1
EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
MARCH 24, 2000
2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT made the 24th day of March, 2000,
BETWEEN:
CANADIAN 88 ENERGY CORP., a corporation incorporated pursuant to
the laws of Canada (hereinafter referred to as "CANADIAN 88")
OF THE FIRST PART
- and -
DUKE ENERGY HYDROCARBONS, L.L.C., a corporation incorporated
under the laws of Delaware (hereinafter referred to as "DEH")
OF THE SECOND PART
WHEREAS DEH and Canadian 88 have entered into a subscription agreement
dated the same date as this Agreement (the "Subscription Agreement"), pursuant
to which DEH will acquire - Common Shares and Canadian 88, DEH and Xxxx Xxxxx
have entered into a Shareholders' Agreement dated the same date as this
Agreement (the "SHAREHOLDERS' AGREEMENT"); and
WHEREAS DEH may in the future choose to sell all or any portion of the
Common Shares of Canadian 88 owned by it in an Offering as contemplated by the
Shareholders' Agreement; and
WHEREAS Canadian 88 believes it to be in its best interests to provide
for certain matters related to the sale of securities of Canadian 88 in
connection with an Offering;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
mutual covenants and promises contained herein and other good and valuable
consideration (the receipt and adequacy whereof is hereby acknowledged), the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINED TERMS
For the purpose of this Agreement, the following terms shall have the
meanings ascribed thereto below unless otherwise specified:
"AGREEMENT", "THIS AGREEMENT", "HERETO", "HEREIN", "HEREBY", "HEREUNDER",
"HEREOF" and similar expressions refer to this Agreement in its entirety and not
to any particular Article, Section, Subsection, Clause, Subdivision or other
portion hereof and include any and every amending agreement and agreement
supplemental hereto.
3
-2-
"AFFILIATE" has the meaning set forth in the Securities Act (Alberta).
"BOARD OF DIRECTORS" means the board of directors of Canadian 88.
"BUSINESS DAY" means a day other than a Saturday or Sunday or a day when banks
in the City of Calgary are not generally open for business.
"COMMON SHARES" means the shares designated as "common shares" in Canadian 88's
articles.
"COMPANY SECURITIES" means any Voting Shares or Convertible Securities or both.
"CONVERTIBLE SECURITIES" means any securities convertible into, exchangeable for
or exercisable for Voting Shares, including convertible debentures, convertible
preferred shares, warrants and rights but excluding employee stock options,
other convertible securities of Canadian 88 issued pursuant to a share
compensation arrangement (as defined in Section 627 of The Toronto Stock
Exchange Company Manual) and any rights issued pursuant to the Shareholder
Rights Plan Agreement dated December 22, 1994 between Canadian 88 and Montreal
Trust Company of Canada, as amended or replaced.
"DEH" means Duke Energy Hydrocarbons, L.L.C. and its successors and assigns.
"EXEMPT OFFERING" means a distribution for cash (other than pursuant to a share
compensation arrangement, as defined in Section 627 of The Toronto Stock
Exchange Company Manual) under an exemption from the requirement to file and
obtain a receipt for a prospectus from, or file and have declared effective a
registration statement by, the securities regulatory authority of a jurisdiction
under the securities legislation of that jurisdiction.
"EXEMPT OFFERING DOCUMENTS" means, in connection with an Exempt Offering,
documents in a form which counsel to DEH and counsel to Canadian 88 shall
consider suitable for private placement or sale in the jurisdiction in which
such Exempt Offering is effected or proposed to be effected and which shall
comply with all applicable Securities Laws.
"MISREPRESENTATION" and "MATERIAL FACT" shall have the meanings ascribed thereto
under applicable Securities Laws in Canada.
"OFFERING" means an Exempt Offering or a Public Offering, or both.
"PERSON" includes an individual, partnership, corporation (including a business
trust), joint stock company, trust, unincorporated association, joint venture or
other entity, or a stock exchange, trustee in bankruptcy, receiver or any
government, any political subdivision, any agency and any entity or person
exercising executive, legislative, judicial, regulatory or administrative
functions of government.
"PUBLIC OFFERING" means a "best efforts" agency offering, a firm commitment
underwritten offering or a "bought deal" for cash pursuant to a prospectus for
which a final receipt has been issued, or in respect of which a registration
statement has been declared effective, by the securities regulatory authority of
a jurisdiction under the securities legislation of that jurisdiction.
"PUBLIC OFFERING DOCUMENTS" means, in connection with a Public Offering, a
prospectus (preliminary and final), a registration statement or other form of
disclosure document in a form which counsel to DEH and counsel to Canadian 88
shall consider suitable for the Public Offering in accordance with the intended
method thereof, and which complies with all applicable Securities Laws.
4
-3-
"RULE 144" and "RULE 144A" mean Rule 144 and Rule 144A, respectively,
promulgated under the United States Securities Act of 1933, as amended.
"SECURITIES LAWS" means, with respect to any particular jurisdiction, the
securities legislation and rules and regulations, including policy statements
and notices adopted or issued by securities regulatory authorities, in such
jurisdiction.
"SHAREHOLDERS' AGREEMENT" has the meaning set forth in the first recital hereof.
"SUBSCRIPTION AGREEMENT" has the meaning set forth in the first recital hereof.
"SUBSIDIARY" has the meaning set forth in the Securities Act (Alberta) and, for
greater certainty in the case of Canadian 88, includes Canadian 88 Diversified
Energy Fund 1991 Limited Partnership, Longview Resource Management Corporation,
The Canadian 88 1990 Oil & Gas Exploration and Development Partnership and The
Canadian 88 1990 Hydrocarbon Processing Gas Plant Joint Venture.
"UNDERWRITERS" means any underwriter(s) or agent(s) in connection with a Public
Offering or Exempt Offering, which shall be selected by the party initiating the
same.
"VOTING SHARES" means the Common Shares and any other securities of Canadian 88
having voting rights under ordinary circumstances with respect to the election
of directors of Canadian 88.
1.2 CONSTRUCTION
Whenever the context requires, the gender of all words used herein shall
include the masculine, feminine and neuter, and the number of all words shall
include the singular and plural.
1.3 REFERENCES
Unless otherwise specified, the references herein to "Sections",
"Subsections" or "Articles" refer to the sections, subsections or articles in
this Agreement.
ARTICLE II
REGISTRATION RIGHTS
2.1 PUBLIC OFFERING
(a) DEH shall be entitled to request, from time to time (each, a "REQUEST"),
but not more than twice in any 12 month period, by written notice to
Canadian 88, that Canadian 88 assist DEH in connection with a Public
Offering of all or part of the Company Securities, as may be held from
time to time by DEH, through a lead Underwriter, in jurisdictions and in
accordance with a plan of distribution specified therein, provided that
no request may be made for fewer than two million Voting Shares. DEH
shall be entitled to require that the Public Offering be made in any
jurisdiction where Canadian 88 is, at that time, a reporting issuer,
registrant, or the equivalent thereof, and in any other jurisdiction
provided that Canadian 88 shall not, solely as a result thereof, be
required to qualify generally to do business, subject itself to taxation
or consent to general service of process in such jurisdiction other than
service of process in connection with such offering, or assume
obligations substantially similar to those of a reporting issuer. Upon
receipt by Canadian 88 of a Request, Canadian 88 shall, in conjunction
with DEH, proceed as expeditiously as reasonably possible to complete
the steps and procedures necessary or desirable
-4-
5
-4-
to complete the Public Offering, and without limiting the generality of
the foregoing, Canadian 88 shall:
(i) subject to section 2.1(d), during the period commencing from the
receipt of the Request until 90 days (or such shorter period as
may be provided in respect of issuances or sales of Company
Securities by Canadian 88 in the relevant underwriting, agency,
distribution or similar agreement) after closing of the Public
Offering, agree that, except for the grant of options to
employees, officers and directors in the ordinary course of
business, it shall not, without the consent of DEH, which consent
shall not be unreasonably withheld, allot or issue any Company
Securities or announce publicly any intention to do so, provided
that Canadian 88 shall be permitted to fulfil any pre-existing
contractual obligations to issue Company Securities including,
without limitation, its obligations under the Company stock
option plan;
(ii) prepare Public Offering Documents in the form appropriate for the
type of Public Offering specified in the Request incorporating
therein any information required with respect to the intended
distribution and with respect to DEH to be supplied by DEH, and
have the same, when and as requested by DEH, filed (accompanied
by any documentation required under applicable Securities Laws)
with the relevant securities regulatory authorities in all
relevant jurisdictions and use its best efforts to cause the
final versions of any such filed Public Offering Documents to
become and remain effective for a period of 12 months after its
effective date or, if shorter, until the distribution of the
securities contemplated thereby is completed;
(iii) prior to filing a Public Offering Document, furnish to DEH and
each Underwriter, if any, selected by DEH in the transaction,
copies of such Public Offering Document as are proposed to be
filed or delivered, and thereafter furnish to DEH and each
Underwriter, if any, selected by DEH in the transaction, such
number of copies of such Public Offering Document (in each case
including all exhibits thereto and all documents incorporated by
reference therein) and such other documents as DEH or each such
Underwriter may reasonably request in order to facilitate the
intended transaction;
(iv) promptly notify DEH and any Underwriter of the occurrence of an
event which could reasonably be considered to result in a
misrepresentation or a material misstatement or omission in such
Public Offering Document, and prepare a supplement or amendment
to such Public Offering Document in form and substance reasonably
satisfactory to DEH so that, as thereafter delivered to the
purchasers or proposed purchasers, such Public Offering Document
(taken together with the amendment or supplement) will contain
full, true and plain disclosure relating to the Company and the
Company Securities and will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, in light of the circumstances in which they are made;
and cause the amendment or supplement to be filed as provided
under applicable Securities Laws and promptly make available to
DEH and any Underwriter in the transaction copies of any such
supplement or amendment;
(v) make available for inspection by DEH and any Underwriter
participating in the transaction and any solicitor, accountant,
reserve engineer or other professional retained by DEH or an
Underwriter (collectively, the "PROFESSIONALS"), all financial
and other records, pertinent corporate documents and properties
of Canadian 88 (collectively, the "RECORDS") as shall be
reasonably necessary to enable DEH, any Underwriter and the
6
-5-
Professionals to complete their respective due diligence and
cause Canadian 88's officers, directors and employees to supply
all information reasonably requested by any Professionals in
connection with such Public Offering Document.
(vi) use its best efforts to furnish to DEH and to each Underwriter,
if any, in a transaction, a signed counterpart, addressed to DEH
or each Underwriter, of:
(A) an opinion or opinions of counsel to Canadian 88; and
(B) a comfort letter or comfort letters from Canadian 88's
auditors;
each covering such matters of the type customarily covered by
opinions or comfort letters, as the case may be, as DEH or the
Underwriter(s) reasonably request and in form and substance
satisfactory to counsel to DEH and the Underwriter(s);
(vii) use its best efforts to cause all Company Securities to be issued
in connection with the Public Offering, to be listed on each
stock exchange on which securities of that type issued by
Canadian 88 are then listed, if not already listed;
(viii) enter into customary agreements including underwriting or agency
agreements among Canadian 88, DEH, and the Underwriter(s) on
usual commercial terms, and take such steps as are customary for
transactions of a similar nature, including signing and
certifying Public Offering Documents and any supplement or
amendment thereto in the customary manner and take such other
actions as are reasonably required in order to expedite or
facilitate the intended transaction;
(ix) use its best efforts to complete the Public Offering under the
Securities Laws of the applicable jurisdictions and do any and
all other acts and things that may be reasonably necessary or
advisable to facilitate completion of the Public Offering; and
(X) make available the officers of Canadian 88 for any "road show" or
other presentations to potential investors in the Offering.
(b) DEH shall promptly furnish in writing to Canadian 88 such information
regarding the distribution of Company Securities as Canadian 88 may from
time to time reasonably request and such other information as may be
legally required in connection with the preparation or filing of any
Public Offering Document.
(c) DEH agrees that upon receipt of any notice from Canadian 88 pursuant to
Section 2.1(a)(iv), it shall forthwith discontinue the distribution of
Company Securities pursuant to such Public Offering Document applicable
to such Company Securities until it shall have received copies of such
amendment or supplement, and if so directed by Canadian 88, DEH shall
deliver to Canadian 88 all copies, other than permanent file copies,
then in its possession, of such Public Offering Document covering such
Company Securities at the time of receipt of such notice.
(d) Canadian 88 may postpone for a reasonable period of time (but not
exceeding the lesser of 120 days from the date of a Request or 90 days
from the closing of the transaction referred to in Sections 2.1(d)(i) or
(ii)) the filing or effectiveness of any Public Offering Document
required pursuant to this Section 2.1 if the Board of Directors of
Canadian 88 determines (in good faith in a written resolution) that such
event:
7
-6-
(i) would have a material adverse effect upon any plan or proposal,
then under active consideration by the Board of Directors, for
Canadian 88 or any of its material Subsidiaries to engage in a
material acquisition or disposition of assets (other than in the
ordinary course of business) or any material merger,
consolidation, tender offer or similar material business
combination, or
(ii) would have a material adverse effect on a proposed public
offering of Company Securities for the account of Canadian 88, if
Canadian 88 then expects, and has taken substantial steps prior
to receipt of the applicable Request, to make such offering.
Any such postponement shall begin when Canadian 88 gives written notice
thereof to DEH and shall continue until Canadian 88 gives written notice
of the termination thereof to DEH, provided that, with respect to such
postponement, Canadian 88 shall give such notice of termination as soon
as the condition giving rise thereto has ceased to exist and, during
such postponement (other than during a postponement pursuant to Clause
(ii) above), shall take such steps as are necessary to insure that the
requested Public Offering will be effected in accordance with the
provisions of this Agreement as soon as practicable after such
postponement is terminated; and provided further that Canadian 88 may
only exercise the rights set forth in Clauses (i) and (ii) above one
time each during any period of 365 consecutive days. Each such notice of
postponement shall specify the basis for the postponement and an
approximation of the anticipated delay and shall include a copy of the
resolution setting forth the relevant determination of the Board of
Directors.
(e) If Canadian 88 proposes to sell any Company Securities (other than by a
registration on Form X-0, Xxxx X-0 or any successor or similar form
under Securities Laws, or in connection with a tender offer, merger or
other acquisition), Canadian 88 shall as soon as practicable (and, in
the case of a "bought deal", at least five Business Days and otherwise,
at least ten Business Days before the anticipated filing date) give
notice of such proposed sale (a "PROPOSED SALE") to DEH, including the
material terms thereof. DEH shall have no less than 48 hours, in the
case of a bought deal, and otherwise no less than five Business Days,
from receipt of such notice to advise Canadian 88 that it wishes to sell
Company Securities in such Proposed Sale, in which event DEH shall be
entitled to participate in the Proposed Sale; provided if (i) a Proposed
Sale pursuant to this Section 2.1(e) involves an underwritten offering
of Company Securities for the account of Canadian 88, to be distributed
(on a firm commitment basis) by or through one or more Underwriters of
recognized national or regional standing under underwriting terms
appropriate for such a transaction, and (ii) the managing Underwriter of
such underwritten offering shall inform Canadian 88 and DEH by letter of
its belief that the number of securities requested to be included in
such registration exceeds the number which can be sold in (or during the
time of) such offering or that the inclusion would adversely affect the
marketing of the securities to be sold by Canadian 88 therein, then
Canadian 88 may include all securities proposed to be sold by Canadian
88 to be sold for its own account and may decrease the number of Company
Securities so proposed to be sold by DEH and so requested to be included
in such registration by DEH to the extent necessary to reduce the number
of securities to be included in the registration statement to the level
recommended by the managing Underwriter. If Canadian 88 at any time
after it has given notice of a Proposed Sale, determines for any reason
not to proceed with or to delay the sale specified in such notice,
Canadian 88 will promptly give written notice of such determination and,
thereupon, (i) in the case of a determination not to proceed with such
sale, shall be relieved of its obligations hereunder to register any DEH
Company Securities in connection with such sale, and (ii) in the case of
a determination to delay such sale, Canadian 88 shall be permitted to
delay registering any DEH Company Securities for the same period as the
delay in such sale, which period shall not be in excess of 21 days. No
registration of DEH Company Securities
8
-7-
effected under this Section 2.1(e) shall, subject to Section 2.1(a),
relieve Canadian 88 of its obligations with respect to any Request made
by DEH pursuant to Section 2.1(a).
2.2 EXEMPT OFFERING
DEH shall be entitled to request, from time to time, but not more than
twice in any 12 month period, by written notice to Canadian 88 to, and Canadian
88 shall provided that the number of Voting Shares of Canadian 88 referred to in
such notice shall not be less than two million, comply with such provisions of
Section 2.1 that are applicable to Exempt Offerings and Exempt Offering
Documents to the same extent as if such Exempt Offerings and Exempt Offering
Documents were referred to therein.
2.3 EXPENSES
Subject to applicable Securities Laws, all reasonable expenses incurred
with respect to each Public Offering or Exempt Offering hereunder (whether or
not effective), including, without limitation, the following:
(a) all reasonable fees and expenses of counsel and independent accountants
to Canadian 88 (including fees and expenses relating to any opinions)
delivered pursuant hereto;
(b) all fees and expenses in connection with the qualification of Company
Securities to be registered for offering and sale under provincial,
state securities and "Blue Sky" laws, if applicable, including
reasonable fees and disbursements of counsel for any placement or sales
agents or underwriters in connection therewith;
(c) all expenses relating to the preparation, printing, distribution and
reproduction of the Public Offering Documents or Exempt Offering
Documents, as the case may be, each amendment or supplement to the
foregoing, the certificates representing Company Securities to be sold,
each agreement with and among any placement or sales agents or
underwriters and all documents delivered pursuant thereto; and
(d) all prospectus, registration and filing fees;
(e) all fees, commissions, discounts and expenses of any Underwriter engaged
(including reasonable fees and expenses of its counsel), if provided for
in any agreement with any Underwriter; and
(f) all out-of-pocket and other expenses of DEH (including fees and expenses
of its counsel);
shall be borne by DEH and Canadian 88 in proportion to their respective relative
proportion of the proceeds or anticipated proceeds (in the event the Offering
does not proceed) of the Offering. Except as aforesaid, each party shall bear
its own costs and expenses incurred in connection with such matters.
2.4 INDEMNITY
(a) Canadian 88 agrees to indemnify and hold harmless DEH and the
Affiliates, officers, directors, employees, partners and agents of DEH
from and against any and all losses, claims, damages, liabilities and
expenses, including costs of investigation and reasonable fees and
expenses of legal counsel which arise out of, or are based upon any
misrepresentation or alleged misrepresentation, breach of warranty, or
untrue statement or alleged untrue statement of a material fact
contained in any Public Offering Document or Exempt Offering Document
(including an amendment or supplement thereto) relating to a Public
Offering or an Exempt Offering, or arising out of or
9
-8-
based upon any omission or alleged omission to state in any such Public
Offering Document or Exempt Offering Document (including any amendment
or supplement thereto) a fact necessary to make the Public Offerings
Document or Exempt Offering Document not misleading; provided, however,
that Canadian 88 shall not be liable to DEH in any such case to the
extent that any such losses, claims, damages, liabilities or expenses
arise out of or are based upon any untrue statement or omission or
alleged untrue statement or omission made in such Public Offering
Document or Exempt Offering Document (including any amendment or
supplement) in reliance upon and in conformity with written information
furnished to Canadian 88 by DEH specifically for use in the preparation
thereof.
(b) Canadian 88 also agrees, upon request by DEH, to indemnify any
Underwriters in connection with the Public Offering, their officers,
directors, employees and agents and each person who controls such
Underwriters on substantially the same basis as the indemnification of
DEH provided herein.
(c) Canadian 88 may require, as a condition to including any Company
Securities in any Public Offering Document or Exempt Offering Document
filed, pursuant to Sections 2.1 and 2.2 and to entering into any agency
or underwriting agreement with respect thereto, that Canadian 88 shall
have received an undertaking from DEH to indemnify and hold harmless
Canadian 88 and each of its Affiliates, officers, directors, employees,
partners and agents from and against any and all losses, claims,
damages, liabilities and expenses, including costs of investigation and
reasonable fees and expenses of legal counsel which arise out of, or are
based upon an untrue statement or alleged untrue statement of a material
fact in such Public Offering Document or Exempt Offering Document
(including an amendment or supplement thereto) or any omission or
alleged omission to state a material fact, required to be stated therein
or necessary to make a statement therein not misleading, in light of the
circumstances in which it is made, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with written information furnished to Canadian 88 for inclusion therein
by DEH; provided however that DEH shall not be required to undertake
liability under this Subsection 2.4(c) for any amounts in excess of the
dollar amount of the gross proceeds received by DEH from the sale of its
Company Securities pursuant to such offering, in such case as reduced by
any damages or other amounts that DEH was otherwise required to pay by
reason of such untrue statement or omission.
(d) Any Person entitled to indemnification hereunder agrees to give prompt
written notice to the indemnifying party after the receipt by such
Person of any written notice of the commencement of any action, suit,
proceeding or investigation or threat thereof made in writing for which
such Person may claim indemnification or contribution pursuant to this
Agreement and, unless in the reasonable judgment of such indemnified
party a conflict of interest shall exist between such indemnified party
and the indemnifying party with respect to such claim, permit the
indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to such indemnified party. If the indemnifying
party is not entitled to, or elects not to assume the defense of a
claim, it will not be obligated to pay the fees and expenses of more
than one counsel with respect to such claim, unless in the reasonable
judgment of counsel to such indemnified party a conflict of interest
shall exist between such indemnified party and any other of such
indemnified parties with respect to such claim, in which event the
indemnifying party shall be obligated to pay the fees and expenses of
such additional counsel or counsels. No indemnified party will be
required to 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 such indemnified party of a
release from all liability in respect of such claim or litigation and no
indemnified party will be required to consent to entry of any judgment
or enter into any settlement which provides for
10
-9-
any remedy other than the payment of money damages. The indemnified
party will not be subject to any liability for any settlement made
without its consent, which shall not be unreasonably withheld.
2.5 CONTRIBUTION
If the indemnification provided for in Section 2.4 is unavailable or
insufficient to hold harmless DEH and/or Canadian 88, as the case may be, in
respect of any losses, claims, damages or liabilities or actions in respect
thereof, then Canadian 88 and DEH, as the case may be, shall in lieu of
indemnifying DEH or Canadian 88, as the case may be, contribute to the amount
paid or payable by Canadian 88 and/or DEH, as the case may be, as a result of
such losses, claims, damages, liabilities or actions in such proportion as is
appropriate to reflect the relative fault of Canadian 88 or DEH, as the case may
be, in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or actions as well as any other relevant
equitable considerations. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by Canadian 88 or DEH, as the case may be, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. Canadian 88 and DEH agree that
it would not be just and equitable if contribution pursuant to this paragraph
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this paragraph. The amount paid or payable by Canadian 88 or DEH, as the case
may be, as a result of the losses, claims, damages, liabilities or actions in
respect thereof referred to above in this paragraph shall be deemed to include
any legal or other expenses reasonably incurred by Canadian 88 or DEH, as the
case may be, in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this paragraph, the amount that DEH
shall be required to contribute shall not exceed the total price at which the
securities sold by DEH was offered to the public. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the United States
Securities Act of 1933 (the "SECURITIES ACT") shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
2.6 RULE 144
Canadian 88 covenants to and with DEH that Canadian 88 shall timely file
the reports required to be filed by it under the Securities Act and the United
States Securities Exchange Act of 1934 (the "EXCHANGE ACT") (including but not
limited to the reports under Sections 13 and 15(d) of the Exchange Act referred
to in subparagraph (c)(1) of Rule 144 adopted by the Securities and Exchange
Commission (the "COMMISSION") under the Securities Act) and the rules and
regulations adopted by the Commission thereunder (or, if Canadian 88 is not
required to file such reports, will, upon the request of any holder of Company
Securities, make publicly available other information) and will take such
further action as any holder of Company Securities may reasonably request, all
to the extent required from time to time to enable such holder to sell Company
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (a) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (b) any similar rule or regulation
hereafter adopted by the Commission. Upon the request of any holder of Company
Securities, Canadian 88 will deliver to such holder a written statement as to
whether it has complied with such requirements.
2.7 COMPLIANCE WITH SECURITIES LAWS
DEH agrees that it will at all times comply with the requirements of all
applicable Securities Laws with respect to its transactions in securities of
Canadian 88.
11
-10-
2.8 COVENANTS IN CONNECTION WITH FUTURE GRANTS OF REGISTRATION RIGHTS
From and after the date of this Agreement, Canadian 88 shall not enter
into any agreement with any holder or prospective holder of Company Securities
which provides for the granting to such holder of registration rights unless
such agreement is subject to the rights of DEH or unless Canadian 88 first
obtains the written consent of DEH.
ARTICLE III
MISCELLANEOUS
3.1 NOTICES
All notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing (including by telecopier) and, unless
otherwise expressly provided herein, shall be delivered during normal business
hours by hand, by Federal Express or other reputable overnight commercial
delivery service, or by telecopier notice, confirmation of receipt received,
addressed as follows, or to such other address as may be hereafter notified by
the respective parties hereto:
CANADIAN 88:
Canadian 88 Energy Corp.
000, 000 Xxxxx Xxxxxx XX
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: President
Fax: (000) 000-0000
with a copy to:
XxXxxxxx Xxxxxxxx
Barristers & Solicitors
Xxxxx 0000, 000 - 0xx Xxxxxx XX
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xx. Xxxxx X. Xxxxxxxx
Fax: (000) 000-0000
and:
Carscallen Lockwood
Barristers and Solicitors
Xxxxx 0000, 000 - 0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxx Xxxxxxxxxx
Fax (000) 000-0000
12
-11-
DEH:
Duke Energy Hydrocarbons, L.L.C.
00000 Xxxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: President
Fax: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx
Barristers & Solicitors
0000 Xxxxxxx Xxxx Xxxx
000 - 0xx Xxxxxx XX
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxx X. XxxXxxx and Xxxxxxxx X. Xxxxx
Fax No.: (000) 000-0000
Any notice, request or demand delivered personally or by telecopier shall be
deemed to have been given and received on the day it is so delivered if that day
is a Business Day or the next Business Day, as the case may be.
3.2 CALCULATION OF TIME PERIODS
Unless otherwise specified herein, the period of time within which or
following which any act is to be done or step taken pursuant to this Agreement
shall be calculated by excluding the day on which the period commences and
including the day on which the period ends. If the last day of such period is
not a Business Day, the period in question shall end on the next Business Day.
3.3 APPLICABLE LAW
This Agreement shall be interpreted and governed in accordance with the
laws of the Province of Alberta (being the forum conveniens) and the parties
hereby submit to the jurisdiction of the courts of Alberta in connection with
any dispute concerning this Agreement or the subject matter thereof. Service of
any documents on the parties hereto in connection with any legal proceedings
shall be effective if the same are delivered by courier to the addresses for
notice set forth herein.
3.4 SEVERABILITY
If any provision of this Agreement or any application thereof shall be
declared or held to be invalid, illegal or unenforceable in whole or in part
whether generally or in any particular jurisdiction, such provision shall be
deemed to be amended to the extent necessary to cure such invalidity, illegality
or unenforceability, and the validity, legality or enforceability of the
remaining provisions of this Agreement, both generally and in every other
jurisdiction, shall not in any way be affected or impaired thereby.
13
-12-
3.5 AMENDMENTS
No amendment or modification of this Agreement shall be binding unless
in writing and signed by all of the parties hereto.
3.6 WAIVER
No waiver by any party hereto of any breach of any of the provisions of
this Agreement shall take effect or be binding upon the party unless in writing
and signed by such party. Unless otherwise provided therein, such waiver shall
not limit or affect the rights of such party with respect to any other breach.
3.7 TIME OF ESSENCE
Time shall be of the essence of this Agreement.
3.8 SUCCESSORS AND ASSIGNS
This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns. DEH shall
be entitled to assign, in whole or in part, the rights and obligations hereunder
to a purchaser of Company Securities, provided that the assignee agrees in
writing to be bound by the terms hereof and becomes a party hereto.
3.9 COUNTERPARTS
This Agreement may be executed in several counterparts, each of which
when so executed shall be deemed to be an original, and such counterparts
together shall constitute one and the same agreement.
3.10 FURTHER ACTS
The parties hereto agree to execute and deliver such further and other
documents and perform and cause to be performed such further and other acts and
things as may be reasonably necessary or desirable in order to give full effect
to this Agreement and every part thereof.
IN WITNESS WHEREOF the parties hereto have executed this agreement on
the date first above written.
CANADIAN 88 ENERGY CORP.
Per:
-------------------------------------
Xxxxxx X. Xxxxxxx
Chief Financial Officer
Per:
-------------------------------------
Xxxxxx X. Xxxxxxx
Vice President, Administration
DUKE ENERGY HYDROCARBONS, L.L.C.
Per:
-------------------------------------
Xxxxxx X. Xxxxxxxxx, III
Executive Vice President,
Exploration and Development
