EXHIBIT 4.2
________________________________________________________________________________
REGISTRATION RIGHTS AGREEMENT
Dated as of August 26, 2004
among
CENTURY ALUMINUM COMPANY,
the GUARANTORS party hereto
and
CREDIT SUISSE FIRST BOSTON LLC,
as Representative of the Initial Purchasers
________________________________________________________________________________
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made and entered
into as of August 26, 2004, among CENTURY ALUMINUM COMPANY, a Delaware
corporation (the "COMPANY"), each of the GUARANTORS party hereto (the
"GUARANTORS") and CREDIT SUISSE FIRST BOSTON LLC, as representative of the
several purchasers (the "INITIAL PURCHASERS") listed on Schedule A to the
Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement dated August 10,
2004, among the Company, the Guarantors and the Initial Purchasers (the
"PURCHASE AGREEMENT"), which provides for the sale by the Company to the Initial
Purchasers of an aggregate of $250,000,000 principal amount of the Company's
7.5% Senior Notes due 2014 (the "SECURITIES"). The Notes will be unconditionally
and irrevocably guaranteed (the "GUARANTEES") as to payment of principal,
premium, if any, and interest by the Guarantors. The Company and the Guarantors
have agreed to provide to the Initial Purchasers and their direct and indirect
transferees the registration rights set forth in this Agreement. The execution
of this Agreement by the Company and the Guarantors is a condition to the
closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions
As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
"1933 ACT" shall mean the Securities Act of 1933, as amended from time to
time.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as amended from
time to time.
"BLOCKAGE NOTICE" shall have the meaning set forth in Section 3 hereof.
"CLOSING DATE" shall mean the Closing Date as defined in the Purchase
Agreement.
"COMPANY" shall have the meaning set forth in the preamble and shall also
include the Company's successors.
"EXCHANGE OFFER" shall mean the exchange offer by the Company and the
Guarantors of Exchange Securities for Registrable Securities pursuant to Section
2(a) hereof.
"EXCHANGE OFFER REGISTRATION" shall mean a registration under the 1933 Act
effected pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form) and all amendments and supplements to such registration statement, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"EXCHANGE SECURITIES" shall mean securities issued by the Company under
the Indenture and guaranteed by the Guarantors containing terms identical to the
Securities (except that (i) interest thereon shall accrue from the last date on
which interest was paid on the Securities (or if authenticated between a record
date and interest payment date, from such interest payment date) or, if no such
interest has been paid, from August 26, 2004, (ii) the issuance of the Exchange
Securities will be registered under the 1933 Act and the Exchange Securities
will not contain restrictions on transfer and (iii) the provisions relating to
additional interest will be eliminated) and to be offered to Holders of
Securities in exchange for Securities pursuant to the Exchange Offer.
"GUARANTORS" shall mean the Guarantors listed on the signature pages
hereof, and shall also include any successor to a Guarantor.
"HOLDER" shall mean the Initial Purchasers, for so long as they own any
Registrable Securities, and each of their respective successors, assigns and
direct and indirect transferees who become registered owners of Registrable
Securities under the Indenture; provided that for purposes of Sections 4 and 5
of this Agreement, the term "HOLDER" shall include Participating Broker-Dealers
(as defined in Section 4(a)).
"INDENTURE" shall mean the Indenture relating to the Securities dated as
of August 26, 2004 among the Company, the Guarantors party thereto and
Wilmington Trust Company, as trustee, and as the same may be amended from time
to time in accordance with the terms thereof.
"INITIAL PURCHASERS" shall have the meaning set forth in the preamble.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the aggregate
principal amount of outstanding Registrable Securities; provided that whenever
the consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Company,
the Guarantors or any of their affiliates (as such term is defined in Rule 405
under the ▇▇▇▇ ▇▇▇) (other than the Initial Purchasers or subsequent Holders of
Registrable Securities if such subsequent holders are deemed to be such
affiliates solely by reason of their holding of such Registrable Securities)
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage or amount.
2
"PERSON" shall mean an individual, partnership, limited liability company,
corporation, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"PROSPECTUS" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to such prospectus, and in each case including
all material incorporated by reference therein.
"PURCHASE AGREEMENT" shall have the meaning set forth in the preamble.
"REGISTRABLE SECURITIES" shall mean the Securities (including the
Guarantees); provided, however, that the Securities shall cease to be
Registrable Securities (i) when a Registration Statement with respect to such
Securities shall have been declared effective under the 1933 Act and such
Securities shall have been disposed of pursuant to such Registration Statement,
or an Exchange Offer shall have been consummated hereunder, and such Securities
shall have been properly tendered pursuant hereto, (ii) when such Securities
have been sold to the public pursuant to Rule 144(k) (or any similar provision
then in force, but not Rule 144A) under the 1933 Act or (iii) when such
Securities shall have ceased to be outstanding.
"REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance by the Company and the Guarantors with this
Agreement, including without limitation: (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. registration and filing fees, (ii) all
fees and expenses incurred in connection with compliance with state securities
or blue sky laws (including reasonable and documented fees and disbursements of
counsel for any underwriters or Holders in connection with blue sky
qualification of any of the Exchange Securities or Registrable Securities),
(iii) all expenses of any Persons in preparing or assisting in preparing, word
processing, printing and distributing any Registration Statement, any
Prospectus, any amendments or supplements thereto, any underwriting agreements,
securities sales agreements and other documents relating to the performance of
and compliance with this Agreement, (iv) all rating agency fees, (v) all fees
and disbursements relating to the qualification of the Indenture under
applicable securities laws, (vi) the fees and disbursements of the Trustee and
its counsel, (vii) the fees and disbursements of counsel for the Company and the
Guarantors and, in the case of a Shelf Registration Statement, the reasonable
and documented fees and disbursements of one counsel for the Holders (which
counsel shall be selected by the Majority Holders and which counsel may also be
counsel for the Initial Purchasers) provided, however, in connection with an
Underwritten Offering, such fees and disbursements shall be limited to one
Underwritten Offering and only shall include fees and expenses for the Initial
Purchasers and Holders in their capacity
3
as selling holders under the Shelf Registration Statement and (viii) the fees
and disbursements of the independent public accountants of the Company and the
Guarantors, including the expenses of any special audits or "COLD COMFORT"
letters required by or incident to such performance and compliance, but
excluding fees and expenses of counsel to the underwriters (other than fees and
expenses set forth in clause (ii) above) or the Holders and underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by a Holder, which shall be the
responsibility of the Holders.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Company and the Guarantors that covers any of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement and all
amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"SEC" shall mean the Securities and Exchange Commission.
"SHELF REGISTRATION" shall mean a registration effected pursuant to
Section 2(b) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "SHELF" registration statement
of the Company and the Guarantors pursuant to the provisions of Section 2(b) of
this Agreement which covers (x) all of the Registrable Securities, except
Registrable Securities that the Holders thereof have elected not to include in
such Shelf Registration Statement and (y) no other securities unless approved by
the Holders whose Registrable Securities are covered by such Shelf Registration
Statement, on an appropriate form under Rule 415 under the 1933 Act, or any
similar rule that may be adopted by the SEC, and all amendments and supplements
to such registration statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"TRUSTEE" shall mean the trustee with respect to the Securities under the
Indenture.
"UNDERWRITER" shall have the meaning set forth in Section 3 hereof
"UNDERWRITTEN REGISTRATION" or "UNDERWRITTEN OFFERING" shall mean a
registration in which Registrable Securities are sold to an Underwriter for
reoffering to the public.
2. Registration Under the 1933 Act.
(a) To the extent not prohibited by any applicable law or applicable
interpretation of the Staff of the SEC, the Company and the
4
Guarantors shall use their best efforts to cause to be filed an Exchange
Offer Registration Statement covering the offer by the Company and the
Guarantors to the Holders to exchange all of the Registrable Securities
for Exchange Securities and to have such Registration Statement remain
effective until the closing of the Exchange Offer. The Company and the
Guarantors shall commence the Exchange Offer promptly after the Exchange
Offer Registration Statement has been declared effective by the SEC and
use their best efforts to have the Exchange Offer consummated not later
than 60 days after such effective date. The Company and the Guarantors
shall commence the Exchange Offer by mailing the related exchange offer
Prospectus and accompanying documents to each Holder stating, in addition
to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this
Registration Rights Agreement and that all Registrable Securities
validly tendered pursuant to the Exchange Offer will be accepted for
exchange;
(ii) the dates of acceptance for exchange (which shall be a
period of at least 20 business days from the date such notice is
mailed) (the "EXCHANGE DATES");
(iii) that any Registrable Security not tendered will remain
outstanding and continue to accrue interest, but will not retain any
rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security
exchanged pursuant to the Exchange Offer will be required to
surrender such Registrable Security, together with the enclosed
letters of transmittal, to the institution and at the address
(located in the Borough of Manhattan, The City of New York)
specified in the Exchange Offer Prospectus prior to the close of
business on the last Exchange Date;
(v) that Holders electing to have Registrable Securities
exchanged in the Exchange Offer shall be required to (a) represent
that all Exchange Securities to be received by them shall be
acquired in the ordinary course of their business and that at the
time of the consummation of the Exchange Offer they shall have no
arrangement or understanding to participate in the distribution
(within the meaning of the ▇▇▇▇ ▇▇▇) of the Exchange Securities and
(b) make such other representations as may be reasonably necessary
under applicable SEC rules, regulations or interpretations to render
the use of Form S-4 or other appropriate form under the 1933 Act
available; and
5
(vi) that Holders will be entitled to withdraw their election,
not later than the close of business on the last Exchange Date, by
sending to the institution and at the address (located in the
Borough of Manhattan, The City of New York) specified in the
Exchange Offer Prospectus a, facsimile transmission or letter
setting forth the name of such Holder, the principal amount of
Registrable Securities delivered for exchange and a statement that
such Holder is withdrawing his election to have such Securities
exchanged.
As soon as practicable after the last Exchange Date, the
Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions
thereof properly tendered and not validly withdrawn pursuant to the
Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities or portions thereof so
accepted for exchange and issue, and cause the Trustee to promptly
authenticate and mail to each Holder, an Exchange Security equal in
principal amount to the principal amount of the Registrable
Securities surrendered by such Holder.
The Company and the Guarantors shall use their respective best efforts to
complete the Exchange Offer as provided above and shall comply with the
applicable requirements of the 1933 Act, the 1934 Act and other applicable laws
and regulations in connection with the Exchange Offer. The Exchange Offer shall
not be subject to any conditions, other than that the Exchange Offer does not
violate applicable law or any applicable interpretation of the Staff of the SEC.
The Company and the Guarantors shall inform the Initial Purchasers of the names
and addresses of the Holders to whom the Exchange Offer is made, and the Initial
Purchasers shall have the right, subject to applicable law, to contact such
Holders and otherwise facilitate the tender of Registrable Securities in the
Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine
that the Exchange Offer Registration provided for in Section 2(a) above is
not available or may not be consummated as soon as practicable after the
last Exchange Date because it would violate applicable law or the
applicable interpretations of the Staff of the SEC, (ii) the Exchange
Offer is not for any other reason consummated by March 24, 2005 or (iii)
the Exchange Offer has been completed and in the opinion of counsel for
the Initial Purchasers a Registration Statement must be filed and a
Prospectus must be delivered by the Initial Purchasers in connection with
any offering or sale of Registrable Securities, the Company and the
Guarantors shall use their best efforts to cause to be filed as soon as
practicable after such determination, date or notice of such opinion of
6
counsel is given to the Company, as the case may be, a Shelf Registration
Statement providing for the sale by the Holders of all of the Registrable
Securities and to have such Shelf Registration Statement declared
effective by the SEC. In the event the Company and the Guarantors are
required to file a Shelf Registration Statement solely as a result of the
matters referred to in clause (iii) of the preceding sentence, the Company
and the Guarantors shall use their best efforts to file and have declared
effective by the SEC both an Exchange Offer Registration Statement
pursuant to Section 2(a) with respect to all Registrable Securities and a
Shelf Registration Statement (which may be a combined Registration
Statement with the Exchange Offer Registration Statement) with respect to
offers and sales of Registrable Securities held by the Initial Purchasers
after completion of the Exchange Offer. Subject to the provisions of
Section 3, the Company and the Guarantors agree to use their best efforts
to keep the Shelf Registration Statement continuously effective until the
expiration of the period referred to in Rule 144(k) with respect to the
Registrable Securities or such shorter period that will terminate when all
of the Registrable Securities covered by the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement or cease to be
outstanding or otherwise to be Registrable Securities. The Company and the
Guarantors further agree to supplement or amend the Shelf Registration
Statement if required by the rules, regulations or instructions applicable
to the registration form used by the Company and the Guarantors for such
Shelf Registration Statement or by the 1933 Act or by any other rules and
regulations thereunder for shelf registration or if reasonably requested
by a Holder with respect to information relating to such Holder, and to
use their best efforts to cause any such amendment to become effective and
such Shelf Registration Statement to become usable as soon as thereafter
practicable. The Company and the Guarantors agree to furnish to the
Holders of Registrable Securities copies of any such supplement or
amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration
Expenses in connection with the registration pursuant to Section 2(a) and
Section 2(b). Each Holder shall pay all underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Securities pursuant to the Shelf
Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section
2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b)
hereof will not be deemed to have become effective unless it has been
declared effective by the SEC; provided, however, that, if, after it has
been declared effective, the offering of Registrable Securities pursuant
to a Shelf Registration Statement is interfered with by any stop order,
7
injunction or other order or requirement of the SEC or any other
governmental agency or court, such Registration Statement will be deemed
not to have become effective during the period of such interference until
the offering of Registrable Securities pursuant to such Registration
Statement may legally resume. In the event the Exchange Offer is not
consummated or the Shelf Registration Statement is not declared effective
on or prior to March 24, 2005, the interest rate on the Securities will be
increased by a rate of 0.5% per annum from such date until the Exchange
Offer is consummated or the Shelf Registration Statement is declared
effective by the SEC.
(e) Without limiting the remedies available to the Initial
Purchasers and the Holders, each of the Company and the Guarantors
acknowledges that any failure by it to comply with its obligations under
Section 2(a) and Section 2(b) hereof may result in material injury to the
Initial Purchasers or the Holders for which there is no adequate remedy at
law, that it will not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the Initial
Purchasers or any Holder may obtain such relief as may be reasonably
required to specifically enforce the Company's or such Guarantor's
obligations under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures.
In connection with the obligations of the Company and the Guarantors with
respect to the Registration Statements pursuant to Section 2(a) and Section 2(b)
hereof, the Company and the Guarantors shall as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the 1933 Act, which form (x) shall be selected by
the Company and the Guarantors and (y) shall, in the case of a Shelf
Registration, be available for the sale of the Registrable Securities by
the selling Holders thereof and (z) shall comply as to form in all
material respects with the requirements of the applicable form and include
all financial statements required by the SEC to be filed therewith, and
use their best efforts to cause such Registration Statement to become
effective and remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period and cause each
Prospectus to be supplemented by any required prospectus supplement and,
as so supplemented, to be filed pursuant to Rule 424 under the 1933 Act;
subject to Section 4 hereof, to keep each Prospectus current during the
period described under Section 4(3) and Rule 174 under the 1933 Act that
is applicable to transactions by brokers or dealers with respect to the
Registrable Securities or Exchange Securities;
8
(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, to counsel for the Initial Purchasers, to counsel
for the Holders and to each Underwriter of an Underwritten Offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder or Underwriter
may reasonably request, in order to facilitate the public sale or other
disposition of the Registrable Securities; and the Company and the
Guarantors consent to the use of such Prospectus and any amendment or
supplement thereto in accordance with applicable law by each of the
selling Holders of Registrable Securities and any such Underwriters in
connection with the offering and sale of the Registrable Securities
covered by and in the manner described in such Prospectus or any amendment
or supplement thereto in accordance with applicable law;
(d) use their best efforts to register or qualify the Registrable
Securities under all applicable state securities or "BLUE SKY" laws of
such jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement shall reasonably request in writing by the time the
applicable Registration Statement is declared effective by the SEC, to
cooperate with such Holders in connection with any filings required to be
made with the National Association of Securities Dealers, Inc. and do any
and all other acts and things which may be reasonably necessary or
advisable to enable such Holder to consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such Holder;
provided, however, that neither the Company nor any Guarantor shall be
required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to
qualify but for this Section 3(d), (ii) file any general consent to
service of process or (iii) subject itself to taxation in any such
jurisdiction if it is not so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities, counsel for the Holders and counsel for the
Initial Purchasers promptly and, if requested by any such Holder or
counsel, confirm such advice in writing (i) when a Registration Statement
has become effective and when any post-effective amendment thereto has
been filed and becomes effective, (ii) of any request by the SEC or any
state securities authority for amendments and supplements to a
Registration Statement and Prospectus or for additional information after
the Registration Statement has become effective, (iii) of the issuance by
the SEC or any state securities authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the
Company or any Guarantor contained in any underwriting agreement,
9
securities sales agreement or other similar agreement, if any, relating to
the offering cease to be true and correct in all material respects or if
the Company or any Guarantor receives any notification with respect to the
suspension of the qualification of the Registrable Securities for sale in
any jurisdiction or the initiation of any proceeding for such purpose, (v)
of the happening of any event during the period a Shelf Registration
Statement is effective which makes any statement made in such Registration
Statement or the related Prospectus untrue in any material respect or
which requires the making of any changes in such Registration Statement or
Prospectus in order to make the statements therein not misleading and (vi)
of any determination by the Company or any Guarantor that a post-effective
amendment to a Registration Statement would be appropriate;
(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the
earliest possible moment and provide immediate notice to each Holder of
the withdrawal of any such order;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, at least one conformed copy of
each Registration Statement and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits thereto,
unless requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing the Registrable Securities to be
sold that are free of any restrictive legends and enable such Registrable
Securities to be in such denominations (consistent with the provisions of
the Indenture) and registered in such names as the selling Holders may
reasonably request at least one business day prior to the closing of any
sale of Registrable Securities;
(i) in the case of a Shelf Registration, upon the occurrence of any
event contemplated by Section 3(e)(v) hereof, use their best efforts to
prepare and file with the SEC a supplement or post-effective amendment to
a Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of the Registrable
Securities, such Prospectus will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading. The Company and the Guarantors agree to notify the
Holders with instructions to suspend use of the Prospectus as promptly as
practicable after the occurrence of such an event, (provided that the
Company is not required to specify the nature of the event giving rise to
the notice requirement hereunder) and the Holders hereby agree to suspend
use of
10
the Prospectus until the Company and the Guarantors have amended or
supplemented the Prospectus to correct such misstatement or omission;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or any document which is to be
incorporated by reference into a Registration Statement or a Prospectus
after the initial filing of a Registration Statement, provide copies of
such document to the Initial Purchasers and their counsel and make such of
the representatives of the Company and the Guarantors as shall be
reasonably requested by the Initial Purchasers or their counsel available
for discussion of such document, and shall not at any time file or make
any amendment to the Registration Statement, any Prospectus or any
amendment of or supplement to a Registration Statement or a Prospectus or
any document which is to be incorporated by reference into a Registration
Statement or a Prospectus, of which the Initial Purchasers and their
counsel shall not have previously been advised and furnished a copy or to
which the Initial Purchasers or their counsel shall reasonably object;
(k) obtain a CUSIP number for all Exchange Securities or Registrable
Securities, as the case may be, not later than the effective date of a
Registration Statement;
(l) cause the Indenture to be qualified under the Trust Indenture
Act of 1939, as amended (the "TIA"), in connection with the registration
of the Exchange Securities or Registrable Securities, as the case may be,
cooperate with the Trustee and the Holders to effect such changes to the
Indenture as may be required for the Indenture to be so qualified in
accordance with the terms of the TIA and execute, and use their best
efforts to cause the Trustee to execute, all documents as may be required
to effect such changes and all other forms and documents required to be
filed with the SEC to enable the Indenture to be so qualified in a timely
manner;
(m) in the case of a Shelf Registration, make available for
inspection by a representative of the Holders of the Registrable
Securities, any Underwriter participating in any disposition pursuant to
such Shelf Registration Statement, and such attorneys and accountants as
are designated by the Holders, at reasonable times and in a reasonable
manner, all financial and other records, pertinent documents and
properties of the Company and the Guarantors, and cause the respective
officers, directors and employees of the Company and the Guarantors to
supply all information reasonably requested by any such representative,
Underwriter, attorney or accountant in connection with a Shelf
Registration Statement; provided that the foregoing inspection and
information gathering shall be coordinated on behalf of the Initial
Purchasers by Credit Suisse First Boston LLC and on behalf of the other
11
parties by one counsel designated by and on behalf of such other parties
which shall be counsel to the Initial Purchasers unless such counsel
elects not so to act; and provided, further, that such persons shall first
agree in writing with the Company that any information that is reasonably
and in good faith designated by the Company in writing as confidential at
the time of delivery of such information shall be kept confidential by
such persons unless (i) disclosure of such information is required by
court or administrative order or is necessary to respond to inquiries of
regulatory authorities, (ii) disclosure of such information is required by
law (including any disclosure requirements pursuant to Federal securities
laws in connection with the filing of the Shelf Registration Statement or
the use of any Prospectus), (iii) such information becomes generally
available to the public other than as a result of disclosure or failure to
safeguard by any such person, or (iv) such information becomes available
to any such person from a source other than the Company and such source is
not bound by a confidentiality agreement or other obligation not to
disclose such information;
(n) in the case of an Underwritten Offering, if the Securities have
been rated prior to their initial sale, use their best efforts to confirm
such ratings shall apply to the Registrable Securities covered by a
Registration Statement;
(o) if reasonably requested by any Holder of Registrable Securities
covered by a Registration Statement, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment such information with
respect to such Holder as such Holder reasonably requests to be included
therein and (ii) make all required filings of such Prospectus supplement
or such post-effective amendment as soon as the Company or any Guarantor
has received notification of the matters to be incorporated in such
filing; and
(p) in the case of a Shelf Registration, enter into such customary
agreements and take all such other actions in connection therewith
reasonably requested by the Holders of a majority of the Registrable
Securities being sold in order to expedite or facilitate the disposition
of such Registrable Securities including, but not limited to, an
Underwritten Offering and in connection with an Underwritten Offering, (i)
to the extent possible, make such representations and warranties to the
Holders and any Underwriters of such Registrable Securities with respect
to the business of the Company, the Guarantors and their respective
subsidiaries, the Registration Statement, Prospectus and documents
incorporated by reference or deemed incorporated by reference therein, if
any, in each case, in form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings and confirm the same if
and when requested, (ii) obtain opinions of counsel to the Company and the
Guarantors (which counsel and opinions, in form, scope and substance,
12
shall be reasonably satisfactory to the Holders and such Underwriters and
their respective counsel) addressed to each selling Holder and Underwriter
of Registrable Securities, covering the matters customarily covered in
opinions requested in underwritten offerings, (iii) obtain "COLD COMFORT"
letters from the independent certified public accountants of the Company
and the Guarantors (and, if necessary, any other certified public
accountant of any subsidiary of the Company or any Guarantor, or of any
business acquired by the Company or any Guarantor for which financial
statements and financial data are or are required to be included in the
Registration Statement) addressed to each selling Holder and Underwriter
of Registrable Securities, such letters to be in customary form and
covering matters of the type customarily covered in "COLD COMFORT" letters
in connection with underwritten offerings, and (iv) deliver such documents
and certificates as may be reasonably requested by the Holders of a
majority in principal amount of the Registrable Securities being sold or
the Underwriters, and which are customarily delivered in underwritten
offerings, to evidence the continued validity of the representations and
warranties of the Company and the Guarantors made pursuant to clause (i)
above and to evidence compliance with any customary conditions contained
in an underwriting agreement.
In the case of a Shelf Registration Statement, the Company and the
Guarantors may require each Holder of Registrable Securities to furnish to them
such information regarding the Holder and the proposed distribution by such
Holder of such Registrable Securities as they may from time to time reasonably
request in writing. No Holder of Registrable Securities shall be entitled to any
additional interest thereon pursuant to Section 2(d) unless and until such
Holder shall have provided all such information which is required by the 1933
Act or rules or regulations of the SEC to be included in the Shelf Registration
Statement prior to the time it is declared effective.
In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any notice (a "BLOCKAGE NOTICE") from the Company or any
Guarantor of
(x) the happening of any event of the kind described in Section
3(e)(ii), 3(e)(iii) or 3(e)(v) hereof, or
(y) the good faith determination by the Board of Directors of the
Company and the Guarantors that, because of valid business reasons
(not including avoidance of the Company's and the Guarantors'
obligations hereunder), including, without limitation, the
acquisition or divestiture of assets, pending corporate
developments, public filings with the Commission and similar events,
it is in the interest of the Company or each Guarantor to suspend
such use, and prior to suspending such use the Company or such
Guarantor provides the Holders with written notice of such
13
suspension, which notice need not specify the nature of the event
giving rise to such suspension,
upon receipt of instruction to suspend use of the Prospectus, such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to a
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) hereof (or a
notice from the Company that such Holder may resume use of the existing
Prospectus), and, if so directed by the Company or such Guarantor, such Holder
will deliver to the Company or such Guarantor (at its expense) all copies in its
possession, other than permanent file copies then in such Holder's possession,
of the Prospectus covering such Registrable Securities current at the time of
receipt of such notice. If the Company or any Guarantor shall give any such
notice to suspend the disposition of Registrable Securities pursuant to a
Registration Statement, the Company and the Guarantors shall extend the period
during which the Registration Statement shall be maintained effective pursuant
to this Agreement by the number of days the Prospectus was not used during the
period from and including the date of the giving of such notice to and including
the date when the Holders shall have (x) received copies of the supplemented or
amended Prospectus necessary to resume such dispositions or (y) a notice
permitting use of the existing Prospectus. The Company and the Guarantors may
suspend the use of the Prospectus for a period not to exceed an aggregate of 45
days in any 90-day or an aggregate of 120 days in any twelve month period.
The Holders of Registrable Securities covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Securities in an
Underwritten Offering. In any such Underwritten Offering, the investment banker
or investment bankers and manager or managers (the "UNDERWRITERS") that will
administer the offering will be selected by the Majority Holders of the
Registrable Securities included in such offering; provided, however, that no
person may participate in any Underwritten Offering hereunder unless such person
(i) agrees to sell such person's Registrable Securities on the basis reasonably
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.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The Staff of the SEC has taken the position that any
broker-dealer that receives Exchange Securities for its own account in the
Exchange Offer in exchange for Securities that were acquired by such
broker-dealer as a result of market-making or other trading activities (a
"PARTICIPATING BROKER-DEALER"), may be deemed to be an "underwriter"
within the meaning of the 1933 Act and must deliver a prospectus meeting
the requirements of the 1933 Act in connection with any resale of such
Exchange Securities.
14
The Company and the Guarantors understand that it is the Staff's
position that if the Prospectus contained in the Exchange Offer
Registration Statement includes a plan of distribution containing a
statement to the above effect and the means by which Participating
Broker-Dealers may resell the Exchange Securities, without naming the
Participating Broker-Dealers or specifying the amount of Exchange
Securities owned by them, such Prospectus may be delivered by
Participating Broker-Dealers to satisfy their prospectus delivery
obligation under the 1933 Act in connection with resales of Exchange
Securities for their own accounts, so long as the Prospectus otherwise
meets the requirements of the 1933 Act.
(b) In light of the above, notwithstanding the other provisions of
this Agreement, the Company and the Guarantors agree that the provisions
of this Agreement as they relate to a Shelf Registration shall also apply
to an Exchange Offer Registration to the extent, and with such reasonable
modifications thereto as may be, reasonably requested by the Initial
Purchasers or by one or more Participating Broker-Dealers, in each case as
provided in clause (ii) below, in order to expedite or facilitate the
disposition of any Exchange Securities by Participating Broker-Dealers
consistent with the positions of the Staff recited in Section 4(a) above;
provided that:
(i) the Company and the Guarantors shall not be required to
amend or supplement the Prospectus contained in the Exchange Offer
Registration Statement, as would otherwise be contemplated by
Section 3(i), for a period exceeding 180 days after the last
Exchange Date (as such period may be extended pursuant to the
penultimate paragraph of Section 3 of this Agreement) and
Participating Broker-Dealers shall not be authorized by the Company
and the Guarantors to deliver and shall not deliver such Prospectus
after such period in connection with the resales contemplated by
this Section 4; and
(ii) the application of the Shelf Registration procedures set
forth in Section 3 of this Agreement to an Exchange Offer
Registration, to the extent not required by the positions of the
Staff of the SEC or the 1933 Act and the rules and regulations
thereunder, will be in conformity with the reasonable request in
writing to the Company and the Guarantors by the Initial Purchasers
or with the reasonable request in writing to the Company and the
Guarantors by one or more broker-dealers who certify to the Initial
Purchasers, the Company and the Guarantors in writing that they
anticipate that they will be Participating Broker-Dealers; and
provided further that, in connection with such application of the
Shelf Registration procedures set forth in Section 3 to an Exchange
Offer Registration, the Company and
15
the Guarantors shall be obligated (x) to deal only with one entity
representing the Participating Broker-Dealers, which shall be Credit
Suisse First Boston LLC unless it elects not to act as such
representative, in which case it shall be the entity chosen by the
consent of a majority of the Participating Broker-Dealers, (y) to
pay the fees and expenses of only one counsel representing the
Participating Broker-Dealers, which shall be counsel to the Initial
Purchasers unless such counsel elects not to so act, in which case
it shall be the counsel chosen by the consent of a majority of the
Participating Broker-Dealers and (z) to cause to be delivered only
one, if any, "COLD COMFORT" letter with respect to the Prospectus in
the form existing on the last Exchange Date and with respect to each
subsequent amendment or supplement, if any, effected during the
period specified in clause (i) above.
(c) The Initial Purchasers shall have no liability to the Company,
the Guarantors or any Holder with respect to any good faith request that
they may make pursuant to Section 4(b) above.
5. Indemnification and Contribution.
(a) The Company and the Guarantors agree, jointly and severally, to
indemnify and hold harmless the Initial Purchasers, each Holder and each
Person, if any, who controls any Initial Purchaser or any Holder within
the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934
Act, or is under common control with, or is controlled by, any Initial
Purchaser or any Holder, from and against all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred by the Initial Purchaser, any Holder or any such
controlling or affiliated Person in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto) pursuant to which Exchange Securities
or Registrable Securities were registered under the 1933 Act, including
all documents incorporated therein by reference, or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or caused by any
untrue statement or alleged untrue statement of a material fact contained
in any Prospectus (as amended or supplemented if the Company or any
Guarantor shall have furnished any amendments or supplements thereto), or
caused by any omission or alleged omission to state therein a material
fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission in reliance
upon and in conformity with written information furnished to the
16
Company by any Initial Purchaser or any selling Holder expressly for use
therein; provided that the Company and the Guarantors shall not be liable
to any Initial Purchaser, any Holder or any such controlling or affiliated
Person with respect to any Initial Purchaser or Holder to the extent that
any such losses, claims, damages or liabilities (the "LOSSES") arise out
of or are based upon an untrue statement or alleged untrue statement of
material fact or omission or alleged omission if either (A)(i) such
Initial Purchaser or Holder was required by law to send or deliver, and
failed to send or deliver, a copy of the Prospectus with or prior to
delivery of written confirmation of the sale by such Initial Purchaser or
Holder to the person asserting the claims from which such Losses arise and
(ii) the Prospectus made available by the Company prior to the time of
delivery of such confirmation would have corrected such untrue statement
or alleged untrue statement or omission or alleged omission or (B)(i) such
Holder disposed of Registrable Securities to the person asserting the
claim from which such Losses arise pursuant to a Registration Statement
and sent or delivered, or was required by law to send or deliver, a
Prospectus to such person in connection with such disposition and (ii)
such Holder received a Blockage Notice or a notice from the Company of the
happening of an event of the kind described in Section 3(e)(iii) in
writing prior to execution and delivery of a contract for such
disposition. In connection with any Underwritten Offering permitted by
Section 3, the Company and the Guarantors will also indemnify the
Underwriters, if any, selling brokers, dealers and similar securities
industry professionals participating in the distribution, their officers
and directors and each Person who controls such Persons (within the
meaning of the 1933 Act and the ▇▇▇▇ ▇▇▇) to the same extent as provided
above with respect to the indemnification of the Holders, if requested in
connection with any Registration Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company and the Guarantors, the Initial Purchasers and
the other selling Holders, and each of their respective directors,
officers who sign the Registration Statement and each Person, if any, who
controls the Company or any Guarantor, any Initial Purchaser and any other
selling Holder within the meaning of either Section 15 of the 1933 Act or
Section 20 of the 1934 Act to the same extent as the foregoing indemnity
from the Company and the Guarantors to the Initial Purchasers and the
Holders, but only with reference to any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement (or
any amendment thereto) pursuant to which Exchange Securities or
Registrable Securities were registered under the 1933 Act, including all
documents incorporated therein by reference, or caused by any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or caused by any
untrue statement or alleged untrue statement of a material fact contained
in any Prospectus (or any amendment or supplement thereto), or caused by
any omission or alleged omission to state therein a material fact
17
necessary to make the statements therein in light of the circumstances
under which they were made not misleading, made in reliance upon and in
conformity with written information furnished to the Company by such
Holder expressly for use therein.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of
which indemnity may be sought pursuant to either paragraph (a) or
paragraph (b) above, such Person (the "INDEMNIFIED PARTY") shall promptly
notify the Person against whom such indemnity may be sought (the
"INDEMNIFYING PARTY") in writing; provided that the failure to so notify
the indemnifying party (i) will not relieve it from liability under
paragraphs (a) and (b) above unless and to the extent it did not otherwise
learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not,
in any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligations provided in
paragraph (a) or (b) above. In case any such action is brought against any
indemnified party, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other
indemnifying party, to assume the defense thereof, with counsel
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, the indemnifying party will
not be liable to such indemnified party under this Section for any legal
or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation. It is understood that the indemnifying party shall not, in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for (A) the fees and expenses of more than one
separate firm (in addition to any local counsel) for the Initial
Purchasers and all Persons, if any, who control any Initial Purchaser
within the meaning of either Section 15 of the 1933 Act or ▇▇▇▇▇▇▇ ▇▇ ▇▇
▇▇▇ ▇▇▇▇ ▇▇▇, (▇) the fees and expenses of more than one separate firm (in
addition to any local counsel) for the Company and the Guarantors, their
respective directors, officers who sign the Registration Statement and
each Person, if any, who controls the Company or any Guarantor within the
meaning of either such Section and (C) the fees and expenses of more than
one separate firm (in addition to any local counsel) for all Holders and
all Persons, if any, who control any Holders within the meaning of either
such Section, and that all such fees and expenses shall be reimbursed as
they are incurred. In such case involving the Initial Purchasers and
Persons who control the Initial Purchasers, such firm shall be designated
in writing by Credit Suisse First Boston LLC. In such case
18
involving the Holders and such Persons who control Holders, such firm
shall be designated in writing by the Majority Holders. In all other
cases, such firm shall be designated by the Company. The indemnifying
party shall not be liable for any settlement of any proceeding effected
without its written consent but, if settled with such consent or if there
be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which
such indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such
proceeding and does not include a statement as to or an admission of
fault, culpability or failure to act by or on behalf of any indemnified
party.
(d) If the indemnification provided for in paragraph (a) or
paragraph (b) of this Section 5 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities,
then each indemnifying party under such paragraph, in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate to reflect the
relative fault of the indemnifying party or parties on the one hand and of
the indemnified party or parties on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company and the Guarantors, on the one hand, and the
Holders, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company or any Guarantor or by the Holders
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Holders'
respective obligations to contribute pursuant to this Section 5(d) are
several in proportion to the respective principal amount of Registrable
Securities of such Holder that were registered pursuant to a Registration
Statement.
(e) The Company, each Guarantor and each Holder agree that it would
not be just or equitable if contribution pursuant to this Section 5 were
determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to in
paragraph (d) above. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages and liabilities
19
referred to in paragraph (d) above shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 5, no Holder shall be required to indemnify or contribute any
amount in excess of the amount by which the total price at which
Registrable Securities were sold by such Holder exceeds the amount of any
damages that such Holder 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation. The
remedies provided for in this Section 5 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section 5
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Initial Purchasers, any Holder or any Person controlling any Initial
Purchaser or any Holder, or by or on behalf of the Company and the Guarantors,
their officers or directors or any Person controlling the Company or any
Guarantor, (iii) acceptance of any of the Exchange Securities and (iv) any sale
of Registrable Securities pursuant to a Shelf Registration Statement.
6. Miscellaneous.
(a) No Inconsistent Agreements. Neither the Company nor any
Guarantor has entered into, and on or after the date of this Agreement
will enter into, any agreement which is inconsistent with the rights
granted to the Holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent
with the rights granted to the holders of other issued and outstanding
securities of the Company or any Guarantor under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given unless the Company and the Guarantors have
obtained the written consent of Holders of at least a majority in
aggregate principal amount of the outstanding Registrable Securities
affected by such amendment, modification, supplement, waiver or consent;
provided, however, that no amendment, modification, supplement, waiver or
consent to any departure from the provisions of Section 5 hereof shall be
effective as against any Holder of Registrable Securities unless consented
to in writing by such Holder.
20
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such
Holder to the Company by means of a notice given in accordance with the
provisions of this Section 6(c), which address initially is, with respect
to the Initial Purchasers, the address set forth in the Purchase
Agreement; and (ii) if to the Company and the Guarantors, initially at the
Company's address set forth in the Purchase Agreement and thereafter at
such other address, notice of which is given in accordance with the
provisions of this Section 6(c).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged, if telecopied; and on the next business day if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of
each of the parties, including, without limitation and without the need
for an express assignment, subsequent Holders; provided that nothing
herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Securities in violation of the terms of the
Purchase Agreement. If any transferee of any Holder shall acquire
Registrable Securities, in any manner, whether by operation of law or
otherwise, such Registrable Securities shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable
Securities such Person shall be conclusively deemed to have agreed to be
bound by and to perform all of the terms and provisions of this Agreement
and such Person shall be entitled to receive the benefits hereof. The
Initial Purchasers (in their capacity as initial Purchasers) shall have no
liability or obligation to the Company or the Guarantors with respect to
any failure by a Holder to comply with, or any breach by any Holder of,
any of the obligations of such Holder under this Agreement.
(e) Purchases and Sales of Securities. The Company and the
Guarantors shall not, and shall use their best efforts to cause their
respective affiliates (as defined in Rule 405 under the ▇▇▇▇ ▇▇▇) not to,
purchase and then resell or otherwise transfer any Securities which
constitute "restricted securities" under Rule 144 under the 1933 Act
except pursuant to an effective registration statement under the 1933 Act.
21
(f) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other
hand, and shall have the right to enforce such agreements directly to the
extent it deems such enforcement necessary or advisable to protect its
rights or the rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof
(i) Governing Law. This Agreement shall be governed by the laws of
the State of New York.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other respect
and of the remaining provisions contained herein shall not be affected or
impaired thereby.
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
CENTURY ALUMINUM COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
CENTURY ALUMINUM OF WEST VIRGINIA, INC.,
as a Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
BERKELEY ALUMINUM, INC.,
as a Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
CENTURY KENTUCKY, INC.,
as a Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
VIRGIN ISLANDS ALUMINA
CORPORATION LLC.,
as a Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
METALSCO, LTD.,
as a Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
SKYLINER, INC.,
as a Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
NSA, LTD.,
as a Guarantor
By: Metalsco, Ltd., a Georgia corporation,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
▇▇▇▇▇▇▇ ALUMINUM LLC,
as a Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
CENTURY LOUISIANA, INC.
as a Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
CENTURY ALUMINUM HOLDINGS, INC.
as a Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first above
written.
CREDIT SUISSE FIRST BOSTON LLC
BANC OF AMERICA SECURITIES LLC
▇▇▇▇▇▇▇, SACHS & CO.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: CREDIT SUISSE FIRST BOSTON LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
__________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Director
