Exhibit 4.6
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
THIS
REGISTRATION RIGHTS AGREEMENT (the Agreement) is made and entered into April 3,
2008, among STEEL DYNAMICS, INC., an Indiana corporation (the Company), the
subsidiaries of the Company listed on Schedule I hereto (the Guarantors) and
BANC OF AMERICA SECURITIES LLC, GOLDMAN, SACHS & CO., MORGAN STANLEY &
CO. INCORPORATED, ABN AMRO INCORPORATED and WELLS FARGO SECURITIES, LLC (the Initial
Purchasers).
This
Agreement is made pursuant to the Purchase Agreement dated March 27, 2008,
among the Company, the Initial Purchasers and the Guarantors (the Purchase
Agreement), which provides for the sale by the Company to the Initial
Purchasers of an aggregate of $375,000,000 principal amount of the Companys
7¾% Senior Notes Due 2016 (the Notes).
The Notes will be fully and unconditionally guaranteed on a senior
unsecured basis by the Guarantors (the Guarantees). The Notes and the Guarantees are herein
collectively referred to as the Securities.
In order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Company and the Guarantors agreed to provide to the Initial
Purchasers and their direct and indirect transferees the registration rights
set forth in this Agreement. The
execution of this Agreement is a condition to the closing under the Purchase
Agreement.
In
consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
As
used in this Agreement, the following capitalized defined terms shall have the
following meanings:
1933
Act shall mean the Securities Act of 1933, as amended from time to time.
1934 Act
shall mean the Securities Exchange Act of 1934, as amended from time to time.
Additional Interest shall have the
meaning set forth in Section [2(f)] hereof.
Closing Date
shall mean the Closing Date as defined in the Purchase Agreement.
Company
shall have the meaning set forth in the preamble and shall also include the
Companys successors.
Consummated: A registered Exchange
Offer shall be deemed Consummated for purposes of this Agreement upon
the occurrence of (i) the filing and effectiveness under the Securities
Act of the Exchange Offer Registration Statement relating to the Exchange
Securities to be issued in the Exchange Offer, (ii) the maintenance of
such
1
Registration
Statement continuously effective and the keeping of the Exchange Offer open for
a period not less than the minimum period required pursuant to Section 2
hereof, and (iii) the delivery by the Company to the Registrar under the
Indenture of Exchange Securities in the same aggregate principal amount as the
aggregate principal amount of Registrable Securities that were tendered by
Holders thereof pursuant to the Exchange Offer.
Exchange Offer
shall mean the exchange offer by the Company of Exchange Securities for
Registrable Securities pursuant to Section 2(a) hereof.
Exchange Offer
Registration shall mean a registration under the 1933 Act effected pursuant
to Section 2(a) hereof.
Exchange Offer
Registration Statement shall mean an exchange offer registration statement
on Form S-4 (or, if applicable, on another appropriate form) and all
amendments and supplements to such registration statement, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
Exchange
Securities shall mean securities issued by the Company and guaranteed by
the Guarantors under the Indenture containing terms identical to the
Registrable Securities (except that (i) interest thereon shall accrue from
the last date on which interest was paid on the Securities or, if no such
interest was paid, [ ], 2008, (ii) the Exchange Securities will not
contain restrictions on transfer, and (iii) the Exchange Securities are
not entitled to Additional Interest) and to be offered to Holders of Securities
in exchange for Registrable Securities pursuant to the Exchange Offer.
Freely
Tradeable means, with respect to a Security, a Security that at any time
of determination (i) may be sold to the public in accordance with Rule 144
under the Securities Act (Rule 144) by a person that is not an affiliate
(as defined in Rule 144 under the Securities Act) of the Company where no
conditions of Rule 144 are then applicable (other than the holding period
requirement of paragraph (d) of Rule 144 so long as such holding
period requirement is satisfied at such time of determination) and (ii) it
does not bear any restrictive legends relating to the Securities Act.
Free Writing
Prospectus shall mean each free writing prospectus (as defined in Rule 405
under the 1933 Act) prepared by or on behalf of the Company or used by the
Company in connection with the Registrable Securities or the Exchange
Securities.
Guarantors
shall have the meaning set forth in the preamble and shall also include any
Guarantors successor.
Holder
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 registered owners of Registrable Securities under the
Indenture; provided that for purposes of Sections 4 and 5 of this
Agreement, the term Holder shall include Participating Broker-Dealers (as
defined in Section 4(a)).
2
Indenture
shall mean the Indenture relating to the Securities dated as of April 3,
2008, as amended, among the Company, the Guarantors and Wells Fargo Bank,
National Association, as trustee, and as the same may be amended from time to
time in accordance with the terms thereof.
Initial
Purchasers shall have the meaning set forth in the preamble.
Issuer
Information shall mean material information about the Company, the Guarantors
or any of their respective securities that has been provided by or on behalf of
the Company and/or the Guarantors.
Majority
Holders shall mean the Holders of a majority of the aggregate principal
amount of outstanding Registrable Securities; provided that whenever the
consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Company or
any of its affiliates (as such term is defined in Rule 405 under the 1933
Act) (other than the Initial Purchasers or subsequent Holders of Registrable
Securities if such subsequent holders are deemed to be such affiliates solely
by reason of their holding of such Registrable Securities) shall not be counted
in determining whether such consent or approval was given by the Holders of
such required percentage or amount.
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 all material incorporated by
reference therein.
Registrable
Securities shall mean the Securities; provided, however,
that the Securities shall cease to be Registrable Securities (i) when such
Securities are exchanged for Exchange Securities, (ii) when a Registration
Statement with respect to such Securities shall have been declared effective
under the 1933 Act and such Securities shall have been disposed of pursuant to
such Registration Statement, (iii) when such Securities are Freely
Tradeable or (iv) when such Securities shall have otherwise ceased to be
outstanding.
Registration
Expenses shall mean any and all expenses incident to performance of or
compliance by the Company and the Guarantors with this Agreement, including
without limitation: (i) all SEC,
stock exchange or the Financial Industry Regulatory Authority, Inc.
registration and filing fees, (ii) all fees and expenses incurred in
connection with compliance with state securities or blue sky laws (including
reasonable
3
fees and
disbursements of counsel for any underwriters or Holders in connection with
blue sky qualification of any of the Exchange Securities or Registrable
Securities), (iii) all expenses of any Persons in preparing or assisting
in preparing, word processing, printing and distributing any Registration
Statement, any Prospectus, any amendments or supplements thereto, any
underwriting agreements, securities sales agreements and other documents relating
to the performance of and compliance with this Agreement, (iv) all rating
agency fees, (v) all fees and disbursements relating to the qualification
of the Indenture under applicable securities laws, (vi) the fees and
disbursements of the Trustee and its counsel, (vii) the fees and
disbursements of counsel for the Company and the Guarantors and, in the case of
a Shelf Registration Statement, the fees and disbursements of one counsel for
the Holders (which counsel shall be selected by the Majority Holders and which
counsel may also be counsel for the Initial Purchaser) and (viii) the fees
and disbursements of the independent public accountants of the Company and the
Guarantors, including the expenses of any special audits or cold comfort
letters required by or incident to such performance and compliance, but
excluding fees and expenses of counsel to the underwriters (other than fees and
expenses set forth in clause (ii) above) or the Holders and underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by a Holder.
Registration
Statement shall mean any registration statement of the Company and the
Guarantors that covers any of the Exchange Securities or Registrable Securities
pursuant to the provisions of this Agreement and all amendments and supplements
to any such Registration Statement, including post-effective amendments, in
each case including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
SEC shall
mean the Securities and Exchange Commission.
Shelf
Registration shall mean a registration effected pursuant to Section 2(b) hereof.
Shelf
Registration Statement shall mean a shelf registration statement of the
Company and the Guarantors pursuant to the provisions of Section 2(b) of
this Agreement which covers all of the Registrable Securities on an appropriate
form under Rule 415 under the 1933 Act, or any similar rule that may
be adopted by the SEC, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
Trustee
shall mean the trustee with respect to the Securities under the Indenture.
Underwriter
shall have the meaning set forth in Section 3 hereof.
Underwritten
Registration or Underwritten Offering shall mean a registration
in which Registrable Securities are sold to an Underwriter for reoffering to
the public.
4
2. Registration Under the 1933 Act.
(a) To the extent not prohibited by any
applicable law or applicable interpretation of the Staff of the SEC and to the
extent there are Registrable Securities outstanding, the Company and the
Guarantors shall use their reasonable best efforts to cause to be filed an
Exchange Offer Registration Statement covering the offer by the Company and the
Guarantors to the Holders to exchange all of the Registrable Securities for
Exchange Securities and to have such Registration Statement declared effective
and remain effective until the closing of the Exchange Offer. The Company shall use reasonable best efforts
to Consummate the Exchange Offer not later than 366 days following the Closing
Date (or, if such 366th day is not a Business Day, the next succeeding
Business Day)(the Exchange Date);
provided, however, that the Company and the Guarantors shall not be
required to Consummate such Exchange Offer if all of the Securities are Freely
Tradeable on or before the Exchange Date.
If an
Exchange Offer is required to be Consummated pursuant to the first paragraph of
this Section 2(a), the Company and the Guarantors shall commence the
Exchange Offer by mailing the related exchange offer Prospectus and
accompanying documents to each Holder, through DTC or otherwise, stating in
such Prospectus or accompanying documents, in addition to such other
disclosures as are required by applicable law:
(i) that the Exchange Offer is being
made pursuant to this Registration Rights Agreement and that all Registrable
Securities validly tendered and not withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange
(which shall be a period of at least 20 business days from the date such notice
is mailed) (the Acceptance Dates);
(iii) that any Registrable Security not
tendered will remain outstanding and continue to accrue interest, but will not
retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a
Registrable Security exchanged pursuant to the Exchange Offer will be required
to surrender such Registrable Security, together with the enclosed letters of
transmittal, to the institution and at the address (located in the Borough of
Manhattan, The City of New York) specified in the notice prior to the close of
business on the last Acceptance Date; and
(v) that Holders will be entitled to
withdraw their election, not later than the close of business on the last
Acceptance 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, facsimile transmission or letter setting forth the name of such
Holder, the principal amount of Registrable Securities delivered for exchange
and a statement that such Holder is withdrawing his election to have such
Securities exchanged.
As
soon as practicable after the last Acceptance Date, the Company shall:
5
(i) accept for exchange Registrable
Securities or portions thereof tendered and not validly withdrawn pursuant to
the Exchange Offer; and
(ii) deliver, or cause to be delivered, to
the Trustee for cancellation all Registrable Securities or portions thereof so
accepted for exchange by the Company and issue, and cause the Trustee to
promptly authenticate and mail to each Holder, an Exchange Security equal in
principal amount to the principal amount of the Registrable Securities
surrendered by such Holder.
The Company and the Guarantors shall use their reasonable best efforts
to complete the Exchange Offer as provided above on or prior to the Exchange
Date and shall comply with the applicable requirements of the 1933 Act, the
1934 Act and other applicable laws and regulations in connection with the
Exchange Offer; provided, however, that the
Company and the Guarantors shall not be required to consummate the Exchange
Offer if all of the Securities are Freely Tradeable on or before the Exchange Date. The Exchange Offer shall not be subject to
any conditions other than that the Exchange Offer does not violate applicable
law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Initial
Purchasers of the names and addresses of the Holders to whom the Exchange Offer
is made, and the Initial Purchasers shall have the right, subject to applicable
law, to contact such Holders and otherwise facilitate the tender of Registrable
Securities in the Exchange Offer.
If the Company and the Guarantors effect the Exchange Offer, the
Company and the Guarantors shall be entitled to close the Exchange Offer twenty
(20) business days after such commencement (provided that the Company and the
Guarantors have accepted all the Securities theretofore validly tendered and
not withdrawn in accordance with the terms of the Exchange Offer).
Each Holder participating in the Exchange Offer shall be required to
represent to the Company and the Guarantors in writing that at the time of the
consummation of the Exchange Offer (i) any Exchange Securities received by
such Holder will be acquired in the ordinary course of business, (ii) such
Holder will have no arrangements or understanding with any Person to
participate in the distribution (within the meaning of the 1933 Act) of the
Exchange Securities and (iii) such Holder is not affiliate of either the
Company or any of the Guarantors within the meaning of Rule 405 under the
1933 Act, (iv) if such Holder is not a broker dealer, that it is not
engaged in and does not intend to engage in, the distribution of the Exchange
Securities and (v) if such Holder is a broker dealer, that it will receive
Exchange Securities for its own account in exchange for Securities that were
acquired as a result of market making activities or other trading activities
and that it will be required to acknowledge that it will deliver a prospectus
in connection with the resale of such Exchange Securities.
(b) In the event that (i) the
Company and the Guarantors determine that the Exchange Offer Registration
provided for in Section 2(a) above is not available or may not be
Consummated as soon as practicable after the last Acceptance Date because it
would violate applicable law or the applicable interpretations or policy of the
Staff of the SEC, (ii) for any reason the Exchange Offer is not Consummated
by the Exchange Date and the Securities are not all Freely Tradable at such
time, or (iii) prior to the Exchange Date:
(A) the Initial Purchasers
6
request
from the Company with respect to Registrable Securities not eligible to be
exchanged for Exchange Securities in the Exchange Offer, (B) with respect
to any Holder of Registrable Securities such Holder notifies the Company that (x) such
Holder is prohibited by applicable law or Commission policy from participating
in the Exchange Offer, (y) such Holder may not resell the Exchange
Securities acquired by it in the Exchange Offer to the public without
delivering a prospectus and that the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales by such
Holder, or (z) such Holder is a Broker-Dealer and holds Securities
acquired directly from the Company or one of its affiliates or (C) in the
case of any Initial Purchaser, such Initial Purchaser notifies the Company it
will not receive Freely Tradable Exchange Securities in exchange for
Registrable Securities constituting any position of such Initial Purchasers
unsold allotment, then the
Company and the Guarantors shall use their reasonable best efforts to cause to
be filed on or prior to the 30th day after the date
such obligation arises (but no earlier than the 366th day after the Closing
Date, or if such 366th day is not a Business Day, the next succeeding
Business Day (such date being the Shelf Filing Deadline), a Shelf
Registration Statement providing for the sale by the Holders of all of the
Registrable Securities and to have such Shelf Registration Statement declared
effective by the SEC on or before the 60th day after the Shelf
Filing Deadline (or if such 60th day is not a Business
Day, the next succeeding Business Day).
The Company and the Guarantors agree to use their reasonable best
efforts to keep the Shelf Registration Statement continuously effective until
the expiration of the two-year period referred to in Rule 144 applicable
to securities held by non-affiliates under the Securities Act or such shorter
period that will terminate when all of the Registrable Securities covered by
the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement or are Freely Tradeable.
Notwithstanding anything to the contrary, the requirements to file a
Shelf Registration Statement and to have such Shelf Registration Statement
become effective and remain effective shall terminate at such time as all of
the Securities are Freely Tradeable. The
Company and the Guarantors further agree to supplement or amend the Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used by the Company and the Guarantors for
such Shelf Registration Statement or by the 1933 Act or by any other rules and
regulations thereunder for shelf registration or if reasonably requested by a
Holder with respect to information relating to such Holder, and to use its
reasonable best efforts to cause any such amendment to become effective and
such Shelf Registration Statement to become usable as soon as thereafter
practicable. The Company and the
Guarantors agree to furnish to the Holders of Registrable Securities copies of
any such supplement or amendment promptly after its being used or filed with
the SEC. To the extent that the Company
and the Guarantors are required to include any Registrable Securities in a
Shelf Registration Statement, the Company and the Guarantors may include such
Registrable Securities on any other shelf registration statement otherwise
filed by the Company with respect to any of its other securities.
(c) The Company and the Guarantors shall
pay all Registration Expenses in connection with the registration pursuant to
this Section 2. Each Holder shall
pay all underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holders Registrable Securities
pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration
Statement pursuant to Section 2(a) hereof or a Shelf Registration
Statement pursuant to Section 2(b) hereof will not be deemed to have
7
become
effective unless it has been declared effective by the SEC; provided, however,
that, if, after it has been declared effective, the offering of Registrable
Securities pursuant to a Shelf Registration Statement is interfered with by any
stop order, injunction or other order or requirement of the SEC or any other
governmental agency or court, such Registration Statement will be deemed not to
have become effective during the period of such interference until the offering
of Registrable Securities pursuant to such Registration Statement may legally
resume.
(e) If any of the Securities are not
Freely Tradable Securities by the Exchange Date and either (i) the
Exchange Offer has not been Consummated [by the Exchange Date], (ii) any
Shelf Registration Statement, if required hereby, has not been declared
effective by the Commission within the required period following the Shelf
Filing Deadline or (iii) any Registration Statement required by this
Agreement has been declared effective but ceases to be effective at any time at
which it is required to be effective under this Agreement (each such event
referred to in clauses (i) through (iii), a Registration Default),
the Company hereby agrees that the interest rate borne by the Registrable
Securities shall be increased by 0.50% per annum (such increased interest being
Additional Interest) immediately following the occurrence of any
Registration Default. At the earlier of (x) the
cure of all Registration Defaults relating to the particular Registrable
Securities or (y) the particular Registrable Securities having become
Freely Tradable, the interest rate borne by the relevant Registrable Securities
will be reduced to the original interest rate borne by such Registrable
Securities; provided, however,
that, if after any such reduction in interest rate, a different Registration
Default occurs, the interest rate borne by the relevant Registrable Securities
shall again be increased pursuant to the foregoing provisions. All obligations of the Company and the
Guarantors set forth in the preceding paragraph that are outstanding with
respect to any Registrable Security at the time such security ceases to be a
Registrable Security shall survive until such time as all such obligations with
respect to such security shall have been satisfied in full.
(f) Without limiting the remedies
available to the Initial Purchasers and the Holders, the Company and the
Guarantors acknowledge that any failure by the Company or the Guarantors to
comply with their obligations under Section 2(a) and Section 2(b) 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 Companys or the
Guarantors obligations under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures.
In
connection with the obligations of the Company and the Guarantors with respect
to the Registration Statements, if required pursuant to Section 2(a) or
Section 2(b) hereof, the Company and the Guarantors shall as expeditiously
as possible:
(a) prepare
and file with the SEC a Registration Statement on the appropriate form under
the 1933 Act, which form (x) shall be selected by the Company and the
Guarantors and (y) shall, in the case of a Shelf Registration, be available
for the sale of
8
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 in accordance with Section 2
hereof;
(b) prepare
and file with the SEC such amendments and post-effective amendments to each
Registration Statement as may be necessary to keep such Registration Statement
effective for the applicable period and cause each Prospectus to be
supplemented by any required prospectus supplement and, as so supplemented, to
be filed pursuant to Rule 424 under the 1933 Act; to keep each Prospectus
current during the period described under Section 4(3) and Rule 174
under the 1933 Act that is applicable to transactions by brokers or dealers
with respect to the Registrable Securities or Exchange Securities;
(c) in
the case of a Shelf Registration, furnish to each Holder of Registrable
Securities, to counsel for the Initial Purchasers, to counsel for the Holders
and to each Underwriter of an Underwritten Offering of Registrable Securities,
if any, without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto and such other
documents as such Holder or Underwriter may reasonably request, in order to facilitate
the public sale or other disposition of the Registrable Securities; and the
Company and the Guarantors consent to the use of such Prospectus and any
amendment or supplement thereto in accordance with applicable law by each of
the selling Holders of Registrable Securities and any such Underwriters in
connection with the offering and sale of the Registrable Securities covered by
and in the manner described in such Prospectus or any amendment or supplement
thereto in accordance with applicable law;
(d) use
its 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, to cooperate with such Holders in
connection with any filings required to be made with the Financial Industry
Regulatory Authority, Inc. and do any and all other acts and things which
may be reasonably necessary or advisable to enable such Holder to consummate
the disposition in each such jurisdiction of such Registrable Securities owned
by such Holder; provided, however, that neither the Company nor
any Guarantor shall be required to (i) qualify as a foreign corporation or
as a dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d), (ii) file any general
consent to service of process or (iii) subject itself to taxation in any
such jurisdiction if it is not so subject;
(e) in
the case of a Shelf Registration, notify each Holder of Registrable Securities
who has provided contact information to the Company, counsel for the Holders
and counsel for the Initial Purchasers promptly and, if requested by any such
Holder or counsel, confirm such advice in writing (i) when a Registration
Statement has become
9
effective and when any post-effective
amendment thereto has been filed and becomes effective, (ii) of any
request by the SEC or any state securities authority for amendments and
supplements to a Registration Statement and Prospectus or for additional information
after the Registration Statement has become effective, (iii) of the
issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable Securities
covered thereby, the representations and warranties of the Company or any
Guarantor contained in any underwriting agreement, securities sales agreement
or other similar agreement, if any, relating to the offering cease to be true
and correct in all material respects or if the Company or any Guarantor
receives any notification with respect to the suspension of the qualification
of the Registrable Securities for sale in any jurisdiction or the initiation of
any proceeding for such purpose, (v) of the happening of any event during
the period a Shelf Registration Statement is effective which makes any
statement made in such Registration Statement or the related Prospectus untrue
in any material respect or which requires the making of any changes in such
Registration Statement or Prospectus in order to make the statements therein
not misleading and (vi) of any determination by the Company or any
Guarantor that a post-effective amendment to a Registration Statement would be
appropriate;
(f) make
every reasonable effort to obtain the withdrawal of any order suspending the
effectiveness of a Registration Statement at the earliest possible moment and
provide immediate notice to each Holder of the withdrawal of any such order;
(g) in
the case of a Shelf Registration, furnish to each Holder of Registrable
Securities, without charge, at least one conformed copy of each Registration
Statement and any post-effective amendment thereto (without documents
incorporated therein by reference or exhibits thereto, unless requested);
(h) in
the case of a Shelf Registration, cooperate with the selling Holders of
Registrable Securities to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any
restrictive legends and enable such Registrable Securities to be in such
denominations (consistent with the provisions of the Indenture) and registered
in such names as the selling Holders may reasonably request at least one
business day prior to the closing of any sale of Registrable Securities;
(i) in
the case of a Shelf Registration, upon the occurrence of any event contemplated
by Section 3(e)(v) hereof, use its 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 the purchasers of the Registrable Securities, such Prospectus will
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
The Company and the Guarantors agree to notify the Holders to suspend
use of the Prospectus as promptly as
10
practicable after the occurrence of such an
event, and the Holders hereby agree to suspend use of the Prospectus until the
Company and the Guarantors have amended or supplemented the Prospectus to
correct such misstatement or omission;
(j) a
reasonable time prior to the filing of any Registration Statement, any
Prospectus, any amendment to a Registration Statement or amendment or
supplement to a Prospectus or any document which is to be incorporated by
reference into a Registration Statement or a Prospectus after 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, the Holders and their counsel) and make such of the representatives
of the Company and the Guarantors as shall be reasonably requested by the
Initial Purchasers or their counsel (and, in the case of a Shelf Registration
Statement, the Holders or their counsel) available for discussion of such
document, and shall not at any time file or make any amendment to the Registration
Statement, any Prospectus or any amendment of or supplement to a Registration
Statement or a Prospectus or any document which is to be incorporated by
reference into a Registration Statement or a Prospectus, of which the Initial
Purchasers and their counsel (and, in the case of a Shelf Registration
Statement, the Holders 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;
(k) obtain
a CUSIP number for all Exchange Securities or Registrable Securities, as the
case may be, not later than the effective date of a Registration Statement;
(l) cause
the Indenture to be qualified under the Trust Indenture Act of 1939, as amended
(the TIA), in connection with the registration of the Exchange Securities or
Registrable Securities, as the case may be, cooperate with the Trustee and the
Holders to effect such changes to the Indenture as may be required for the
Indenture to be so qualified in accordance with the terms of the TIA and
execute, and use its 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;
(m) in
the case of a Shelf Registration, make available for inspection by a
representative of the Holders of the Registrable Securities, any Underwriter participating
in any disposition pursuant to such Shelf Registration Statement, and attorneys
and accountants designated by the Holders, at reasonable times and in a
reasonable manner, all financial and other records, pertinent documents and
properties of the Company and the Guarantors, and cause the respective
officers, directors and employees of the Company and the Guarantors to supply
all information reasonably requested by any such representative, Underwriter,
attorney or accountant in connection with a Shelf Registration Statement;
(n) in
the case of a Shelf Registration, use its reasonable best efforts to cause all
Registrable Securities to be listed on any securities exchange or any automated
11
quotation system on which similar securities
issued by the Company or any Guarantor are then listed if requested by the
Majority Holders, to the extent such Registrable Securities satisfy applicable
listing requirements;
(o) use
its best efforts to cause the Registrable Securities or the Exchange
Securities, as the case may be, to continue to be rated by two nationally
recognized statistical rating organizations (as such term is defined in Rule 436(g)(2)
under the 1933 Act);
(p) if
reasonably requested by any Holder of Registrable Securities covered by a
Registration Statement, (i) promptly incorporate in a Prospectus
supplement or post-effective amendment such information with respect to such
Holder as such Holder reasonably requests to be included therein and (ii) make
all required filings of such Prospectus supplement or such post-effective
amendment as soon as the Company has received notification of the matters to be
incorporated in such filing; and
(q) 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 of the Registrable Securities being sold) in order to
expedite or facilitate the disposition of such Registrable Securities
including, but not limited to, an Underwritten Offering and in 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 Guarantors (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 connection with underwritten firm commitment
offerings, (iii) obtain cold comfort letters from the independent
certified public accountants of the Company and the Guarantors (and, if
necessary, any other certified public accountant of any subsidiary of the
Company or any Guarantor, or of any business acquired by the Company or any
Guarantor for which financial statements and financial data are or are required
to be included in the Registration Statement) addressed to each selling Holder
and Underwriter of Registrable Securities, such letters to be in customary form
and covering matters of the type customarily covered in cold comfort letters
in connection with underwritten firm commitment offerings, and (iv) deliver
such documents and certificates as may be reasonably requested by the Holders
of a majority in principal amount of the Registrable Securities being sold or
the Underwriters, and which are customarily delivered in underwritten
offerings, to evidence the continued validity of the representations and
warranties of the Company and the Guarantors made pursuant to clause (i) above
and to evidence compliance with any customary conditions contained in an
underwriting agreement.
12
In the
case of a Shelf Registration Statement, the Company and the Guarantors may
require each Holder of Registrable Securities to furnish to the Company and the
Guarantors such information regarding the Holder and the proposed distribution
by such Holder of such Registrable Securities as the Company and the Guarantors
may from time to time reasonably request in writing.
In the
case of a Shelf Registration Statement, each Holder agrees that, upon receipt
of any notice from the Company and the Guarantors of the happening of any event
of the kind described in Section 3(e)(v) hereof, such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to a
Registration Statement until such Holders receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) hereof,
and, if so directed by the Company and the Guarantors, such Holder will deliver
to the Company and the Guarantors (at its expense) all copies in its
possession, other than permanent file copies then in such Holders possession,
of the Prospectus covering such Registrable Securities current at the time of
receipt of such notice. If the Company
and the Guarantors shall give any such notice to suspend the disposition of
Registrable Securities pursuant to a Registration Statement, the Company and
the Guarantors shall extend the period during which the Registration Statement
shall be maintained effective pursuant to this Agreement by the number of days
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 Guarantors may give any
such notice only twice during any 365-day period and any such suspensions may
not exceed 30 days for each suspension and there may 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.
(a) The
Staff of the SEC has taken the position that any broker-dealer that receives
Exchange Securities for its own account in the Exchange Offer in exchange for
Securities that were acquired by such broker-dealer as a result of market-making
or other trading activities (a Participating Broker-Dealer), may be deemed to
be an underwriter within the meaning of the 1933 Act and must deliver a
prospectus meeting the requirements of the 1933 Act in connection with any
resale of such Exchange Securities.
The
Company and the Guarantors understand that it is the Staffs 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
13
the 1933 Act in connection with resales of Exchange
Securities for their own accounts, so long as the Prospectus otherwise meets
the requirements of the 1933 Act.
(b) In
light of the above, notwithstanding the other provisions of this Agreement, the
Company and the Guarantors agree that the provisions of this Agreement as they
relate to a Shelf Registration shall also apply to an Exchange Offer Registration
to the extent, and with such reasonable modifications thereto as may be,
reasonably requested by the Initial Purchasers or by one or more Participating
Broker-Dealers, in each case as provided in clause (ii) below, in order to
expedite or facilitate the disposition of any Exchange Securities by
Participating Broker-Dealers consistent with the positions of the Staff recited
in Section 4(a) above; provided that:
(i) the Company and the
Guarantors shall not be required to amend or supplement the Prospectus
contained in the Exchange Offer Registration Statement, as would otherwise be
contemplated by Section 3(i), (A) after the Participating
Broker-Dealers shall have disposed of the Registrable Securities or (B) for
a period exceeding 180 days after the last Acceptance Date (as such period may
be extended pursuant to the penultimate paragraph of Section 3 of this
Agreement) and Participating Broker-Dealers shall not be authorized by the
Company and the Guarantors to deliver and shall not deliver such Prospectus
after such period in connection with the resales contemplated by this Section 4;
and
(ii) the application of
the Shelf Registration procedures set forth in Section 3 of this Agreement
to an Exchange Offer Registration, to the extent not required by the positions
of the Staff of the SEC or the 1933 Act and the rules and regulations
thereunder, will be in conformity with the reasonable request to the Company
and the Guarantors by the Initial Purchasers or with the reasonable request in
writing to the Company and the Guarantors by one or more broker-dealers who
certify to the Initial Purchasers and the Company and the Guarantors in writing
that they anticipate that they will be Participating Broker-Dealers; and provided
further that, in connection with such application of the Shelf
Registration procedures set forth in Section 3 to an Exchange Offer
Registration, the Company and the Guarantors shall be obligated (x) to
deal only with one entity representing the Participating Broker-Dealers, which
shall be Banc of America Securities LLC unless it elects not to act as such
representative, (y) to pay the fees and expenses of only one counsel
representing the Participating Broker-Dealers, which shall be counsel to the
Initial Purchasers unless such counsel elects not to so act and (z) to
cause to be delivered only one, if any, cold comfort letter with respect to
the Prospectus in the form existing on the last Acceptance Date and with
respect to each subsequent amendment or supplement, if any, effected during the
period specified in clause (i) above.
(c) The
Initial Purchasers shall have no liability to the Company, any Guarantor or any
Holder with respect to any request that it may make pursuant to Section 4(b) above.
14
5. Indemnification
and Contribution.
(a) Each
of the Company and the Guarantors agrees, jointly and severally, to indemnify
and hold harmless the Initial Purchasers, each Holder and each Person, if any,
who controls any Initial Purchaser or any Holder within the meaning of either Section 15
of the 1933 Act or Section 20 of the 1934 Act, or is under common control
with, or is controlled by, any Initial Purchaser or any Holder, from and
against all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred by the Initial
Purchaser, any Holder or any such controlling or affiliated Person in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained
in any Registration Statement (or any amendment thereto) pursuant to which
Exchange Securities or Registrable Securities were registered under the 1933
Act, including all documents incorporated therein by reference, or caused by
any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
or caused by any untrue statement or alleged untrue statement of a material
fact contained in any Prospectus (as amended or supplemented if the Company and
the Guarantors shall have furnished any amendments or supplements thereto), any
Free Writing Prospectus or any Issuer Information filed or required to be filed
pursuant to Rule 433(d) under the 1933 Act, or caused by any omission
or alleged omission to state therein a material fact necessary 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 such untrue statement or omission or alleged untrue statement
or omission based upon information relating to the Initial Purchasers or any
Holder furnished to the Company or the Guarantors in writing through Banc of
America Securities LLC or any selling Holder expressly for use therein. In connection with any Underwritten Offering
permitted by Section 3, the Company and each of the Guarantors will also
indemnify the Underwriters, if any, selling brokers, dealers and similar
securities industry professionals participating in the distribution, their
officers and directors and each Person who controls such Persons (within the
meaning of the 1933 Act and the 1934 Act) to the same extent as provided above
with respect to the indemnification of the Holders, if requested in connection
with any Registration Statement.
(b) Each
Holder agrees, severally and not jointly, to indemnify and hold harmless the
Company, the Guarantors, the Initial Purchasers and the other selling Holders,
and each of their respective directors, officers who sign the Registration
Statement and each Person, if any, who controls the Company, the Guarantors,
any Initial Purchaser and any other selling Holder within the meaning of either
Section 15 of the 1933 Act or Section 20 of the 1934 Act to the same
extent as the foregoing indemnity from the Company and the Guarantors to the
Initial Purchasers and the Holders, but only with reference to information
relating to such Holder furnished to the Company and the Guarantors in writing
by such Holder expressly for use in any Registration Statement (or any
amendment thereto), any Prospectus (or any amendment or supplement thereto) or
any Free Writing Prospectus.
(c) In
case any proceeding (including any governmental investigation) shall be
instituted involving any Person in respect of which indemnity may be sought
pursuant to either paragraph (a) or paragraph (b) above, such Person
(the indemnified party) shall promptly notify the Person against whom such
indemnity may be sought (the indemnifying
15
party) in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party
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 party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between
them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (a) the fees and
expenses of more than one separate firm (in addition to any local counsel) for
the Initial Purchasers and all Persons, if any, who control any Initial
Purchaser within the meaning of either Section 15 of the 1933 Act or Section 20
of the 1934 Act, (b) the fees and expenses of more than one separate firm
(in addition to any local counsel) for the Company and the Guarantors, their
directors, their officers who sign the Registration Statement and each Person,
if any, who controls the Company or the Guarantors within the meaning of either
such Section and (c) the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Holders and all Persons, if
any, who control any Holders within the meaning of either such Section, and
that all such fees and expenses shall be reimbursed as they are incurred. In such case involving the Initial Purchasers
and Persons who control the Initial Purchasers, such firm shall be designated
in writing by the Initial Purchasers. In
such case involving the Holders and such Persons who control Holders, such firm
shall be designated in writing by the Majority Holders. In all other cases, such firm shall be
designated by the Company. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent but, if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it 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 such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party for such
fees and expenses of counsel in accordance with such request prior to the date
of such settlement. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which such
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) If
the indemnification provided for in paragraph (a) or paragraph (b) of
this Section 5 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable
16
by such indemnified party as a result of such losses, claims, damages
or liabilities in such proportion as is appropriate to reflect the relative
fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The relative fault of the Company, the
Guarantors and the Holders shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Guarantors or by the Holders and the
parties relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Holders respective obligations to contribute pursuant to this Section 5(d) are
several in proportion to the respective principal amount of Registrable
Securities of such Holder that were registered pursuant to a Registration
Statement.
(e) The
Company, the Guarantors and each Holder agree that it would not be just or
equitable if contribution pursuant to this Section 5 were determined by pro
rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities referred to in
paragraph (d) above shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions
of this Section 5, no Holder shall be required to indemnify or contribute
any amount in excess of the amount by which the total price at which
Registrable Securities were sold by such Holder exceeds the amount of any damages
that such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any Person who was not guilty of
such fraudulent misrepresentation. The
remedies provided for in this Section 5 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
The
indemnity and contribution provisions contained in this Section 5 shall
remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf
of the Initial Purchasers, any Holder or any Person controlling any
Initial Purchaser or any Holder, or by or on behalf of the Company, the
Guarantors, their officers or directors or any Person controlling the Company
or the Guarantors, (iii) acceptance of any of the Exchange Securities and (iv) any
sale of Registrable Securities pursuant to a Shelf Registration Statement.
6. Miscellaneous.
(a) No
Inconsistent Agreements. Neither the
Company nor the Guarantors have entered into, and on or after the date of this
Agreement will not enter into, any agreement which is inconsistent with the
rights granted to the Holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof.
The rights granted to the Holders hereunder do not in any way conflict
with and are not inconsistent with the rights granted to the
17
holders of the Companys or the Guarantors other issued and
outstanding securities under any such agreements.
(b) Amendments
and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given unless the Company and the Guarantors have
obtained the written consent of Holders of at least a majority in aggregate
principal amount of the outstanding Registrable Securities affected by such
amendment, modification, supplement, waiver or consent; provided, however,
that no amendment, modification, supplement, waiver or consent to any departure
from the provisions of Section 5 hereof shall be effective as against any
Holder of Registrable Securities unless consented to in writing by such Holder.
(c) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such
Holder to the Company by means of a notice given in accordance with the
provisions of this Section 6(c), which address initially is, with respect
to the Initial Purchasers, the address set forth in the Purchase Agreement; and
(ii) if to the Company or the Guarantors, initially at the Companys
address set forth in the Purchase Agreement and thereafter at such other
address, notice of which is given in accordance with the provisions of this Section 6(c).
All
such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five business days after being deposited in the mail, postage
prepaid, if mailed; when receipt is acknowledged, if telecopied; and on the
next business day if timely delivered to an air courier guaranteeing overnight
delivery.
Copies
of all such notices, demands, or other communications shall be concurrently
delivered by the Person giving the same to the Trustee, at the address
specified in the Indenture.
(d) Successors
and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors, assigns and
transferees of each of the parties, including, without limitation and without
the need for an express assignment, subsequent Holders; provided that
nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Securities in violation of the terms of the Purchase
Agreement. If any transferee of any
Holder shall acquire Registrable Securities, in any manner, whether by
operation of law or otherwise, such Registrable Securities shall be held
subject to all of the terms of this Agreement, and by taking and holding such
Registrable Securities such Person shall be conclusively deemed to have agreed
to be bound by and to perform all of the terms and provisions of this Agreement
and such Person shall be entitled to receive the benefits hereof. The Initial Purchasers (in their capacity as
Initial Purchasers) shall have no liability or obligation to the Company or the
Guarantors with respect to any failure by a Holder to comply with, or any
breach by any Holder of, any of the obligations of such Holder under this
Agreement.
18
(e) Purchases
and Sales of Securities. The Company
and the Guarantors shall not, and shall use their best efforts to cause their
affiliates (as defined in Rule 405 under the 1933 Act) not to, purchase
and then resell or otherwise transfer any Securities.
(f) Third
Party Beneficiary. The Holders shall
be third party beneficiaries to the agreements made hereunder between the
Company and the Guarantors, on the one hand, and the Initial Purchasers, on the
other hand, and shall have the right to enforce such agreements directly to the
extent it deems such enforcement necessary or advisable to protect its rights
or the rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Governing
Law. This Agreement shall be
governed by the laws of the State of New York.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
19
EXECUTION COPY
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
|
|
Very truly yours,
|
|
|
|
|
|
|
STEEL DYNAMICS, INC.
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Theresa Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Chief Financial
Officer
|
|
|
|
|
|
|
|
|
|
|
SDI INVESTMENT COMPANY
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Theresa Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
President
|
|
|
|
|
|
|
|
|
|
|
STEEL DYNAMICS
SALES NORTH
AMERICA, INC.
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Theresa
Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
NEW MILLENNIUM
BUILDING
SYSTEMS, LLC
|
|
|
|
|
|
|
By:
|
Steel Dynamics,
Inc., its sole member
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Theresa
Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
ROANOKE ELECTRIC
STEEL
CORPORATION
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Theresa Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Vice President
|
|
|
|
|
Registration Rights Agreement
|
|
NEW MILLENNIUM BUILDING
SYSTEMS, INC.
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Theresa
Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
SOCAR OF OHIO, INC.
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Theresa
Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
JOHN W. HANCOCK, JR., LLC
|
|
|
|
|
|
|
By:
|
ROANOKE ELECTRIC STEEL
CORPORATION, MANAGER AND
SOLE MEMBER
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Theresa
Wagler
|
|
|
Name:
|
Theresa
Wagler
|
|
|
Title:
|
Vice
President
|
|
|
|
|
|
|
|
|
|
|
STEEL OF WEST
VIRGINIA, INC.
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Theresa
Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
STEEL VENTURES, INC.
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Theresa Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Vice President
|
|
|
|
|
2
|
|
SWVA, INC.
|
|
|
|
|
|
|
|
|
By:
|
/s/ Theresa
Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
MARSHALL STEEL,
INC.
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Theresa
Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
SHREDDED PRODUCTS, LLC
|
|
|
|
|
|
|
By:
|
ROANOKE ELECTRIC STEEL
CORPORATION, MANAGER AND
SOLE MEMBER
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Theresa
Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
SHREDDED PRODUCTS II, LLC
|
|
|
|
|
|
|
By:
|
STEEL DYNAMICS, INC., MANAGER
AND SOLE MEMBER
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Theresa Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
THE TECHS INDUSTRIES, INC.
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Theresa Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
|
|
3
|
|
ADMETCO, INC.
|
|
|
|
|
|
|
|
|
By:
|
/s/ Theresa Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
AUBURN INVESTMENT COMPANY, LLC
|
|
|
|
|
|
|
By:
|
OMNISOURCE
CORPORATION,
SOLE MEMBER
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Theresa Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
CAPITOL CITY METALS, LLC
|
|
|
|
|
|
|
By:
|
OMNISOURCE
CORPORATION,
SOLE MEMBER
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Theresa Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
CAROLINA INVESTMENT COMPANY,
LLC
|
|
|
|
|
|
|
By:
|
OMNISOURCE
CORPORATION,
SOLE MEMBER
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Theresa Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
GLOBAL SHREDDING TECHNOLOGIES,
LTD., LLC
|
|
|
|
|
|
|
By:
|
OMNISOURCE
CORPORATION,
SOLE MEMBER
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Theresa Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Vice President
|
|
|
|
|
4
|
|
INDUSTRIAL SCRAP CORPORATION
|
|
|
|
|
|
|
|
|
By:
|
/s/ Theresa Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
INDUSTRIAL SCRAP, LLC
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Theresa Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
JACKSON IRON & METAL COMPANY,
INC.
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Theresa Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
LUCKY STRIKE METALS, LLC
|
|
|
|
|
|
|
By:
|
OMNISOURCE
CORPORATION,
SOLE MEMBER
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Theresa Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
MICHIGAN PROPERTIES ECORSE, LLC
|
|
|
|
|
|
|
By:
|
OMNISOURCE
CORPORATION,
SOLE MEMBER
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Theresa Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5
|
|
OMNISOURCE BAY CITY, LLC
|
|
|
|
|
|
|
By:
|
JACKSON IRON &
METAL COMPANY, INC.,
SOLE MEMBER
|
|
|
|
|
|
|
By:
|
/s/ Theresa Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
OMNISOURCE ATHENS DIVISION, LLC
|
|
|
|
|
|
|
By:
|
OMNISOURCE
CORPORATION,
SOLE MEMBER
|
|
|
|
|
|
|
By:
|
/s/ Theresa Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
OMNISOURCE CORPORATION
|
|
|
|
|
|
|
By:
|
/s/ Theresa Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
OMNISOURCE INDIANAPOLIS, LLC
|
|
|
|
|
|
By:
|
OMNISOURCE
CORPORATION,
SOLE MEMBER
|
|
|
|
|
|
|
By:
|
/s/ Theresa Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
OMNISOURCE MEXICO, LLC
|
|
|
|
|
|
|
By:
|
OMNISOURCE
CORPORATION,
SOLE MEMBER
|
|
|
|
|
|
|
By:
|
/s/ Theresa Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
OMNISOURCE TRANSPORT, LLC
|
|
|
|
|
|
|
By:
|
OMNISOURCE
CORPORATION,
SOLE MEMBER
|
|
|
|
|
|
|
By:
|
/s/ Theresa Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
OMNISOURCE, LLC
|
|
|
|
|
|
|
By:
|
/s/ Theresa Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
RECOVERY TECHNOLOGIES, LLC
|
|
|
|
|
|
|
By:
|
OMNISOURCE
CORPORATION,
SOLE MEMBER
|
|
|
|
|
|
|
By:
|
/s/ Theresa Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
6
|
|
SCIENTIFIC RECYCLING GROUP, LLC
|
|
|
|
|
|
|
By:
|
OMNISOURCE CORPORATION,
SOLE MEMBER
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Theresa Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
|
SUPERIOR ALUMINUM ALLOYS, LLC
|
|
|
|
|
|
|
By:
|
/s/ Theresa Wagler
|
|
|
Name:
|
Theresa Wagler
|
|
|
Title:
|
Vice President
|
|
|
|
|
7
Confirmed and accepted as of the date first above written:
BANC OF AMERICA SECURITIES LLC
MORGAN STANLEY & CO. INCORPORATED
GOLDMAN, SACHS & CO.
ABN AMRO INCORPORATED
WELLS FARGO SECURITIES, LLC
By: BANC OF AMERICA SECURITIES
LLC
|
By:
|
/s/ Mike Brown
|
|
|
Name:
|
Mike Brown
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
8
SCHEDULE I
Guarantors
|
SDI Investment Company
|
|
New Millennium Building Systems, LLC
|
|
Paragon Steel Enterprises, LLC
|
|
Ferrous Resources, LLC
|
|
STLD Holdings, Inc.
|
|
Steel
Dynamics Sales North America, Inc.
|
|
Roanoke Electrical
Steel Corporation
|
|
Indiana Nugget, LLC
|
|
Dynamic Composites, LLC
|
|
Shredded Products, LLC
|
|
Shredded Products II,
LLC
|
|
John W.
Hancock, Jr., LLC
|
|
New Millennium Building
Systems, Inc.
|
|
Socar of
Ohio, Inc.
|
|
Steel of West
Virginia, Inc.
|
|
SWVA, Inc.
|
|
Marshall
Steel, Inc.
|
|
Steel
Ventures, Inc.
|
|
Dynamic Aviation, LLC
|
|
Indy Partners 1, LLC
|
|
The Techs
Industries, Inc.
|
|
Mesabi Nugget Delaware,
LLC
|
|
OmniSource Corporation
|
|
Admetco, Inc.
|
|
Auburn Investment
Company, LLC
|
|
Capitol City Metals,
LLC
|
|
Carolina Investment
Company, LLC
|
|
Global Shredding
Technologies, Ltd., LLC
|
|
Industrial Scrap
Corporation
|
|
Industrial Scrap, LLC
|
|
Jackson Iron &
Metal Company, Inc.
|
|
Lucky Strike Metals,
LLC
|
|
Michigan Properties
Ecorse, LLC
|
|
OmniSource Athens
Division, LLC
|
|
OmniSource Bay City,
LLC
|
|
OmniSource
Indianapolis, LLC
|
|
OmniSource, LLC
|
|
OmniSource Mexico, LLC
|
|
OmniSource Transport,
LLC
|
|
Recovery Technologies,
LLC
|
|
Scientific Recycling
Group, LLC
|
|
Speedbird Aviation, LLC
|
|
Superior Aluminum
Alloys, LLC
|
REGISTRATION RIGHTS AGREEMENT
Dated April 3, 2008
among
STEEL DYNAMICS, INC.,
as Issuer
|
SDI INVESTMENT COMPANY
|
|
NEW MILLENNIUM BUILDING
SYSTEMS, LLC
|
|
PARAGON STEEL
ENTERPRISES, LLC
|
|
FERROUS RESOURCES, LLC
|
|
STLD HOLDINGS, INC.
|
|
STEEL DYNAMICS SALES NORTH AMERICA, INC.
|
|
ROANOKE
ELECTRICAL STEEL CORPORATION
|
|
INDIANA NUGGET,
LLC
|
|
DYNAMIC
COMPOSITES, LLC
|
|
SHREDDED
PRODUCTS, LLC
|
|
SHREDDED
PRODUCTS II, LLC
|
|
JOHN W. HANCOCK,
JR., LLC
|
|
NEW MILLENNIUM
BUILDING SYSTEMS, INC.
|
|
SOCAR OF OHIO,
INC.
|
|
STEEL OF WEST
VIRGINIA, INC.
|
|
SWVA, INC.
|
|
MARSHALL STEEL,
INC.
|
|
STEEL VENTURES,
INC.
|
|
DYNAMIC
AVIATION, LLC
|
|
INDY PARTNERS 1,
LLC
|
|
THE TECHS
INDUSTRIES, INC.
|
|
MESABI NUGGET
DELAWARE, LLC
|
|
OMNISOURCE
CORPORATION
|
|
ADMETCO, INC.
|
|
AUBURN
INVESTMENT COMPANY, LLC
|
|
CAPITOL CITY
METALS, LLC
|
|
CAROLINA
INVESTMENT COMPANY, LLC
|
|
GLOBAL SHREDDING
TECHNOLOGIES, LTD., LLC
|
|
INDUSTRIAL SCRAP
CORPORATION
|
|
INDUSTRIAL
SCRAP, LLC
|
|
JACKSON
IRON & METAL COMPANY, INC.
|
|
LUCKY STRIKE
METALS, LLC
|
|
MICHIGAN
PROPERTIES ECORSE, LLC
|
|
OMNISOURCE
ATHENS DIVISION, LLC
|
|
OMNISOURCE BAY
CITY, LLC
|
|
OMNISOURCE
INDIANAPOLIS, LLC
|
|
OMNISOURCE, LLC
|
|
OMNISOURCE
MEXICO, LLC
|
|
OMNISOURCE
TRANSPORT, LLC
|
|
RECOVERY
TECHNOLOGIES, LLC
|
|
SCIENTIFIC
RECYCLING GROUP, LLC
|
|
SPEEDBIRD
AVIATION, LLC
|
|
SUPERIOR
ALUMINUM ALLOYS, LLC
|
as Guarantors
and
BANC OF AMERICA SECURITIES LLC,
MORGAN STANLEY & CO. INCORPORATED
GOLDMAN, SACHS & CO.,
ABN AMRO INCORPORATED
and
WELLS FARGO SECURITIES, LLC
as Initial Purchasers