable law, unless such failure to deliver or provide a copy of the
Prospectus (as amended or supplemented) was a result of noncompliance by the
Company with Section 5 of this Agreement.
(b) Each Participant agrees, severally and not jointly, to indemnify
and hold harmless the Company and each Person who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, together with each of their respective directors, partners, officers,
employees, representatives and agents, to the same extent as the foregoing
indemnity from the Company to each Participant, but only with reference to
information relating to such Participant furnished to the Company in writing by
such Participant expressly for use in any Registration Statement or Prospectus,
any amendment or supplement thereto, or any preliminary prospectus. The
liability of any Participant under this paragraph shall in no event exceed the
proceeds received by such Participant from sales of Registrable Notes or New
Notes giving rise to such obligations.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such Person (the "Indemnified Person") shall promptly
notify the Person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may reasonably designate in such proceeding and shall pay
the reasonable fees and expenses actually incurred by such counsel related to
such proceeding; provided, however, that the failure to so notify the
Indemnifying Person shall not relieve it of any obligation or liability which it
may have hereunder or otherwise (unless and only to the extent that such failure
directly results in the loss or compromise of any material rights or defenses by
the Company and the Company was not otherwise aware of such action or claim).
In any such proceeding, any Indemnified Person 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 Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed in writing to the contrary, (ii)
the Indemnifying Person shall have failed within a reasonable period of time to
retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person or any affiliate and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is understood that,
unless there exists a conflict among Indemnified Persons, the Indemnifying
Person shall not, in connection with any one such proceeding or separate but
substantially similar related proceeding in the same jurisdiction arising out of
the same general allegations, be liable for the fees and expenses of more than
one separate firm (in addition to any appropriate local counsel) for all
Indemnified Persons, and that all such fees and expenses shall be reimbursed
promptly after receipt of the invoice therefor as they are incurred. Any such
separate firm for the Participants and such control Persons of Participants
shall be designated in writing by Participants who sold a majority in interest
of Registrable Notes and New Notes sold by all such Participants and any such
separate firm for the Company, its directors, its officers and such control
Persons of the Company shall be designated in writing by the Company. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its prior written consent (which consent shall not be
unreasonably withheld), but if settled with such consent or if there be a final
judgment for the plaintiff for which the Indemnified Person is entitled to
indemnification pursuant to this Agreement, the Indemnifying Person agrees to
indemnify and hold harmless each Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested an
Indemnifying Person to reimburse the Indemnified Person for reasonable fees and
expenses actually incurred by counsel as contemplated by the second sentence of
this paragraph, the Indemnifying Person agrees that it shall be liable for any
settlement of any proceeding effected without its prior written consent if (i)
such settlement is entered into more than 30 days after receipt by such
Indemnifying Person of the aforesaid request and (ii) such Indemnifying Person
shall not have reimbursed the Indemnified Person in accordance with such request
prior to the date of such settlement; provided, however, that the Indemnifying
Person shall not be liable for any settlement effected without its consent
pursuant to this sentence if the Indemnifying Person is contesting, in good
faith, the request for reimbursement. No Indemnifying Person shall, without the
prior written consent of the Indemnified Persons (which consent shall not be
unreasonably withheld), effect any settlement or compromise of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party, or indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement or compromise (A) includes an
unconditional written release of such Indemnified Person, in form and substance
reasonably satisfactory to such Indemnified Person, from all liability on claims
that are the subject matter of such proceeding and (B) does not include any
statement as to an admission of fault, culpability or failure to act by or on
behalf of any Indemnified Person.
(d) If the indemnification provided for in the first and second
paragraphs of this Section 7 is for any reason unavailable to (other than by
reason of exceptions provided therein), or insufficient to hold harmless, an
Indemnified Person in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such paragraphs, in
lieu of indemnifying such Indemnified Person thereunder and in order to provide
for just and equitable contribution, shall contribute to the amount paid or
payable by such Indemnified Person as a result of such losses, claims, damages
or liabilities in such proportion as is appropriate to reflect (i) the relative
benefits received by the Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons on the other from the offering of the Notes or
(ii) if the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the Indemnifying Person or Persons on the one hand and the Indemnified Person or
Persons on the other in connection with the statements or omissions or alleged
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Participants on the other shall be deemed to be in the same
proportion as the total proceeds from the offering (net of discounts and
commissions but before deducting expenses) of the Notes received by the Company
bears to the total proceeds received by such Participant from the sale of
Registrable Notes or New Notes, as the case may be. The relative fault of the
parties 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 Company
on the one hand or such Participant or such other Indemnified Person, as the
case may be, on the other, the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission,
and any other equitable considerations appropriate in the circumstances.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
(even if the Participants were treated as one entity for such purpose) 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 Person 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 reasonable
legal or other expenses actually incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Registrable Notes or
New Notes, as the case may be, exceeds the amount of any damages that such
Participant has otherwise been required to pay or has paid 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.
(f) The indemnity and contribution agreements contained in this
Section 7 will be in addition to any liability which the Indemnifying Persons
may otherwise have to the indemnified Persons referred to above.
8. Rules 144 and 144A
The Company covenants to file with the Trustee, within 15 days after the
Company is required to file the same with the SEC, copies of the annual reports
and of the information, documents and other reports which the Company may be
required to file with the SEC pursuant to Section 13 or Section 15(d) of the
Exchange Act. If, during any period in which Registrable Notes with an
aggregate principal amount equal to or greater than ten percent of the aggregate
principal amount of Registrable Notes originally issued under the Indenture are
outstanding, the Company is not obligated to file annual reports, documents or
other reports with the SEC pursuant to Section 13 or 15(d) of the Exchange Act,
the Company will furnish to the Trustee the same such annual reports documents
or other reports as if the Company were so subject. The Company further
covenants, for so long as any Registrable Notes remain outstanding, to make
available to any Holder or beneficial owner of Registrable Notes in connection
with any sale thereof and any prospective purchaser of such Registrable Notes
from such Holder or beneficial owner, the information required by Rule
144A(d)(4) under the Securities Act in order to permit resales of such
Registrable Notes pursuant to Rule 144A, unless the Company is then subject to
Section 13 or 15(d) of the Exchange Act and reports filed thereunder satisfy the
information requirements of Rule 144A(d)(4) as then in effect.
9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the investment banker or
investment bankers and manager or managers that will manage the offering will be
selected by the Holders of a majority in aggregate principal amount of such
Registrable Notes included in such offering and reasonably acceptable to the
Company.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
10. Miscellaneous
(a) No Inconsistent Agreements{tc "(a) No Inconsistent Agreements"
\f C \l 2}. The Company has not, as of the date hereof, and the Company shall
not after the date of this Agreement, enter into any agreement with respect to
any of its securities that is inconsistent with the rights granted to the
Holders of Registrable Notes in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any
way conflict with and are not inconsistent with the rights granted to the
holders of the Company's other issued and outstanding securities under any such
agreements. The Company has not entered and will not enter into any agreement
with respect to any of its securities which will grant to any Person piggy-back
registration rights with respect to a Registration Statement.
(b) Adjustments Affecting Registrable Notes{tc "(b) Adjustments
Affecting Registrable Notes" \f C \l 2}. The Company shall not, directly or
indirectly, take any action with respect to the Registrable Notes as a class
that would adversely affect the ability of the Holders of Registrable Notes to
include such Registrable Notes in a registration undertaken pursuant to this
Agreement.
(c) Amendments and Waivers{tc "(c) Amendments and Waivers" \f C \l
2}. The provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, otherwise than with the prior written consent of (A) the
Holders of not less than a majority in aggregate principal amount of the then
outstanding Registrable Notes and (B) in circumstances that would adversely
affect the Participating Broker-Dealers, the Participating Broker-Dealers
holding not less than a majority in aggregate principal amount of the New Notes
held by all Participating Broker-Dealers; provided, however, that Section 7 and
this Section 10(c) may not be amended, modified or supplemented without the
prior written consent of each Holder and each Participating Broker-Dealer
(including any person who was a Holder or Participating Broker-Dealer of
Registrable Notes or New Notes, as the case may be, disposed of pursuant to any
Registration Statement). Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders of Registrable Notes whose securities are
being sold pursuant to a Registration Statement and that does not directly or
indirectly affect, impair, limit or compromise the rights of other Holders of
Registrable Notes may be given by Holders of at least a majority in aggregate
principal amount of the Registrable Notes being sold by such Holders pursuant to
such Registration Statement.
(d) Notices{tc "(d) Notices" \f C \l 2}. Any notice, consent,
request, instruction, approval and other communication provided for herein shall
be in writing, shall be delivered or sent by mail or facsimile transmission and
shall be deemed validly given, made or served (i) on the date on which it is
delivered personally with receipt acknowledged, (ii) five business days after it
is sent by registered or certified mail (receipt requested and postage prepaid),
(iii) one business day after it is sent by overnight courier (charges prepaid)
or (iv) on the same business day when sent before 5:00 p.m., recipient's time
(and on the next business day when set after 5:00 p.m., recipient's time) by
telecopier, transmission confirmed and charges prepaid. Such notices shall be
in writing and:
(1) if to a Holder of the Registrable Notes or any Participating
Broker-Dealer, such notice shall be addressed to the most current address
of such Holder or Participating Broker-Dealer, as the case may be, set
forth on the records of the registrar under the Indenture, with a copy in
like manner to the Initial Purchasers as follows:
Xxxxxxxxxxx Xxxxxxx Securities, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
PaineWebber Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
One Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Xx., Esq.
(2) if to the Initial Purchasers, such notice shall be addressed as
specified in Section 10(d)(1);
(3) if to the Company, such notice shall be addressed as follows:
Keystone Consolidated Industries, Inc.
Three Lincoln Centre
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Facsimile No: (000) 000-0000
Attention: Xxxxx X. End, Esq.
General Counsel
with a copy to:
Xxxxxx & Hardin
2700 International Tower
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Facsimile No: (000) 000-0000
Attention: Xxxx X. Xxxx, Esq.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in such Indenture.
Any such statements, requests, notices or agreements shall take effect
at the time of receipt thereof.
(e) Successors and Assigns{tc "(e) Successors and Assigns" \f C \l
2}. This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties hereto, the Holders and the
Participating Broker-Dealers; provided, however, that this Agreement shall not
inure to the benefit of or be binding upon a successor or assign of a Holder
unless such successor or assign holds Registrable Notes.
(f) Counterparts{tc "(f) Counterparts" \f C \l 2}. 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{tc "(g) Headings" \f C \l 2}. The headings in this
Agreement are for convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(h) Governing Law{tc "(h) Governing Law" \f C \l 2}. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
(i) Severability{tc "(i) Severability" \f C \l 2}. If any term,
provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal, 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, and the parties hereto shall use their 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, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid, illegal,
void or unenforceable.
(j) Third Party Beneficiaries{tc "(j) Third Party Beneficiaries" \f
C \l 2}. Holders of Registrable Notes and Participating Broker-Dealers are
intended third party beneficiaries of this Agreement and this Agreement may be
enforced by such Persons.
(k) Entire Agreement{tc "(k) Entire Agreement" \f C \l 2}. This
Agreement, together with the Purchase Agreement and the Indenture, is intended
by the parties as a final and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein and any and all prior oral or written agreements,
representations, or warranties, contracts, understandings, correspondence,
conversations and memoranda between the Initial Purchasers on the one hand and
the Company on the other, or between or among any agents, representatives,
parents, subsidiaries, affiliates, predecessors in interest or successors in
interest with respect to the subject matter hereof and thereof are merged herein
and replaced hereby.
(l) Underwriting Agreement{tc "(l) Underwriting Agreement" \f C \l
2}. Notwithstanding the provisions of Sections 3(d), 5, 6 and 7, in the event
of a Shelf Registration pursuant to Section 3 hereof, to the extent that the
Holders of Registrable Notes shall enter into an underwriting or similar
agreement, which agreement contains provisions covering one or more issues
addressed in such Sections with substantially similar effect, the provisions
contained in such Sections addressing such issue or issues shall be of no force
or effect with respect to the registration of securities being effected in
connection with such underwriting or similar agreement.
(m) Termination{tc "(m) Termination" \f C \l 2}. This Agreement
shall terminate and be of no further force or effect when there shall not be any
Registrable Notes, except that the provisions of Section 4, 6, 7 and Sections
10(h) and (j) shall survive any such termination.
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
KEYSTONE CONSOLIDATED INDUSTRIES, INC.
By:/s/ XXXXX X. END
Name: Xxxxx X. End
Title: Vice President and General Counsel
XXXXXXXXXXX XXXXXXX SECURITIES, INC.
By:/S/ XXXXX X. XXXXXXXXX
Name: Xxxxx X. Xxxxxxxxx
Title: Treasurer
PAINEWEBBER INCORPORATED
By: /S/ XXXXX X. XXXXXX
Name: Xxxxx X. Xxxxxx
Title: Vice President
