EXHIBIT 4.3
EXECUTION COPY
Nucor Corporation
4.875% Notes due 2012
Exchange and Registration Rights Agreement
October 1, 0000
Xxxx xx Xxxxxxx Securities LLC
Wachovia Securities, Inc.
Banc One Capital Markets, Inc.
CIBC World Markets Corp.
BNY Capital Markets, Inc.
c/o Wachovia Securities, Inc.
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
Nucor Corporation, a Delaware corporation (the "Company"), proposes to
issue and sell to the Purchasers (as defined herein), for which Banc of America
Securities LLC and Wachovia Securities, Inc. are acting as representatives (the
"Representatives"), upon the terms set forth in the Purchase Agreement (as
defined herein) its 4.875% Notes due 2012, Series A. As an inducement to the
Purchasers to enter into the Purchase Agreement and in satisfaction of a
condition to the obligations of the Purchasers thereunder, the Company agrees
with the Purchasers for the benefit of holders (as defined herein) from time to
time of the Registrable Securities (as defined herein) as follows:
1. CERTAIN DEFINITIONS.
For purposes of this Exchange and Registration Rights Agreement, the
following terms shall have the following respective meanings:
"Base Interest" shall mean the interest that would otherwise accrue on
the Securities (as defined herein) under the terms thereof and the
Indenture (as defined herein), without giving effect to the provisions of
this Agreement.
The term "broker-dealer" shall mean any broker or dealer registered
with the Commission under the Exchange Act (as defined herein).
"Closing Date" shall mean the date on which the Securities (as defined
herein) are initially issued pursuant to the Purchase Agreement.
"Commission" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the
Exchange Act or the Securities Act (as defined herein), whichever is the
relevant statute for the particular purpose.
"Effective Time," in the case of (i) an Exchange Registration (as
defined herein), shall mean the time and date as of which the Commission
declares the Exchange Registration Statement (as defined herein) effective
or as of which the Exchange Registration Statement otherwise becomes
effective and (ii) a Shelf Registration (as defined herein), shall mean the
time and date as of which the Commission declares the Shelf Registration
Statement (as defined herein) effective or as of which the Shelf
Registration Statement otherwise becomes effective.
"Electing Holder" shall mean any holder of Registrable Securities that
has returned a completed and signed Notice and Questionnaire (as defined
herein) to the Company in accordance with Section 3(d)(ii) or 3(d)(iii)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any successor thereto, as the same shall be amended from time
to time.
"Exchange Offer" shall have the meaning assigned thereto in Section
2(a) hereof.
"Exchange Registration" shall have the meaning assigned thereto in
Section 3(c) hereof.
"Exchange Registration Statement" shall have the meaning assigned
thereto in Section 2(a) hereof.
"Exchange Securities" shall have the meaning assigned thereto in
Section 2(a) hereof.
The term "holder" shall mean each of the Purchasers and other persons
who acquire Registrable Securities from time to time (including successors
or assigns), in each case for so long as such person owns any Registrable
Securities.
"Indenture" shall mean the Indenture, dated as of January 12, 1999,
between the Company and The Bank of New York, a national banking
association, as trustee (together with any successor, the "Trustee"), as
the same shall be amended or supplemented from time to time.
"Notice and Questionnaire" means a Notice of Registration Statement
and Selling Securityholder Questionnaire substantially in the form of
Exhibit A hereto.
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The term "person" shall mean a corporation, association, partnership,
limited liability company, organization, business, or similar entity or an
individual, government or political subdivision thereof or governmental
agency.
"Purchase Agreement" shall mean the Purchase Agreement, dated as of
September 26, 2002, between the Purchasers and the Company relating to the
Securities.
"Purchasers" shall mean the Purchasers named in Schedule I to the
Purchase Agreement.
"Registrable Securities" shall mean the Securities; provided, however,
that a Security shall cease to be a Registrable Security when (i) in the
circumstances contemplated by Section 2(a) hereof, the Security has been
exchanged for an Exchange Security in an Exchange Offer as contemplated in
Section 2(a) hereof (provided that any Exchange Security that, pursuant to
the last two sentences of Section 2(a), is included in a prospectus for use
in connection with resales by broker-dealers shall be deemed to be a
Registrable Security with respect to Sections 5, 6 and 9 until the earlier
of the expiration of the 180th day after the Exchange Offer has been
completed or such time, with respect to such a broker-dealer, as such
broker-dealer no longer is required to deliver a prospectus in connection
with sales made by it); (ii) in the circumstances contemplated by Section
2(b) hereof, a Shelf Registration Statement registering such Security under
the Securities Act has been declared or becomes effective and such Security
has been sold or otherwise transferred by the holder thereof pursuant to
and in a manner contemplated by such effective Shelf Registration
Statement; (iii) such Security is sold pursuant to Rule 144 under
circumstances in which any legend borne by such Security relating to
restrictions on transferability thereof, under the Securities Act or
otherwise, is removed by the Company or pursuant to the Indenture; (iv)
such Security is eligible to be sold pursuant to paragraph (k) of Rule 144;
or (v) such Security shall cease to be outstanding.
"Registration Default" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in Section
2(a) hereof.
"Restricted Holder" shall mean (i) a holder that is an affiliate of
the Company within the meaning of Rule 405, (ii) a holder who acquires
Exchange Securities outside the ordinary course of such holder's business,
(iii) a holder who has arrangements or understandings with any person to
participate in the Exchange Offer for the purpose of distributing Exchange
Securities and (iv) a holder that is a broker-dealer, but only with respect
to Exchange Securities received by such broker-dealer pursuant to an
Exchange Offer in exchange for Registrable Securities acquired by the
broker-dealer directly from the Company.
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"Rule 144," "Rule 405" and "Rule 415" shall mean, in each case, such
rule promulgated under the Securities Act (or any successor provision), as
the same shall be amended from time to time.
"Securities" shall mean the 4.875% Notes due 2012, Series A of the
Company to be issued and sold to the Purchasers, and securities issued in
exchange therefor or in lieu thereof, respectively, pursuant to the
Indenture.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any successor thereto, as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto in
Section 2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned thereto
in Section 2(b) hereof.
"Special Interest" shall have the meaning assigned thereto in Section
2(c) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of
this Exchange and Registration Rights Agreement, and the words "herein,"
"hereof" and "hereunder" and other words of similar import refer to this
Exchange and Registration Rights Agreement as a whole and not to any
particular Section or other subdivision.
2. REGISTRATION UNDER THE SECURITIES ACT.
(a) Except as set forth in Section 2(b) below, the Company agrees to
file under the Securities Act, as soon as practicable, but no later than 90
days after the Closing Date, a registration statement relating to an offer
to exchange (such registration statement, the "Exchange Registration
Statement," and such offer, the "Exchange Offer") any and all of the
Securities (other than the Exchange Securities) for a like aggregate
principal amount of debt securities issued by the Company, which debt
securities are substantially identical to the Securities (and are entitled
to the benefits of a trust indenture which is substantially identical to
the Indenture or is the Indenture and which has been qualified under the
Trust Indenture Act), except that they have been registered pursuant to an
effective registration statement under the Securities Act and do not
contain (i) provisions for the additional interest contemplated in Section
2(c) below (such new debt securities hereinafter called "Exchange
Securities"), or (ii) legends regarding transfer restrictions relating to
the registration requirements under the Securities Act or an exemption
therefrom (except in the case of a sale to a Restricted Holder). The
Company agrees to use its reasonable best efforts to cause the Exchange
Registration Statement to
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become effective under the Securities Act as soon as practicable, but no
later than 180 days after the Closing Date. The Exchange Offer will be
registered under the Securities Act on the appropriate form and will comply
with all applicable tender offer rules and regulations under the Exchange
Act. The Company further agrees to use its reasonable best efforts to
commence and complete the Exchange Offer promptly, but no later than 45
days after such registration statement has become effective, hold the
Exchange Offer open for at least 30 days (or such longer period as may be
required under applicable securities laws) and exchange Exchange Securities
for all Registrable Securities that have been properly tendered and not
withdrawn on or prior to the expiration of the Exchange Offer. The Exchange
Offer will be deemed to have been "completed" only if the debt securities
received by holders other than Restricted Holders in the Exchange Offer for
Registrable Securities are, upon receipt, transferable by each such holder
without need for further compliance with Section 5 of the Securities Act
and with the Exchange Act (except for the requirement to deliver a
prospectus included in the Exchange Registration Statement applicable to
resales by a broker-dealer of Exchange Securities received by such
broker-dealer pursuant to the Exchange Offer in exchange for Registrable
Securities other than those acquired by the broker-dealer directly from the
Company) and without material restrictions under the blue sky or securities
laws of a substantial majority of the States of the United States of
America. The Exchange Offer shall be deemed to have been completed upon the
earlier to occur of (i) the Company having exchanged the Exchange
Securities for all outstanding Registrable Securities (other than those
held by Restricted Holders) pursuant to the Exchange Offer and (ii) the
Company having exchanged, pursuant to the Exchange Offer, Exchange
Securities for all Registrable Securities that have been properly tendered
and not withdrawn before the expiration of the Exchange Offer, which shall
be on a date that is at least 30 days following the commencement of the
Exchange Offer. The Company agrees (x) to include in the Exchange
Registration Statement a prospectus for use in any resales by any holder of
Exchange Securities that is a broker-dealer, other than resales of Exchange
Securities received by a broker-dealer pursuant to an Exchange Offer in
exchange for Registrable Securities acquired by the broker-dealer directly
from the Company, and (y) to keep such Exchange Registration Statement
effective for a period (the "Resale Period") beginning when Exchange
Securities are first issued in the Exchange Offer and ending upon the
earlier of the expiration of the 180th day after the Exchange Offer has
been completed or such time as each such broker-dealer no longer is
required to deliver a prospectus in connection with a sale by it of
Registrable Securities. With respect to such Exchange Registration
Statement, each broker-dealer that holds Exchange Securities received in an
Exchange Offer in exchange for Registrable Securities not acquired by it
directly from the Company shall have the benefit of the rights of
indemnification and contribution set forth in Sections 6(a), (c), (d) and
(e) hereof.
(b) If (i) on or prior to the time the Exchange Offer is completed
existing Commission interpretations are changed such that the Exchange
Securities received by holders other than Restricted Holders in the
Exchange Offer for such Registrable Securities are not or would not be,
upon receipt, transferable by each such holder without need for further
compliance with Section 5 of the Securities Act (except for the requirement
to deliver a prospectus included in the Exchange Registration Statement
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applicable to resales by a broker-dealer of Exchange Securities
received by such broker-dealer pursuant to the Exchange Offer in
exchange for Registrable Securities other than those acquired by the
broker-dealer directly from the Company), (ii) such Exchange Offer has
not been completed within 225 days following the Closing Date, or (iii)
a holder of the Registrable Securities notifies the Company that (A)
the holder is prohibited by law or Commission policy from participating
in the Exchange Offer, (B) the holder may not resell the Exchange
Securities acquired by it in the Exchange Offer to the public without
delivering a prospectus and the prospectus contained in the Exchange
Registration Statement is inappropriate or unavailable for such resales
by the holder, or (C) the holder is a broker-dealer and holds
Securities that are part of an unsold allotment from the initial sale
of Securities, the Company shall, in lieu of (or, in the case of clause
(iii), in addition to) conducting the Exchange Offer contemplated by
Section 2(a), file under the Securities Act as soon as practicable, but
no later than 30 days after the time such obligation to file arises, a
"shelf" registration statement providing for the registration of, and
the sale on a continuous or delayed basis by the holders of, all of the
Registrable Securities, pursuant to Rule 415 or any similar rule that
may be adopted by the Commission (such filing, the "Shelf Registration"
and such registration statement, the "Shelf Registration Statement").
The Company agrees to use its reasonable best efforts (x) to cause the
Shelf Registration Statement to become or be declared effective no
later than 120 days after such Shelf Registration Statement is filed
and to keep such Shelf Registration Statement continuously effective
for a period ending on the earlier of the second anniversary of the
Effective Time or such time as all Registrable Securities registered
under the Shelf Registration Statement are disposed of in accordance
therewith, provided, however, that no holder shall be entitled to be
named as a selling securityholder in the Shelf Registration Statement
or to use the prospectus forming a part thereof for resales of
Registrable Securities unless such holder is an Electing Holder, and
(y) after the Effective Time of the Shelf Registration Statement,
promptly upon the request of any holder of Registrable Securities that
is not then an Electing Holder, to take any action reasonably necessary
to enable such holder to use the prospectus forming a part thereof for
resales of Registrable Securities, including, without limitation, any
action reasonably necessary to identify such holder as a selling
securityholder in the Shelf Registration Statement; provided, however,
that nothing in this clause (y) shall relieve any such holder of the
obligation to return a completed and signed Notice and Questionnaire to
the Company in accordance with Section 3(d)(iii) hereof. During the
period that the Company is required to keep the Shelf Registration
Statement effective under this Section 2(b), the Company further agrees
to supplement or make amendments to the Shelf Registration Statement,
as and when required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement or by the Securities Act or rules and
regulations thereunder for shelf registration, and the Company agrees
to furnish to each Electing Holder copies of any such supplement or
amendment prior to its being used or promptly following its filing with
the Commission.
(c) In the event that (i) the Company has not filed the
Exchange Registration Statement or Shelf Registration Statement on or
before the date on which such registration statement is required to be
filed pursuant to Section 2(a) or 2(b), respectively,
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or (ii) such Exchange Registration Statement or Shelf Registration
Statement has not become effective or been declared effective by the
Commission on or before the date on which such registration statement
is required to become or be declared effective pursuant to Section 2(a)
or 2(b), respectively, or (iii) the Exchange Offer has not been
completed within 45 days after the initial effective date of the
Exchange Registration Statement relating to the Exchange Offer (if the
Exchange Offer is then required to be made) or (iv) any Exchange
Registration Statement or Shelf Registration Statement required by
Section 2(a) or 2(b) hereof is filed and declared effective but shall
thereafter either be withdrawn by the Company or shall become subject
to an effective stop order issued pursuant to Section 8(d) of the
Securities Act suspending the effectiveness of such registration
statement (except as specifically permitted herein) without being
succeeded promptly by an additional registration statement filed and
declared effective (each such event referred to in clauses (i) through
(iv), a "Registration Default" and each period during which a
Registration Default has occurred and is continuing, a "Registration
Default Period"), then, as liquidated damages for such Registration
Default, subject to the provisions of Section 9(b), special interest
("Special Interest"), in addition to the Base Interest, shall accrue at
a rate of 0.25% per annum thereafter, which will increase to a rate of
0.50% per annum if the Registration Default is not cured within 90
days, until the applicable Registration Default has been cured. In the
event that the Company cures the Registration Default, Special Interest
will no longer accrue and, therefore, the interest rate on the
Securities shall revert to the Base Interest.
(d) The Company shall take all reasonable actions necessary or
advisable to be taken by it to ensure that the transactions
contemplated herein are effected as so contemplated.
(e) Any reference herein to a registration statement as of any
time shall be deemed to include any document incorporated, or deemed to
be incorporated, therein by reference as of such time and any reference
herein to any post-effective amendment to a registration statement as
of any time shall be deemed to include any document incorporated, or
deemed to be incorporated, therein by reference as of such time.
(f) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Exchange and Registration Rights
Agreement, each holder of Securities shall furnish, prior to the
consummation of the Exchange Offer, a written representation to the
Company (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) that it is
not a Restricted Holder. In addition, each holder participating in the
Exchange Offer which is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Securities that were
acquired as a result of market-making activities or other trading
activities (other than Securities acquired directly from the Company)
must acknowledge in writing (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement)
that it will deliver a prospectus meeting the requirements of the
Securities Act in connection with a resale by it of the Exchange
Securities; however, by so acknowledging and by delivering such a
prospectus, such broker-dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act.
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Any holder who is a Restricted Holder with respect to Exchange
Securities to be acquired pursuant to the Exchange Offer, including any
broker-dealer who purchased Securities from the Company to resell
pursuant to Rule 144A under the Securities Act or any other available
exemption under the Securities Act, must comply with the registration
and prospectus delivery requirements under the Securities Act.
3. REGISTRATION PROCEDURES.
If the Company files a registration statement pursuant to Section 2(a)
or Section 2(b), the following provisions shall apply to all Securities
collectively:
(a) At or before the Effective Time of the Exchange Offer
or the Shelf Registration, as the case may be, the Company shall
qualify the Indenture under the Trust Indenture Act.
(b) In the event that such qualification would require
the appointment of a new trustee under the Indenture, the Company shall
appoint a new trustee thereunder pursuant to the applicable provisions
of the Indenture.
(c) In connection with the Company's obligations with
respect to the registration of Exchange Securities as contemplated by
Section 2(a) (the "Exchange Registration"), if applicable, the Company
shall, as soon as reasonably practicable (or as otherwise specified):
(i) prepare and file with the Commission, no later
than 90 days after the Closing Date, an Exchange Registration
Statement on any form which may be utilized by the Company and
which shall permit the Exchange Offer and resales of Exchange
Securities by broker-dealers during the Resale Period to be
effected as contemplated by Section 2(a), and use its
reasonable best efforts to cause such Exchange Registration
Statement to become effective as soon as practicable
thereafter, but no later than 180 days after the Closing Date;
(ii) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Exchange
Registration Statement and the prospectus included therein as
may be necessary to effect and maintain the effectiveness of
such Exchange Registration Statement for the periods and
purposes contemplated in Section 2(a) hereof and as may be
required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such
Exchange Registration Statement, and promptly provide each
broker-dealer holding Exchange Securities with such number of
copies of the prospectus included therein (as then amended or
supplemented), in conformity in all material respects with the
requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder, as
such broker-dealer reasonably may request prior to the
expiration of the Resale Period, for use in connection with
resales of Exchange Securities;
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(iii) promptly notify each broker-dealer that has
requested or received copies of the prospectus included in
such registration statement, and confirm such advice in
writing, (A) when such Exchange Registration Statement or the
prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed, and,
with respect to such Exchange Registration Statement or any
post-effective amendment, when the same has become effective,
(B) of any comments by the Commission and by the blue sky or
securities commissioner or regulator of any state with respect
thereto or any request by the Commission for amendments or
supplements to such Exchange Registration Statement or
prospectus or for additional information, (C) of the issuance
by the Commission of any stop order suspending the
effectiveness of such Exchange Registration Statement or the
initiation or threatening of any proceedings for that purpose,
(D) if at any time the representations and warranties of the
Company contemplated by Section 5 cease to be true and correct
in all material respects, (E) of the receipt by the Company of
any notification with respect to the suspension of the
qualification of the Exchange Securities for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose, or (F) at any time during the
Resale Period when a prospectus is required to be delivered
under the Securities Act that such Exchange Registration
Statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material
respects to the applicable requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of
the Commission thereunder or, with respect to a prospectus (or
amendment or supplement thereto), includes an untrue statement
of a material fact or omits to state a material fact necessary
in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading, or
with respect to the registration statement (or amendment
thereto), contains an untrue statement of a material fact or
omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading;
(iv) in the event that the Company would be
required, pursuant to Section 3(c)(iii)(F) above, to notify
any broker-dealers holding Exchange Securities, as promptly as
practicable prepare and furnish to each such holder a
reasonable number of copies of a prospectus supplemented or
amended so that, as thereafter delivered to purchasers of such
Exchange Securities during the Resale Period, such prospectus
shall conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder and
shall not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements made therein, in light of the circumstances under
which they were made, not misleading. Each broker-dealer
holding Exchange Securities during the Resale Period agrees
that upon receipt of any notice from the Company pursuant to
Section 3(c)(iii)(F) above, such broker-dealer shall forthwith
discontinue disposition of Exchange Securities pursuant to the
Exchange Registration Statement applicable to such Exchange
Securities until such broker-
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dealer shall have received copies of such amended or
supplemented prospectus, and if so directed by the Company,
such broker-dealer shall deliver to the Company (at the
Company's expense) all copies, other than permanent file
copies, then in such broker-dealer's possession of the
prospectus covering such Exchange Securities at the time of
receipt of such notice;
(v) use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of such
Exchange Registration Statement or any post-effective
amendment thereto at the earliest practicable date;
(vi) use its reasonable best efforts to (A)
register or qualify the Exchange Securities under the
securities laws or blue sky laws of such United States
jurisdictions as are contemplated by Section 2(a), if such
registration or qualification is required by such laws, no
later than the commencement of the Exchange Offer, (B) keep
such registrations or qualifications in effect and comply with
such laws so as to permit the continuance of offers, sales and
dealings therein in such jurisdictions until the expiration of
the Resale Period and (C) take any and all other actions as
may be reasonably necessary or advisable to enable each
broker-dealer holding Exchange Securities to consummate the
disposition thereof in such jurisdictions; provided, however,
that the Company shall not be required for any such purpose to
(1) qualify as a foreign corporation in any jurisdiction
wherein it would not otherwise be required to qualify but for
the requirements of this Section 3(c)(vi), (2) consent to
general service of process in any such jurisdiction or (3)
make any changes to its certificate of incorporation or
by-laws or any agreement between it and its stockholders;
(vii) use its reasonable best efforts to obtain the
consent or approval of each United States governmental agency
or authority, whether federal, state or local, which may be
required to effect the Exchange Registration, the Exchange
Offer and the offering and sale of Exchange Securities by
broker-dealers during the Resale Period;
(viii) provide a CUSIP number for all Exchange
Securities, not later than the applicable Effective Time;
(ix) comply with all applicable rules and
regulations of the Commission, and make generally available to
its securityholders as soon as practicable but no later than
eighteen months after the effective date of such Exchange
Registration Statement, an earning statement of the Company
and its subsidiaries complying with Section 11(a) of the
Securities Act (including, at the option of the Company, Rule
158 thereunder).
(d) In connection with the Company's obligations with
respect to the Shelf Registration, if applicable, the Company shall, as
soon as reasonably practicable (or as otherwise specified):
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(i) prepare and file with the Commission, as soon
as reasonably practicable but in any case within the time
periods specified in Section 2(b), a Shelf Registration
Statement on any form which may be utilized by the Company and
which shall register all of the Registrable Securities for
resale by the holders thereof in accordance with such method
or methods of disposition as may be specified by such of the
holders as, from time to time, may be Electing Holders and use
its reasonable best efforts to cause such Shelf Registration
Statement to become effective as soon as practicable but in
any case within the time periods specified in Section 2(b);
(ii) not less than 30 calendar days prior to the
Effective Time of the Shelf Registration Statement, mail the
Notice and Questionnaire to the holders of Registrable
Securities; no holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement as
of the Effective Time, and no holder shall be entitled to use
the prospectus forming a part thereof for resales of
Registrable Securities at any time, unless such holder has
returned a completed and signed Notice and Questionnaire to
the Company by the deadline for response set forth therein;
provided, however, holders of Registrable Securities shall
have at least 28 calendar days from the date on which the
Notice and Questionnaire is first mailed to such holders to
return a completed and signed Notice and Questionnaire to the
Company;
(iii) after the Effective Time of the Shelf
Registration Statement, (A) upon the request of any holder of
Registrable Securities that is not then an Electing Holder,
promptly send a Notice and Questionnaire to such holder, and
(B) upon receipt by the Company of a completed and signed
Notice and Questionnaire from any holder of Registrable
Securities that is not then an Electing Holder, take action
reasonably necessary to cause such holder to be named as a
selling securityholder in the Shelf Registration Statement and
to enable such holder to use the prospectus forming a part
thereof for resales of Registrable Securities; provided that
the Company shall not be required to take any action to name
such holder as a selling securityholder in the Shelf
Registration Statement or to enable such holder to use the
prospectus forming a part thereof for resales of Registrable
Securities until such holder has returned a completed and
signed Notice and Questionnaire to the Company;
(iv) as soon as reasonably practicable prepare and
file with the Commission such amendments and supplements to
such Shelf Registration Statement and the prospectus included
therein as may be necessary to effect and maintain the
effectiveness of such Shelf Registration Statement for the
period specified in Section 2(b) hereof and as may be required
by the applicable rules and regulations of the Commission and
the instructions applicable to the form of such Shelf
Registration Statement, and furnish to the Electing Holders
copies of any such supplement or amendment simultaneously with
or prior to its being used or filed with the Commission;
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(v) comply with the provisions of the Securities
Act with respect to the disposition of all of the Registrable
Securities covered by such Shelf Registration Statement in
accordance with the intended methods of disposition by the
Electing Holders provided for in such Shelf Registration
Statement;
(vi) provide (A) the Electing Holders, (B) the
underwriters (which term, for purposes of this Exchange and
Registration Rights Agreement, shall include a person deemed
to be an underwriter within the meaning of Section 2(a)(11) of
the Securities Act), if any, thereof, (C) any sales or
placement agent therefor, (D) counsel for any such underwriter
or agent and (E) not more than one counsel for all the
Electing Holders the opportunity to participate in the
preparation of such Shelf Registration Statement, each
prospectus included therein or filed with the Commission and
each amendment or supplement thereto;
(vii) for a reasonable period prior to the filing of
such Shelf Registration Statement, and throughout the period
specified in Section 2(b), make available at reasonable times
at the Company's principal place of business or such other
reasonable place for inspection by the persons referred to in
Section 3(d)(vi) who shall certify to the Company that they
have a current intention to sell the Registrable Securities
pursuant to the Shelf Registration such financial and other
information and books and records of the Company, and cause
the officers, employees, counsel and independent certified
public accountants of the Company to respond to such
inquiries, as shall be reasonably necessary, in the judgment
of the Company and its counsel, to conduct a reasonable
investigation within the meaning of Section 11 of the
Securities Act; provided, however, that, prior to such
inspection and inquiry, each such party shall be required to
agree in writing to maintain in confidence and not to disclose
to any other person any information or records reasonably
designated by the Company as being confidential, until such
time as (A) such information becomes a matter of public record
(whether by virtue of its inclusion in such registration
statement or otherwise), or (B) such person shall be required
so to disclose such information pursuant to a subpoena or
order of any court or other governmental agency or body having
jurisdiction over the matter (subject to the requirements of
such order, and only after such person shall have given the
Company prompt prior written notice of such requirement), or
(C) in the judgment of the Company and the Electing Holders,
such information is required to be set forth in such Shelf
Registration Statement or the prospectus included therein or
in an amendment to such Shelf Registration Statement or an
amendment or supplement to such prospectus in order that such
Shelf Registration Statement, prospectus, amendment or
supplement, as the case may be, complies with applicable
requirements of the U.S. federal securities laws and the rules
and regulations of the Commission and, with respect to a
prospectus (or amendment or supplement thereto), does not
include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the
statements made therein, in light of the circumstances under
which they were made, not misleading, or with respect to the
registration statement (or amendment thereto), does not
contain an untrue statement of a material fact or omit to
state a
12
material fact required to be stated therein or necessary to
make the statements therein not misleading;
(viii) promptly notify each of the Electing Holders,
any sales or placement agent therefor and any underwriter
thereof (which notification may be made through any managing
underwriter that is a representative of such underwriter for
such purpose) and confirm such notification in writing, (A)
when such Shelf Registration Statement or the prospectus
included therein or any prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect to
such Shelf Registration Statement or any post-effective
amendment, when the same has become effective, (B) of any
comments by the Commission and by the blue sky or securities
commissioner or regulator of any state with respect thereto or
any request by the Commission for amendments or supplements to
such Shelf Registration Statement or prospectus or for
additional information, (C) of the issuance by the Commission
of any stop order suspending the effectiveness of such Shelf
Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the
representations and warranties of the Company contemplated by
Section 3(d)(xvii) or Section 5 cease to be true and correct
in all material respects, (E) of the receipt by the Company of
any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose, or (F) if at any time when a
prospectus is required to be delivered under the Securities
Act, that such Shelf Registration Statement, prospectus,
prospectus amendment or supplement or post-effective amendment
does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder or,
with respect to a prospectus (or amendment or supplement
thereto), includes an untrue statement of a material fact or
omits to state a material fact necessary in order to make the
statements made therein, in light of the circumstances under
which they were made, not misleading, or with respect to the
registration statement (or amendment thereto), contains an
untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading;
(ix) use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of such
registration statement or any post-effective amendment thereto
at the earliest practicable date;
(x) if requested by any managing underwriter or
underwriters, any placement or sales agent or any Electing
Holder, promptly incorporate in a prospectus supplement or
post-effective amendment such information as is required by
the applicable rules and regulations of the Commission and as
such managing underwriter or underwriters, such agent or such
Electing Holder specifies should be included therein relating
to the terms of the sale of such Registrable Securities,
including information with respect to the principal amount
13
of Registrable Securities being sold by such Electing Holder
or agent or to any underwriters, the name and description of
such Electing Holder, agent or underwriter, the offering price
of such Registrable Securities and any discount, commission or
other compensation payable in respect thereof, the purchase
price being paid therefor by such underwriters and with
respect to any other terms of the offering of the Registrable
Securities to be sold by such Electing Holder or agent or to
such underwriters; and make all required filings of such
prospectus supplement or post-effective amendment promptly
after notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment;
(xi) furnish to each Electing Holder, each placement
or sales agent, if any, therefor, each underwriter, if any,
thereof and the respective counsel referred to in Section
3(d)(vi) an executed copy (or, in the case of an Electing
Holder, a conformed copy) of such Shelf Registration
Statement, each such amendment and supplement thereto (in each
case including all exhibits thereto (in the case of an
Electing Holder of Registrable Securities, upon request) and
documents incorporated by reference therein) and such number
of copies of such Shelf Registration Statement (excluding
exhibits thereto and documents incorporated by reference
therein unless specifically so requested by such Electing
Holder, agent or underwriter, as the case may be) and of the
prospectus included in such Shelf Registration Statement
(including each preliminary prospectus and any summary
prospectus), in conformity in all material respects with the
applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder, and such other documents, as such Electing Holder,
agent, if any, and underwriter, if any, may reasonably request
in order to facilitate the offering and disposition of the
Registrable Securities owned by such Electing Holder, offered
or sold by such agent or underwritten by such underwriter and
to permit such Electing Holder, agent and underwriter to
satisfy the prospectus delivery requirements of the Securities
Act; and the Company hereby consents to the use of such
prospectus (including such preliminary and summary prospectus)
and any amendment or supplement thereto by each such Electing
Holder and by any such agent and underwriter, in each case in
the form most recently provided to such person by the Company,
in connection with the offering and sale of the Registrable
Securities covered by the prospectus (including such
preliminary and summary prospectus) or any supplement or
amendment thereto;
(xii) use its reasonable best efforts to (A) register
or qualify, if such registration or qualification is required,
the Registrable Securities to be included in such Shelf
Registration Statement under such securities laws or blue sky
laws of such United States jurisdictions as any Electing
Holder and each placement or sales agent, if any, therefor and
underwriter, if any, thereof shall reasonably request, (B)
keep such registrations or qualifications in effect and comply
with such laws so as to permit the continuance of offers,
sales and dealings therein in such jurisdictions during the
period the Shelf Registration is required to remain effective
under Section 2(b) above and (C) take any and all other
actions as may
14
be reasonably necessary or advisable to enable each such
Electing Holder, agent, if any, and underwriter, if any, to
consummate the disposition in such jurisdictions of such
Registrable Securities during the period the Shelf
Registration is required to remain effective under Section
2(b) above; provided, however, that the Company shall not be
required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise
be required to qualify but for the requirements of this
Section 3(d)(xii), (2) consent to general service of process
in any such jurisdiction or (3) make any changes to its
certificate of incorporation or by-laws or any agreement
between it and its stockholders;
(xiii) use its reasonable best efforts to obtain the
consent or approval of each United States governmental agency
or authority, whether federal, state or local, which may be
required to effect the Shelf Registration or the offering or
sale in connection therewith or to enable the selling holder
or holders to offer, or to consummate the disposition of,
their Registrable Securities;
(xiv) unless any Registrable Securities shall be in
book-entry only form, cooperate with the Electing Holders and
the managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates, if so
required by any securities exchange upon which any Registrable
Securities are listed, shall be printed, lithographed or
engraved, or produced by any combination of such methods, on
steel engraved borders, and which certificates shall not bear
any restrictive legends (except in the case of a sale to a
Restricted Holder); and, in the case of an underwritten
offering, enable such Registrable Securities to be in such
denominations and registered in such names as the managing
underwriters may request at least two business days prior to
any sale of the Registrable Securities;
(xv) provide a CUSIP number for all Registrable
Securities, not later than the applicable Effective Time;
(xvi) enter into one or more underwriting
agreements, engagement letters, agency agreements, "best
efforts" underwriting agreements or similar agreements, as
appropriate, including customary provisions relating to
indemnification and contribution, and take such other actions
in connection therewith as any Electing Holders aggregating at
least 25% in aggregate principal amount of the Registrable
Securities at the time participating in the offering shall
reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities;
(xvii) whether or not an agreement of the type
referred to in Section 3(d)(xvi) hereof is entered into and
whether or not any portion of the offering contemplated by the
Shelf Registration is an underwritten offering or is made
through a placement or sales agent or any other entity, (A)
make such representations and warranties to the Electing
Holders and the placement or sales
15
agent, if any, therefor and the underwriters, if any, thereof in
form, substance and scope as are customarily made in connection
with an offering of debt securities pursuant to any appropriate
agreement or to a registration statement filed on the form
applicable to the Shelf Registration; (B) obtain (i) an opinion
of counsel to the Company in customary form and covering such
matters, of the type customarily covered by such an opinion, as
the managing underwriters, if any, or as any Electing Holders of
at least 25% in aggregate principal amount of the Registrable
Securities at the time participating in the offering may
reasonably request, addressed to such Electing Holder or Electing
Holders and the placement or sales agent, if any, therefor and
the underwriters, if any, thereof and dated the effective date of
such Shelf Registration Statement (and if such Shelf Registration
Statement contemplates an underwritten offering of a part or all
of the Registrable Securities, dated the date of the closing
under the underwriting agreement relating thereto) (it being
agreed that the matters to be covered by such opinion shall
include the valid existence as a corporation and good standing of
the Company, with power and authority to own its properties and
conduct its business as described in the Shelf Registration
Statement, the due authorization, execution and delivery of the
relevant agreement of the type referred to in Section 3(d)(xvi)
hereof; the due authorization of the Securities and that upon due
execution, issuance and delivery, the Securities will be valid
and legally binding obligations of the Company, entitled to the
benefits provided by the Indenture; the absence to such counsel's
knowledge of material legal or governmental proceedings involving
the Company; the absence of governmental approvals required to be
obtained in connection with the Shelf Registration, the offering
and sale of the Registrable Securities, this Exchange and
Registration Rights Agreement or any agreement of the type
referred to in Section 3(d)(xvi) hereof, except such approvals as
may be required under State securities or blue sky laws; the
material compliance as to form of such Shelf Registration
Statement and any documents incorporated by reference therein
with the requirements of the Securities Act and the rules and
regulations of the Commission thereunder; and (ii) as of the date
of the opinion and of the Shelf Registration Statement or most
recent post-effective amendment thereto, as the case may be, a
statement of counsel to the Company to the effect that no facts
have come to such counsel's attention that lead it to believe
that the Shelf Registration Statement or most recent
post-effective amendment thereto, as the case may be, or the
prospectus included therein, as then amended or supplemented, or
the documents filed with the Commission pursuant to Section
13(a), 13(c) or 15(d) of the Exchange Act and incorporated
therein (other than the financial statements and notes and
schedules thereto and the other financial and statistical data
included in or derived or omitted therefrom) contained as of its
date an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading
(such counsel basing its determination of materiality as to
matters of fact to a certain extent upon discussions with
officers and other representatives of the Company), such opinion
to be subject to customary qualifications and limitations; (C)
obtain a "cold comfort" letter or letters from the independent
certified public accountants of the
16
Company addressed to the selling Electing Holders, the placement
or sales agent, if any, therefor or the underwriters, if any,
thereof, dated (i) the effective date of such Shelf Registration
Statement and (ii) the date of any prospectus supplement to the
prospectus included in such Shelf Registration Statement or
post-effective amendment to such Shelf Registration Statement
which includes unaudited or audited financial statements as of a
date or for a period subsequent to that of the latest such
statements included in such prospectus (and, if such Shelf
Registration Statement contemplates an underwritten offering
pursuant to any prospectus supplement to the prospectus included
in such Shelf Registration Statement or post-effective amendment
to such Shelf Registration Statement which includes unaudited or
audited financial statements as of a date or for a period
subsequent to that of the latest such statements included in such
prospectus, dated the date of the closing under the underwriting
agreement relating thereto), such letter or letters to be in
customary form and covering such matters of the type customarily
covered by letters of such type (it being agreed that the matters
to be covered by such comfort letter shall include the matters
covered in the comfort letter delivered pursuant to Section 7(c)
of the Purchase Agreement on the Closing Date); (D) deliver such
documents and certificates, including officers' certificates, as
may be reasonably requested by any Electing Holders of at least
25% in aggregate principal amount of the Registrable Securities
at the time participating in the offering or the placement or
sales agent, if any, therefor and the managing underwriters, if
any, thereof to evidence the accuracy of the representations and
warranties made pursuant to clause (A) above or those contained
in Section 5(a) hereof and the compliance with or satisfaction of
any agreements or conditions contained in the underwriting
agreement or other agreement entered into by the Company; and (E)
undertake such obligations relating to expense reimbursement,
indemnification and contribution as are provided in Section 6
hereof;
(xviii) notify in writing each holder of Registrable
Securities of any proposal by the Company to amend or waive any
provision of this Exchange and Registration Rights Agreement
pursuant to Section 9(h) hereof and of any amendment or waiver
effected pursuant thereto, each of which notices shall contain
the text of the amendment or waiver proposed or effected, as the
case may be;
(xix) in the event that any broker-dealer
registered under the Exchange Act shall underwrite any
Registrable Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Conduct Rules (the
"Conduct Rules") of the National Association of Securities
Dealers, Inc. ("NASD") or any successor thereto, as amended from
time to time) thereof, whether as a holder of such Registrable
Securities or as an underwriter, a placement or sales agent or a
broker or dealer in respect thereof, or otherwise, assist such
broker-dealer in complying with the requirements of such Conduct
Rules, including by (A) if such Conduct Rules shall so require,
engaging a "qualified independent underwriter" (as defined in
such Conduct Rules) to participate in the preparation of the
Shelf Registration Statement relating to such
17
Registrable Securities, to exercise usual standards of due
diligence in respect thereto and, if any portion of the offering
contemplated by such Shelf Registration Statement is an
underwritten offering or is made through a placement or sales
agent, to recommend the yield of such Registrable Securities, (B)
indemnifying any such qualified independent underwriter to the
extent of the indemnification of underwriters provided in Section
6 hereof (or to such other customary extent as may be requested
by such underwriter), and (C) providing such information to such
broker-dealer as may be required in order for such broker-dealer
to comply with the requirements of the Conduct Rules; and
(xx) comply with all applicable rules and regulations
of the Commission, and make generally available to its
securityholders as soon as practicable but in any event not later
than eighteen months after the effective date of such Shelf
Registration Statement, an earning statement of the Company and
its subsidiaries complying with Section 11(a) of the Securities
Act (including, at the option of the Company, Rule 158
thereunder).
(e) In the event that the Company would be required, pursuant
to Section 3(d)(viii)(F) above, to notify the Electing Holders, the
placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof, the Company shall as promptly as
practicable prepare and furnish to each of the Electing Holders, to
each placement or sales agent, if any, and to each such underwriter, if
any, a reasonable number of copies of a prospectus supplemented or
amended so that, as thereafter delivered to purchasers of Registrable
Securities, such prospectus shall conform in all material respects to
the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder and shall not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements made therein, in light of the circumstances under which they
were made, not misleading. Each Electing Holder agrees that upon
receipt of any notice from the Company pursuant to Section
3(d)(viii)(F) hereof, such Electing Holder shall forthwith discontinue
the disposition of Registrable Securities pursuant to the Shelf
Registration Statement applicable to such Registrable Securities until
such Electing Holder shall have received copies of such amended or
supplemented prospectus, and if so directed by the Company, such
Electing Holder shall deliver to the Company (at the Company's expense)
all copies, other than permanent file copies, then in such Electing
Holder's possession of the prospectus covering such Registrable
Securities at the time of receipt of such notice.
(f) In the event of a Shelf Registration, in addition to the
information required to be provided by each Electing Holder in its
Notice Questionnaire, the Company may require such Electing Holder to
furnish to the Company such additional information regarding such
Electing Holder and such Electing Holder's intended method of
distribution of Registrable Securities as may be required in order to
comply with the Securities Act or State securities or blue sky laws.
Each such Electing Holder agrees to notify the Company as promptly as
practicable of any inaccuracy or change in information previously
furnished by such Electing Holder to the Company or of the
18
occurrence of any event in either case as a result of which any prospectus
relating to such Shelf Registration contains or would contain an untrue
statement of a material fact regarding such Electing Holder or such
Electing Holder's intended method of disposition of such Registrable
Securities or omits to state any material fact regarding such Electing
Holder or such Electing Holder's intended method of disposition of such
Registrable Securities necessary in order to make the statements made
therein, in light of the circumstances under which they were made, not
misleading, and promptly to furnish to the Company any additional
information required to correct and update any previously furnished
information or required so that such prospectus shall not contain, with
respect to such Electing Holder or the disposition of such Registrable
Securities, an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not misleading.
Each Electing Holder further agrees that in the event the amount of
Registrable Securities that are beneficially owned by such Electing Holder
and are registered pursuant to such Shelf Registration is reduced due to a
sale of such Registrable Securities under such Shelf Registration, such
Electing Holder shall deliver to the Company and the Trustee, at the time
of such sale, a Notice of Transfer as set forth in Exhibit B.
(g) Until the earlier of (i) the expiration of two years after
the Closing Date, or (ii) such time as the Exchange Offer has been
completed or the Shelf Registration Statement has become or been declared
effective by the Commission, the Company will not, and will not permit any
of its "affiliates" (as defined in Rule 144) to, resell any of the
Securities that have been reacquired by any of them except pursuant to an
effective registration statement under the Securities Act, or in the case
of any such affiliate pursuant to Rule 144 under the Securities Act.
The Company shall furnish to each holder of the Securities the prospectus,
and any supplements thereto, forming a part of the Exchange Registration
Statement, and any amendments thereto, and all other exchange materials required
to consummate the Exchange Offer.
4. REGISTRATION EXPENSES.
The Company agrees to bear and to pay or cause to be paid promptly all
expenses incident to the Company's performance of or compliance with this
Exchange and Registration Rights Agreement, including (a) all Commission and any
NASD registration, filing and review fees and expenses including reasonable fees
and disbursements of counsel for the placement or sales agent or underwriters in
connection with such registration, filing and review, (b) all fees and expenses
in connection with any qualification of the Securities for offering and sale
under the State securities and blue sky laws referred to in Section 3(d)(xii)
hereof and determination of their eligibility for investment under the laws of
such jurisdictions as any managing underwriters or the Electing Holders may
reasonably designate, including any reasonable fees and disbursements of counsel
for the Electing Holders (subject to the limitations of clause (i) below) or
underwriters in connection with any such qualification and determination, (c)
all expenses relating to the preparation, printing, production, distribution and
reproduction of each registration
19
statement required to be filed hereunder, each prospectus included therein or
prepared for distribution pursuant hereto, each amendment or supplement to the
foregoing, the expenses of preparing the Securities for delivery and the
expenses of printing or producing any underwriting agreements, agreements among
underwriters, selling agreements and blue sky or legal investment memoranda and
all other documents in connection with the offering, sale or delivery of
Securities to be disposed of (including certificates representing the
Securities), (d) messenger, telephone and delivery expenses relating to the
offering, sale or delivery of Securities and the preparation of documents
referred in clause (c) above, (e) fees and expenses of the Trustee under the
Indenture, any agent of the Trustee and any counsel for the Trustee and of any
collateral agent or custodian, (f) internal expenses (including all salaries and
expenses of the Company's officers and employees performing legal or accounting
duties), (g) fees, disbursements and expenses of counsel and independent
certified public accountants of the Company (including the expenses of any
opinions or "cold comfort" letters required by or incident to such performance
and compliance), (h) reasonable fees, disbursements and expenses of any
"qualified independent underwriter" engaged pursuant to Section 3(d)(xix)
hereof, (i) fees, disbursements and expenses of one counsel for the Electing
Holders retained in connection with a Shelf Registration filed with respect to
Registrable Securities, as selected by the Electing Holders of at least a
majority in aggregate principal amount of Registrable Securities held by
Electing Holders (which counsel shall be reasonably satisfactory to the
Company), (j) any fees charged by securities rating services for rating the
Securities, and (k) fees, expenses and disbursements of any other persons
retained by the Company in connection with such registration (collectively, the
"Registration Expenses"). To the extent that any Registration Expenses are
incurred, assumed or paid by any holder of Registrable Securities or any
placement or sales agent therefor or underwriter thereof, the Company shall
reimburse such person for the full amount of the Registration Expenses so
reasonably incurred, assumed or paid promptly after receipt of a request
therefor (accompanied by receipts, invoices or other documentary evidence, as
appropriate). Notwithstanding the foregoing, the holders of the Registrable
Securities being registered shall pay all agency fees and commissions and
underwriting discounts and commissions attributable to the sale of such
Registrable Securities and the fees and disbursements of any counsel or other
advisors or experts retained by such holders (severally or jointly), other than
the counsel and experts specifically referred to above.
5. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to, and agrees with, each Purchaser
and each of the holders from time to time of Registrable Securities that:
(a) Each registration statement covering Registrable Securities
at the time it is declared effective and each prospectus (including any
preliminary or summary prospectus) contained therein or furnished pursuant
to Section 3(c) or Section 3(d) hereof, as of the date of the prospectus,
and any further amendments or supplements to any such registration
statement or prospectus, when it becomes effective or is filed with the
Commission or as of its date, as the case may be, and, in the case of an
underwritten offering of Registrable Securities, at the time of the
closing under the underwriting agreement relating thereto, will conform in
all material respects to the applicable requirements of the Securities Act
and the Trust Indenture Act and the applicable rules
20
and regulations of the Commission thereunder and, with respect to a
prospectus (or amendment or supplement thereto), will not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading, or with
respect to the registration statement (or amendment thereto), 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 not misleading; and at all times subsequent to the
Effective Time when a prospectus would be required to be delivered
under the Securities Act, other than from (i) such time as a notice has
been given to holders of Registrable Securities pursuant to Section
3(c)(iii)(F) or Section 3(d)(viii)(F) hereof until (ii) such time as
the Company furnishes an amended or supplemented prospectus pursuant to
Section 3(c)(iv) or Section 3(e) hereof, each such registration
statement, and each prospectus (including any summary prospectus)
contained therein or furnished pursuant to Section 3(c) or Section 3(d)
hereof, as then amended or supplemented, will conform in all material
respects to the applicable requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the Commission
thereunder and will not contain, with respect to a prospectus (or
amendment or supplement thereto),an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements made therein, in light of the circumstances under which they
were made, not misleading, or with respect to the registration
statement (or amendment thereto), 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 not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by or on behalf of a holder of Registrable Securities expressly for use
therein.
(b) Any documents incorporated by reference in any prospectus
referred to in Section 5(a) hereof, when they are or were filed with
the Commission, will conform or conformed in all material respects to
the requirements of the Exchange Act and, when read together with the
other information in the applicable prospectus, none of such documents
will contain or contained an untrue statement of a material fact or
will omit or omitted to state a material fact necessary in order to
make the statements made therein, in light of the circumstances under
which they were made, not misleading.
(c) The compliance by the Company with all of the provisions
of this Exchange and Registration Rights Agreement and the consummation
of the transactions herein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or any subsidiary
of the Company is a party or by which the Company or any subsidiary of
the Company is bound or to which any of the property or assets of the
Company or any subsidiary of the Company is subject, except for any
such conflicts, breaches, violations or defaults that would not,
individually or in the aggregate, have a material adverse effect on any
of the consolidated financial position, stockholders' equity or results
of operations of the Company and its subsidiaries taken as a whole (a
"Material Adverse Effect"), nor will such action result in any
violation of the provisions of the certificate of incorporation, as
21
amended, or the by-laws of the Company or any law, statute, or any order
known to the Company, or rule or regulation of any United States court or
governmental agency or body having jurisdiction over the Company or any
subsidiary of the Company or any of their properties other than
violations which would not individually or in the aggregate have a
Material Adverse Effect; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the consummation by the Company of the
transactions contemplated by this Exchange and Registration Rights
Agreement, except the registration under the Securities Act of the
Securities, qualification of the Indenture under the Trust Indenture Act
and such consents, approvals, authorizations, registrations or
qualifications, if any, as have already been or will have been prior to
the closing on the Closing Date obtained under the Securities Act and the
Trust Indenture Act or as may be required under State securities or blue
sky laws in connection with the offering and distribution of the
Securities.
(d) This Exchange and Registration Rights Agreement has been duly
authorized, executed and delivered by the Company.
6. INDEMNIFICATION.
(a) Indemnification by the Company. In the event of a
registration of the Registrable Securities pursuant to Section 2(a) or
2(b) hereof, the Company will indemnify and hold harmless each of the
holders of Registrable Securities included in an Exchange Registration
Statement, each of the Electing Holders of Registrable Securities
included in a Shelf Registration Statement and each person who
participates as a placement or sales agent or as an underwriter in any
offering or sale of such Registrable Securities against any losses,
claims, damages or liabilities, joint or several, to which such holder,
Electing Holder, agent or underwriter may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Exchange Registration Statement or Shelf Registration
Statement, as the case may be, under which such Registrable Securities
were registered under the Securities Act, or any preliminary, final or
summary prospectus contained therein or furnished by the Company to any
such holder, Electing Holder, agent or underwriter, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
will reimburse such holder, such Electing Holder, such agent and such
underwriter for any reasonable legal or other expenses reasonably
incurred by it in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that
the Company shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, or preliminary, final or
summary prospectus, or amendment or supplement thereto, in reliance upon
and in conformity with written information furnished to the Company by or
on behalf of any holder, Electing Holder, agent or underwriter expressly
for use therein, and that the foregoing indemnity with respect to
22
any preliminary or summary prospectus shall not inure to the benefit of
any holder, Electing Holder, agent or underwriter (or to the benefit of
any officer, director or partner of such holder, Electing Holder, agent
or underwriter or each person controlling any such holder, Electing
Holder, agent or underwriter) from whom the person asserting any such
losses, claims, damages or liabilities purchased Registrable Securities
if such untrue statement or omission or alleged untrue statement or
omission made in such preliminary or summary prospectus is eliminated or
remedied in the final prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) and
if a copy of the final prospectus (as so amended or supplemented, but
excluding the documents incorporated by reference therein), shall not
have been furnished to such person at or prior to the sale of such
Registrable Securities to such person.
(b) Indemnification by the Holders and any Agents and
Underwriters. The Company may require, as a condition to including any
Registrable Securities in any registration statement filed pursuant to
Section 2(b) hereof and to entering into any underwriting agreement with
respect thereto, that the Company shall have received an undertaking
reasonably satisfactory to it from the Electing Holder of such
Registrable Securities and from each underwriter named in any such
underwriting agreement, severally and not jointly, to (i) indemnify and
hold harmless the Company and all other holders of Registrable Securities
against any losses, claims, damages or liabilities to which the Company
or such other holders of Registrable Securities may become subject, under
the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in such registration statement, or any preliminary, final or
summary prospectus contained therein or furnished by the Company to any
such Electing Holder, agent or underwriter, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information
furnished to the Company by or on behalf of such Electing Holder or
underwriter expressly for use therein, and (ii) reimburse the Company for
any reasonable legal or other expenses reasonably incurred by the Company
in connection with investigating or defending any such action or claim as
such expenses are incurred; provided, however, that no such Electing
Holder shall be required to undertake liability to any person under this
Section 6(b) for any amounts in excess of the dollar amount of the
proceeds to be received by such Electing Holder from the sale of such
Electing Holder's Registrable Securities pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an
indemnified party under subsection (a) or (b) above of notice of the
commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against an indemnifying party under such
subsection, notify such indemnifying party in writing of the commencement
of such action; but the omission so to notify the indemnifying party
23
shall not relieve such indemnifying party from any liability which it may
have to any indemnified party otherwise under such subsection. In case
any such action shall be brought against any indemnified party and it
shall notify an indemnifying party of the commencement thereof, such
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, such indemnifying
party shall not be liable to such indemnified party for any legal
expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation.
Notwithstanding the foregoing, if the indemnified party has determined,
in its reasonable judgment, that there may be one or more defenses
available to the indemnified party which may be different from or
additional to those available to the indemnifying party and that the
existence of such different or additional defenses creates, in the
reasonable judgment of such indemnified party, a conflict in connection
with the joint representation of the indemnified party and the
indemnifying party, then the indemnified party shall have the right to
employ separate counsel and in that event the reasonable fees and
expenses of such separate counsel for the indemnified party shall be paid
by the indemnifying party; provided, however, that the indemnifying party
shall only be obligated to pay the reasonable fees and expenses of a
single law firm (and any reasonably necessary local counsel) employed by
all of the indemnified parties unless any indemnified party has
determined, in its reasonable judgment, that there may be one or more
defenses available to it which may be different from or additional to
those available to another indemnified party and that the existence of
such different or additional defense creates, in its reasonable judgment,
a conflict in connection with the joint representation of the indemnified
parties, in which case the indemnifying party shall be obligated to pay
the reasonable fees and expenses of a separate single law firm (and any
reasonably necessary local counsel) employed by each such indemnified
party to which such conflict relates. No indemnifying party shall,
without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising
out of such action or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf
of any indemnified party.
(d) Contribution. If for any reason the indemnification
provisions provided for in this Section 6 are unavailable to or
insufficient to hold harmless an indemnified party under subsection (a)
or (b) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such
24
proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified party in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of
a material fact or omission or alleged omission to state a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading relates to information supplied by such
indemnifying party or by such indemnified party, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The parties hereto agree
that it would not be just and equitable if contribution pursuant to this
Section 6(d) were determined by pro rata allocation (even if the holders
or any agents or underwriters or all of them were treated as one entity
for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
Section 6(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, or liabilities (or actions in
respect thereof) referred to above in this Section 6(d) shall be deemed
to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 6(d), no
holder shall be required to contribute any amount in excess of the amount
by which the dollar amount of the proceeds received by such holder from
the sale of any Registrable Securities (after deducting any fees,
discounts and commissions applicable thereto) exceeds the amount of any
damages which such holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission,
and no underwriter shall be required to contribute any amount in excess
of the amount by which the total offering price at which the Registrable
Securities underwritten and resold by it exceeds the amount of any
damages which such underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The holders' and any underwriters' obligations in this
Section 6(d) to contribute shall be several in proportion to the
principal amount of Registrable Securities registered or underwritten, as
the case may be, by them and not joint.
(e) The obligations of the Company under this Section 6 shall
be in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each officer,
director and partner of each holder and each person, if any, who controls
any holder, Electing Holder, agent or underwriter within the meaning of
the Securities Act; and the obligations of the holders and any Electing
Holders, agents or underwriters contemplated by this Section 6 shall be
in addition to any liability which the respective holder, Electing
Holder, agent or underwriter may otherwise have and shall extend, upon
the same terms and conditions, to each officer and director of the
Company and to each person, if any, who controls the Company within the
meaning of the Securities Act.
25
7. UNDERWRITTEN OFFERINGS.
For an underwritten offering of Securities, the following provisions shall
apply to all Securities collectively:
(a) Selection of Underwriters. If any of the Registrable
Securities covered by the Shelf Registration are to be sold pursuant to an
underwritten offering, the managing underwriter or underwriters thereof
shall be designated by Electing Holders holding at least a majority in
aggregate principal amount of the Registrable Securities to be included in
such offering, provided that such designated managing underwriter or
underwriters is or are reasonably acceptable to the Company.
(b) Participation by Holders. Each holder of Registrable
Securities hereby agrees with each other such holder that no such holder
may participate in any underwritten offering hereunder unless such holder
(i) agrees to sell such holder's Registrable Securities on the basis
provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents reasonably required under the terms of such
underwriting arrangements.
8. RULE 144.
The Company covenants to the holders of Registrable Securities that to the
extent it shall be required to do so under the Exchange Act, the Company shall
timely file the reports required to be filed by it under the Exchange Act or the
Securities Act (including the reports under Section 13 and 15(d) of the Exchange
Act referred to in subparagraph (c)(1) of Rule 144 adopted by the Commission
under the Securities Act) and the rules and regulations adopted by the
Commission thereunder, and shall 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 limitations of the exemption
provided by Rule 144 under the Securities Act, as such Rule may be amended from
time to time, or any similar or successor rule or regulation hereafter adopted
by the Commission. Upon the request of any holder of Registrable Securities in
connection with that holder's sale pursuant to Rule 144, the Company shall
deliver to such holder a written statement as to whether it has complied with
such requirements. The Company shall not be required to comply with this Section
8 if the Exchange Offer has been completed.
9. MISCELLANEOUS.
(a) No Inconsistent Agreements. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant,
registration rights with respect to Registrable Securities or any other
securities which would be inconsistent with the terms contained in this
Exchange and Registration Rights Agreement.
26
(b) Specific Performance. The parties hereto acknowledge that
there would be no adequate remedy at law if the Company fails to perform
any of its obligations hereunder and that the Purchasers and the holders
from time to time of the Registrable Securities may be irreparably harmed
by any such failure, and accordingly agree that the Purchasers and such
holders, in addition to any other remedy to which they may be entitled at
law or in equity, shall be entitled to compel specific performance of the
obligations of the Company under this Exchange and Registration Rights
Agreement in accordance with the terms and conditions of this Exchange and
Registration Rights Agreement.
(c) Notices. All notices, requests, claims, demands, waivers and
other communications hereunder shall be in writing and shall be deemed to
have been duly given when (i) delivered by hand, if delivered personally
or by courier, (ii) transmitted by any standard form of telecommunication
upon receipt of a signal confirming receipt, or (iii) three days after
being deposited in the mail (registered or certified mail, postage
prepaid, return receipt requested) as follows: If to the Company, to Nucor
Corporation, 0000 Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Attention: Chief Financial Officer, and if to a holder, to the address of
such holder set forth in the security register or other records of the
Company, or to such other address as the Company or any such holder may
have furnished to the other in writing in accordance herewith, except that
notices of change of address shall be effective only upon receipt.
(d) Parties in Interest. All the terms and provisions of this
Exchange and Registration Rights Agreement shall be binding upon, shall
inure to the benefit of and shall be enforceable by the parties hereto and
the holders from time to time of the Registrable Securities and the
respective successors and assigns of the parties hereto and such holders.
In the event that any transferee of any holder of Registrable Securities
shall acquire Registrable Securities, in any manner, whether by gift,
bequest, purchase, operation of law or otherwise, such transferee shall,
without any further writing or action of any kind, be deemed a beneficiary
hereof for all purposes and such Registrable Securities shall be held
subject to all of the terms of this Exchange and Registration Rights
Agreement, and by taking and holding such Registrable Securities such
transferee shall be entitled to receive the benefits of, and be
conclusively deemed to have agreed to be bound by all of the applicable
terms and provisions of this Exchange and Registration Rights Agreement.
If the Company shall so request, any such successor, assign or transferee
shall agree in writing to acquire and hold the Registrable Securities
subject to all of the applicable terms hereof.
(e) Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this
Exchange and Registration Rights Agreement or made pursuant hereto shall
remain in full force and effect regardless of any investigation (or
statement as to the results thereof) made by or on behalf of any holder of
Registrable Securities, any director, officer or partner of such holder,
any agent or underwriter or any director, officer or partner thereof, or
any controlling person of any of the foregoing, and shall survive delivery
of and payment for the Registrable Securities
27
pursuant to the Purchase Agreement and the transfer and registration of
Registrable Securities by such holder and the consummation of an Exchange
Offer.
(f) Governing Law. This Exchange and Registration Rights Agreement
shall be governed by and construed in accordance with the laws of the
State of New York without giving effect to principles of conflicts of
laws.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement are inserted
for convenience only, do not constitute a part of this Exchange and
Registration Rights Agreement and shall not affect in any way the meaning
or interpretation of this Exchange and Registration Rights Agreement.
(h) Entire Agreement; Amendments. This Exchange and Registration
Rights Agreement and the other writings referred to herein (including the
Indenture and the form of Securities) or delivered pursuant hereto which
form a part hereof contain the entire understanding of the parties with
respect to its subject matter. This Exchange and Registration Rights
Agreement supersedes all prior agreements and understandings between the
parties with respect to its subject matter. This Exchange and Registration
Rights Agreement may be amended, and the observance of any term of this
Exchange and Registration Rights Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively),
only by a written instrument duly executed by the Company and the holders
of at least a majority in aggregate principal amount of the Registrable
Securities at the time outstanding. Each holder of any Registrable
Securities at the time or thereafter outstanding shall be bound by any
amendment or waiver effected pursuant to this Section 9(h), whether or not
any notice, writing or marking indicating such amendment or waiver appears
on such Registrable Securities or is delivered to such holder.
(i) Inspection. For so long as this Exchange and Registration
Rights Agreement shall be in effect, this Exchange and Registration Rights
Agreement and a complete list of the names and addresses of all the
holders of Registrable Securities shall be made available for inspection
and copying on any business day by any holder of Registrable Securities
for proper purposes only (which shall include any purpose related to the
rights of the holders of Registrable Securities under the Securities, the
Indenture and this Agreement) at the offices of the Company at the address
thereof set forth in Section 9(c) above and at the office of the Trustee
under the Indenture.
(j) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all
such respective counterparts shall together constitute one and the same
instrument.
28
If the foregoing is in accordance with your understanding, please sign
and return to us six counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Purchasers, this letter and such acceptance hereof
shall constitute a binding agreement between each of the Purchasers and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Purchasers is pursuant to the authority set forth in a form of Agreement
among Purchasers, the form of which shall be submitted to the Company for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
Very truly yours,
Nucor Corporation
By: _______________________
Name:
Title:
Accepted as of the date hereof:
Banc of America Securities LLC
Wachovia Securities, Inc.
As Representatives on behalf of each of the Purchasers
Banc of America Securities LLC
By: _________________________
Name:
Title:
Wachovia Securities, Inc.
By: _________________________
Name:
Title:
29
Exhibit A
Nucor Corporation
INSTRUCTION TO DTC PARTICIPANTS
-------------------
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
--------------------
DEADLINE FOR RESPONSE: [DATE]*
--------------------
The Depository Trust Company ("DTC") has identified you as a DTC
Participant through which beneficial interests in the Nucor Corporation (the
"Company") 4.875% Notes due 2012 (the "Securities") are held.
The Company is in the process of registering the Securities under the
Securities Act of 1933, as amended, for resale by the beneficial owners thereof.
In order to have their Securities included in the registration statement,
beneficial owners must complete and return the enclosed Notice of Registration
Statement and Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy
of the enclosed materials as soon as possible as their rights to have the
Securities included in the registration statement as of the date and time such
registration statement becomes or is declared effective by the Securities and
Exchange Commission depend upon their returning the Notice and Questionnaire by
[Deadline For Response]. Please forward a copy of the enclosed documents to each
beneficial owner that holds interests in the Securities through you. If you
require more copies of the enclosed materials or have any questions pertaining
to this matter, please contact Nucor Corporation, Attention: Xxxxx X. Xxxxxxx,
0000 Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (Telephone number: (704)
000-0000).
--------------------------
*Not less than 28 calendar days from date of mailing.
A-1
Nucor Corporation
Notice of Registration Statement
and
Selling Securityholder Questionnaire
------------------------------------
(Date)
Reference is hereby made to the Exchange and Registration Rights
Agreement (the "Exchange and Registration Rights Agreement") between Nucor
Corporation (the "Company") and the Purchasers named therein. Pursuant to the
Exchange and Registration Rights Agreement, the Company has filed with the
United States Securities and Exchange Commission (the "Commission") a
registration statement on Form [__] (the "Shelf Registration Statement") for the
registration and resale under Rule 415 of the Securities Act of 1933, as amended
(the "Securities Act"), of the Company's 4.875% Notes due 2012 (the
"Securities"). A copy of the Exchange and Registration Rights Agreement is
attached hereto. All capitalized terms not otherwise defined herein shall have
the meanings ascribed thereto in the Exchange and Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined below) is
entitled to have the Registrable Securities beneficially owned by it included in
the Shelf Registration Statement. In order to have Registrable Securities
included in the Shelf Registration Statement as of its Effective Time, this
Notice of Registration Statement and Selling Securityholder Questionnaire
("Notice and Questionnaire") must be completed, executed and delivered to the
Company's counsel at the address set forth herein for receipt ON OR BEFORE
[Deadline for Response]. Beneficial owners of Registrable Securities who do not
complete, execute and return this Notice and Questionnaire by such date (i) will
not be named as selling securityholders in the Shelf Registration Statement and
(ii) may not use the Prospectus forming a part thereof for resales of
Registrable Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and related Prospectus.
The term "Registrable Securities" is defined in the Exchange and
Registration Rights Agreement.
A-2
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable Securities
hereby elects to include in the Shelf Registration Statement the Registrable
Securities beneficially owned by it and listed below in Item (3). The
undersigned, by signing and returning this Notice and Questionnaire, agrees to
be bound with respect to such Registrable Securities by the terms and conditions
of this Notice and Questionnaire and the Exchange and Registration Rights
Agreement, including, without limitation, Section 6 of the Exchange and
Registration Rights Agreement, as if the undersigned Selling Securityholder were
an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
and Trustee the Notice of Transfer set forth in Appendix A to the Prospectus and
as Exhibit B to the Exchange and Registration Rights Agreement.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
A-3
QUESTIONNAIRE
(1)(a) Full Legal Name of Selling Securityholder:
_______________________
(b) Full Legal Name of Registered Holder (if not the same as in (a) above)
of Registrable Securities Listed in Item (3) below:
(c) Full Legal Name of DTC Participant (if applicable and if not the same as
(b) above) Through Which Registrable Securities Listed in Item (3) below
are Held:
_______________________
(2) Address for Notices to Selling Securityholder:
_______________________
_______________________
_______________________
Telephone:
______________________
Fax:
______________________
Contact Person:
______________________
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Principal amount of Registrable Securities beneficially owned: _______
CUSIP No(s). of such Registrable Securities: _______________________
(b) Principal amount of Securities other than Registrable Securities
beneficially owned:
____________________________________
CUSIP No(s). of such other Securities: ___________________________
(c) Principal amount of Registrable Securities which the undersigned wishes
to be included in the Shelf Registration Statement: __________________
CUSIP No(s). of such Registrable Securities to be included in the Shelf
Registration Statement: __________________________________________
A-4
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other
securities of the Company, other than the Securities listed above in
Item (3).
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any
of its affiliates, officers, directors or principal equity holders (5%
or more) has held any position or office or has had any other material
relationship with the Company (or its predecessors or affiliates)
during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder intends
to distribute the Registrable Securities listed above in Item (3) only as
follows (if at all): Such Registrable Securities may be sold from time to
time directly by the undersigned Selling Securityholder or, alternatively,
through underwriters, broker-dealers or agents. Such Registrable
Securities may be sold in one or more transactions at fixed prices, at
prevailing market prices at the time of sale, at varying prices determined
at the time of sale, or at negotiated prices. Such sales may be effected
in transactions (which may involve crosses or block transactions) (i) on
any national securities exchange or quotation service on which the
Registered Securities may be listed or quoted at the time of sale, (ii) in
the over-the-counter market, (iii) in transactions otherwise than on such
exchanges or services or in the over-the-counter market, or (iv) through
the writing of options. In connection with sales of the Registrable
Securities or otherwise, the Selling Securityholder may enter into hedging
transactions with broker-dealers, which may in turn engage in short sales
of the Registrable Securities in the course of hedging the positions they
assume. The Selling Securityholder may also sell Registrable Securities
short and deliver Registrable Securities to close out such short
positions, or loan or pledge Registrable Securities to broker-dealers that
in turn may sell such securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with
the provisions of the Exchange Act and the rules and regulations
thereunder, particularly Regulation M.
A-5
In the event that the Selling Securityholder transfers all or any
portion of the Registrable Securities listed in Item (3) above after
the date on which such information is provided to the Company, the
Selling Securityholder agrees to notify the transferee(s) at the time
of the transfer of its rights and obligations under this Notice and
Questionnaire and the Exchange and Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure
of the information contained herein in its answers to Items (1) through
(6) above and the inclusion of such information in the Shelf
Registration Statement and related Prospectus. The Selling
Securityholder understands that such information will be relied upon by
the Company in connection with the preparation of the Shelf
Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under
Section 3(d) of the Exchange and Registration Rights Agreement to
provide such information as may be required by law for inclusion in the
Shelf Registration Statement, the Selling Securityholder agrees to
promptly notify the Company of any inaccuracies or changes in the
information provided herein which may occur subsequent to the date
hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Exchange and
Registration Rights Agreement shall be made in writing, by
hand-delivery, first-class mail, or air courier guaranteeing overnight
delivery as follows:
(i) To the Company:
Nucor Corporation
0000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
(ii) With a copy to:
Xxxxx & Xxx Xxxxx PLLC
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: B. Xxxxxx Xxxxxxx, Jr.
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company's counsel, the terms of this
Notice and Questionnaire, and the representations and warranties
contained herein, shall be binding on, shall inure to the benefit of
and shall be enforceable by the respective successors, heirs, personal
representatives, and assigns of the Company and the Selling
Securityholder (with respect to the Registrable Securities beneficially
owned by such Selling Securityholder and listed in Item (3) above. This
Agreement shall be governed in all respects by the laws of the State of
New York without giving effect to principles of conflicts of laws.
A-6
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated: __________________________________
______________________________________________________________
Selling Securityholder
(Print/type full legal name of beneficial owner of Registrable
Securities)
By: _________________________________________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
Xxxxx & Xxx Xxxxx PLLC
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: B. Xxxxxx Xxxxxxx, Jr.
A-7
Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
The Bank of New York
Nucor Corporation
x/x Xxx Xxxx xx Xxx Xxxx
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
Re: Nucor Corporation (the "Company")
4.875% Notes due 2012
Dear Sirs:
Please be advised that ________________ has transferred $____________________
aggregate principal amount of the above-referenced Notes pursuant to an
effective Registration Statement on Form [ ] (File No. 333- ) filed
______________________by the Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Notes is named as a "Selling Holder" in the Prospectus
dated ___________ or in supplements thereto, and that the aggregate principal
amount of the Notes transferred are the Notes listed in such Prospectus opposite
such owner's name.
Dated:
Very truly yours,
___________________________
(Name)
By:
___________________________
(Authorized Signature)
B-1
