Exhibit 4.4
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") dated as of the 18th
day of February, 2004, is entered into by and among Bayou Steel Corporation, a
Delaware corporation (the "Company"), and the persons or entities listed on
Exhibit A hereto and any parties listed on the signature pages of any joinder
agreements executed and delivered pursuant to Section 14 of this Agreement (each
a "Holder" and collectively the "Holders"). Terms used herein without definition
shall have the meanings assigned to them in the Plan of Reorganization (the
"Plan") of the Company and certain of its subsidiaries as confirmed by the
United States Bankruptcy Court for the Northern District of Texas, Dallas
Division (the "Bankruptcy Court") by order dated February 6, 2004.
WHEREAS, the Company and certain of its subsidiaries filed for
reorganization under Chapter 11 of the Bankruptcy Code in the Bankruptcy Court,
and by order dated February 6, 2004, the Bankruptcy Court has confirmed the Plan
of Reorganization (the "Plan") in accordance with the Bankruptcy Code and such
Plan is to become effective as of February 18, 2004; and
WHEREAS, pursuant to the Plan, the Company shall issue to the Holders
shares of common stock, par value $0.01 per share, of the Company (the "New
Common Stock") and 9% First Mortgage Notes due 2011 of the Company (the "Notes")
on or as soon as practicable after the Initial Distribution Date pursuant to
Section 1145 of the Bankruptcy Code; and
WHEREAS, pursuant to the Plan, registration rights described herein are to
be granted: (i) to holders of at least 10% of the New Common Stock and to
holders of at least 10% of the Notes and, at their option, (b) to holders of at
least 5% of the New Common Stock and (b) to holders of at least 5% of the Notes.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, and intending to be legally bound hereby, the Company and the
Holders agree, conditioned upon and to be effective as of the Effective Date, as
follows:
1. Certain Definitions. As used in this Agreement, the following
underlined terms shall have the corresponding meanings:
"Affiliate" means, with respect to any Person, any Persons directly
or indirectly controlling, controlled by, or under common control with, such
other Person at any time during the period for which the determination of
affiliation is being made. For purposes of this definition, the term "control"
(including the correlative meanings of the terms "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of management policies of such Person, whether through the ownership
of voting securities or by contract or otherwise.
"Effective Date Shares" means the aggregate number of shares of New
Common Stock that are Registrable Securities immediately after giving effect to
the consummation of the Plan.
"Initial Public Offering" means the first to occur of: (1) a sale of
shares of New Common Stock in an underwritten public offering registered under
the Securities Act (excluding registration statements filed on Form S-8, or any
similar successor form or another form used for a purpose similar to the
intended use for such forms), and underwritten by an investment bank approved by
vote of a majority of the Board of Directors; and (2) the listing of the shares
of New Common Stock on a national securities exchange or authorization for
quotation on the Nasdaq National Market System.
"Majority in Interest of New Common Stock" means the Holders of
record of greater than 50% of the Registrable Securities that are New Common
Stock.
"NASD" means the National Association of Securities Dealers, Inc.
"Majority in Interest in Notes" means the Holders of record of
greater than 50% in aggregate outstanding principal amount of the Registrable
Securities that are Notes.
"Person" means an individual, a corporation, a limited liablity
company, a partnership, an association, a trust or other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Registrable Common Stock" means the shares of New Common Stock (i)
held of record by a Holder as of the date of this Agreement and (ii) hereafter
acquired by a Holder. Such class of securities shall cease to be Registrable
Securities with respect to any Holder when (a) such Holder is legally able to
dispose of all of its Registrable Securities of such class in one transaction
pursuant to Rule 144 under the Securities Act, or (b) such Holder has disposed
of all of the Registrable Securities of such class owned by such Holder in an
offering registered under the Securities Act or pursuant to the provisions of
Rule 144 or another exemption from the registration requirements of the
Securities Act under which such securities are thereafter freely tradable
without restriction under the Securities Act.
"Registrable Notes" means the Notes (i) held of record by a Holder
as of the date of this Agreement and (ii) hereafter acquired by a Holder. Such
class of securities shall cease to be Registrable Securities with respect to any
Holder when (a) such Holder is legally able to dispose of all of its Registrable
Securities of such class in one transaction pursuant to Rule 144 under the
Securities Act, or (b) such Holder has disposed of all of the Registrable
Securities of such class owned by such Holder in an offering registered under
the Securities Act or pursuant to the provisions of Rule 144 or another
exemption from the registration requirements of the Securities Act under which
such securities are thereafter freely tradable without restriction under the
Securities Act.
"Registrable Securities" shall mean the Registrable Common Stock and
the Registrable Notes.
"SEC" means the Securities Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
2. Demand Registration Rights.
a. If following six months after the consummation of the Initial
Public Offering, one or more Holders holding, in the aggregate, at least 25% of
Registrable Common Stock shall notify the Company in writing that it or they
intend to offer or cause to be offered for public sale at least 25% of the
Registrable Common Stock, the Company will so notify all Holders of Registrable
Common Stock, including all Holders who have a right to acquire Registrable
Common Stock. Upon written request of any Holder given within 20 days after the
receipt by such Holder from the Company of such notification, the Company will
use its commercially reasonable best efforts to cause such of the Registrable
Common Stock as may be requested by any Holder thereof (including the Holder or
Holders giving the initial notice of intent to offer) to be registered under the
Securities Act as expeditiously as possible (a "Demand Registration"); provided,
however, that the anticipated aggregate offering price to the public of any such
offering included within a Demand Registration shall be at least $20,000,000.
The Company shall not be obligated to effect a Demand Registration if Form S-3
(or any similar form promulgated by the SEC) is available, in which case the
Company shall register the Registrable Common Stock pursuant to a Shelf
Registration.
b. The Company shall not be required to effect more than two (2)
Demand Registrations. A registration of Registrable Common Stock shall not count
as a Demand Registration unless the registration statement is declared effective
and is maintained for at least six (6) months or such shorter period as is
sufficient to sell all the Registrable Common Stock included therein. No
registration of Registrable Common Stock effected pursuant to a Shelf
Registration shall be counted as a Demand Registration.
c. If, prior to the time of any request for a Demand Registration,
the Company has publicly announced its intention to register any of its
securities for a public offering under the Securities Act, no Demand
Registration shall be initiated until 120 days after the effective date of the
registration so announced unless the Company is no longer proceeding diligently
to effect such registration, whether such registration is for the sale of
securities for the Company's own account or for the account of others.
d. No request for a Demand Registration shall be made within 120
days after the effective date of a registration statement filed by the Company
covering an underwritten public offering in which the Holders of Registrable
Common Stock shall have been entitled to participate pursuant to a Piggy-Back
Registration. Notwithstanding the foregoing, the Company shall not be obligated
to effect a Demand Registration with respect to any Holder who fails to provide
promptly the Company such information as the Company may reasonably request at
any time to enable the Company to comply with any applicable law or regulation
or to facilitate preparation of the registration statement.
e. The Holders of Registrable Common Stock may not exercise their
rights under this Section 2 until six (6) months after the effectiveness of any
registration statement covering the Initial Public Offering.
3. Piggy-Back Registrations.
If at any time the Company shall determine to register under the
Securities Act any of its securities for its own account, other than on Form S-8
or Form S-4 (or similar form promulgated by the SEC), it shall send to each
Holder of Registrable Securities of the class of securities being registered
prompt written notice of such determination. If within 20 days after receipt of
such notice, such Holder shall so request in writing, the Company shall use its
commercially reasonable best efforts to include in such registration statement
all or any part of the Registrable Common Stock such Holder requests to be
registered therein (a "Piggy-Back Registration").
4. Shelf Registration.
a. In addition to the rights provided the Holder of Registrable
Common Stock in Sections 2 and 3 above, if the registration of Registrable
Common Stock under the Securities Act can be effected on Form S-3 (or such other
form or forms as shall be prescribed under the Securities Act for the same or
similar purpose), upon the written request of one or more Holders holding, in
the aggregate, at least 10% of the outstanding Registrable Common Stock, the
Company will use its commercially reasonable best efforts to effect
qualification and registration under the Securities Act on said Form S-3 of all
or such portion of the Registrable Common Stock as such Holder or Holders shall
specify (a "Shelf Registration"); provided, however, that the anticipated
offering price to the public of the Registrable Common Stock to be sold in any
such registration shall be at least $500,000 at the time of filing such
registration statement, and provided further, that the Company shall not be
required to effect more than five such registrations pursuant to this Section 4
in any twelve-month period.
b. If the registration of Notes under the Securities Act can be
effected on Form S-3 (or such other form or forms as shall be prescribed under
the Securities Act for the same or similar purpose), upon the written request of
one or more Holders holding, in the aggregate, Registrable Notes representing at
least 25% of the aggregate outstanding principal amount of all Registrable
Notes, the Company will use its commercially reasonable best efforts to effect
qualification and registration under the Securities Act on said Form S-3 of all
or such portion of the Registrable Notes as such Holder or Holders shall specify
(a "Noteholder Shelf Registration"); provided, however, that the anticipated
offering price to the public of any such offering to be included within a
Noteholder Shelf Registration shall be at least $5,000,000 at the time of filing
such registration statement. The Company shall not be required to effect more
than four (4) Noteholder Shelf Registrations.
c. No request for a Shelf Registration shall be made within 120 days
after the effective date of a registration statement filed by the Company
covering an underwritten public offering in which the Holders of Registrable
Securities shall have been entitled to participate
pursuant to a Piggy-Back Registration. Notwithstanding the foregoing, the
Company shall not be obligated to effect a Shelf Registration with respect to
any Holder who fails to provide promptly the Company such information as the
Company may reasonably request at any time to enable the Company to comply with
any applicable law or regulation or to facilitate preparation of the
registration statement.
5. Priority on Cutbacks. If a registration by the Company of its
securities involves an underwritten offering, and the managing or lead
underwriter or underwriters shall advise the Company in writing (a copy of which
shall be provided by the Company to the Holders), that in its or their opinion,
the number of Registrable Securities requested and otherwise proposed to be
included in such registration exceeds the number that can be sold in such
offering or adversely affects the price at which the securities are to be sold
in such offering, then the Company shall allocate the securities to be included
in such registration to the extent of the number which the Company is so advised
can be sold in such offering as follows: (i) for any Demand Registration or
Shelf Registration, (a) first, pro rata among any shares of Registrable
Securities that any Holders propose to sell, according to the total amount of
Registrable Securities requested for inclusion by such Holders (or in such other
proportions as shall mutually be agreed to among such Holders) and (b) second,
to any shares of Common Stock or Notes, as applicable, that the Company proposes
to sell; (ii) for any other registration, (a) first, to any shares of Common
Stock that the Company proposes to sell, and (b) second, pro rata among any
shares of Registrable Securities that any Holders propose to sell, according to
the total amount of Registrable Securities requested for inclusion by such
Holders (or in such other proportions as shall mutually be agreed to among such
Holders).
6. Delay of Filing or Sales. If (i) the Board of Directors of the Company
determines due to a contemplated acquisition or disposition, material financing
or other corporate transaction that it would be inadvisable to effect a Demand
Registration at the time requested by the Holders or (ii) the Company has
determined in good faith that the filing or maintaining effectiveness of a
current registration statement would require disclosure of material information
the Company has a valid business purpose of retaining as confidential at such
time, the Company shall be entitled to postpone filing or suspend the use by the
Holder of the Demand Registration, Shelf Registration or Noteholder Shelf
Registration for a reasonable period of time, but not in excess of 180
consecutive calendar days. The Company shall not be entitled to exercise such
suspension right more than one (1) time in any calendar year.
7. Certain Information.
Until the earlier of the second anniversary of the effectiveness of
any registration statement covering the Initial Public Offering and the first
date on which no Registrable Securities are outstanding, the Company shall use
its commercially reasonable efforts to make publicly available information
satisfying the requirements of paragraph (c)(2) of Rule 144 under the Securities
Act.
8. Effectiveness of Registration Statements. The Company will use its
commercially reasonable best efforts to maintain the effectiveness of any
registration statement pursuant to which any of the Registrable Securities are
being offered pursuant to this Agreement
hereof for up to 90 days, and from time to time will amend or supplement such
registration statement and the prospectus contained therein as and to the extent
necessary to comply with the Securities Act and any applicable state securities
statute or regulation. The Company will also provide each Holder with as many
copies of the prospectus contained in any such registration statement as it may
reasonably request.
9. Indemnification of Holders of Registrable Securities.
a. In the event that the Company registers any of the Registrable
Securities under the Securities Act, the Company will, to the fullest extent
permitted by law, indemnify and hold harmless each Holder of the Registrable
Securities (including their respective members, managers, partners, directors,
officers and other Affiliates) so registered (including any broker or dealer
through whom such shares may be sold) and each Person, if any, who controls such
holder within the meaning of Section 15 of the Securities Act and the managers,
partners, directors, officers and affiliates of each such controlling Person,
from and against any and all losses, claims, damages, expenses or liabilities,
joint or several, to which they or any of them become subject under the
Securities Act or under any other statute or at common law or otherwise, and,
except as hereinafter provided, will reimburse each such Holder for any legal or
other expenses reasonably incurred by them or any of them in connection with
investigating or defending any actions, whether or not resulting in any
liability, insofar as such losses, claims, damages, expenses, liabilities or
actions arise out of or are based upon (a) any untrue statement or alleged
untrue statement of a material fact contained in any registration statement,
prospectus, offering circular, any preliminary prospectus or any amendment
thereof or supplement thereto or any filing with any state securities commission
or agency or any other document incident to such registration, qualification or
compliance, (b) 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 not misleading, (c) any violation of the Company of the Securities Act
or any rule or regulation thereunder applicable to the Company and relating to
action or inaction required of the Company in connection with such registration,
qualification or compliance, unless such untrue statement or alleged untrue
statement or omission or alleged omission was made in such prospectus, offering
circular, any preliminary prospectus or any amendment thereof or supplement
thereto or any filing with any state securities commission or agency or any
other document incident to such registration, qualification or compliance in
reliance upon and in conformity with information furnished in writing to the
Company in connection therewith by such Holder of Registrable Securities,
expressly for use therein.
b. Promptly after receipt by any Holder of Registrable Securities of
notice of the commencement of any action in respect of which indemnity may be
sought against the Company, such Holder of Registrable Securities shall notify
the Company in writing of the commencement thereof, and, subject to the
provisions hereinafter stated, the Company shall assume the defense of such
action (including the employment of counsel, who shall be counsel reasonably
satisfactory to such Holder of Registrable Securities, such underwriter or such
controlling Person, as the case may be), and the payment of expenses insofar as
such action shall relate to any alleged liability in respect of which indemnity
may be sought against the Company.
c. Such Holder of Registrable Securities shall have the right to
employ separate counsel in any such action and to participate in the defense
thereof but the fees and expenses of such counsel shall not be at the expense of
the Company unless (a) the employment of such counsel has been specifically
authorized by the Company or (b) the Company shall have failed to assume the
defense of such claim and employ counsel reasonably satisfactory to such
indemnified person, or (c) in the reasonable judgment of such indemnified party,
based upon the advice of counsel, a conflict of interest may exist between such
indemnified party and the Company with respect to such claims (in which case if
the indemnified party notifies the Company in writing that it elects to employ
separate counsel at the expense of the Company, the Company shall not have the
right to assume the defense of such claim on behalf of the indemnified party).
The Company shall not be liable to indemnify any Person for any settlement of
any such action effected without the Company's consent. The Company shall not,
except with the approval of each party being indemnified under this Section 5,
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to the parties being so indemnified of a release from all liability in respect
to such claim or litigation.
d. In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which any Holder of
Registrable Securities exercising rights under this Agreement makes a claim for
indemnification pursuant to this Section 9 but it is judicially determined (by
the entry of a final judgment or decree by a court of competent jurisdiction and
the expiration of time to appeal or the denial of the last right of appeal) that
such indemnification may not be enforced in such case notwithstanding the fact
that this Section 9 provides for indemnification in such case, then the Company
and such Holder will contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (after contribution from others) in
such proportion so that such Holder is responsible for the portion represented
by the percentage that the public offering price of its Registrable Securities
offered by the registration statement bears to the public offering price of all
securities offered by such registration statement, and the Company is
responsible for the remaining portion; provided, however, that, in any such
case, (i) no such Holder will be required to contribute any amount in excess of
the net proceeds to be received by it pursuant to such registration statement;
and (ii) no person or entity guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) will be entitled to contribution
from any person or entity who was not guilty of such fraudulent
misrepresentation.
10. Indemnification of Company.
a. In the event that the Company registers any of the Registrable
Securities under the Securities Act, each Holder of the Registrable Securities
so registered, to the fullest extent permitted by law, will indemnify and hold
harmless the Company, each of its directors, each of its officers who have
signed or otherwise participated in the presentation of the registration
statement, each underwriter of the Registrable Securities so registered
(including any broker or dealer through whom such of the shares may be sold) and
each Person, if any, who controls the Company within the meaning of Section 15
of the Securities Act from and against any and all losses, claims, damages,
expenses or liabilities, joint or several, to which they or any of them may
become subject under the Securities Act or under any other statute or at common
law or otherwise, and, except as hereinafter provided, will reimburse the
Company and each such director, officer, underwriter or controlling Person for
any legal or other expenses reasonably incurred by them or any of them in
connection with investigating or defending any actions whether or not resulting
in any liability, insofar as such loses, claims, damages, expenses, liabilities
or actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement or any
filing with any state securities commission or agency, in any preliminary or
amended preliminary prospectus or in the final prospectus (or in the
registration statement or prospectus as from time to time amended or
supplemented) or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary in
order to make the statement therein not misleading, but only insofar as any such
statement or omission was made in reliance upon and in conformity with
information furnished to the Company in connection therewith by such Holder of
Registrable Securities expressly for use therein.
b. Promptly after receipt of notice of the commencement of any
action in respect of which indemnity may be sought against such Holder of
Registrable Securities, the Company will notify such Holder of Registrable
Securities in writing of the commencement thereof, and such Holder of
Registrable Securities shall, subject to the provisions hereinafter stated,
assume the defense of such action (including the employment of counsel, who
shall be counsel reasonably satisfactory to the Company) and the payment of
expenses insofar as such action shall relate to the alleged liability in respect
of which indemnity may be sought against such Holder of Registrable Securities.
c. The Company and each such director, officer, underwriter or
controlling Person shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses of
such counsel shall not be at the expense of such Holder of Registrable
Securities unless employment of such counsel has been specifically authorized by
such Holder of Registrable Securities. Such Holder of Registrable Securities
shall not be liable to indemnify any Person for any settlement of any such
action effected without such Holder's counsel (which consent shall not be
unreasonably withheld or delayed). Such Holder of Registrable Securities shall
not, except with the approval of each party being indemnified under this Section
10 consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to the parties being so indemnified of a release from all liability with respect
to such claim or litigation.
d. In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which the Company exercising
its rights under this Agreement makes a claim for indemnification pursuant to
this Section 10, but it is judicially determined (by the entry of a final
judgment or decree by a court of competent jurisdiction and the expiration of
time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding that this
Section 10 provides for indemnification, in such case, then, the Company and
such Holder will contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (after contribution from others) in
such proportion so that such Holder is responsible for the portion represented
by the percentage that the public offering price of its Registrable Securities
offered by the registration statement bears to the public offering price of all
securities offered by such
registration statement, and the Company is responsible for the remaining
portion; provided, however, that, any such case, (i) no such Holder will be
required to contribute any amount in excess of the net proceeds to be received
by it pursuant to such registration statement; and (ii) no person or entity
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) will be entitled to contribution from any person or entity
who was not guilty of such fraudulent misrepresentation.
11. Damages. The Company recognizes and agrees that the Holder of
Registrable Securities will not have an adequate remedy if the Company fails to
comply with this Agreement and that damages may not be readily ascertainable,
and the Company expressly agrees that, in the event of such failure, it shall
not oppose an application by the Holder of Registrable Securities or any other
Person entitled to the benefits of this Agreement seeking specific performance
of any and all provisions hereof or enjoining the Company from continuing to
commit any such breach of this Agreement.
12. Further Obligations. It shall be a condition precedent to the
obligations of the Company and any underwriter or underwriters to effect the
registration of Registration Securities pursuant to this Agreement, that the
Holders requesting inclusion in any Piggy-Back Registration, Demand
Registration, Shelf Registration or Noteholder Shelf Registration (each, a
"Registration," and collectively, the "Registrations") shall furnish to the
Company such information regarding them, the Registrable Securities held by
them, the intended method of disposition of such Registrable Securities, and
such agreements regarding indemnification, disposition of such securities and
the other matters referred to in this Agreement as the Company shall reasonably
request and as shall be required in connection with the action to be taken by
the Company. With respect to any Registration which includes Registrable
Securities held by an Holder, the Company shall, as expeditiously as reasonably
practicable:
a. prepare and file with the SEC a registration statement on the
appropriate form prescribed by the SEC and use its reasonable best efforts to
cause such registration statement to become effective;
b. immediately notify each Holder participating in the Registration
and, if applicable, any underwriter or underwriters of the Registrable
Securities covered by the Registration of any stop order threatened or issued by
the SEC and take all actions reasonably required to prevent the entry of a stop
order or if entered to have it rescinded or otherwise removed;
c. prepare and file with the SEC such amendments, post-effective
amendments and supplements to such registration statement, and any documents
required to be incorporated by reference therein, as may be necessary to keep
the registration statement effective until the distribution of Registrable
Securities shall have been completed or until the expiration of 180 days (or
such longer period as the Company may agree on) after the effective date,
whichever is earlier; cause the prospectus to be supplemented by any required
prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424
under the Securities Act (or any successor rule); and comply with the provisions
of the Securities Act applicable to it with respect to the disposition of all
Registrable Securities covered by such registration statement
during the applicable period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration statement or
supplement to the prospectus;
d. furnish to the Holders participating in the Registration and, if
applicable, to the underwriter or underwriters of the Registrable Securities
covered by the Registration such number of copies of the registration statement
and any post-effective amendment thereto, the prospectus (including each
preliminary prospectus and any amendments or supplements thereto), any exhibits
or documents incorporated by reference in the foregoing items and such other
documents as such Holders or underwriter or underwriters, if any, may reasonably
request in order to facilitate the disposition of the securities being sold by
the Holders;
e. on or prior to the date on which the registration statement is
declared effective, use its reasonable best efforts to register or qualify, and
cooperate with such Holder, the underwriter or underwriters, if any, and their
counsel in connection with the registration or qualification of the Registrable
Securities covered by the registration statement for offer and sale under the
securities or blue sky laws of each state and other jurisdiction of the United
States as such Holder or managing underwriter or underwriters, if any, may
reasonably request (considering the nature or size of the offering and the
expense and time involved in such qualification or registration), and to do any
and all other reasonable acts or things which may be necessary or advisable to
enable the disposition in all such jurisdictions of the Registrable Securities
covered by the applicable registration statement; provided, however, that the
Company shall not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action which would
subject it to general service of process in any such jurisdiction where it is
not then so subject;
f. notify each Holder participating in the Registration and, if
applicable, the underwriter or underwriters of the Registrable Securities
covered by the Registration, at any time when a prospectus is required to be
delivered under the Securities Act, of any event as a result of which the
prospectus or any document incorporated therein by reference contains an untrue
statement of a material fact or omits to state any material fact necessary to
make the statements therein not misleading in light of the circumstances under
which such statements were made, and prepare a supplement or amendment to the
prospectus or any such document incorporated therein so that thereafter the
prospectus will not contain an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein not misleading
in light of the circumstances under which such statements were made;
g. use its reasonable best efforts to cause the Registrable
Securities covered by the registration statement to be registered with or
approved by such other governmental agencies or authorities within the United
States, including, without limitation, the National Association of Securities
Dealers, Inc. (the "NASD"), as may be necessary to enable the seller or sellers
thereof or the underwriter or underwriters, if any, to consummate the
disposition of such Registrable Securities;
h. use its reasonable best efforts to cause the Registrable
Securities covered by the registration statement to be listed or quoted (as the
case may be) on any national securities exchange or automated quotation system
on which any Common Stock is listed or quoted, and to
provide a transfer agent and registrar for such securities covered by such
registration statement no later than the effective date of such registration
statement;
i. enter into such customary agreements (including an underwriting
agreement in customary form) reasonably satisfactory to the Company and take all
other actions in connection with those agreements as the Holders participating
in the Registration and, if applicable, the underwriter or underwriters of the
Registrable Securities covered by the Registration, if any, reasonably request
to expedite or facilitate the disposition of the Registrable Securities;
j. give the Holders who hold Registrable Securities registered under
such registration statement, the underwriter or underwriters, if any, and their
respective counsel and accountants, the timely opportunity to participate in the
preparation of such registration statement, each prospectus included therein or
filed with the SEC and each amendment or supplement to the foregoing items, and
give each of them such access to its books and records and such opportunities to
discuss the business of the Company with its officers and the independent public
accountants who have certified its financial statements as shall be reasonably
necessary or advisable, in the opinion of each of such Holders and such
underwriters' respective counsel, to conduct appropriate due diligence as
contemplated by the 1933 Act;
k. use its reasonable best efforts to provide to the Holders and
underwriter or underwriters, if any, with legal opinions and "cold comfort"
letters in customary form and substance as the Holders participating in the
Registration and, if applicable, the underwriter or underwriters of the
Registrable Securities covered by the Registration reasonably request; and
l. use its reasonable best efforts to comply with all applicable
rules and regulations of the SEC, and make available to its security holders, as
soon as reasonably practicable, an earnings statement complying with the
provisions of Section 11(a) of the 1933 Act and covering the period of at least
twelve months, beginning with the first fiscal quarter beginning after the
effective date of the registration statement.
The Holders, upon receipt of any notice from the Company that the
prospectus prepared pursuant to subsection c. above contains an untrue statement
of a material fact or omits to state a material fact necessary to make the
statements therein not misleading, will forthwith discontinue disposition of the
Registrable Securities until the Holders receive copies of a supplemented or
amended prospectus or until they are advised in writing (the "Advice") by the
Company that the use of the prospectus may be resumed, and have received copies
of any supplemented or amended prospectus, and, if so directed by the Company,
each Holder shall, or shall request the managing underwriter or underwriters, if
any, to, deliver to the Company all copies, other than permanent file copies
then in such Holder's possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such notice. In the event the
Company shall give any such notice, the time periods mentioned in subsection c.
of this Section 12 shall be extended by the number of days during the period
from and including any date of the giving of such notice to and including the
date when each seller of Registrable Securities covered by such registration
statement shall have received the copies of the
supplemented or amended prospectus contemplated by the immediately preceding
sentence or the Advice.
13. Fees and Expenses. The Company shall pay all fees, expenses, or other
costs incurred with respect to each registration request made by the Holders
(other than underwriters' discounts and commissions and placement fees)
including, without limitation, the expenses of preparing any registration
statement, commission and state "blue sky" filing, all registration, filing and
qualification fees, word processing, duplicating, printers' and accounting fees,
listing fees, messenger and federal laws, reasonable fees and expenses of one
firm of counsel for all selling Holders, and fees and expenses for the
disbursement of the Company's counsel, independent auditors or other advisors
and comply with reporting requirements to permit sales under Rule 144 of the
Securities Act.; provided, however, that the Company shall have no obligation to
pay or otherwise bear (i) the cost and expenses of procuring underwriters'
insurance in connection with the sale of Registrable Securities by Holders, (ii)
any portion of the fees or disbursements of more than one counsel for the
selling Holders of Registrable Securities in connection with the registration of
their Registrable Securities, or (iii) any portion of the underwriters'
commissions or discounts attributable to the Registrable Securities being
offered and sold by the holders of Registrable Securities.
14. Transferability of Registration Rights; Joinder Agreement. Registrable
Securities shall immediately and without further action of the Company cease to
be Registrable Securities upon their transfer to any person other than either
(a) a transferee that is a Holder immediately prior to giving effect to such
transfer or (b) a transferee that both (i) after giving effect to such transfer,
holds (x) in respect of Registrable Securities that are Notes, Notes
representing at least 2.5% of the then outstanding principal amount of all Notes
and (y) in respect of Registrable Securities that are shares of New Common
Stock, at least 2.5% of the Effective Date Shares, and (ii) has executed a
joinder agreement in the form of Exhibit C hereto. Except to the extent limited
in the joinder agreement, each Person that so becomes a Holder after the date
hereof shall be entitled to all rights and privileges of a Holder as if such
Holder had been an original signatory to this Agreement.
15. "Market Stand-Off" Agreement. Each holder of Registrable Securities
agrees, if requested by the Company and an underwriter of New Common Stock or
other securities of the Company in writing, not to sell, assign, donate, pledge,
encumber, hypothecate, grant an option to, or otherwise transfer or dispose of,
whether in privately negotiated or open market transactions, any New Common
Stock or other securities of the Company held by it during (i) the 180-day
period following the effective date of a registration statement filed pursuant
to the Initial Public Offering and (ii) the 90-day period (or such other period
reasonably required by the managing underwriters) following the effective date
of any underwritten Demand Registration or Piggy-Back Registration (except in
each case as part of such underwritten registration), unless the underwriters
managing such registered Initial Public Offering, Demand Registration or
Piggy-Back Registration otherwise agree in writing. The Company may impose
stop-transfer instructions with respect to the shares subject to the foregoing
restrictions until the end of said 180-day period or 90-day period,
respectively.
16. Selection of Underwriters. In connection with any Demand Registration,
Shelf Registration or Noteholder Shelf Registration that takes the form of an
underwritten offering, the Holders holding a majority of the Registrable
Securities participating in such registration shall select the underwriters in
connection with the sale of registered securities, with the approval of the
Company, such approval not to be unreasonably withheld.
17. No Waiver; Cumulative Remedies. No failure or delay on the part of any
party to this Agreement in exercising any right, power or remedy hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy hereunder. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
18. Amendments, Waivers and Consents. Except as hereinafter provided,
changes in or additions to this Agreement may be made, termination of this
Agreement, and compliance with any covenant or provision set forth herein may be
omitted or waived, if the Company (i) shall obtain consent thereto in writing
from at least a Majority in Interest in New Common Stock and a Majority in
Interest in Notes, and (ii) shall deliver copies of such consent in writing to
any holders who did not execute such consent; provided, however that no consents
shall be effective to alter the definitions of Majority in Interest in New
Common Stock and the Majority of Interest in Notes as applied to this Section.
Any wavier or consent may be given subject to satisfaction of conditions stated
therein and any waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
19. Addresses for Notices. All notices, requires, demands and other
communications provided for hereunder shall be in writing (including electronic
communication) and mailed, transmitted or delivered to each applicable party at
the address set forth in Exhibit B or at such other address as to which such
party may inform the other parties in xxxxxxx in compliance with the terms of
this Section. All such notices, requests, demands and other communications
shall, when mailed (which mailing must be accomplished by first class mail,
postage prepaid; electronic facsimile transmission; express overnight courier
service; or registered mail, return receipt requested) or e-mailed with
confirmation of receipt, and shall be considered to be delivered three days
after dispatch.
20. Binding Effect; Assignment. Except as provided in Section 14, this
Agreement and the rights and duties of any party hereunder shall not be
assignable without the prior written consent of the Company, a Majority in
Interest in New Common Stock and a Majority in Interest in Notes. This Agreement
shall be binding upon and inure to the benefit of the Company and the Holders
and their respective heirs and successors and permitted assigns.
21. Prior Agreements. This Agreement constitutes the entire agreement
between the parties and supersedes any prior understandings or agreements
concerning the subject matter hereof.
22. Severability. The provisions of this Agreement are severable and, in
the event that any court of competent jurisdiction shall determine that any one
or more of the provisions or
part of a provision contained in this Agreement shall, for any reason, be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision or part of a
provision of this Agreement; but this Agreement shall be reformed and construed
as if such invalid or illegal or unenforceable provision, or part of a
provision, had never been contained herein, and such provisions or part reformed
so that it would be valid, legal and enforceable to the maximum extent possible.
23. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of Delaware, and without giving
effect to choice of laws provisions.
24. Headings. Section and subsection headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose.
25. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
26. Further Assurances. From and after the date of this Agreement, upon
the request of any Holder or the Company, the Company and the Holders shall
execute and deliver such instruments, documents and other writings as may be
reasonably necessary or desirable to confirm and carry out and to effectuate
fully the intent and purposes of this Agreement.
27. Representations and Warranties. Each Holder represents and warrants
that this Agreement has been duly authorized, executed and delivered by such
Holder and constitutes the legally valid and binding obligation of such Holder,
enforceable in accordance with its terms.
[Remainder of This Page Intentionally Left Blank; Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first set forth above.
BAYOU STEEL CORPORATION
By:___________________________________
Xxxxxxx X. Xxxxxxxx
Vice President, Chief Financial
Officer, Treasurer and Secretary
[Signature pages for HOLDERS follow]
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first set forth above.
HOLDER:
Name:________________________________
Print name of record holder above
By:___________________________________
Name:
Title:
Address for notices:
___________________________________
___________________________________
___________________________________
___________________________________
EXHIBIT A
HOLDERS
EXHIBIT B
NOTICE ADDRESSES
EXHIBIT C
FORM OF JOINDER AGREEMENT
THIS JOINDER AGREEMENT is made and entered into by the undersigned with
reference to the following facts:
I am acquiring simultaneously with the execution of this Joinder Agreement
[[ ] shares of the Common Stock (the "Shares")] [[ ] in principal amount of the
9% First Mortgage Notes due 2011 (the "Notes")] of Bayou Steel Corporation (the
"Company"); and
As a condition to the acquisition of the [Shares] [Notes] I have agreed to
join in a registration rights agreement dated as of _________ __, 2003, as
amended from time to time (the "Registration Rights Agreement"), a copy of which
has been furnished to me, among the Company and the Holders party thereto.
I therefore agree as follows:
I hereby join in the Registration Rights Agreement and agree to be bound
by all of the terms and provisions thereof as though I were an original party
thereto and were included in the definition of Investor, as used therein.
I hereby make the representations and warranties set forth in Section 27
of the Stockholders Agreement as if such representations and warranties were set
forth in this Joinder Agreement in full.
IN WITNESS WHEREOF, the undersigned has executed this agreement this day of
, .
Name:
Address and Facsimile for Notices:
