Registration Rights Agreement by and between Stone Energy Corporation and Banc of America Securities LLC, June 28, 2006
Exhibit 4.2
by and between
Stone Energy Corporation
and
Banc of America Securities LLC,
June 28, 2006
This Registration Rights Agreement (the “Agreement”) is made and entered into this 28th day
of June, 2006, among Stone Energy Corporation, a Delaware corporation (the “Company”), and Banc
of America Securities LLC (the “Initial Purchaser”).
This Agreement is made pursuant to the Purchase Agreement, dated June 23, 2006, among the
Company and the Initial Purchaser (the “Purchase Agreement”), which provides for the sale by the
Company to the Initial Purchaser of an aggregate of $225.0 million principal amount of the
Company’s Senior Floating Rate Notes due 2010 (the “Securities”). In order to induce the Initial
Purchaser to enter into the Purchase Agreement, the Company has agreed to provide to the Initial
Purchaser 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 l934, as amended from
time to time.
“Closing Date” shall mean the Closing Time as defined in the Purchase
Agreement.
“Company” shall have the meaning set forth in the preamble and shall also
include the Company’s successors.
“Depositary” shall mean The Depository Trust Company, or any other depositary
appointed by the Company, provided, however, that such depositary must have an address in
the Borough of Manhattan, in The City of New York.
“Exchange Offer” shall mean the exchange offer by the Company of Exchange
Securities for Registrable Securities pursuant to Section 2.1 hereof.
“Exchange Offer Registration” shall mean a registration under the 1933 Act
effected pursuant to Section 2.1 hereof.
“Exchange Offer Registration Statement” shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate form or on
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any successor
form used for substantially the same transactions), and all amendments and supplements to
such registration statement, including the Prospectus contained therein, all exhibits
thereto and all documents incorporated by reference therein.
“Exchange Period” shall have the meaning set forth in Section 2.1(b) hereof.
“Exchange Securities” shall mean the Senior Floating Rate Notes due 2010,
issued by the Company under the Indenture containing terms identical to the Securities in
all material respects (except for references to certain interest rate provisions,
restrictions on transfers and restrictive legends), to be offered to Holders of Securities
in exchange for Registrable Securities pursuant to the Exchange Offer.
“Holder” shall mean the Initial Purchaser, for so long as it owns any
Registrable Securities, and each of its successors, assigns and direct and indirect
transferees who become registered owners of Registrable Securities under the Indenture and
each Participating Broker-Dealer that holds Exchange Securities for so long as such
Participating Broker-Dealer is required to deliver a prospectus meeting the requirements of
the 1933 Act in connection with any resale of such Exchange Securities.
“Indenture” shall mean the Indenture relating to the Securities, dated as of
June 28, 2006, between the Company and JPMorgan Chase Bank, National Association, as
trustee, as the same may be amended, supplemented, waived or otherwise modified from time
to time in accordance with the terms thereof.
“Initial Purchaser” shall have the meaning set forth in the preamble.
“Issuer Free Writing Prospectus” shall have the meaning set forth in Section
2.6 hereof.
“Majority Holders” shall mean the Holders of a majority of the aggregate
principal amount of Outstanding (as defined in the Indenture) 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
and other obligors on the Securities or any Affiliate (as defined in the Indenture) of the
Company shall be disregarded in determining whether such consent or approval was given by
the Holders of such required percentage amount.
“Participating Broker-Dealer” shall mean Banc of America Securities LLC, and
any other broker-dealer which makes a market in the Securities and exchanges Registrable
Securities in the Exchange Offer for Exchange Securities.
“Person” shall mean an individual, partnership (general or limited),
corporation, limited liability company, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
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“Private Exchange” shall have the meaning set forth in Section 2.1 hereof.
“Private Exchange Securities” shall have the meaning set forth in Section 2.1
hereof.
“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 any such prospectus supplement with respect to the
terms of the offering of any portion of the Registrable Securities covered by a Shelf
Registration Statement, and all other amendments and supplements to a prospectus, including
post-effective amendments, and in each case including all material incorporated by
reference therein.
“Purchase Agreement” shall have the meaning set forth in the preamble.
“Registrable Securities” shall mean the Securities and, if issued, the Private
Exchange Securities; provided, however, that the Securities and, if issued, the Private
Exchange Securities, shall cease to be Registrable Securities when (i) 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, (ii) such Securities have been sold to the public pursuant to Rule l44 (or any
similar provision then in force, but not Rule 144A) under the 1933 Act, (iii) such
Securities shall have ceased to be outstanding or (iv) the Exchange Offer is consummated
(except in the case of Securities purchased from the Company which may not be exchanged in
the Exchange Offer).
“Registration Expenses” shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including without
limitation: (i) all SEC, stock exchange or National Association of Securities Dealers,
Inc. (the “NASD”) registration and filing fees, including, if applicable, the fees and
expenses of any “qualified independent underwriter” (and its counsel) that is required to
be retained by any Holder of Registrable Securities in accordance with the rules and
regulations of the NASD, (ii) all fees and expenses incurred in connection with compliance
with state securities or blue sky laws and compliance with the rules of the NASD (including
reasonable fees and disbursements of one counsel for any underwriters or Holders in
connection with blue sky qualification of any of the Exchange Securities or Registrable
Securities and any filings with the NASD), (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 related documents, (iv) all fees and
expenses incurred in connection with the listing, if any, of any of the Registrable
Securities on any securities exchange or exchanges, (v) all rating agency fees, (vi) the
fees and disbursements of counsel for the Company and of the independent public accountants
of the Company, including the expenses of any special audits or “cold comfort” letters required by or incident to such
performance and compliance, (vii) the
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fees and expenses of the Trustee, and any escrow
agent or custodian, (viii) in the case of a Shelf Registration, the reasonable fees and
disbursements of special counsel representing the Holders of Registrable Securities and
(ix) any fees and disbursements of the underwriters customarily required to be paid by
issuers or sellers of securities and the fees and expenses of any special experts retained
by the Company in connection with any Registration Statement, but excluding 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
which 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 or any successor
agency or government body performing the functions currently performed by the United States
Securities and Exchange Commission.
“Shelf Registration” shall mean a registration effected pursuant to Section
2.2 hereof.
“Shelf Registration Statement” shall mean a “shelf” registration statement of
the Company pursuant to the provisions of Section 2.2 of this Agreement which covers all of
the Registrable Securities or all of the Private Exchange Securities on an appropriate form
under Rule 415 under the 1933 Act, or any successor or 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.
2. Registration Under the 0000 Xxx.
2.1 Exchange Offer. The Company shall, for the benefit of the Holders, at the
Company’s cost, (A) prepare and, as soon as practicable but not later than 360 days following the
Closing Date, file with the SEC an Exchange Offer Registration Statement on an appropriate form
under the 1933 Act with respect to a proposed Exchange Offer and the issuance and delivery to the
Holders, in exchange for the Registrable Securities (other than Private Exchange Securities), of
a like principal amount of Exchange Securities, (B) use commercially reasonable efforts to cause
the Exchange Offer Registration Statement to be declared effective under the 1933 Act within 180
days after the filing of the Registration Statement, (C) use commercially
reasonable efforts to keep the Exchange Offer Registration Statement effective until the closing
of the Exchange Offer and (D) use commercially
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reasonable efforts to cause the Exchange Offer to
be completed within 210 days after the filing of the Registration Statement. The Exchange
Securities will be issued under the Indenture. Upon the effectiveness of the Exchange Offer
Registration Statement, the Company shall commence the Exchange Offer, it being the objective of
such Exchange Offer to enable each Holder eligible and electing to exchange Registrable
Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the
Company within the meaning of Rule 405 under the 1933 Act, (b) is not a broker-dealer tendering
Registrable Securities acquired directly from the Company for its own account, (c) has acquired
or will acquire the Exchange Securities in the ordinary course of such Holder’s business and (d)
has no arrangements or understandings with any Person to participate in the Exchange Offer for
the purpose of distributing the Exchange Securities) to transfer such Exchange Securities from
and after their receipt without any limitations or restrictions under the 1933 Act and under
state securities or blue sky laws.
In connection with the Exchange Offer, the Company shall:
(a) mail as promptly as practicable to each Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and
related documents;
(b) keep the Exchange Offer open for acceptance for a period of not less than 20 business
days after the date notice thereof is mailed to the Holders (or longer if required by applicable
law) (such period referred to herein as the “Exchange Period”);
(c) utilize the services of the Depositary for the Exchange Offer;
(d) permit Holders to withdraw tendered Registrable Securities at any time prior to 5:00
p.m. (Eastern Time), on the last business day of the Exchange Period, pursuant to the
instructions in the letter of transmittal;
(e) notify each Holder that any Registrable Security not tendered will remain outstanding
and continue to accrue interest, but will not retain any rights under this Agreement (except in
the case of the Initial Purchaser and Participating Broker-Dealers as provided herein); and
(f) otherwise comply in all respects with all applicable laws relating to the Exchange
Offer.
If, prior to consummation of the Exchange Offer, the Initial Purchaser holds any Securities
acquired by it and having the status of an unsold allotment in the initial distribution, the
Company upon the written request of the Initial Purchaser shall, simultaneously with the delivery
of the Exchange Securities in the Exchange Offer, issue and deliver to the Initial Purchaser in
exchange (the “Private Exchange”) for the Securities held by the Initial Purchaser, a
like principal amount of debt securities of the Company on a senior subordinated basis, that
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are
identical (except that such securities shall bear appropriate transfer restrictions) to the
Exchange Securities (the “Private Exchange Securities”).
The Exchange Securities and the Private Exchange Securities shall be issued under (i) the
Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in
either case, has been qualified under the Trust Indenture Act of 1939, as amended (the “TIA”), or
is exempt from such qualification and shall provide that the Exchange Securities shall not be
subject to the transfer restrictions set forth in the Indenture but that the Private Exchange
Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall
provide that the Exchange Securities, the Private Exchange Securities and the Securities shall
vote and consent together on all matters as one class and that none of the Exchange Securities,
the Private Exchange Securities or the Securities will have the right to vote or consent as a
separate class on any matter. The Private Exchange Securities shall be of the same series as and
the Company shall use all commercially reasonable efforts to have the Private Exchange Securities
bear the same CUSIP number as the Exchange Securities.
As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as
the case may be, the Company shall:
(i) accept for exchange all Registrable Securities duly tendered and not
validly withdrawn pursuant to the Exchange Offer in accordance with the terms of the
Exchange Offer Registration Statement and the letter of transmittal which shall be
an exhibit thereto;
(ii) accept for exchange all Securities properly tendered pursuant to the
Private Exchange;
(iii) deliver to the Trustee for cancellation all Registrable Securities so
accepted for exchange; and
(iv) cause the Trustee promptly to authenticate and deliver Exchange
Securities or Private Exchange Securities, as the case may be, to each Holder of
Registrable Securities so accepted for exchange in a principal amount equal to the
principal amount of the Registrable Securities of such Holder so accepted for
exchange.
Interest on each Exchange Security and Private Exchange Security will accrue from the last
date on which interest was paid on the Registrable Securities surrendered in exchange therefor
or, if no interest has been paid on the Registrable Securities, from the date of original
issuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions,
other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange by
a Holder, does not violate applicable law or any applicable interpretation of the staff of the
SEC, (ii) the due tendering of Registrable Securities in accordance with the
Exchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securities
exchanged in the Exchange Offer shall have represented that: (A) it is not an affiliate (as
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defined in Rule 405 under the 0000 Xxx) of the Company; (B) all Exchange Securities to be
received by it shall be acquired in the ordinary course of its business; (C) at the time of the
consummation of the Exchange Offer it shall have no arrangement or understanding with any person
to participate in the distribution (within the meaning of the 0000 Xxx) of the Exchange
Securities; and (D) if such Holder is a Participating Broker-Dealer, it will receive Exchange
Securities for its own account in exchange for Registrable Securities that were acquired as a
result of market-making activities or other trading activities and that it will deliver a
prospectus in connection with any resale of such Exchange Securities; and such Holder shall have
made such other representations as may be reasonably necessary under applicable SEC rules,
regulations or interpretations to render the use of Form S-4 or other appropriate form under the
1933 Act available and (iv) that no action or proceeding shall have been instituted or threatened
in any court or by or before any governmental agency with respect to the Exchange Offer or the
Private Exchange which, in the Company’s judgment, would reasonably be expected to impair the
ability of the Company to proceed with the Exchange Offer or the Private Exchange. The Company
shall inform the Initial Purchaser of the names and addresses of the Holders to whom the Exchange
Offer is made, and the Initial Purchaser shall have the right to contact such Holders and
otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
2.2 Shelf Registration. (i) If, because of any changes in law, SEC rules or
regulations or applicable interpretations thereof by the staff of the SEC, the Company is not
permitted to effect the Exchange Offer as contemplated by Section 2.1 hereof, (ii) if for any
other reason the Exchange Offer Registration Statement is not declared effective within 180 days
following the filing of the Exchange Offer Registration Statement or the Exchange Offer is not
consummated within 210 days after the filing of the Exchange Offer Registration Statement, (iii)
upon the request the Initial Purchaser with respect to Registrable Securities held by the Initial
Purchaser that are not eligible to be exchanged for Exchange Securities in the Exchange Offer or
(iv) if a Holder is not permitted by applicable law to participate in the Exchange Offer or
elects to participate in the Exchange Offer but does not receive fully tradeable Exchange
Securities pursuant to the Exchange Offer, then in case of each of clauses (i) through (iv) the
Company shall, at its cost:
(a) as promptly as practicable, file with the SEC, and thereafter shall use
commercially reasonable efforts to cause to be declared effective as promptly as
practicable but no later than 180 days after the filing of the Exchange Offer
Registration Statement, a Shelf Registration Statement relating to the offer and
sale of the Registrable Securities by the Holders from time to time in accordance
with the methods of distribution elected by the Majority Holders participating in
the Shelf Registration and set forth in such Shelf Registration Statement.
(b) use commercially reasonable efforts to keep the Shelf Registration
Statement continuously effective in order to permit the Prospectus forming part
thereof to be usable by Holders for a period of two years from the date of the
original issue of the Securities, or for such shorter period that will terminate
when all Registrable Securities covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement or cease to be outstanding or
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otherwise to be Registrable Securities (the “Effectiveness Period”); provided,
however, that the Effectiveness Period in respect of the Shelf Registration
Statement shall be extended to the extent required to permit dealers to comply with
the applicable prospectus delivery requirements under the 1933 Act and as otherwise
provided herein.
(c) notwithstanding any other provisions hereof, use commercially reasonable
efforts to ensure that (i) any Shelf Registration Statement and any amendment
thereto and any Prospectus forming part thereof and any supplement thereto complies
in all material respects with the 1933 Act and the rules and regulations thereunder,
(ii) any Shelf Registration Statement and any amendment thereto does not, when it
becomes effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) any Prospectus forming part of any Shelf
Registration Statement, and any supplement to such Prospectus (as amended or
supplemented from time to time), does not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading.
The Company shall not permit any securities other than Registrable Securities to be included
in the Shelf Registration Statement. The Company further agrees, if necessary, to supplement or
amend the Shelf Registration Statement, as required by Section 3(b) below, and 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. Notwithstanding the foregoing, this Section 2.2 shall not
apply if the Company determines, in its reasonable judgment, upon advice of counsel, that the
continued effectiveness and usability of such Registration Statement would (i) require the
disclosure of material information, which the Company has a bona fide business reason for
preserving as confidential, or (ii) interfere with any financing, acquisition, corporate
reorganization or other material transaction involving the Company or any of its Affiliates (as
defined in the rules and regulations adopted under the Exchange Act); provided, however, that the
failure to keep the Registration Statement effective and usable for offer and sales of
Registrable Securities for such reasons shall last no longer than 30 days in any 12-month period
(whereafter Additional Interest (pursuant to Section 2.5) shall accrue and be payable), so long
as the Company promptly thereafter complies with the requirements of Section 3(j) hereof, if
applicable. Any such period during which the Company fails to keep the Registration Statement
effective and usable for offers and sales of Registrable Securities is referred to as a
“Suspension Period.” A Suspension Period shall commence on and include the date that the Company
gives notice that the Registration Statement is no longer effective or the Prospectus included
therein is no longer usable for offers and sales of Registrable Securities and shall end on the
earlier to occur of (i) date when each seller of Registrable Securities covered by such
Registration
Statement either receives the copies of the supplemented or amended Prospectus contemplated by
Section 3(j) hereof or is advised in writing by the Company that use of the Prospectus may be
resumed and (ii) the expiration of
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the 30 days in any 12-month period during which one or more
Suspension Periods has been in effect.
2.3 Expenses. The Company shall pay all Registration Expenses in connection with
the registration pursuant to Section 2.1 or 2.2. Each Holder shall pay all underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such
Holder’s Registrable Securities pursuant to the Shelf Registration Statement.
2.4. Effectiveness. An Exchange Offer Registration Statement pursuant to Section 2.1
hereof or a Shelf Registration Statement pursuant to Section 2.2 hereof will not be deemed to have
become effective unless it has been declared effective by the SEC; provided, however, that if,
after it has been declared effective, the offering of Registrable Securities pursuant to an
Exchange Offer Registration Statement or 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.
2.5 Interest. The Indenture executed in connection with the Securities will provide
that in the event that (a) the Exchange Offer Registration Statement is not filed with the SEC on
or prior to the 360th calendar day following the date of original issue of the
Securities, (b) the Exchange Offer Registration Statement or a Shelf Registration Statement, if
applicable, has not been declared effective on or prior to the 180th calendar day
following the filing of the Exchange Offer Registration Statement or (c) the Exchange Offer is not
completed on or prior to the 210th calendar day following the filing of the Exchange
Offer Registration Statement (each such event referred to in clauses (a) through (c) above, a
“Registration Default”), the interest rate borne by the Securities shall be increased (“Additional
Interest”) by one-quarter of one percent per annum upon the occurrence of each Registration
Default, which rate will increase by one quarter of one percent each 90-day period that such
Additional Interest continues to accrue under any such circumstance, provided that the maximum
aggregate increase in the interest rate will in no event exceed one percent (1%) per annum. Upon
the cure of all Registration Defaults the accrual of Additional Interest will cease and the
interest rate will revert to the original rate.
If the Shelf Registration Statement is declared effective but thereafter becomes unusable by
the Holders for any reason, for more than 30 consecutive days, then the interest rate borne by
the Securities will be increased by 0.25% per annum of the principal amount of the Securities for
the first 90-day period (or portion thereof) beginning on the 31st such date that such
Shelf Registration Statement ceases to be usable, which rate shall be increased by an additional
0.25% per annum of the principal amount of the Securities at the beginning of each subsequent
90-day period, provided that the maximum aggregate increase in the interest rate will in no event
exceed one percent (1%) per annum. Any amounts payable under this paragraph shall also be deemed
“Additional Interest” for purposes of this Agreement. Upon the Shelf
Registration Statement once again becoming usable, the interest rate borne by the Securities will
be reduced to the original interest rate if the Company is otherwise in
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compliance with this
Agreement at such time. Additional Interest shall be computed based on the actual number of days
elapsed in each 90-day period in which the Shelf Registration Statement is unusable.
The Company shall notify the Trustee within three business days after each and every date on
which an event occurs in respect of which Additional Interest is required to be paid (an “Event
Date”). Additional Interest shall be paid by depositing with the Trustee, in trust, for the
benefit of the Holders of Registrable Securities, on or before the applicable semiannual interest
payment date, immediately available funds in sums sufficient to pay the Additional Interest then
due. The Additional Interest due shall be payable on each interest payment date to the record
Holder of Securities entitled to receive the interest payment to be paid on such date as set
forth in the Indenture. Each obligation to pay Additional Interest shall be deemed to accrue
from and including the day following the applicable Event Date.
2.6 Issuer Free Writing Prospectuses. The Company represents that any Issuer Free
Writing Prospectus will not include any information that conflicts with the information contained
in the Shelf Registration Statement or the Prospectus and, any Issuer Free Writing Prospectus,
when taken together with the information in the Shelf Registration Statement and the Prospectus,
will not include any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the circumstances under which they
were made, not misleading.
3. Registration Procedures.
In connection with the obligations of the Company with respect to Registration Statements
pursuant to Sections 2.1 and 2.2 hereof, the Company shall:
(a) prepare and file with the SEC a Registration Statement, within the relevant time period
specified in Section 2, on the appropriate form under the 1933 Act, which form (i) shall be
selected by the Company, (ii) shall, in the case of a Shelf Registration, be available for the
sale of the Registrable Securities by the selling Holders thereof, (iii) shall comply as to form
in all material respects with the requirements of the applicable form and include or incorporate
by reference all financial statements required by the SEC to be filed therewith or incorporated
by reference therein, and (iv) shall comply in all respects with the requirements of Regulation
S-T under the 1933 Act, and use commercially reasonable 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 under applicable law 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 (or
any similar provision then in force) under the 1933 Act and comply with the provisions of the
1933 Act, the 1934 Act and the rules and regulations thereunder
applicable to them with respect to the disposition of all securities covered by each Registration
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Statement during the applicable period in accordance with the intended method or methods of
distribution by the selling Holders thereof (including sales by any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of Registrable Securities,
promptly after filing, that a Shelf Registration Statement with respect to the Registrable
Securities has been filed and advising such Holders that the distribution of Registrable
Securities will be made in accordance with the method selected by the Majority Holders
participating in the Shelf Registration; (ii) furnish to each Holder of Registrable Securities
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, including financial statements and schedules, in order to facilitate the
public sale or other disposition of the Registrable Securities; and (iii) hereby consent to the
use of the Prospectus or any amendment or supplement thereto by each of the selling Holders of
Registrable Securities in connection with the offering and sale of the Registrable Securities
covered by the Prospectus or any amendment or supplement thereto;
(d) use commercially reasonable 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 and each underwriter of an
underwritten offering of Registrable Securities shall reasonably request by the time the
applicable Registration Statement is declared effective by the SEC, and do any and all other acts
and things which may be reasonably necessary or advisable to enable each such Holder and
underwriter to consummate the disposition in each such jurisdiction of such Registrable
Securities owned by such Holder; provided, however, that the Company shall not 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), or (ii) take any action which
would subject it to general service of process or taxation in any such jurisdiction where it is
not then so subject;
(e) notify promptly each Holder of Registrable Securities under a Shelf Registration or any
Participating Broker-Dealer who has notified the Company that it is utilizing the Exchange Offer
Registration Statement as provided in paragraph (f) below and, if requested by such Holder or
Participating Broker-Dealer, confirm such advice in writing promptly (i) when a Registration
Statement has become effective and when any post-effective amendments and supplements thereto
become effective, (ii) of any request by the SEC or any state securities authority for
post-effective 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) in the case of a Shelf Registration, 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 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, (v) of the happening of any event or the
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discovery of any facts 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, (vi) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable Securities or the Exchange
Securities, as the case may be, for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose and (vii) of any determination by the Company that a
post-effective amendment to such Registration Statement would be appropriate;
(f) in the case of the Exchange Offer Registration Statement (i) include in the Exchange
Offer Registration Statement a section entitled “Plan of Distribution” which shall contain a
summary statement of the positions taken or policies made by the staff of the SEC with respect to
the potential “underwriter” status of any broker-dealer that holds Registrable Securities
acquired for its own account as a result of market-making activities or other trading activities
and that will be the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
Exchange Securities to be received by such broker-dealer in the Exchange Offer, whether such
positions or policies have been publicly disseminated by the staff of the SEC or such positions
or policies represent the prevailing views of the staff of the SEC, including a statement that
any such broker-dealer who receives Exchange Securities for Registrable Securities pursuant to
the Exchange Offer may be deemed a statutory underwriter and must deliver a prospectus meeting
the requirements of the 1933 Act in connection with any resale of such Exchange Securities, (ii)
furnish to each Participating Broker-Dealer who has delivered to the Company the notice referred
to in Section 3(e), without charge, as many copies of each Prospectus included in the Exchange
Offer Registration Statement, including any preliminary prospectus, and any amendment or
supplement thereto, as such Participating Broker-Dealer may reasonably request, (iii) hereby
consent to the use of the Prospectus forming part of the Exchange Offer Registration Statement or
any amendment or supplement thereto, by any Person subject to the prospectus delivery
requirements of the SEC, including all Participating Broker-Dealers, in connection with the sale
or transfer of the Exchange Securities covered by the Prospectus or any amendment or supplement
thereto, and (iv) include in the transmittal letter or similar documentation to be executed by an
exchange offeree in order to participate in the Exchange Offer (x) the following provision:
“If the exchange offeree is a broker-dealer holding Registrable Securities acquired
for its own account as a result of market-making activities or other trading
activities, it will deliver a prospectus meeting the requirements of the 1933 Act in
connection with any resale of Exchange Securities received in respect of such
Registrable Securities pursuant to the Exchange Offer;” and
(y) a statement to the effect that by a broker-dealer making the acknowledgment described in
clause (x) and by delivering a Prospectus in connection with the exchange of Registrable
Securities, the broker-dealer will not be deemed to admit that it is an underwriter within the
meaning of the 1933 Act;
12
(g) make every reasonable effort to obtain the withdrawal of any order suspending the
effectiveness of a Registration Statement at the earliest possible moment;
(h) in the case of a Shelf Registration, furnish to each Holder of Registrable Securities
and each underwriter, if any, without charge, at least one conformed copy of each Registration
Statement and any post-effective amendment thereto, including financial statements and schedules
(without documents incorporated therein by reference and all exhibits thereto, unless requested);
(i) 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 or the underwriters, if any, may
reasonably request at least three business days prior to the closing of any sale of Registrable
Securities;
(j) in the case of a Shelf Registration, upon the occurrence of any event or the discovery
of any facts, each as contemplated by Sections 3(e)(v) and 3(e)(vi) hereof, as promptly as
practicable after the occurrence of such an event, use commercially reasonable efforts to prepare
a supplement or post-effective amendment to the 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 or Participating
Broker-Dealers, such Prospectus will not contain at the time of such delivery any untrue
statement of a material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading or will remain
so qualified. At such time as such public disclosure is otherwise made or the Company determines
that such disclosure is not necessary, in each case to correct any misstatement of a material
fact or to include any omitted material fact, the Company agrees promptly to notify each Holder
of such determination and to furnish each Holder such number of copies of the Prospectus as
amended or supplemented, as such Holder may reasonably request;
(k) obtain a CUSIP number for all Exchange Securities, Private Exchange Securities or
Registrable Securities, as the case may be, not later than the effective date of a Registration
Statement, and provide the Trustee with printed certificates for the Exchange Securities, Private
Exchange Securities or the Registrable Securities, as the case may be, in a form eligible for
deposit with the Depositary;
(l) (i) cause the Indenture to be qualified under the Trust Indenture Act of 1939 (the
“TIA”) in connection with the registration of the Exchange Securities or Registrable Securities,
as the case may be, (ii) 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 (iii) execute, and use commercially reasonable efforts to cause the
Trustee to execute, all documents as may be required to effect such changes, and all other
13
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, enter into customary and appropriate agreements
(including underwriting agreements) and take all other customary and appropriate actions in order
to expedite or facilitate the disposition of such Registrable Securities in such manner as the
Majority Holders elect and may reasonably request (including an underwritten offering) and in
such connection whether or not an underwriting agreement is entered into and whether or not the
registration is an underwritten registration:
(i) make such representations and warranties to the Holders of such
Registrable Securities and the underwriters, if any, in form, substance and scope as
are customarily made by issuers to underwriters in similar underwritten offerings as
may be reasonably requested by them;
(ii) obtain opinions of counsel to the Company and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably satisfactory
to the managing underwriters, if any, and the holders of a majority in principal
amount of the Registrable Securities being sold) addressed to each selling Holder
and the underwriters, if any, covering the matters customarily covered in opinions
requested in sales of securities or underwritten offerings and such other matters as
may be reasonably requested by such Holders and underwriters;
(iii) obtain “cold comfort” letters and updates thereof from the Company’s
independent certified public accountants (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or of any business
acquired by the Company for which financial statements are, or are required to be,
included in the Registration Statement) addressed to the underwriters, if any, and
use commercially reasonable efforts to have such letter addressed to the selling
Holders of Registrable Securities (to the extent consistent with Statement on
Auditing Standards No. 72 of the American Institute of Certified Public Accounts),
such letters to be in customary form and covering matters of the type customarily
covered in “cold comfort” letters to underwriters in connection with similar
underwritten offerings;
(iv) enter into a securities sales agreement with the Holders and an agent of
the Holders providing for, among other things, the appointment of such agent for the
selling Holders for the purpose of soliciting purchases of Registrable Securities,
which agreement shall be in form, substance and scope customary for similar
offerings;
(v) if an underwriting agreement is entered into, cause the same to set forth
indemnification provisions and procedures substantially equivalent to the
indemnification provisions and procedures set forth in Section 4 hereof with
14
respect
to the underwriters and all other parties to be indemnified pursuant to said Section
or, at the request of any underwriters, in the form customarily provided to such
underwriters in similar types of transactions; and
(vi) deliver such documents and certificates as may be reasonably requested
and as are customarily delivered in similar offerings to the Holders of a majority
in principal amount of the Registrable Securities being sold and the managing
underwriters, if any.
The above shall be done at (i) the effectiveness of such Registration Statement (and each
post-effective amendment thereto) and (ii) each closing under any underwriting or similar
agreement as and to the extent required thereunder;
(n) in the case of a Shelf Registration or if a Prospectus is required to be delivered by
any Participating Broker-Dealer in the case of an Exchange Offer, make available for inspection
by representatives of the Holders of the Registrable Securities, any underwriters participating
in any disposition pursuant to a Shelf Registration Statement, any Participating Broker-Dealer
and any counsel or accountant retained by any of the foregoing, all financial and other records,
pertinent corporate documents and properties of the Company reasonably requested by any such
persons, and cause the respective officers, directors, employees, and any other agents of the
Company to supply all information reasonably requested by any such representative, underwriter,
special counsel or accountant in connection with a Registration Statement, and make such
representatives of the Company available for discussion of such documents as shall be reasonably
requested by the Initial Purchaser;
(o) in the case of a Shelf Registration, a reasonable time prior to filing any Shelf
Registration Statement, any Prospectus forming a part thereof, any amendment to such Shelf
Registration Statement or amendment or supplement to such Prospectus, provide copies of such
document to the Holders of Registrable Securities, to the Initial Purchaser, to counsel for the
Holders and to the underwriter or underwriters of an underwritten offering of Registrable
Securities, if any, make such changes in any such document prior to the filing thereof as the
Initial Purchaser, the counsel to the Holders or the underwriter or underwriters reasonably
request and not file any such document in a form to which the Majority Holders, the Initial
Purchaser on behalf of the Holders of Registrable Securities, counsel for the Holders of
Registrable Securities or any underwriter shall not have previously been advised and furnished a
copy of or to which the Majority Holders, the Initial Purchaser of behalf of the Holders of
Registrable Securities, counsel to the Holders of Registrable Securities or any underwriter shall
reasonably object within two business days after receipt thereof, and make the representatives of
the Company available for discussion of such document as shall be reasonably requested by the
Holders of Registrable Securities, the Initial Purchaser on behalf of such Holders, counsel for
the Holders of Registrable Securities or any underwriter and provide copies of any comment
letters received from the SEC or any other request by the SEC or any state securities authority
for amendments or supplements to a Registration Statement and Prospectus or for additional
information.
15
(p) in the case of a Shelf Registration, use commercially reasonable efforts to cause all
Registrable Securities to be listed on any securities exchange on which similar debt securities
issued by the Company are then listed if requested by the Majority Holders, or if requested by
the underwriter or underwriters of an underwritten offering of Registrable Securities, if any;
(q) in the case of a Shelf Registration, use commercially reasonable efforts to cause the
Registrable Securities to be rated by the appropriate rating agencies, if so requested by the
Majority Holders, or if requested by the underwriter or underwriters of an underwritten offering
of Registrable Securities, if any;
(r) otherwise comply with all applicable rules and regulations of the SEC and make available
to its security holders, as soon as reasonably practicable, an earnings statement covering at
least 12 months which shall satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158
thereunder; and
(s) cooperate and assist in any filings required to be made with the NASD and, in the case
of a Shelf Registration, in the performance of any due diligence investigation by any underwriter
and its counsel (including any “qualified independent underwriter” that is required to be
retained in accordance with the rules and regulations of the NASD).
If following the date hereof there has been a change in SEC policy with respect to exchange
offers such as the Exchange Offer, such that in the opinion of counsel to the Company or the
Holders there is a substantial question as to whether the Exchange Offer is permitted by applicable
federal law, the Company hereby agrees to seek a no-action letter or other favorable decision from
the SEC allowing the Company to consummate an Exchange Offer for the Notes. The Company hereby
agrees to pursue the issuance of such a decision to the SEC staff level and diligently pursuing a
resolution (which need not be favorable) by the SEC staff.
In the case of a Shelf Registration Statement, the Company may (as a condition to such
Holder’s participation in the Shelf Registration) require each Holder of Registrable Securities
to furnish to the Company such information regarding the Holder and the proposed distribution by
such Holder of such Registrable Securities as the Company 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 of the happening of any event or the discovery of any facts, each 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 Holder’s receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 3(j) hereof, and, if so
directed by the Company, such Holder will deliver to the
Company (at its expense) all copies in such Holder’s possession, other than copies in permanent
files then in such Holder’s possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice.
16
If any of the Registrable Securities covered by any Shelf Registration Statement are to be
sold in an underwritten offering, the underwriter or underwriters and manager or managers that
will manage such offering will be selected by the Majority Holders of such Registrable Securities
included in such offering and shall be acceptable to the Company. No Holder of Registrable
Securities may participate in any underwritten registration hereunder unless such Holder (a)
agrees to sell such Holder’s Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting arrangements.
4. Indemnification; Contribution.
(a) The Company agrees to indemnify and hold harmless the Initial Purchaser, each Holder, each
Participating Broker-Dealer, each Person who participates as an underwriter (any such Person being
an “Underwriter”) and each Person, if any, who controls any Holder or Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement (or any amendment or supplement thereto)
pursuant to which Exchange Securities or Registrable Securities were registered under the
1933 Act, including all documents incorporated therein by reference, or the omission or
alleged omission therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading, or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any Prospectus (or any amendment
or supplement thereto) or any Issuer Free Writing Prospectus (or any amendment or
supplement thereto), the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission; provided that (subject to Section 4(d)
below) any such settlement is effected with the written consent of the Company;
(iii) against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by any indemnified party), reasonably incurred in
investigating, preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such alleged
17
untrue
statement or omission, to the extent that any such expense is not paid under subparagraph
(i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss, liability, claim,
damage or expense to the extent arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with written information furnished
to the Company by the Holder or Underwriter expressly for use in a Registration Statement (or any
amendment or supplement thereto) or any Prospectus (or any amendment or supplement thereto);
provided further, that the Company shall not be liable under the indemnity agreement in this
subsection (a) with respect to any Registration Statement or Prospectus to the extent that any
such loss, claim, damage, liability or expense results from the fact that such Underwriter sold
Securities to a person as to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the effective Registration Statement or final Prospectus, as
then amended or supplemented, if the Company has previously furnished copies thereof in
sufficient quantity to such Underwriter and sufficiently in advance of such confirmation of sale
to allow for distribution by such time and the loss, claim, damage, liability or expense results
from an untrue statement or omission of a material fact contained in or omitted from the
Registration Statement or Prospectus which was corrected in the effective Registration Statement
or final Prospectus, as then amended or supplemented, and such correction would have cured the
defect giving rise to such loss, claim, damage, liability or expense.
(b) Each Holder severally, but not jointly, agrees to indemnify and hold harmless the
Company, the Initial Purchaser, each Underwriter and the other selling Holders, and each of their
respective directors and officers, and each Person, if any, who controls the Company, the Initial
Purchaser, any Underwriter or any other selling Holder within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, against any and all loss, liability, claim, damage and
expense described in the indemnity contained in Section 4(a) hereof, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the
Shelf Registration Statement (or any amendment or supplement thereto) or any Prospectus included
therein (or any amendment or supplement thereto) in reliance upon and in conformity with written
information with respect to such Holder furnished to the Company by such Holder expressly for use
in the Shelf Registration Statement (or any amendment or supplement thereto) or such Prospectus
(or any amendment or supplement thereto); provided, however, that no such Holder shall be liable
for any claims hereunder in excess of the amount of net proceeds received by such Holder from the
sale of Registrable Securities pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give written notice as promptly as reasonably practicable
to each indemnifying party of any action or proceeding commenced against it in respect of which
indemnity may be sought hereunder, but failure so to notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is not materially
prejudiced as a result thereof and in any event shall not relieve it from any liability which it
may have otherwise than on account of this indemnity agreement. An indemnifying party shall be
entitled to appoint counsel of the indemnifying party’s choice at the
18
indemnifying party’s
expense to represent the indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified party.
Notwithstanding the foregoing, the indemnified party shall have the right to employ its own
counsel in any such action and the indemnifying party shall bear the reasonable fees and
disbursements of such separate counsel, which shall be reimbursed promptly after receipt of a
xxxx therefore, if: (i) the employment of such counsel shall have been specifically authorized
in writing by the indemnifying party, (ii) the indemnifying party shall have failed to assume the
defense and employ counsel to represent the indemnified party within a reasonable time but no
later than 7 days after notice of the institution of such action or (iii) the named parties to
any such action (including any impleaded parties) include both such indemnified party and the
indemnifying party and such indemnified party shall have been advised by such counsel that there
may be one or more legal defenses available to it which are different from or additional to those
available to the indemnifying party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local counsel), which firm shall
be designated in writing by the indemnified parties, separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or related actions
in the same jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld or delayed), settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution is being sought under this Section 4(e) hereof (whether or not
the indemnified parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to act by or on
behalf of any indemnified party. Except as provided below in Section 4(d), no indemnified party
shall, without the prior written consent of the indemnifying parties (which consent shall not be
unreasonably withheld or delayed), settle or compromise or consent to the entry of any judgment
with respect to any litigation, or any investigation or proceeding by an governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which indemnification or
contribution is being sought under this Section 4 (whether or not the indemnified parties are
actual or potential parties thereto).
(d) If at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees
that it shall be liable for any settlement of the nature contemplated by Section 4(a)(ii)
effected without its written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party
shall have received written notice of the terms of such settlement at least 30 days prior to such
settlement being entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request for fees and expenses of counsel prior to the
date of such settlement.
19
(e) If the indemnification provided for in this Section 4 is for any reason unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault
of the Company on the one hand and the Holders and the Initial Purchaser on the other hand in
connection with the statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative fault of the Company on the one hand and the Holders and the Initial Purchaser on
the other hand shall be determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company, the Holders or the Initial Purchaser and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company, the Holders and the Initial Purchaser agree that it would not be just and
equitable if contribution pursuant to this Section 4 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 Section 4. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section 4 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 4, the Initial Purchaser shall not be required
to contribute any amount in excess of the amount by which the total price at which the Securities
sold by it were offered exceeds the amount of any damages which the Initial Purchaser 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
0000 Xxx) shall be entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 4, each Person, if any, who controls the Initial Purchaser or
Holder within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as the Initial Purchaser or Holder, and each director of the
Company, and each Person, if any, who controls the Company within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the
Company. The Initial Purchaser’s obligation to contribute pursuant to this Section 4 are several
in proportion to the principal amount of Securities set forth opposite their respective names in
Schedule A to the Purchase Agreement and not joint.
20
5. Miscellaneous.
5.1 Rule 144 and Rule 144A. For so long as the Company is subject to the reporting
requirements of Section 13 or 15 of the 1934 Act, the Company covenants that it will file the
reports required to be filed by it under the 1933 Act and Section 13(a) or 15(d) of the 1934 Act
and the rules and regulations adopted by the SEC thereunder. If the Company ceases to be so
required to file such reports, the Company covenants that it will upon the request of any Holder
of Registrable Securities (a) make publicly available such information as is necessary to permit
sales pursuant to Rule 144 under the 1933 Act, and (b) deliver such information to a prospective
purchaser as is necessary to permit sales pursuant to Rule 144A under the 1933 Act and it will
take such further action as any Holder of Registrable Securities may reasonably request. Upon
the reasonable request of any Holder of Registrable Securities, the Company will deliver to such
Holder a written statement as to whether it has complied with such reporting requirements.
5.2 No Inconsistent Agreements. The Company has not entered into and the Company
will not after the date of this Agreement 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 and will not for
the term of this Agreement in any way conflict with the rights granted to the holders of the
Company’s other issued and outstanding securities under any such agreements.
5.3 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 has
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 departure.
5.4 Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand delivery, registered first-class mail, telex,
telecopier, or any courier guaranteeing overnight delivery (a) 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 5.4, which address initially is the address set forth in the
Purchase
Agreement with respect to the Initial Purchaser; and (b) if to the Company, initially at the
Company’s address set forth in the Purchase Agreement, and thereafter at such other address of
which notice is given in accordance with the provisions of this Section 5.4.
All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; two business days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt is acknowledged, if
telecopied; and on the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
21
Copies of all such notices, demands, or other communications shall be concurrently delivered
by the person giving the same to the Trustee under the Indenture, at the address specified in
such Indenture.
5.5 Successor 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 or the Indenture. If
any transferee of any Holder shall acquire Registrable Securities, in any manner, whether by
operation of law or otherwise, such Registrable Securities shall be held subject to all 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, including the restrictions on resale set forth in this Agreement
and, if applicable, the Purchase Agreement, and the Indenture, and such person shall be entitled
to receive the benefits hereof.
5.6 Third Party Beneficiaries. The Initial Purchaser (even if the Initial Purchaser
is not a Holder of Registrable Securities) shall be third party beneficiaries to the agreements
made hereunder between the Company, on the one hand, and the Holders, on the other hand, and
shall have the right to enforce such agreements directly to the extent they deem such enforcement
necessary or advisable to protect their rights or the rights of Holders hereunder. Each Holder
of Registrable Securities shall be a third party beneficiary to the agreements made hereunder
between the Company, on the one hand, and the Initial Purchaser, 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 hereunder.
5.7. Specific Enforcement. Without limiting the remedies available to the Initial
Purchaser and the Holders, the Company acknowledges that any failure by the Company to comply
with its obligations under Sections 2.1 and 2.2 hereof may result in material irreparable injury
to the Initial Purchaser or the Holders for which there is no adequate remedy at law, that it
would not be possible to measure damages for such injuries precisely and that, in the event of
any such failure, the Initial Purchaser or any Holder may obtain such relief as may be required
to specifically enforce the Company’s obligations under Sections 2.1 and 2.2 hereof.
5.8 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.
5.9 Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
22
5.10 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS
THEREOF TO THE EXTENT THAT APPLICATION THEREOF WOULD PROVIDE FOR THE APPLICATION OF THE
SUBSTANTIVE LAWS OF ANOTHER JURISDICTION.
5.11 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.
5.12 Entire Agreement. This Agreement represents the entire agreement among the
parties hereto with respect to the subject matter hereof and supercedes and replaces any and all
prior agreements and understandings, whether oral or written, with respect thereto.
23
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| STONE ENERGY CORPORATION | ||||||
| By: | /s/ J. Xxxx Xxxxxxx | |||||
| Name: J. Xxxx Xxxxxxx | ||||||
| Title: Senior Vice President – Chief Accounting Officer and Treasurer | ||||||
Agreed and accepted as
of the date first above
written:
of the date first above
written:
| BANC OF AMERICA SECURITIES LLC | ||||
By:
|
/s/ Xxx Xxxxxxxx | |||
| Name: Xxx Xxxxxxxx | ||||
| Title: Managing Director | ||||
