Exhibit 1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT dated March 8, 2002 (the "AGREEMENT") is
entered into by and among Vale Overseas Limited, a Cayman Islands corporation
(the "COMPANY"), Companhia Vale do Rio Doce, a Brazilian corporation (the
"GUARANTOR"), and X.X. Xxxxxx Securities Inc., Banco Bilbao Vizcaya Argentaria,
X.X. Xxxxxxx, Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxxx Xxxxx
Barney, Inc. (collectively, the "INITIAL Purchasers").
The Company, the Guarantor and the Initial Purchasers are parties to the
Purchase Agreement dated March 8, 2002 (the "PURCHASE AGREEMENT"), which
provides for the sale by the Company to the Initial Purchasers of
U.S.$300,000,000 aggregate principal amount of the Company's Series A 8.625%
Enhanced Guaranteed Notes due 2007 (the "SECURITIES") which will be irrevocably
and unconditionally guaranteed by the Guarantor. As an inducement to the Initial
Purchasers to enter into the Purchase Agreement, the Company and the Guarantor
have agreed to provide to the Initial Purchasers and their direct and indirect
transferees the registration rights set forth in this Agreement. The execution
and delivery of this Agreement is a condition to the closing of the transactions
contemplated by the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1 DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
"AFFILIATE" shall have the meaning set forth in Rule 405 of the
Securities Act.
"BUSINESS DAY" shall mean any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City, Rio de Janeiro
and Grand Cayman are authorized or required by law to remain closed.
"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 ACT" shall mean the U.S. Securities Exchange Act of 1934 and
any successor statute thereto.
"EXCHANGE DATES" shall have the meaning set forth in Section 2.1.2
hereof.
"EXCHANGE OFFER" shall mean the exchange offer by the Company and the
Guarantor of Exchange Securities for Registrable Securities pursuant
to Section 2.1 hereof.
"EXCHANGE OFFER REGISTRATION" shall mean a registration under the
Securities Act effected pursuant to Section 2.1 hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean an exchange offer
registration statement on Form F-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 any document incorporated
by reference therein.
"EXCHANGE SECURITIES" shall mean senior enhanced notes issued by the
Company under the Indenture, guaranteed by the Guarantor and secured
by the collateral described in the Indenture, containing terms
identical to the Securities (except that the Exchange Securities will
not be subject to restrictions on transfer or to any increase in
annual interest rate for failure to comply with this Agreement) and to
be offered to Holders of Securities in exchange for Securities
pursuant to the Exchange Offer.
"GUARANTOR" shall have the meaning set forth in the preamble and shall
also include the Guarantor's successors.
"HOLDERS" shall mean the Initial Purchasers, for so long as they own
any Registrable Securities, and each of their successors, assigns and
direct and indirect transferees who become owners of Registrable
Securities under the Indenture; provided that for purposes of Sections
4 and 5 of this Agreement, the term "Holders" shall include
Participating Broker-Dealers.
"INDEMNIFIED PERSON" shall have the meaning set forth in Section 5.3
hereof.
"INDEMNIFYING PERSON" shall have the meaning set forth in Section 5.3
hereof.
"INITIAL PURCHASERS" shall have the meaning set forth in the preamble.
"INDENTURE" shall mean the Indenture relating to the Securities dated
as of March 8, 2002 among the Company, the Guarantor and JPMorgan
Chase Bank, as trustee, as supplemented by the First Supplemental
Indenture, dated as of March 8, 2002, thereto and as the same may be
amended or supplemented from time to time in accordance with the terms
thereof.
"INSPECTOR" shall have the meaning set forth in Section 3.13 hereof.
"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 owned directly or indirectly by the Company or
any of its Affiliates shall not be counted in determining whether such
consent or approval was given by the Holders of such required
percentage or amount.
"PARTICIPATING BROKER-DEALERS" shall have the meaning set forth in
Section 4.1 hereof.
"PERSON" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
"PURCHASE AGREEMENT" shall have the meaning set forth in the preamble.
"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 any
document incorporated by reference therein.
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"REGISTRABLE SECURITIES" shall mean the Securities; provided that the
Securities shall cease to be Registrable Securities (i) when a
Registration Statement with respect to such Securities has been
declared effective under the Securities Act and such Securities have
been exchanged or disposed of pursuant to such Registration Statement,
(ii) when such Securities are eligible to be sold pursuant to Rule
144(k) (or any similar provision then in force, but not Rule 144A)
under the Securities Act or (iii) when such Securities cease to be
outstanding.
"REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance by the Company and the Guarantor 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 fees and disbursements of counsel for any
Underwriters or Holders in connection with blue sky qualification of
any 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 and any amendments or supplements thereto, any underwriting
agreements, securities sales agreements or other similar agreements
and any 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, agents of the Trustee, and any exchange agent their
respective counsel and the Luxembourg listing agent, if any, (vii) the
fees and disbursements of counsel for the Company and the Guarantor
and, in the case of a Shelf Registration Statement, the fees and
disbursements of one counsel for the Holders (which counsel shall be
Linklaters or such other counsel as shall be selected by the Majority
Holders and which counsel may also be counsel for the Initial
Purchasers) and (viii) the fees and disbursements of the independent
public accountants of the Company and the Guarantor, including the
expenses of any special audits or "comfort" letters required by or
incident to the performance of and compliance with this Agreement, 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.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Company and the Guarantor 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 any document
incorporated by reference therein.
"SEC" shall mean the U.S. Securities and Exchange Commission.
"SECURITIES" shall have the meaning set forth in the preamble.
"SECURITIES ACT" shall mean the U.S. Securities Act of 1933 and any
successor statute thereto.
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"SHELF REGISTRATION" shall mean a registration effected pursuant to
Section 2.2 hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf" registration
statement of the Company and the Guarantor that covers all the
Registrable Securities (but no other securities unless approved by the
Holders whose Registrable Securities are to be covered by such Shelf
Registration Statement) on an appropriate form under Rule 415 under
the Securities 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 any
document incorporated by reference therein.
"TRUST INDENTURE ACT" shall mean the U.S. Trust Indenture Act of 1939
and any successor statute thereto.
"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 OFFERING" shall mean an offering in which Registrable
Securities are sold to an Underwriter for reoffering to the public
pursuant to an effective Registration Statement.
2 REGISTRATION UNDER THE SECURITIES ACT
2.1 To the extent not prohibited by any applicable law or applicable
interpretations of the staff of the SEC, the Company and the
Guarantor shall use their reasonable best efforts to (i) cause to be
filed an Exchange Offer Registration Statement covering an offer to
the Holders to exchange all the Registrable Securities for Exchange
Securities and (ii) have such Registration Statement remain
effective until the closing of the Exchange Offer. The Company and
the Guarantor shall commence the Exchange Offer promptly after the
Exchange Offer Registration Statement is declared effective by the
SEC and use their reasonable best efforts to complete the Exchange
Offer not later than 60 days after such effective date. To the
extent not conflicting with the Securities Act or the rules and
regulations of the SEC, the Exchange Offer shall be conducted in
accordance with the requirements of the Luxembourg Stock Exchange.
The Company and the Guarantor shall commence the Exchange Offer by
mailing the related Prospectus, appropriate letters of transmittal
and other accompanying documents to each Holder stating, in addition
to such other disclosures as are required by applicable law:
2.1.1 that the Exchange Offer is being made pursuant to this
Agreement and that all Registrable Securities validly
tendered and not properly withdrawn will be accepted for
exchange;
2.1.2 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");
2.1.3 that any Registrable Security not tendered will remain
outstanding and continue to accrue interest but may not
retain any rights under this Agreement;
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2.1.4 that any Holder electing to have a Registrable Security
exchanged pursuant to the Exchange Offer will be required
to surrender such Registrable Security, together with the
appropriate letters of transmittal, to the institution and
at the address (located in the Borough of Manhattan, The
City of New York) and in the manner specified in the
notice, prior to the close of business on the last Exchange
Date; and
2.1.5 that any Holder will be entitled to withdraw its 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 notice, a telegram, telex, 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 its election to have such Securities exchanged.
As a condition to participating in the Exchange Offer, a
Holder will be required to represent to the Company and the
Guarantor that (i) any Exchange Securities to be received
by it will be acquired in the ordinary course of its
business, (ii) at the time of the commencement of the
Exchange Offer it has no arrangement or understanding with
any Person to participate in the distribution (within the
meaning of the Securities Act) of the Exchange Securities
in violation of the provisions of the Securities Act, (iii)
it is not an Affiliate of the Company or the Guarantor and
(iv) if such Holder is a Participating Broker-Dealer, then
such Holder will deliver a Prospectus in connection with
any resale of such Exchange Securities.
As soon as practicable after the last Exchange Date, the
Company and the Guarantor shall:
(i) accept for exchange Registrable Securities or
portions thereof validly tendered and not properly
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 by the
Company and issue, and cause the Trustee to promptly
authenticate and deliver to each Holder, Exchange
Securities equal in principal amount to the
principal amount of the Registrable Securities
surrendered by such Holder.
The Company and the Guarantor shall use their reasonable
best efforts to complete the Exchange Offer as provided
above and shall comply with the applicable requirements of
the Securities Act, the Exchange 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 any
applicable law or regulation or applicable interpretations
of the staff of the SEC.
2.2 In the event that (i) the Company and the Guarantor determine that
the Exchange Offer Registration provided for in Section 2.1 above is
not available or may not be completed as soon as practicable after
the last Exchange Date because it would violate any applicable law
or regulation or applicable interpretations of the staff of the SEC,
(ii) the Exchange Offer is not for any other reason completed by
September 8, 2002 or (iii) the
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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 Guarantor shall use their reasonable best efforts to cause to be
filed as soon as practicable after such determination, date or
notice of such opinion of counsel is given to the Company, as the
case may be, a Shelf Registration Statement providing for the sale
of all the Registrable Securities by the Holders thereof and to have
such Shelf Registration Statement declared effective by the SEC.
In the event that the Company and the Guarantor 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 Guarantor shall use their reasonable best efforts to file
and have declared effective by the SEC both an Exchange Offer
Registration Statement pursuant to Section 2.1 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.
The Company and the Guarantor agree to use their reasonable best
efforts to keep the Shelf Registration Statement continuously
effective until the expiration of the period referred to in Rule
144(k) under the Securities Act with respect to the Registrable
Securities or such shorter period that will terminate when all the
Registrable Securities covered by the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement,
provided that the Company and the Guarantor shall have the right to
suspend the disposition of Registrable Securities pursuant thereto
in accordance with the penultimate paragraph of Section 3.15. The
Company and the Guarantor further agree to supplement or amend the
Shelf Registration Statement and the related Prospectus if required
by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration
Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registration or if reasonably
requested by a Holder of Registrable Securities with respect to
information relating to such Holder, and to use their reasonable
best efforts to cause any such amendment to become effective and
such Shelf Registration Statement and Prospectus to become usable as
soon as thereafter practicable. The Company and the Guarantor 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.
2.3 The Company and the Guarantor shall pay all Registration Expenses in
connection with the registration pursuant to Section 2.1 and Section
2.2 hereof. 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.
2.4 An Exchange Offer Registration Statement pursuant to Section 2.1
hereof or a Shelf Registration Statement pursuant to Section 2.2
hereof will not be deemed to have become effective unless it has
been declared effective by the SEC; PROVIDED that if, after it has
been declared effective, the offering of Registrable Securities
pursuant to a Shelf
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Registration Statement is interfered with by any stop order,
injunction or other order or requirement of the SEC or any court or
other governmental or regulatory agency or body, 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 that either the Exchange Offer is not completed or the
Shelf Registration Statement, if required hereby, is not declared
effective (1) on or prior to September 8, 2002, the interest rate on
the Registrable Securities will be increased by 0.25% per annum and
(2) on or prior to December 8, 2002, the interest rate on the
Registrable Securities will be increased by a further 0.25% per
annum, in each instance until the earlier of the dates on which the
Exchange Offer is completed (regardless of how many Registrable
Securities are therein exchanged), the Shelf Registration Statement,
if required hereby, is declared effective by the SEC or the
Securities become freely tradable under the Securities Act.
2.5 Without limiting the remedies available to the Initial Purchasers
and the Holders, the Company and the Guarantor acknowledge that any
failure by the Company or the Guarantor to comply with their
obligations under Section 2.1 and Section 2.2 hereof may result in
material irreparable 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 required to specifically enforce
the Company's and the Guarantor's obligations under Section 2.1 and
Section 2.2 hereof. Notwithstanding the foregoing sentence, the
Initial Purchasers acknowledge that the monetary damages for failure
to complete the Exchange Offer or have the Shelf Registration
Statement declared effective are limited to the increase in interest
provided for in Section 2.4 above.
3 REGISTRATION PROCEDURES
In connection with their obligations pursuant to Section 2.1 and Section
2.2 hereof, the Company and the Guarantor shall as expeditiously as
possible:
3.1 prepare and file with the SEC a Registration Statement on the
appropriate form under the Securities Act, which form (x) shall be
selected by the Company and the Guarantor, (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 reasonable best efforts to
cause such Registration Statement to become effective and remain
effective for the applicable period in accordance with Section 2
hereof;
3.2 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
in accordance with Section 2 hereof 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 Securities
Act; and keep each
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Prospectus current during the period described in Section 4(3) of
and Rule 174 under the Securities Act that is applicable to
transactions by brokers or dealers with respect to the Registrable
Securities or Exchange Securities;
3.3 in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, to counsel for the Initial Purchasers, to
counsel for such 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, in order to facilitate the
sale or other disposition of the Registrable Securities thereunder;
and the Company and the Guarantor 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;
3.4 use their reasonable 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; cooperate with the 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 that may be reasonably necessary or advisable to
enable each Holder to complete the disposition in each such
jurisdiction of the Registrable Securities owned by such Holder;
PROVIDED that neither the Company nor the Guarantor shall be
required to (i) qualify as a foreign corporation or other entity or
as a dealer in securities in any such jurisdiction where it would
not otherwise be required to so qualify, (ii) file any general
consent to service of process in any such jurisdiction or (iii)
subject itself to taxation in any such jurisdiction if it is not so
subject;
3.5 in the case of a Shelf Registration, notify each Holder of
Registrable Securities, counsel for such 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 the Guarantor contained in any underwriting agreement, securities
sales agreement or other similar agreement, if any, relating to an
offering of such Registrable Securities cease to be true and correct
in all material respects or if the Company or the 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
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a Shelf Registration Statement is effective that makes any statement
made in such Registration Statement or the related Prospectus untrue
in any material respect or that 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 the Guarantor that a post-effective amendment to a
Registration Statement would be appropriate;
3.6 use their reasonable best efforts 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;
3.7 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 any documents incorporated therein by reference or
exhibits thereto, unless requested);
3.8 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 Registrable
Securities to be sold and not bearing any restrictive legends and
enable such Registrable Securities to be issued in such
denominations and registered in such names (consistent with the
provisions of the Indenture) as the selling Holders may reasonably
request at least one Business Day prior to the closing of any sale
of Registrable Securities;
3.9 in the case of a Shelf Registration, upon the occurrence of any
event contemplated by Section 3.5(v) hereof, use their reasonable
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
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 the light
of the circumstances under which they were made, not misleading; and
the Company and the Guarantor shall notify the Holders of
Registrable Securities to suspend use of the Prospectus as promptly
as practicable after the occurrence of such an event, and such
Holders hereby agree to suspend use of the Prospectus until the
Company and the Guarantor have amended or supplemented the
Prospectus to correct such misstatement or omission;
3.10 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 of any document that is
to be incorporated by reference into a Registration Statement or a
Prospectus after initial filing of a Registration Statement, provide
copies of such document to the Initial Purchasers and their counsel
(and, in the case of a Shelf Registration Statement, to the Holders
of Registrable Securities and their counsel) and make such of the
representatives of the Company and the Guarantor as shall be
reasonably requested by the Initial Purchasers or their counsel
(and, in the case of a Shelf Registration Statement, the Holders of
Registrable Securities or their counsel) available for discussion of
such document; and the Company and the Guarantor shall
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not, at any time after initial filing of a Registration Statement,
file any Prospectus, any amendment of or supplement to a
Registration Statement or a Prospectus, or any document that is to
be incorporated by reference into a Registration Statement or a
Prospectus, of which the Initial Purchasers and their counsel (and,
in the case of a Shelf Registration Statement, the Holders of
Registrable Securities and their counsel) shall not have previously
been advised and furnished a copy or to which the Initial Purchasers
or their counsel (and, in the case of a Shelf Registration
Statement, the Holders or their counsel) shall object;
3.11 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;
3.12 cause the Indenture to be qualified under the Trust Indenture Act 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 Trust Indenture Act; and execute, and use
their reasonable 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;
3.13 in the case of a Shelf Registration, make available for inspection
by a representative of the Holders of the Registrable Securities (an
"INSPECTOR"), a representative of any Underwriters participating in
any disposition pursuant to such Shelf Registration Statement, and
one firm of attorneys designated by the Holders, at reasonable times
and in a reasonable manner, all pertinent financial and other
records, documents and properties of the Company and the Guarantor,
and cause the respective officers, directors and employees of the
Company and the Guarantor to supply all information reasonably
requested by any such Inspector, Underwriter or attorney in
connection with a Shelf Registration Statement; PROVIDED that if any
such information is identified by the Company or the Guarantor as
being confidential or proprietary, each Person receiving such
information shall as a precondition thereto be required to agree
with the Company in writing to protect the confidentiality thereof;
3.14 in the case of a Shelf Registration, use their reasonable best
efforts to cause all Registrable Securities to be listed on the
Luxembourg Stock Exchange to the extent such Registrable Securities
satisfy the listing requirements thereof;
3.15 in the case of a Shelf Registration, if reasonably requested by any
Holder of Registrable Securities covered by a Registration
Statement, 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
make all required filings of such Prospectus supplement or such
post-effective amendment as soon as the Company has received
notification of the matters to be incorporated in such filing; and
3.16 in the case of a Shelf Registration, enter into such customary
agreements and take all such other actions in connection therewith
(including those requested by the Holders of a majority in principal
amount of the Registrable Securities being sold) in order to
expedite or facilitate the disposition of such Registrable
Securities including, but not
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limited to, an Underwritten Offering and in such connection, (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 and its subsidiaries, the
Registration Statement, Prospectus and documents incorporated by
reference or deemed incorporated by reference, 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 Guarantor (which counsel and opinions, in form, scope and
substance, 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 "comfort" letters from the independent
certified public accountants of the Company and the Guarantor (and,
if necessary, any other certified public accountant of any
subsidiary of the Company or the Guarantor, or of any business
acquired by the Company or the 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 "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 Guarantor 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 may
require each Holder of Registrable Securities to furnish to the
Company such information regarding such Holder and the proposed
disposition by such Holder of such Registrable Securities as the
Company and the Guarantor may from time to time reasonably request
in writing. The Company may exclude from such Shelf Registration
Statement the Registrable Securities of any Holder who fails to
furnish such information within a reasonable time after receiving
such request.
In the case of a Shelf Registration Statement, each Holder of
Registrable Securities agrees that, upon receipt of any notice from
the Company and the Guarantor of the happening of any event of the
kind described in Section 3.5(iii) or 3.5(v) hereof, 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 3.9 hereof and, if so directed by the Company and the
Guarantor, such Holder will deliver to the Company and the Guarantor
all copies in its possession, other than permanent file copies then
in such Holder's possession, of the Prospectus covering such
Registrable Securities that is current at the time of receipt of
such notice.
If the Company and the Guarantor shall give any such notice to
suspend the disposition of Registrable Securities pursuant to a
Registration Statement, the Company and the
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Guarantor shall extend the period during which the Registration
Statement shall be maintained effective pursuant to this Agreement
by the number of days during the period from and including the date
of the giving of such notice to and including the date when the
Holders shall have received copies of the supplemented or amended
Prospectus necessary to resume such dispositions. The Company and
the Guarantor may give any such notice only twice during any 365-day
period and any such suspensions shall not exceed 30 days for each
suspension and there shall not be more than two suspensions in
effect during any 365-day 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.
4 PARTICIPATION OF BROKER-DEALERS IN EXCHANGE OFFER
4.1 The Company, the Guarantor and the Initial Purchasers acknowledge
that 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 Securities Act and must
deliver a prospectus meeting the requirements of the Securities Act
in connection with any resale of such Exchange Securities.
The Company and the Guarantor 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 Securities Act in connection with resales of
Exchange Securities for their own accounts, so long as the
Prospectus otherwise meets the requirements of the Securities Act.
4.2 In light of the above, and notwithstanding the other provisions of
this Agreement, the Company and the Guarantor agree to amend or
supplement the Prospectus contained in the Exchange Offer
Registration Statement, as would otherwise be contemplated by
Section 3.9, for a period of up to 180 days after the last Exchange
Date (as such period may be suspended and extended pursuant to the
penultimate paragraph of Section 3.15 of this Agreement), if
requested in writing by the Initial Purchasers or by one or more
Participating Broker-Dealers, 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 4.1 above. The Company and the Guarantor further agree that
Participating Broker-Dealers shall be authorized to deliver such
Prospectus during such period in connection with the resales
contemplated by this Section 4.
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4.3 The Initial Purchasers shall have no liability to the Company, the
Guarantor or any Holder with respect to any request that they may
make pursuant to Section 4.2 above.
5 INDEMNIFICATION AND CONTRIBUTION
5.1 The Company and the Guarantor, jointly and severally, agree to
indemnify and hold harmless each Initial Purchaser and each Holder,
their respective affiliates and each Person, if any, who controls
any Initial Purchaser or any Holder within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities
(including, without limitation, legal fees and other expenses
incurred in connection with any suit, action or proceeding or any
claim asserted), joint or several, caused by any untrue statement or
alleged untrue statement of a material fact contained in any
Registration Statement or any Prospectus, or caused by any omission
or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to any Initial Purchaser or
any Holder furnished to the Company in writing through X.X. Xxxxxx
Securities Inc. or any selling Holder expressly for use therein. In
connection with any Underwritten Offering permitted by Section 3,
the Company and the Guarantor will also indemnify the Underwriters,
if any, selling brokers, dealers and similar securities industry
professionals participating in the distribution, their respective
affiliates and each Person who controls such Persons (within the
meaning of the Securities Act and the Exchange Act) to the same
extent as provided above with respect to the indemnification of the
Holders, if requested in connection with any Registration Statement.
5.2 Each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company, the Guarantor, the Initial Purchasers and the
other selling Holders, their respective affiliates, the directors of
the Company and the Guarantor, each officer of the Company and the
Guarantor who signed the Registration Statement and each Person, if
any, who controls the Company, the Guarantor, any Initial Purchaser
and any other selling Holder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent
as the indemnity set forth in paragraph 5.1 above, but only with
respect to any losses, claims, damages or liabilities caused by any
untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with any information
relating to such Holder furnished to the Company in writing by such
Holder expressly for use in any Registration Statement and any
Prospectus.
5.3 If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or
asserted against any Person in respect of which indemnification may
be sought pursuant to either paragraph 5.1 or 5.2 above, such Person
(the "INDEMNIFIED PERSON") shall promptly notify the Person against
whom such indemnification may be sought (the "INDEMNIFYING PERSON")
in writing; PROVIDED that the failure to notify the Indemnifying
Person shall not relieve it from any liability that it may
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have under this Section 5 except to the extent that it has been
materially prejudiced (through the forfeiture of substantive rights
or defenses) by such failure; and PROVIDED, FURTHER, that the
failure to notify the Indemnifying Person shall not relieve it from
any liability that it may have to an Indemnified Person otherwise
than under this Section 5. If any such proceeding shall be brought
or asserted against an Indemnified Person and it shall have notified
the Indemnifying Person thereof, the Indemnifying Person shall
retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others entitled to
indemnification pursuant to this Section 5 that the Indemnifying
Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such
proceeding, any Indemnified Person shall have the right to retain
its own counsel, but the fees and expenses of such counsel shall be
at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually
agreed to the contrary; (ii) the Indemnifying Person has failed
within a reasonable time to retain counsel reasonably satisfactory
to the Indemnified Person; (iii) the Indemnified Person shall have
reasonably concluded that there may be legal defenses available to
it that are different from or in addition to those available to the
Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is
understood and agreed that the Indemnifying Person shall not, in
connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as
they are incurred. Any such separate firm (x) for any Initial
Purchaser, its affiliates and any control Persons of such Initial
Purchaser shall be designated in writing by X.X. Xxxxxx Securities
Inc., (y) for any Holder, its affiliates and any control Persons of
such Holder shall be designated in writing by the Majority Holders
and (z) in all other cases shall be designated in writing by the
Company. The Indemnifying Person 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 Person agrees to indemnify each
Indemnified Person from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have requested
that an Indemnifying Person reimburse the Indemnified Person for
fees and expenses of counsel as contemplated by this paragraph, the
Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by the
Indemnifying Person of such request and (ii) the Indemnifying Person
shall not have reimbursed the Indemnified Person in accordance with
such request prior to the date of such settlement. No Indemnifying
Person shall, without the written consent of the Indemnified Person,
effect any settlement of any pending or threatened proceeding in
respect of which any Indemnified Person is or could have been a
party and indemnification could have been sought hereunder by such
Indemnified Person, unless such settlement (A) includes an
unconditional release of such Indemnified Person in form and
substance satisfactory to such Indemnified Person from all liability
on claims that are the subject matter of such
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proceeding and (B) does not include any statement as to or any
admission of fault, culpability or a failure to act by or on behalf
of any Indemnified Person.
5.4 If the indemnification provided for in paragraphs 5.1 and 5.2 above
is unavailable to an Indemnified Person or insufficient in respect
of any losses, claims, damages or liabilities referred to therein,
then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to
the amount paid or payable by such Indemnified Person as a result of
such losses, claims, damages or liabilities (i) in such proportion
as is appropriate to reflect the relative benefits received by the
Company and the Guarantors from the offering of the Securities and
the Exchange Securities, on the one hand, and by the Holders from
receiving Securities or Exchange Securities registered under the
Securities Act, on the other hand, or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) but also the relative fault of
the Company and the Guarantor on the one hand and the Holders on the
other 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 Guarantor on the one hand and the Holders on the other 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 and the Guarantor or by the
Holders and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
5.5 The Company, the Guarantor and the Holders agree that it would not
be just and equitable if contribution pursuant to this Section 5
were determined by PRO RATA allocation (even if the Holders were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable
considerations referred to in paragraph 5.4 above. The amount paid
or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in paragraph 5.4 above
shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified
Person in connection with any such action or claim. Notwithstanding
the provisions of this Section 5, in no event shall a Holder be
required to contribute any amount in excess of the amount by which
the total price at which the Securities or Exchange Securities 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 Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
5.6 The remedies provided for in this Section 5 are not exclusive and
shall not limit any rights or remedies that may otherwise be
available to any Indemnified Person at law or in equity.
5.7 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 or any Holder, their
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respective affiliates or any Person controlling any Initial
Purchaser or any Holder, or by or on behalf of the Company or the
Guarantor, their respective affiliates or the officers or directors
of or any Person controlling the Company or the Guarantor, (iii)
acceptance of any of the Exchange Securities and (iv) any sale of
Registrable Securities pursuant to a Shelf Registration Statement.
6 GENERAL
6.1 NO INCONSISTENT AGREEMENTS The Company and the Guarantor represent,
warrant and agree that (i) 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 any other outstanding
securities issued or guaranteed by the Company or the Guarantor
under any other agreement and (ii) neither the Company nor the
Guarantor has entered into, or on or after the date of this
Agreement will enter into, any agreement that is inconsistent with
the rights granted to the Holders of Registrable Securities in this
Agreement or otherwise conflicts with the provisions hereof.
6.2 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
Guarantor 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 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.
6.3 NOTICES All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telex, 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 6.3,
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 Guarantor, 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 6.3. 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 answered back, if
telexed; 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.
6.4 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
- 16 -
other disposition of Registrable Securities in violation of the
terms of the Purchase Agreement or the Indenture. 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 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 Guarantor 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.
6.5 THIRD PARTY BENEFICIARIES Each Holder shall be a third party
beneficiary to the agreements made hereunder between the Company and
the Guarantor, 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 other Holders
hereunder.
6.6 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.
6.7 HEADINGS The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning
hereof.
6.8 GOVERNING LAW This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
6.9 CONSENT TO SERVICE; JURISDICTION The Company, the Guarantor and the
Initial Purchasers agree that any legal suit, action or proceeding
arising out of or relating to this Agreement may be instituted in
any federal or state court in the Borough of Manhattan, The City of
New York, in respect of actions brought against each such party as a
defendant, and each waives any objection which it may now or
hereafter have to the laying of the venue of any such legal suit,
action or proceeding, waives any immunity, to the extent permitted
by law, from jurisdiction or to service of process in respect of any
such suit, action or proceeding, waives any right to which it may be
entitled on account of place of residence or domicile and
irrevocably submits to the jurisdiction of any such court in any
such suit, action or proceeding. The Company and the Guarantor
further submit to the jurisdiction of the courts of their own
corporate domiciles in any legal suit, action or proceeding arising
out of or relating to this Agreement. The Company and the Guarantor
hereby designate and appoint Rio Doce America, Inc. ("RDA") located
at 000 0xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, as their
authorized agent upon which process may be served in any legal suit,
action or proceeding arising out of or relating to this Agreement
which may be instituted in any federal or state court in the Borough
of Manhattan, The City of New York, New York, and agree that service
of process upon such agent, and written notice of said service to
the Company or the Guarantor, as the case may be, by the Person
serving the same, shall be deemed in every respect effective service
of process upon the Company or the
- 17 -
Guarantor in any such suit, action or proceeding and further
designate the domicile of RDA specified above and any domicile RDA
may have in the future as their domicile to receive service of
process. If for any reason RDA (or any successor agent for this
purpose) shall cease to act as agent for service of process as
provided above, the Company and the Guarantor will promptly appoint
a successor agent for this purpose reasonably acceptable to the
Initial Purchasers. The Company and the Guarantor agree to take any
and all actions as may be necessary to maintain such designation and
appointment of such agent in full force and effect.
6.10 MISCELLANEOUS This Agreement contains the entire agreement between
the parties relating to the subject matter hereof and supersedes all
oral statements and prior writings with respect thereto. This
Agreement may not be amended or modified except by a writing
executed by each of the parties hereto. Section headings herein are
for convenience only and are not a part of this Agreement. If any
term, provision, covenant or restriction contained in this Agreement
is held by a court of competent jurisdiction to be invalid, void or
unenforceable or against public policy, the remainder of the terms,
provisions, covenants and restrictions contained herein shall remain
in full force and effect and shall in no way be affected, impaired
or invalidated. The Company, the Guarantor and the Initial
Purchasers shall endeavor in good faith negotiations to replace the
invalid, void or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the
invalid, void or unenforceable provisions.
- 18 -
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
VALE OVERSEAS LIMITED
By: /s/ Xxxxx Xxxxx Xxxxx Xxxxx
---------------------------------------
Name: Xxxxx Xxxxx Moura Xxxxx
Title: Attorney
By: /s/ Xxxxxxxxx Xxxxxx xx Xxxxx
---------------------------------------
Name: Xxxxxxxxx Xxxxxx xx Xxxxx
Title: Attorney
COMPANHIA VALE DO RIO DOCE
By: /s/ Xxxxxxxx Moretzsohm xx Xxxxxxx
---------------------------------------
Name: Xxxxxxxx Moretzsohm xx Xxxxxxx
Title: Attorney
By: /s/ Xxxxxx Xxxxxxx xx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx xx Xxxxxxx
Title: Attorney
Confirmed and accepted as of the date first above written:
X.X. XXXXXX SECURITIES INC.
For itself and on behalf of the
several Initial Purchasers
By: /s/ Xxxxx Royal
---------------------------------------
Authorized Signatory
Sworn to before me this 8th day of March, 2002
/s/ Xxxxx X. Xxxxx
-------------------------------------------
Notary Public
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SCHEDULE 1
INITIAL PURCHASER
-----------------
X.X. Xxxxxx Securities Inc.
Banco Bilbao Vizcaya Argentaria, X.X.
Xxxxxxx, Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx Barney, Inc.
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