1
EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
By and Between
XXXXXX, XXXXXX & COMPANY, L.P.
and
GENEVA STEEL HOLDINGS CORP.
Dated as of January 3, 2001
2
TABLE OF CONTENTS
PAGE
1. REGISTRATIONS........................................................................................... 1
(a) SHELF REGISTRATION............................................................................. 1
(b) REGISTRATION REQUESTS.......................................................................... 3
(c) LIMITATIONS ON REQUESTED REGISTRATIONS......................................................... 4
(d) REGISTRATION STATEMENT FORM.................................................................... 4
(e) REGISTRATION EXPENSES.......................................................................... 4
(f) PRIORITY IN CUTBACK REGISTRATIONS.............................................................. 4
(g) PREEMPTION OF REQUESTED REGISTRATION........................................................... 5
2. PIGGYBACK REGISTRATIONS................................................................................. 5
(a) RIGHT TO INCLUDE REGISTRABLE SECURITIES........................................................ 5
(b) REGISTRATION EXPENSES.......................................................................... 6
(c) PRIORITY IN CUTBACK REGISTRATIONS.............................................................. 6
3. REGISTRATION PROCEDURES................................................................................. 6
4. UNDERWRITTEN OFFERINGS..................................................................................11
(a) UNDERWRITTEN REQUESTED OFFERINGS...............................................................11
(b) UNDERWRITTEN PIGGYBACK OFFERINGS...............................................................11
5. HOLDBACK AGREEMENTS.....................................................................................12
(a) BY THE HOLDERS OF REGISTRABLE SECURITIES.......................................................12
(b) BY THE COMPANY AND OTHER SECURITYHOLDERS.......................................................12
(c) EXCEPTION......................................................................................13
6. INDEMNIFICATION.........................................................................................14
(a) INDEMNIFICATION BY THE COMPANY.................................................................14
(b) INDEMNIFICATION BY THE HOLDERS.................................................................14
(c) NOTICES OF CLAIMS, ETC.........................................................................15
(d) CONTRIBUTION...................................................................................16
(e) OTHER INDEMNIFICATION..........................................................................17
(f) INDEMNIFICATION PAYMENTS.......................................................................17
7. COVENANT RELATING TO RULE 144...........................................................................17
8. OTHER REGISTRATION RIGHTS...............................................................................17
(a) NO EXISTING AGREEMENTS.........................................................................17
(b) FUTURE AGREEMENTS..............................................................................18
(c) BEST REGISTRATION RIGHTS.......................................................................18
9. DEFINITIONS.............................................................................................18
10. MISCELLANEOUS...........................................................................................22
(a) NOTICES........................................................................................22
(b) ENTIRE AGREEMENT...............................................................................23
(c) AMENDMENT......................................................................................23
(d) WAIVER.........................................................................................23
(e) CONSENTS AND WAIVERS BY HOLDERS OF REGISTRABLE SECURITIES......................................23
(f) NO THIRD PARTY BENEFICIARY.....................................................................23
(g) SUCCESSORS AND ASSIGNS.........................................................................24
(h) HEADINGS.......................................................................................24
(i) INVALID PROVISIONS.............................................................................24
(j) REMEDIES.......................................................................................24
(k) GOVERNING LAW..................................................................................24
(l) COUNTERPARTS...................................................................................24
i
3
GENEVA STEEL HOLDINGS CORP.
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT dated as of January 3, 2001, is made
and entered into by and between Geneva Steel Holdings Corp., a Delaware
corporation (together with its predecessor and including its successors and
assigns, the "COMPANY"), and the investor that is the signatory to this
Agreement (the "INVESTOR"). Capitalized terms not otherwise defined herein have
the meanings set forth in SECTION 9.
WHEREAS, on February 1, 1999, Geneva Steel Company filed a voluntary
petition for reorganization under Chapter 11 of title 11, 11 U.S.C. Sections
101 - 1330 (as amended, the "BANKRUPTCY CODE"), with the United States
Bankruptcy Court for the District of Utah (the "BANKRUPTCY COURT"), commencing
Chapter 11 Case No. 99 C-21130 (the "BANKRUPTCY CASE");
WHEREAS, on July 20, 2000, Geneva Steel Company filed that certain Plan
of Reorganization (as amended and supplemented from time to time, the "PLAN") in
the Bankruptcy Case;
WHEREAS, the Bankruptcy Court confirmed the Plan pursuant to the order
under section 1129 of the Bankruptcy Code, dated November 22, 2000, as modified
on December 8, 2000 (the "CONFIRMATION ORDER");
WHEREAS, Investor will acquire pursuant to the Plan or the Stand-by
Commitment (as such term is defined in the Plan) shares of Common Stock ("COMMON
SHARES") and/or shares of Preferred Stock ("PREFERRED SHARES" and collectively
with the Common Shares, the "SHARES") issued by the Company;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. REGISTRATIONS.
(a) SHELF REGISTRATION.
(i) The Company shall comply with all the provisions
of SECTIONS 3(b) to 3(l) and shall use its best efforts to file as promptly as
practicable (but in no event more than 60 days after the date hereof (the "Issue
Date")) with the Commission, and thereafter shall use its reasonable best
efforts to cause to be declared effective within 120 days after the date hereof,
a Shelf Registration Statement, covering all of the Registrable Securities, and
relating to the offer and sale of the Registrable Securities, by the holders of
the Registrable Securities from time to time in accordance with the methods of
distribution set forth in the Shelf Registration Statement (unless a Shelf
Registration Statement is then not legally permitted under the applicable rules
of the Commission or otherwise, in which case the Company shall use its
reasonable best efforts to cause a Requested Registration with respect to the
Registrable Securities to become effective).
4
(ii) The Company shall use its best efforts to keep
the applicable Shelf Registration Statement continuously effective in order to
permit any prospectus forming part thereof to be used by the holders of the
Registrable Securities covered thereby for a period ending on the earlier of (A)
the period that will terminate when all the Registrable Securities covered by
such Shelf Registration Statement have been sold pursuant thereto and (B) the
date on which such Registrable Securities become eligible for resale without
volume restrictions pursuant to Rule 144 under the Securities Act (in any such
case, such period being called the "SHELF REGISTRATION EFFECTIVENESS PERIOD").
Notwithstanding the foregoing, the Company can, upon notice to the holders of
the Registrable Securities covered by the Shelf Registration Statement, take
action to suspend the effectiveness of the Shelf Registration Statement or
otherwise take action or fail to take action so that such holders of the
Registrable Securities are not able to offer and sell such Registrable
Securities pursuant to the Shelf Registration Statement and included prospectus
for a period of time during the Shelf Registration Effective Period, if the
board of directors of the Company shall have determined in good faith and for
valid business reasons that it would not be in the best interests of the Company
and its stockholders generally to update such Shelf Registration Statement or
prospectus or otherwise continue its availability for such offers and sales for
such time period, provided that such time period shall last only as long as
necessary in view of such business reasons and in no event for more than 120
days from the giving of original notice of suspension, and further provided that
the Company cannot utilize the right of suspension provided for by this sentence
more than once in any twelve-month period. The Company will maintain the
effectiveness of this Shelf Registration Statement at all such times as the
company is maintaining the effectiveness of the same or another Shelf
Registration Statement for sales by Xxxxxx Xxxxx & Co. or its transferees.
(iii) Notwithstanding any other provisions hereof, the
Company will use its best efforts to ensure that (A) any Shelf Registration
Statement and any amendment thereto and any prospectus forming part thereof and
any supplement thereto complies in all material respects with the Securities Act
and the rules and regulations of the Commission thereunder, (B) any Shelf
Registration Statement and any amendment thereto (in either case, other than
with respect to information included therein in reliance upon or in conformity
with information furnished in writing or confirmed in writing to the Company by
or on behalf of the holder of such Registrable Securities specifically for use
therein (the "INVESTOR'S INFORMATION")) does not, when it becomes effective,
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 (C) any prospectus forming part of any Shelf Registration
Statement, and any supplement to such prospectus (in either case, other than
with respect to Investor's Information), does not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(iv) The Company will pay all Registration Expenses
incurred in connection with the Shelf Registration Statement, if any.
2
5
(b) REGISTRATION REQUESTS.
(i) If the Company has failed to cause the Shelf
Registration Statement to be declared effective within 120 days after the date
hereof or, if prior to such 120th day the Company shall have effected a Public
Offering, upon the written request of one or more Requesting Holders requesting
that the Company effect the registration under the Securities Act of all or part
of such Requesting Holders' Registrable Securities and specifying the number of
Registrable Securities to be registered and the intended method of disposition
thereof, the Company will promptly, and in no event more than five (5) Business
Days after receipt of such request, give written notice (a "NOTICE OF REQUESTED
REGISTRATION") of such request to all other holders of Registrable Securities
that have executed substantially identical agreements, and thereupon will use
its reasonable best efforts to effect the registration under the Securities Act
of the Registrable Securities which the Company has been so requested to
register in writing within thirty (30) Business Days after receiving the Notice
of Requested Registration by such Requesting Holder or Holders, all to the
extent requisite to permit the disposition (in accordance with the intended
methods thereof) of the Registrable Securities so to be registered. If requested
by the holders of a majority of the Registrable Securities requested to be
included in any Requested Registration, the method of disposition of Registrable
Securities and any other securities included in such registration shall be an
underwritten offering effected in accordance with SECTION 4(a).
(ii) Notwithstanding the foregoing, the Company may
postpone taking action with respect to a Requested Registration for a reasonable
period of time after receipt of the original request (not exceeding forty-five
(45) days) if, in the good faith opinion of the Company's Board of Directors,
effecting the registration would adversely affect a material financing,
acquisition, disposition of assets or stock, merger or other comparable
transaction or would require the Company to make public disclosure of
information the public disclosure of which would be reasonably likely to have a
material adverse effect upon the Company, PROVIDED that the Company shall not
delay such action pursuant to this sentence more than once in any twelve (12)
month period. Neither the Company nor any of its securityholders shall have the
right to include any of the Company's securities (other than Registrable
Securities) in a registration statement to be filed as part of a Requested
Registration unless (i) such securities are of the same class or series as the
Registrable Securities covered by such registration statement, (ii) the holders
of a majority of the Registrable Securities covered by such registration
statement consent to such inclusion in writing and (iii) if such Requested
Registration is an underwritten offering, the Company or such securityholders,
as applicable, agree in writing to sell, subject to PARAGRAPH (f), their
securities on the same terms and conditions as apply to the Registrable
Securities being sold. If any securityholders of the Company (other than the
holders of Registrable Securities in such capacity) register securities of the
Company in a Requested Registration in accordance with this Section, such
holders shall pay the fees and expenses of their counsel and their PRO RATA
SHARE, on the basis of the respective amounts of the securities included in such
registration on behalf of each such holder, of the Registration Expenses if the
Registration Expenses for such registration are not paid by the Company for any
reason.
3
6
(c) LIMITATIONS ON REQUESTED REGISTRATIONS. Investor may
request a Requested Registration no more than five (5) times in total.
Notwithstanding anything herein to the contrary, the Company shall not be
required to honor a request for a Requested Registration if:
(i) the Registrable Securities requested by
Requesting Holders to be so registered do not constitute at least ten percent
(10%) of the total Registrable Securities;
(ii) such request is received from any Requesting
Holder with respect to Registrable Securities that may immediately be sold by
such Requesting Holder under Rule 144 during any ninety (90) day period; or
(iii) such request is received by the Company less
than one hundred eighty (180) days following the effective date of any previous
registration statement relating to such Registrable Securities filed in
connection with a Requested Registration, regardless of whether any holder of
the Registrable Securities covered thereby exercised its rights under this
Agreement with respect to such registration, unless such previous registration
constituted a Cutback Registration in which the number of Registrable Securities
actually included in such registration was not at least ninety-five percent
(95%) of the number of Registrable Securities requested to be included in such
registration.
(d) REGISTRATION STATEMENT FORM. A Shelf Registration
Statement and any Requested Registrations shall be on such appropriate
registration form promulgated by the Commission as shall be selected by the
Company, and shall be reasonably acceptable to the holders of a majority of the
Registrable Securities (or, if such registration involves an underwritten Public
Offering, the Managing Underwriter), as the case may be, to which such
registration relates, and shall permit the disposition of such Registrable
Securities in accordance with the intended method or methods specified in their
request for such registration.
(e) REGISTRATION EXPENSES. The Company will pay all
Registration Expenses incurred in connection with any Requested Registration,
provided the Company shall not be required to pay for costs or expenses of any
registration commenced pursuant to Section 1(b) if the request is subsequently
withdrawn by the Investor.
(f) PRIORITY IN CUTBACK REGISTRATIONS. If a Requested
Registration becomes a Cutback Registration, the Company will include in any
such registration, to the extent of the number which the Managing Underwriter
advises the Company can be sold in such offering, (i) FIRST, Registrable
Securities requested to be included in such registration by the Requesting
Holders, PRO RATA on the basis of the number of Registrable Securities requested
to be included by such holders, (ii) SECOND, other Registrable Securities
requested to be included in such registration by the other Requesting Holders
(if any), PRO RATA on the basis of the number of Registrable Securities
requested to be included by such holders, and (iii) THIRD other securities of
the Company proposed to be included in such registration, allocated
4
7
among the holders thereof in accordance with the priorities then existing among
the Company and the holders of such other securities; and any securities so
excluded shall be withdrawn from and shall not be included in such Requested
Registration. If the Requesting Holders are unable to register at least
eighty-five percent (85%) of the Registrable Securities which they have
requested to be registered, then such registration shall not count as a
Requested Registration for purposes of this Section 1, and the Requesting
Holders will be entitled to request the registration of their Registrable
Securities on an additional occasion.
(g) PREEMPTION OF REQUESTED REGISTRATION. Notwithstanding
anything to the contrary contained herein, at any time within thirty (30) days
after receiving a written request for a Requested Registration of Registrable
Securities, the Company may elect to effect an underwritten primary registration
in lieu of the Requested Registration if the Company's Board of Directors
believes that such primary registration would be in the best interests of the
Company or if the Managing Underwriter, if any, for the Requested Registration
advises the Company in writing that in its opinion, in order to sell the
Registrable Securities to be sold, the Company should include its own
securities. If the Company so elects to effect a primary registration, the
Company shall give prompt written notice to all holders of Registrable
Securities of its intention to effect such a registration and shall afford the
holders of the Registrable Securities rights contained in SECTION 2 with respect
to Piggyback Registrations. In the event that the Company so elects to effect a
primary registration after receiving a request for a Requested Registration, the
requests for a Requested Registration shall be deemed to have been withdrawn and
such primary registration shall not be deemed to be an Effective Registration.
2. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO INCLUDE REGISTRABLE SECURITIES. Notwithstanding
any limitation contained in SECTION 1, if the Company at any time proposes after
the date hereof to effect a Piggyback Registration, including in accordance with
SECTION l(g), it will each such time give prompt written notice (a "NOTICE OF
PIGGYBACK REGISTRATION"), at least thirty (30) days prior to the anticipated
filing date, to all holders of Registrable Securities that have executed
substantially identical agreements, of its intention to do so and of such
holders' rights under this SECTION 2, which Notice of Piggyback Registration
shall include a description of the intended method of disposition of such
securities. Upon the written request of any such holder made within twenty (20)
days after receipt of a Notice of Piggyback Registration (which request shall
specify the Registrable Securities intended to be disposed of by such holder and
the intended method of disposition thereof), the Company will, subject to the
other provisions of this Agreement, include in the registration statement
relating to such Piggyback Registration all Registrable Securities which the
Company has been so requested to register, all to the extent requisite to permit
the disposition of such Registrable Securities in accordance with the intended
method of disposition set forth in the Notice of Piggyback Registration.
Notwithstanding the foregoing, if, at any time after giving a Notice of
Piggyback Registration and prior to the effective date of the registration
statement filed in connection with such registration, the Company shall
determine for any reason not to register or to delay registration of such
securities, the Company may, at its election, give written notice of such
determination to each
5
8
holder of Registrable Securities and, thereupon, (i) in the case of a
determination not to register, shall be relieved of its obligation to register
any Registrable Securities in connection with such registration (but not from
its obligation to pay the Registration Expenses in connection therewith) without
prejudice, however, to the rights of any Requesting Holder entitled to do so to
request that such registration be effected as a Requested Registration under
SECTION 1, and (ii) in the case of a determination to delay registering, shall
be permitted to delay registering any Registrable Securities for the same period
as the delay in registering such other securities. No registration effected
under this SECTION 2 shall relieve the Company of its obligations to effect a
Requested Registration under SECTION 1.
(b) REGISTRATION EXPENSES. The Company will pay all
Registration Expenses incurred in connection with each Piggyback Registration.
(c) PRIORITY IN CUTBACK REGISTRATIONS. If a Piggyback
Registration becomes a Cutback Registration, the Company will include in such
registration, to the extent of the amount or kind of securities which the
Managing Underwriter advises the Company can be sold in such offering without
adversely affecting the success of such offering:
(i) if such registration as initially proposed by the
Company was solely a primary registration of its securities, (x) FIRST, the
securities proposed by the Company to be sold for its own account, (y) SECOND,
any Registrable Securities requested to be included in such registration by
Requesting Holders, PRO RATA on the basis of the number of Registrable
Securities requested to be included by such holders, and (z) THIRD, any other
securities of the Company proposed to be included in such registration,
allocated among the holders thereof in accordance with the priorities then
existing among the Company and such holders; and
(ii) if such registration as initially proposed by the
Company was in whole or in part requested by holders of securities of the
Company, other than holders of Registrable Securities in their capacities as
such, pursuant to demand registration rights, (x) FIRST, such securities held by
the holders initiating such registration and, if applicable, any securities
proposed by the Company to be sold for its own account, allocated in accordance
with the priorities then existing among the Company and such holders, (y)
SECOND, any Registrable Securities requested to be included in such registration
by Requesting Holders, PRO RATA on the basis of the number of Registrable
Securities requested to be included by such holders, and (z) THIRD, any other
securities of the Company proposed to be included in such registration,
allocated among the holders thereof in accordance with the priorities then
existing among the Company and the holders of such other securities;
and any securities so excluded shall be withdrawn from and shall not be included
in such Piggyback Registration.
3. REGISTRATION PROCEDURES. If and whenever the Company is
required to effect the registration of any Registrable Securities under the
Securities Act pursuant to SECTION 1 or SECTION 2, the Company will use its best
efforts to effect the registration and sale of such Registrable Securities in
accordance with the
6
9
intended method of disposition thereof. Without limiting the foregoing, the
Company in each such case will, as expeditiously as possible:
(a) use its best efforts to prepare and file with the
Commission, not later than thirty (30) days after the Company's receipt of the
request therefor from the Requesting Holders (or as soon thereafter as possible)
the requisite registration statement to effect such registration and use its
reasonable best efforts to cause such registration statement to become
effective, PROVIDED that as far in advance as practical before filing such
registration statement or any amendment thereto, the Company will furnish to the
Requesting Holders of the Registrable Securities copies of reasonably complete
drafts of all such documents proposed to be filed (including exhibits), and any
such holder shall have the opportunity to object to any information pertaining
solely to such holder that is contained therein and the Company will make the
corrections reasonably requested by such holder with respect to such information
prior to filing any such registration statement or amendment;
(b) use its best efforts to prepare and file with the
Commission such amendments and supplements to such registration statement and
any prospectus used in connection therewith as may be necessary to maintain the
effectiveness of such registration statement and to comply with the provisions
of the Securities Act with respect to the disposition of all Registrable
Securities covered by such registration statement, in accordance with the
intended methods of disposition thereof, until (i) the Effectiveness Period or
(ii) the Shelf Registration Effectiveness Period has ended;
(c) promptly notify each Requesting Holder and the underwriter
or underwriters, if any:
(i) when such registration statement or any prospectus
used in connection therewith, or any amendment or supplement thereto, has been
filed and, with respect to such registration statement or any post-effective
amendment thereto, when the same has become effective;
(ii) of any written comments from the Commission with
respect to any filing referred to in clause (i) and of any written request by
the Commission for amendments or supplements to such registration statement or
prospectus;
(iii) of the notification to the Company by the Commission
of the issuance of any stop order suspending the effectiveness of such
registration statement or the initiation of any proceeding with respect to the
issuance by the Commission of any such stop order; and
(iv) of the receipt by the Company of any notification
with respect to the suspension of the qualification of any Registrable
Securities for sale under the applicable securities or blue sky laws of any
jurisdiction;
7
10
(d) furnish to each seller of Registrable Securities covered
by such registration statement such number of conformed copies of such
registration statement and of each amendment and supplement thereto (in each
case including all exhibits and documents incorporated by reference), such
number of copies of the prospectus contained in such registration statement
(including each preliminary prospectus and any summary prospectus) and any other
prospectus filed under Rule 424 promulgated under the Securities Act relating to
such holder's Registrable Securities, and such other documents, as such seller
may reasonably request to facilitate the disposition of its Registrable
Securities;
(e) use its best efforts to register or qualify all
Registrable Securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as each holder thereof shall
reasonably request, to keep such registration or qualification in effect for so
long as such registration statement remains in effect, and to take any other
action which may be reasonably necessary or advisable to enable such holder to
consummate the disposition in such jurisdictions of the Registrable Securities
owned by such holder, except that the Company shall not for any such purpose be
required (i) to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this PARAGRAPH (e)
be obligated to be so qualified, (ii) to subject itself to taxation in any such
jurisdiction or (iii) to consent to general service of process in any
jurisdiction;
(f) use its reasonable best efforts to cause all Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable each holder thereof to consummate the disposition of such Registrable
Securities;
(g) furnish to each Requesting Holder a signed counterpart,
addressed to such holder (and the underwriters, if any), of
(i) an opinion of counsel for the Company, which may be
the general counsel of the Company, dated the effective date of such
registration statement (or, if such registration includes an underwritten Public
Offering, dated the date of any closing under the underwriting agreement),
reasonably satisfactory in form and substance to such holder, and
(ii) a "comfort" letter, dated the effective date of such
registration statement (and, if such registration includes an underwritten
Public Offering, dated the date of any closing under the underwriting
agreement), signed by
8
11
the independent public accountants who have certified the Company's financial
statements included in such registration statement,
in each case covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and, in the case of
the accountants' letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer's counsel
and in accountants' letters delivered to the underwriters in underwritten public
offerings of securities and, in the case of the accountants' letter, such other
financial matters as such holder (or the underwriters, if any) may reasonably
request;
(h) notify each holder of Registrable Securities covered by
such registration statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of any event
as a result of which any prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and at the request of any such holder promptly prepare and
furnish to such holder a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
(i) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the Commission, and make available to
its securityholders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve (12) months, but not more than eighteen
(18) months, beginning with the first full calendar month after the effective
date of such registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder;
(j) make available for inspection by any Requesting Holder,
any underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by any such
seller or underwriter (collectively, the "INSPECTORS"), all financial and other
records, pertinent corporate documents and properties of the Company
(collectively, the "RECORDS") as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
such Inspector in connection with such registration statement, and permit the
Inspectors to participate in the preparation of such registration statement and
any prospectus contained therein and any amendment or supplement thereto.
Records which the Company determines, in good faith, to be confidential and
which it notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is necessary to avoid or
correct a material misstatement in or omission from the registration statement,
(ii) the release of such Records is ordered pursuant to a
9
12
subpoena or other order from a court of competent jurisdiction or (iii) the
information in such Records has been made generally available to the public. The
seller of Registrable Securities agrees by acquisition of such Registrable
Securities that it will, upon learning that disclosure of such Records is sought
in a court of competent jurisdiction, give notice to the Company and allow the
Company, at the Company's expense, to undertake appropriate action to prevent
disclosure of the Records deemed confidential;
(k) provide a transfer agent and a registrar for all
Registrable Securities covered by such registration statement not later than the
effective date of such registration statement;
(l) use its reasonable best efforts to cause all Registrable
Securities covered by such registration statement to be listed, upon official
notice of issuance, on a national securities exchange on which the Registrable
Securities of the type covered by such Registration Statement are then listed
and obtain and maintain a ticker symbol for the Common Stock; and
(m) use its reasonable best efforts to cause any Requested
Registration to be declared effective under the Securities Act as soon as
practicable (taking into account the legal requirements for registration from
time to time) but in any event no later than one hundred twenty (120) days
following the Company's receipt of the request therefor from the Requesting
Holders, and to use its best efforts to keep the Requested Registration
continuously effective under the Securities Act during the Effectiveness Period.
(n) provide a CUSIP number for all Registrable Securities not
later than the effective date of the applicable Shelf Registration Statement or
Requested Registration.
The Company may require each holder of Registrable Securities
as to which any registration is being effected to, and each such holder, as a
condition to including Registrable Securities in such registration, shall,
furnish the Company with such information and affidavits regarding such holder
and the distribution of such securities as the Company may from time to time
reasonably request in writing in connection with such registration.
Each holder of Registrable Securities agrees by acquisition of
such Registrable Securities that upon receipt of any notice from the Company of
the happening of any event of the kind described in PARAGRAPH (h), such holder
will forthwith discontinue such holder's disposition of Registrable Securities
pursuant to the registration statement relating to such Registrable Securities
until such holder's receipt of the copies of the supplemented or amended
prospectus contemplated by PARAGRAPH (h) and, if so directed by the Company,
will deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such holder's possession of the prospectus
relating to such Registrable Securities current at the time of receipt of such
notice. In the event the Company shall give any such notice, the Effectiveness
Period shall be extended by a number of days equal to the number of days during
the period from and including the giving of notice pursuant to PARAGRAPH (h) and
to and including the date when each holder of any Registrable
10
13
Securities covered by such registration statement shall receive the copies of
the supplemented or amended prospectus contemplated by PARAGRAPH (h).
4. UNDERWRITTEN OFFERINGS.
(a) UNDERWRITTEN REQUESTED OFFERINGS. In the case of any
underwritten Public Offering being effected pursuant to any Shelf Registration
Statement or a Requested Registration, the Managing Underwriter and any other
underwriter or underwriters with respect to such offering shall be selected by
the Company with the consent of the holders of a majority of the Registrable
Securities to be included in such underwritten offering, which consent shall not
be unreasonably withheld. The Company shall enter into an underwriting agreement
in customary form with such underwriter or underwriters, which shall include,
among other provisions, indemnities to the effect and to the extent provided in
SECTION 6. The holders of Registrable Securities to be distributed by such
underwriters shall be parties to such underwriting agreement and may, at their
option, require that any or all of the representations and warranties by, and
the other agreements on the part of, the Company to and for the benefit of such
underwriters also be made to and for their benefit and that any or all of the
conditions precedent to the obligations of such underwriters under such
underwriting agreement also be conditions precedent to their obligations. No
holder of Registrable Securities shall be required to make any representations
or warranties to or agreements with the Company or the underwriters other than
representations, warranties or agreements regarding such holder and its
ownership of the securities being registered on its behalf and such holder's
intended method of distribution and any other representation required by law.
Subject to the preceding sentence, no Requesting Holder may participate in such
underwritten offering unless such holder agrees to sell its Registrable
Securities on the basis provided in such underwriting agreement and completes
and executes all questionnaires, powers of attorney, indemnities and other
documents reasonably required under the terms of such underwriting agreement. If
any Requesting Holder disapproves of the terms of an underwriting, such holder
may elect to withdraw therefrom and from such registration by notice to the
Company and the Managing Underwriter, and each of the remaining Requesting
Holders shall be entitled to increase the amount of Registrable Securities being
registered to the extent of the Registrable Securities so withdrawn in the
proportion which the amount of Registrable Securities being registered by such
remaining Requesting Holder bears to the total amount of Registrable Securities
being registered by all such remaining Requesting Holders.
(b) UNDERWRITTEN PIGGYBACK OFFERINGS. If the Company at any
time proposes to register any of its securities in a Piggyback Registration and
such securities are to be distributed by or through one or more underwriters,
the Company will, subject to the provisions of SECTION 2(c), use its reasonable
best efforts, if requested by any holder of Registrable Securities, to arrange
for such underwriters to include the Registrable Securities to be offered and
sold by Requesting Holders among the securities to be distributed by such
underwriters, and such holders shall be obligated to sell their Registrable
Securities in such Piggyback Registration through such underwriters on the same
terms and conditions as apply to the other Company securities to be sold by such
underwriters in connection with such Piggyback Registration. The holders of
Registrable Securities to be distributed
11
14
by such underwriters shall be parties to the underwriting agreement between the
Company and such underwriter or underwriters and may, at their option, require
that any or all of the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters also be made to and for their benefit and that any or all of the
conditions precedent to the obligations of such underwriters under such
underwriting agreement also be conditions precedent to their obligations. No
holder of Registrable Securities shall be required to make any representations
or warranties to or agreements with the Company or the underwriters other than
representations, warranties or agreements regarding such holder and its
ownership of the securities being registered on its behalf and such holder's
intended method of distribution and any other representation required by law.
Subject to the preceding sentence, no Requesting Holder may participate in such
underwritten offering unless such holder agrees to sell its Registrable
Securities on the basis provided in such underwriting agreement and completes
and executes all questionnaires, powers of attorney, indemnities and other
documents reasonably required under the terms of such underwriting agreement. If
any Requesting Holder disapproves of the terms of an underwriting, such holder
may elect to withdraw therefrom and from such registration by notice to the
Company and the Managing Underwriter, and each of the remaining Requesting
Holders shall be entitled to increase the number of Registrable Securities being
registered to the extent of the Registrable Securities so withdrawn in the
proportion which the number of Registrable Securities being registered by such
remaining Requesting Holder bears to the total number of Registrable Securities
being registered by all such remaining Requesting Holders.
5. HOLDBACK AGREEMENTS.
(a) BY THE HOLDERS OF REGISTRABLE SECURITIES. If and to the
extent requested by the Managing Underwriter (or, in the case of a
non-underwritten Public Offering, the Company), each holder of Registrable
Securities, by acquisition of such Registrable Securities, agrees, to the extent
permitted by law, not to effect any public sale or distribution (including a
sale under Rule 144) of such securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the ten (10) days prior
to and the ninety (90) days after the effective date of any registration
statement filed by the Company in connection with a primary offering of Common
Stock on behalf of the Company (or for such shorter period of time as is
sufficient and appropriate, in the opinion of the Managing Underwriter (or, in
the case of a non-underwritten Public Offering, the Company), in order to
complete the sale and distribution of the securities included in such
registration), except as part of such registration statement, whether or not
such holder participates in such registration.
(b) BY THE COMPANY AND OTHER SECURITYHOLDERS. Other than with
respect to a Shelf Registration Statement, the Company agrees (x) not to effect
any public sale or distribution of its equity securities, or any securities
convertible into or exchangeable or exercisable for such securities, during the
ten (10) days prior to and the ninety (90) days after the effective date of the
registration statement filed in connection with an underwritten offering made
pursuant to a Requested Registration (or for such shorter period of time as is
sufficient and appropriate, in the opinion of the Managing Underwriter, in order
to complete the sale
12
15
and distribution of the securities included in such registration), except as
part of such underwritten registration and except pursuant to registrations on
Form S-4 or Form S-8 promulgated by the Commission or any successor or similar
forms thereto, and (y) to cause each holder of its equity securities, or of any
securities convertible into or exchangeable or exercisable for such securities,
in each case purchased from the Company at any time after the date of this
Agreement (other than in a Public Offering), to agree, to the extent permitted
by law, not to effect any such public sale or distribution of such securities
(including a sale under Rule 144), during such period, except as part of such
underwritten registration, in each case without the written consent of the
Investor and unless the Managing Underwriter otherwise agrees.
(c) EXCEPTION. The foregoing provisions shall not apply to any
holder of securities of the Company to the extent such holder is prohibited by
applicable law from agreeing to withhold from sale or to the extent such holder
is acting in its capacity as a fiduciary or an investment adviser. Without
limiting the scope of the term "fiduciary", a holder shall be deemed to be
acting as a fiduciary or an investment adviser if its actions or the shares
proposed to be sold are subject to the Employee Retirement Income Security Act,
the Investment Company Xxx 0000 or the Investment Advisers Act of 1940 or if
such shares are held in a separate account under applicable insurance law or
regulation.
6. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company shall, to the
full extent permitted by law, indemnify and hold harmless each holder of
Registrable Securities included in any registration statement filed in
connection with a Shelf Registration Statement, a Requested Registration or a
Piggyback Registration, its directors and officers, and each other Person, if
any, who controls any such holder within the meaning of the Securities Act,
against any losses, claims, damages, expenses or liabilities, joint or several
(together, "LOSSES"), to which such holder or any such director or officer or
controlling Person may become subject under the Securities Act or otherwise,
insofar as such Losses (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
prospectus, in the light of the circumstances under which they were made) not
misleading, and the Company will reimburse such holder and each such director,
officer and controlling Person for any legal or any other expenses reasonably
incurred by them on an as incurred basis in connection with investigating or
defending against any such Loss (or action or proceeding in respect thereof);
PROVIDED that the Company shall not be liable in any such case to the extent
that any such Loss (or action or proceeding in respect thereof) arises out of or
is based upon (x) an untrue statement or alleged untrue statement or omission or
alleged omission made in any such registration statement, preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with information furnished or confirmed in
writing to the Company through an instrument duly executed by such holder
specifically stating that it is for use in the preparation
13
16
thereof or (y) such holder's failure to send or give a copy of the final
prospectus (including any supplements thereto) to the Persons asserting an
untrue statement or alleged untrue statement or omission or alleged omission at
or prior to the written confirmation of the sale of Registrable Securities to
such Person if such statement or omission was corrected in such final prospectus
(including any supplements thereto). Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of such holder
or any such director, officer or controlling Person, and shall survive the
transfer of such securities by such holder. The Company shall also indemnify
each other Person who participates (including as an underwriter) in the offering
or sale of Registrable Securities, their officers and directors and each other
Person, if any, who controls any such participating Person within the meaning of
the Securities Act to the same extent as provided above with respect to holders
of Registrable Securities.
(b) INDEMNIFICATION BY THE HOLDERS. Each holder of Registrable
Securities which are included or are to be included in any registration
statement filed in connection with a Shelf Registration Statement, a Requested
Registration or a Piggyback Registration, as a condition to including
Registrable Securities in such registration statement, shall, to the full extent
permitted by law, indemnify and hold harmless the Company, its directors and
officers, and each other Person, if any, who controls the Company within the
meaning of the Securities Act, against any Losses to which the Company or any
such director or officer or controlling Person may become subject under the
Securities Act or otherwise, insofar as such Losses (or actions or proceedings,
whether commenced or threatened, in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any such registration statement, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein (in the case of a prospectus, in the light of the circumstances under
which they were made) not misleading, if such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with information furnished or confirmed in writing to the Company
through an instrument duly executed by such holder specifically stating that it
is for use in the preparation of such registration statement, preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement;
PROVIDED, HOWEVER,, that the obligation to provide indemnification pursuant to
this SECTION 6(b) shall be several, and not joint and several, among such
Indemnifying Parties on the basis of the number of Registrable Securities
included in such registration statement and the aggregate amount which may be
recovered from any holder of Registrable Securities pursuant to the
indemnification provided for in this SECTION 6(b) in connection with any
registration and sale of Registrable Securities shall be limited to the total
proceeds received by such holder from the sale of such Registrable Securities.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or any such director, officer
or controlling Person and shall survive the transfer of such securities by such
holder. Such holders shall also indemnify each other Person who participates
(including as an underwriter) in the offering or sale of Registrable Securities,
their officers and directors and each other Person, if any, who controls any
14
17
such participating Person within the meaning of the Securities Act to the same
extent as provided above with respect to the Company.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
Indemnified Party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding PARAGRAPH (a) OR (b) of this
SECTION 6, such Indemnified Party will, if a claim in respect thereof is to be
made against an Indemnifying Party pursuant to such paragraphs, give written
notice to the latter of the commencement of such action, PROVIDED that the
failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under the preceding paragraphs
of this SECTION 6, except to the extent that the Indemnifying Party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an Indemnified Party, the Indemnifying Party shall be entitled to
participate in and to assume the defense thereof, jointly with any other
Indemnifying Party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such Indemnified Party, and after notice from
the Indemnifying Party to such Indemnified Party of its election so to assume
the defense thereof, the Indemnifying Party shall not be liable to such
Indemnified Party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation; PROVIDED that the Indemnified Party may participate in such
defense at the Indemnified Party's expense; and PROVIDED FURTHER that the
Indemnified Party (or Indemnified Parties) shall have the right to employ one
counsel to represent it (or them, collectively) if, in the reasonable judgment
of the Indemnified Party or Indemnified Parties, it is advisable for it (or
them) to be represented by separate counsel by reason of having legal defenses
which are different from or in addition to those available to the Indemnifying
Party, and in that event the reasonable fees and expenses of such one counsel
shall be paid by the Indemnifying Party. If the Indemnifying Party is not
entitled to, or elects not to, assume the defense of a claim, it will not be
obligated to pay the fees and expenses of more than one counsel for the
Indemnified Parties with respect to such claim, unless in the reasonable
judgment of any Indemnified Party a conflict of interest may exist between such
Indemnified Party and any other Indemnified Parties with respect to such claim,
in which event the Indemnifying Party shall be obligated to pay the fees and
expenses of such additional counsel for each Indemnified Party having a conflict
of interest. No Indemnifying Party shall consent to entry of any judgment or
enter into any settlement without the consent of the Indemnified Party which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
of such claim or litigation. No Indemnifying Party shall be subject to any
liability for any settlement made without its consent, which consent shall not
be unreasonably withheld. Notwithstanding the foregoing sentence, if at any time
an Indemnified Party or any person who controls an Indemnified Party shall have
requested an Indemnifying Party to reimburse an Indemnified Party or such
control person for reasonable fees and expenses actually incurred by counsel for
which such Indemnified Party or person is entitled to be so reimbursed pursuant
to this Agreement, the Indemnifying Party agrees that it shall be liable for any
settlement of any proceeding effected without its consent if (i) such settlement
is entered into more than 60 days after receipt by such Indemnifying Party of
the aforesaid request and (ii) such Indemnifying Party shall not have reimbursed
the Indemnified Party or such control person in accordance with such request
prior to the date of such settlement;
15
18
PROVIDED, HOWEVER, that the Indemnifying Party shall not be liable for any
settlement effected without its consent pursuant to this sentence if the
Indemnifying Party is contesting, in good faith, the request for reimbursement
and shall have reimbursed all amounts not so contested.
(d) CONTRIBUTION. If the indemnity and reimbursement
obligation provided for in any paragraph of this SECTION 6 is unavailable or
insufficient to hold harmless an Indemnified Party in respect of any Losses (or
actions or proceedings in respect thereof) referred to therein, then the
Indemnifying Party shall contribute to the amount paid or payable by the
Indemnified Party as a result of such Losses (or actions or proceedings in
respect thereof) in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party on the one hand and the Indemnified Party on the
other hand in connection with the statements or omissions which resulted in such
Losses, as well as any other relevant equitable considerations. The relative
fault 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
Indemnifying Party or the Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this paragraph were to be determined
by PRO RATA allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the first sentence of
this paragraph. The amount paid by an Indemnified Party as a result of the
Losses referred to in the first sentence of this paragraph shall be deemed to
include any legal and other expenses reasonably incurred by such Indemnified
Party in connection with investigating or defending any Loss which is the
subject of this paragraph.
No Indemnified Party guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from the Indemnifying Party if the Indemnifying Party was not
guilty of such fraudulent misrepresentation.
(e) OTHER INDEMNIFICATION. Indemnification similar to that
specified in the preceding paragraphs of this SECTION 6 (with appropriate
modifications) shall be given by the Company and each holder of Registrable
Securities with respect to any required registration or other qualification of
securities under any federal or state law or regulation of any governmental
authority other than the Securities Act. The provisions of this SECTION 6 shall
be in addition to any other rights to indemnification or contribution which an
Indemnified Party may have pursuant to law, equity, contract or otherwise.
(f) INDEMNIFICATION PAYMENTS. The indemnification required by
this SECTION 6 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received or
Losses are incurred.
16
19
7. COVENANT RELATING TO RULE 144. If at any time the Company is
required to file reports in compliance with either Section 13 or Section 15(d)
of the Exchange Act, the Company will file reports in compliance with the
Exchange Act, will comply in all material respects with the rules and
regulations of the Commission applicable in connection with the use of Rule 144
and will take such other actions and furnish the holder of any Registrable
Securities with such other information as such holder may reasonably request in
order to avail itself of such rule or any other rule or regulation of the
Commission allowing such holder to sell any Registrable Securities without
registration. If at any time the Company is not required to file reports in
compliance with either Section 13 or Section 15(d) of the Exchange Act, the
Company at its expense will, forthwith upon the written request of the holder of
any Registrable Securities, make available adequate current public information
with respect to the Company within the meaning of paragraph (c)(2) of Rule 144.
8. OTHER REGISTRATION RIGHTS.
(a) NO EXISTING AGREEMENTS. The Company represents and
warrants to the Investor that there is not in effect on the date hereof any
agreement by the Company (other than this Agreement and substantially identical
agreements), pursuant to which any holders of securities of the Company have a
right to cause the Company to register or qualify such securities under the
Securities Act or any securities or blue sky laws of any jurisdiction.
(b) FUTURE AGREEMENTS. The Company shall not hereafter agree
with the holder of any securities issued or to be issued by the Company to
register or qualify such securities under the Securities Act or any securities
or blue sky laws of any jurisdiction unless such agreement specifically provides
that (i) such holder may not participate in any Shelf Registration Statement
unless as otherwise agreed by the Company with the consent of the Investor,
which consent shall not be unreasonably withheld; (ii) such holder may not
participate in any Requested Registration except as provided in SECTION l(b);
(iii) such holder may not participate in any Piggyback Registration except as
provided in SECTION 2; and (iv) such securities may not be publicly offered or
sold for the period specified in SECTION 5(b)(y) under the circumstances
described in such Section.
(c) BEST REGISTRATION RIGHTS. If the Company grants to any
Person other than a holder of Registrable Securities (an "OTHER HOLDER") with
respect to any debt security or equity security, as the case may be, issued by
the Company registration rights that provide for terms that, taken as a whole,
are more favorable to the Other Holder than the terms granted to the holders of
the Registrable Securities, if any (or if the Company amends or waives any
provision of any agreement providing registration rights to an Other Holder or
takes any other action whatsoever to provide for terms with respect to
registration rights that in either case results in the terms with respect to
registration rights of an Other Holder, taken as a whole, being materially more
favorable to such Other Holder than the terms provided to the holders of
Registrable Securities), then the Company shall promptly so notify the holders
of Registrable Securities in writing. If the holders of a majority of the
Registrable Securities shall notify the Company not later than 30 days after
their receipt of such notice from the Company that such holders elect to amend
this
17
20
Agreement as hereinafter provided, this Agreement shall as promptly as
practicable thereafter be amended to conform the provisions of this Agreement
relating to the Registrable Securities as closely as practicable to the
registration rights of such Other Holder.
9. DEFINITIONS.
(a) Except as otherwise specifically indicated, the following
terms will have the following meanings for all purposes of this Agreement:
"AGREEMENT" means this Registration Rights Agreement, as the
same shall be amended from time to time.
"BANKRUPTCY CASE" has the meaning ascribed to it in the
preamble.
"BANKRUPTCY CODE" has the meaning ascribed to it in the
preamble.
"BANKRUPTCY COURT" has the meaning ascribed to it in the
preamble.
"BUSINESS DAY" means a day other than Saturday, Sunday or any
other day on which banks located in the State of New York are authorized or
obligated to close.
"COMMISSION" means the United States Securities and Exchange
Commission, or any successor governmental agency or authority.
"COMMON STOCK" means shares of Common Stock, par value $0.01
per share, of the Company, as constituted on the date hereof, and any stock into
which such Common Stock shall have been changed or any stock resulting from any
reclassification of such Common Stock.
"COMMON SHARES" has the meaning ascribed to it in the
preamble.
"COMPANY" has the meaning ascribed to it in the preamble.
"CONFIRMATION ORDER" has the meaning ascribed to it in the
preamble.
"CUTBACK REGISTRATION" means any Requested Registration or
Piggyback Registration to be effected as an underwritten Public Offering in
which the Managing Underwriter with respect thereto advises the Company and the
Requesting Holders in writing that, in its opinion, the number of securities
requested to be included in such registration (including securities of the
Company which are not Registrable Securities) exceed the number which can be
sold in such offering without a material reduction in the selling price
anticipated to be received for the securities to be sold in such Public
offering.
"EFFECTIVE DATE" has the meaning ascribed to it in the Plan.
18
21
"EFFECTIVENESS PERIOD" means the period that begins on the
date on which a Requested Registration becomes effective and extends through the
date on which all the Registered Securities covered by such registration
statement have been disposed of in accordance with the intended methods of
disposition by the Requesting Holders set forth in such registration statement.
"EFFECTIVE REGISTRATION" means, subject to the last sentence
of SECTION l(g), any Shelf Registration Statement or a Requested Registration
which (a) has been declared or ordered effective in accordance with the rules of
the Commission, (b) has been kept effective for the period of time contemplated
by SECTION 3(b) and (c) has resulted in the Registrable Securities requested to
be included in such registration actually being sold (except by reason of some
act or omission on the part of the Requesting Holders); PROVIDED that a Cutback
Registration in which the number of Registrable Securities actually included in
such registration is not at least eighty-five percent (85%) of the number of
Registrable Securities requested to be included in such registration shall not
be an Effective Registration for purposes of this Agreement.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"FORM S-4" means Form S-4 promulgated by the Commission under
the Securities Act, or any successor or similar registration statement.
"FORM S-8" means Form S-8 promulgated by the Commission under
the Securities Act, or any successor or similar registration statement.
"INDEMNIFIED PARTY" means a party entitled to indemnity in
accordance with SECTION 6.
"INDEMNIFYING PARTY" means a party obligated to provide
indemnity in accordance with SECTION 6.
"INSPECTORS" has the meaning ascribed to it in SECTION 3(j).
"INVESTOR" has the meaning ascribed to it in the preamble.
"LOSSES" has the meaning ascribed to it in SECTION 6(a).
"MANAGING UNDERWRITER" means, with respect to any Public
Offering, the underwriter or underwriters managing such Public Offering.
"NASD" means the National Association of Securities Dealers,
Inc.
"NOTICE OF PIGGYBACK REGISTRATION" has the meaning ascribed to
it in SECTION 2(a).
"NOTICE OF REQUESTED REGISTRATION" has the meaning ascribed to
it in SECTION l(b).
19
22
"PERSON" means any natural person, corporation, general
partnership, limited partnership, proprietorship, other business organization,
trust, union or association.
"PIGGYBACK REGISTRATION" means any registration of equity
securities of the Company under the Securities Act (other than a registration in
respect of a dividend reinvestment or similar plan for stockholders of the
Company or on Form S-4 or Form S-8 promulgated by the Commission, or any
successor or similar forms thereto), whether for sale for the account of the
Company or for the account of any holder of securities of the Company (other
than Registrable Securities), including a registration by the Company under the
circumstances described in SECTION l(g).
"PLAN" has the meaning ascribed to it in the preamble.
"PREFERRED STOCK" means shares of Preferred Stock, par value
$_____ per share, of the Company, as constituted on the date hereof, and any
stock into which such Preferred Stock shall have been changed or any stock
resulting from any reclassification of such Preferred Stock.
"PREFERRED SHARES" has the meaning ascribed to it in the
preamble.
"PUBLIC OFFERING" means any offering of Common Stock or
preferred stock to the public, either on behalf of the Company or any of its
securityholders, pursuant to an effective registration statement under the
Securities Act.
"RECORDS" has the meaning ascribed to it in SECTION 3(j).
"REGISTRABLE SECURITIES" means (i) the Common Shares, (ii) the
Preferred Shares, (iii) the shares of Common Stock for which such Preferred
Shares are convertible pursuant to their terms, and (iv) any additional shares
of Common Stock issued or distributed by way of a dividend, stock split,
conversion, or other distribution in respect of such Shares. As to any
particular Registrable Securities, once issued such securities shall cease to be
Registrable Securities when (i) a registration statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities shall have been disposed of in accordance with such registration
statement, (ii) they shall have been sold pursuant to Rule 144, or (iii) they
shall have ceased to be outstanding.
"REGISTRATION EXPENSES" means all expenses incident to the
Company's performance of or compliance with its obligations under this Agreement
to effect the registration of Registrable Securities in any Shelf Registration
Statement, a Requested Registration or a Piggyback Registration, including,
without limitation, all registration, filing, securities exchange listing and
NASD fees (including Nasdaq fees, if applicable), all registration, filing,
qualification and other fees and expenses of complying with securities or blue
sky laws, all word processing, duplicating and printing expenses, messenger and
delivery expenses, the fees and disbursements of counsel for the Company and of
its independent public accountants, including the expenses of any special audits
or "cold comfort" letters required by or incident to such performance and
compliance, the reasonable fees and disbursements of a single
20
23
counsel and single firm of accountants retained by the holders of a majority of
the Registrable Securities being registered, premiums and other costs of
policies of insurance against liabilities arising out of the Public Offering of
the Registrable Securities being registered and any fees and disbursements of
underwriters customarily paid by issuers or holders of securities, but excluding
underwriting discounts and commissions and transfer taxes, if any, in respect of
Registrable Securities, which shall be payable by each holder thereof, PROVIDED
that, in any case where Registration Expenses are not to be borne by the
Company, such expenses shall not include salaries of Company personnel or
general overhead expenses of the Company, auditing fees, premiums or other
expenses relating to liability insurance required by underwriters of the Company
or other expenses for the preparation of financial statements or other data
normally prepared by the Company in the ordinary course of its business or which
the Company would have incurred in any event.
"REQUESTING HOLDERS" means, with respect to any Requested
Registration or Piggyback Registration, the holders of Registrable Securities
requesting to have Registrable Securities included in such registration in
accordance with this Agreement.
"REQUESTED REGISTRATION" means any registration of Registrable
Securities under the Securities Act effected in accordance with SECTION l(b).
"RULE 144" means Rule 144 promulgated by the Commission under
the Securities Act, and any successor provision thereto.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"SENIOR NOTES" has the meaning ascribed to it in the preamble.
"SHARES" has the meaning ascribed to it in the preamble.
"SHELF REGISTRATION EFFECTIVENESS PERIOD" has the meaning
ascribed to it in SECTION l(a).
"SHELF REGISTRATION STATEMENT" means a registration statement
of the Company in compliance with the provisions of SECTION l(a)(i) of this
Agreement which registers the continuous offer and sale of all of the
Registrable Securities on an appropriate form under Rule 415 under the
Securities Act or any similar or successor rule that may be adopted by the
Commission, and all amendments to such registration statement, including
post-effective amendments, in each case including any prospectus contained
therein and any supplement to any such prospectus, all exhibits thereto and all
information incorporated by reference therein.
(b) Unless the context of this Agreement otherwise requires,
words of any gender include each other gender; (ii) words using the singular or
plural number also include the plural or singular number, respectively; (iii)
the terms "hereof," "herein," "hereby" and derivative or similar words refer to
this entire Agreement; and (iv) the term "Section" refers to the specified
Section of this Agreement. Whenever
21
24
this Agreement refers to a number of days, such number shall refer to calendar
days unless Business Days are specified.
10. MISCELLANEOUS.
(a) NOTICES. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only if
delivered personally or by facsimile transmission or mailed (first class postage
prepaid) to the parties at the following addresses or facsimile numbers:
If to the Investor, to:
Xxxxxx, Xxxxxx & Company L.P.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxxxx X. Xxx
Xxxxxx X. Day
If to the Company, to:
Geneva Steel Holdings Corp.
00 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attn: General Counsel
With respect to any other holder of Registrable Securities, such notices,
requests and other communications shall be sent to the addresses set forth in
the stock transfer records regularly maintained by the Company. All such
notices, requests and other communications will (i) if delivered personally to
the address as provided in this Section, be deemed given upon delivery, (ii) if
delivered by facsimile transmission to the facsimile number as provided in this
Section, be deemed given upon receipt, and (iii) if delivered by mail in the
manner described above to the address as provided in this Section, be deemed
given upon receipt (in each case regardless of whether such notice, request or
other communication is received by any other Person to whom a copy of such
notice is to be delivered pursuant to this Section). Any party from time to time
may change its address, facsimile number or other information for the purpose of
notices to that party by giving notice specifying such change to the other
parties hereto.
(b) ENTIRE AGREEMENT. This Agreement supersedes all prior
discussions and agreements between the parties with respect to the subject
matter hereof, and contains the sole and entire agreement between the parties
hereto with respect to the subject matter hereof.
(c) AMENDMENT. This Agreement may be amended, supplemented or
modified only by a written instrument (which may be executed in any number of
counterparts) duly executed by or on behalf of each of the Company and Xxxxxxxx.
00
00
(x) XXXXXX. Subject to PARAGRAPH (e) of this Section, any term
or condition of this Agreement may be waived at any time by the party that is
entitled to the benefit thereof, but no such waiver shall be effective unless
set forth in a written instrument duly executed by or on behalf of the party
waiving such term or condition. No waiver by any party of any term or condition
of this Agreement, in any one or more instances, shall be deemed to be or
construed as a waiver of the same term or condition of this Agreement on any
future occasion.
(e) CONSENTS AND WAIVERS BY HOLDERS OF REGISTRABLE SECURITIES.
Any consent of Investor pursuant to this Agreement and any waiver by Investor of
any provision of this Agreement shall be in writing.
(f) NO THIRD PARTY BENEFICIARY. The terms and provisions of
this Agreement are intended solely for the benefit of each party hereto, their
respective successors or permitted assigns and any other holder of Registrable
Securities, and it is not the intention of the parties to confer third-party
beneficiary rights upon any other Person other than any Person entitled to
indemnity under SECTION 6.
(g) SUCCESSORS AND ASSIGNS. This Agreement is binding upon,
inures to the benefit of and is enforceable by the Company and the Investor (or
the investor or investors for which the Investor is acting as fiduciary or
agent, as the case may be) and their respective successors and assigns,
including all subsequent holders of the Registrable Securities; PROVIDED,
HOWEVER, that nothing herein shall be deemed to permit any assignment, transfer
or other disposition of Registrable Securities in violation of the terms hereof,
the Securities Act or any securities or blue sky laws of any jurisdiction.
(h) HEADINGS. The headings used in this Agreement have been
inserted for convenience of reference only and do not define or limit the
provisions hereof.
(i) INVALID PROVISIONS. If any provision of this Agreement is
held to be illegal, invalid or unenforceable under any present or future law,
and if the rights or obligations of any party hereto under this Agreement will
not be materially and adversely affected thereby, (i) such provision will be
fully severable, (ii) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof
and (iii) the remaining provisions of this Agreement will remain in full force
and effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom.
(j) REMEDIES. Except as otherwise expressly provided for
herein, no remedy conferred by any of the specific provisions of this Agreement
is intended to be exclusive of any other remedy, and each and every remedy shall
be cumulative and shall be in addition to every other remedy given hereunder or
now or hereafter existing at law or in equity or by statute or otherwise. The
election of any one or more remedies by any party hereto shall not constitute a
waiver by any such party of the right to pursue any other available remedies.
23
26
Damages in the event of breach of this Agreement by a party
hereto or any other holder of Registrable Securities would be difficult, if not
impossible, to ascertain, and it is therefore agreed that each such Person, in
addition to and without limiting any other remedy or right it may have, will
have the right to an injunction or other equitable relief in any court of
competent jurisdiction, enjoining any such breach, and enforcing specifically
the terms and provisions hereof and the Company and each holder of Registrable
Securities, by its acquisition of such Registrable Securities, hereby waives any
and all defenses it may have on the ground of lack of jurisdiction or competence
of the court to grant such an injunction or other equitable relief. The
existence of this right will not preclude any such Person from pursuing any
other rights and remedies at law or in equity which such Person may have.
(k) GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, INCLUDING
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
(l) COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officer of each party hereto as of the date
first above written.
XXXXXX, XXXXXX & COMPANY L.P.
By: Xxxxxx, Xxxxxx & Company,
Incorporated,
its General Partner
By:
--------------------------
Name:
Title:
GENEVA STEEL HOLDINGS CORP.
By:
--------------------------
Name:
Title:
24
