EXHIBIT 4.3
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REGISTRATION AGREEMENT
Dated as of May 21, 1997
by and among
THE WISER OIL COMPANY
and
THE SUBSIDIARY GUARANTORS
named herein
and
SALOMON BROTHERS INC
NATIONSBANC CAPITAL MARKETS, INC.
and
XXXXXXX XXXXX SECURITIES INC.
as the Initial Purchasers
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$125,000,000
9 1/2% SENIOR SUBORDINATED NOTES DUE 2007
TABLE OF CONTENTS
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Page
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1. Definitions......................................................... 1
2. Exchange Offer...................................................... 5
3. Shelf Registration.................................................. 8
4. Special Interest.................................................... 9
5. Registration Procedures............................................. 11
6. Registration Expenses............................................... 18
7. Indemnification..................................................... 19
8. Rules 144 and 144A.................................................. 23
9. Underwritten Registrations.......................................... 23
10. Miscellaneous....................................................... 23
(a) No Inconsistent Agreements................................... 23
(b) Adjustments Affecting Registrable Notes...................... 24
(c) Amendments and Waivers....................................... 24
(d) Notices...................................................... 24
(e) Successors and Assigns....................................... 25
(f) Counterparts................................................. 26
(g) Headings..................................................... 26
(h) Governing Law; Submission to Process......................... 26
(i) Severability................................................. 27
(j) Notes Held by the Issuers or their Affiliates................ 27
(k) Third Party Beneficiaries.................................... 27
(i)
REGISTRATION AGREEMENT
This Registration Agreement (the "Agreement") is dated as of May 21,
1997, by and among The Wiser Oil Company, a Delaware corporation (the
"Company"), Wiser Oil Delaware, Inc., a Delaware corporation, Wiser Delaware
LLC, a Delaware limited liability company, The Wiser Marketing Company, a
Delaware corporation, T.W.O.C., Inc., a Delaware corporation, and The Wiser Oil
Company of Canada, a Nova Scotia unlimited liability company (collectively, the
"Subsidiary Guarantors"), and Salomon Brothers Inc, NationsBanc Capital Markets,
Inc., and Xxxxxxx Xxxxx Securities Inc. (collectively, the "Initial
Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated May 16, 1997, among the Company, the Subsidiary Guarantors and
the Initial Purchasers (the "Purchase Agreement"), which provides for the sale
by the Company to the Initial Purchasers of $125,000,000 aggregate principal
amount of the Company's 9 1/2% Senior Subordinated Notes due 2007 (the "Notes"),
which Notes will be guaranteed by the Subsidiary Guarantors. The Company and
the Subsidiary Guarantors are collectively referred to herein as the "Issuers."
In order to induce the Initial Purchasers to enter into the Purchase Agreement,
the Issuers have agreed to provide the registration rights set forth in this
Agreement for the benefit of the Initial Purchasers and their direct and
indirect transferees. The execution and delivery of this Agreement is a
condition to the obligation of the Initial Purchasers to purchase the Notes
under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
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As used in this Agreement, the following terms shall have the
following meanings:
Agreement: Has the meaning provided in the first introductory
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paragraph hereto.
Applicable Period: Has the meaning provided in Section 2(b) hereof.
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Closing Date: Has the meaning provided in the Purchase Agreement.
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Company: Has the meaning provided in the first introductory paragraph
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hereto.
Effectiveness Date: September 18, 1997.
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Effectiveness Period: Has the meaning provided in Section 3(a)
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hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and
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the rules and regulations of the SEC promulgated thereunder.
Exchange Notes: Has the meaning provided in Section 2(a) hereof.
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Exchange Offer: Has the meaning provided in Section 2(a) hereof.
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Exchange Offer Registration Statement: Has the meaning provided in
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Section 2(a) hereof.
Filing Date: July 21, 1997.
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Holder: Any holder of a Registrable Note or Registrable Notes.
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Indemnified Person: Has the meaning provided in Section 7(c) hereof.
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Indemnifying Person: Has the meaning provided in Section 7(c) hereof.
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Indenture: The Indenture, dated as of May 21, 1997 among the Company,
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the Subsidiary Guarantors and Texas Commerce Bank National Association, as
trustee, pursuant to which the Notes are being issued, as amended or
supplemented from time to time in accordance with the terms thereof.
Initial Purchasers: Has the meaning provided in the first
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introductory paragraph hereto.
Inspectors: Has the meaning provided in Section 5(n) hereof.
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Issue Date: The date on which the original Notes were sold to the
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Initial Purchasers pursuant to the Purchase Agreement.
Issuers: Has the meaning provided in the second introductory
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paragraph hereto.
NASD: Has the meaning provided in Section 5(r) hereof.
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Notes: Has the meaning provided in the second introductory paragraph
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hereto.
Participant: Has the meaning provided in Section 7(a) hereof.
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Participating Broker-Dealer: Has the meaning provided in Section 2(b)
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hereof.
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Person(s): An individual, trustee, corporation, partnership, limited
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liability company, joint stock company, trust, unincorporated association,
union, business association, firm or other legal entity.
Private Exchange: Has the meaning provided in Section 2(b) hereof.
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Private Exchange Notes: Has the meaning provided in Section 2(b)
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hereof.
Prospectus: The prospectus included in any Registration Statement
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(including, without limitation, any prospectus subject to completion and a
prospectus that includes any infor mation previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, and all other amendments and supplements to the
Prospectus, with respect to the terms of the offering of any portion of the
Registrable Notes covered by such Registration Statement including post-
effective amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
Purchase Agreement: Has the meaning provided in the second
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introductory paragraph hereto.
Records: Has the meaning provided in Section 5(n) hereof.
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Registrable Notes: Each Note upon original issuance of the Notes and
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at all times subsequent thereto, each Exchange Note as to which Section 2(d)(iv)
hereof is applicable upon original issuance and at all times subsequent thereto
and each Private Exchange Note upon original issuance thereof and at all times
subsequent thereto, until in the case of any such Note, Exchange Note or Private
Exchange Note, as the case may be, the earliest to occur of (i) a Registration
Statement (other than, with respect to any Exchange Note as to which Section
2(d)(iv) hereof is applicable, the Exchange Offer Registration Statement)
covering or (in the case of the Exchange Offer Registration Statement) providing
for the exchange of such Note, or covering such Exchange Note or Private
Exchange Note, as the case may be, has been declared effective by the SEC and
such Note (unless such Note was not tendered for exchange by the Holder
thereof), Exchange Note or Private Exchange Note, as the case may be, has been
disposed of in accordance with such effective Registration Statement, (ii) such
Note, Exchange Note or Private Exchange Note, as the case may be, is sold in
compliance with Rule 144, (iii) such Note, Exchange Note or Private Exchange
Note, as the case may be, ceases to be outstanding for purposes of the Indenture
or (iv) such Note, Exchange Note or Private Exchange Note, as the case may be,
may be resold without restriction pursuant to Rule 144.
Registration Default: Has the meaning provided in Section 4(a) hereof.
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Registration Statement: Any registration statement of the Company,
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including, but not limited to, the Exchange Offer Registration Statement, that
covers or (in the case of the Exchange Offer Registration Statement) provides
for the exchange of any of the Registrable Notes pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
Rule 144: Rule 144 promulgated under the Securities Act, as such Rule
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may be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as such
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Rule may be amended from time to time, or any similar rule (other than Rule 144)
or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as such Rule
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may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
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Securities Act: The Securities Act of 1933, as amended, and the rules
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and regulations of the SEC promulgated thereunder.
Shelf Notice: Has the meaning provided in Section 2(d) hereof.
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Shelf Registration: Has the meaning provided in Section 3(a) hereof.
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Shelf Registration Statement: shall mean a "shelf" registration
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statement of the Company and the Subsidiary Guarantors for a Shelf Registration
which covers all of the Registrable Notes on an appropriate form under Rule 415,
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.
Subsidiary Guarantors: Has the meaning provided in the first
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introductory paragraph hereto.
TIA: The Trust Indenture Act of 1939, as amended.
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Transfer Restricted Notes: Has the meaning provided in Section 4(a)
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hereof.
Trustee(s): The trustee under the Indenture and, if existent, the
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trustee under any indenture governing the Exchange Notes and Private Exchange
Notes (if any).
Underwritten registration or underwritten offering: A registration in
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which securities of one or more of the Issuers are sold to an underwriter for
reoffering to the public.
2. Exchange Offer
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(a) Each of the Issuers agrees to file with the SEC under the
Securities Act no later than the Filing Date a registration statement on Form S-
4 or other appropriate form (the "Exchange Offer Registration Statement")
registering the Company's offer to exchange (the "Exchange Offer") any and all
of the Registrable Notes (other than the Private Exchange Notes, if any) for a
like aggregate principal amount of debt securities of the Company, guaranteed,
on the same basis as the Notes, by the Subsidiary Guarantors, which are
identical in all material respects to the Notes (the "Exchange Notes") (and
which are entitled to the benefits of the Indenture or a trust indenture which
is identical in all material respects to the Indenture (other than such changes
to the Indenture or any such identical trust indenture as are necessary to
comply with any requirements of the SEC to effect or maintain the qualification
thereof under the TIA) and which, in either case, has been qualified under the
TIA), except that the offering and sale by the Company of the Exchange Notes
(other than Private Exchange Notes, if any) shall have been registered pursuant
to an effective Registration Statement under the Securities Act and shall
contain no restrictive legend thereon. The Exchange Offer shall comply in all
material respects with all applicable tender offer rules and regulations under
the Exchange Act. Unless the Exchange Offer would not be permitted by
applicable law or SEC policy, the Issuers agree to use their reasonable best
efforts to (x) cause the Exchange Offer Registration Statement to be declared
effective under the Securities Act on or before the Effectiveness Date; (y) keep
the Exchange Offer open for at least 30 days (or longer if required by
applicable law) after the date that notice of the Exchange Offer is mailed to
the Holders; and (z) consummate the Exchange Offer on or prior to October 20,
1997. If after such Exchange Offer Registration Statement is declared effective
by the SEC, the Exchange Offer or the issuance of the Exchange Notes thereunder
is interfered with by any stop order, injunction or other order or requirement
of the SEC or any other governmental agency or court, such Exchange Offer
Registration Statement shall be deemed not to have become effective for purposes
of this Agreement. Each Holder who participates in the Exchange Offer will be
required to represent to the Issuers in writing that any Exchange Notes received
by it will be acquired in the ordinary course of its business, that at the time
of the consummation of the Exchange Offer such Holder will have no arrangement
or understanding with any Person to participate in the distribution of the
Exchange Notes in violation of the provisions of the Securities Act, and that
such Holder in not an "affiliate" of any of the Issuers within the meaning of
the Securities Act. Upon consummation of the Exchange Offer in accordance
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with this Section 2, the Issuers shall have no further obligation to register
Registrable Notes (other than Private Exchange Notes and other than in respect
of any Exchange Notes as to which Section 2(d)(iv) hereof applies) pursuant to
Section 3 hereof. No securities other than the Exchange Notes shall be included
in the Exchange Offer Registration Statement.
(b) The Issuers shall include within the Prospectus contained in the
Exchange Offer Registration Statement a section entitled "Plan of Distribution,"
reasonably acceptable to the Initial Purchasers, 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 is the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange
Notes received by such broker-dealer in the Exchange Offer (a "Participating
Broker-Dealer"), whether such positions or policies have been publicly
disseminated by the Staff of the SEC or such positions or policies, in the
judgment of the Initial Purchasers, represent the prevailing views of the Staff
of the SEC. Such "Plan of Distribution" section shall also expressly permit the
use of the Prospectus included in the Exchange Offer Registration Statement by
all Persons subject to the prospectus deliv ery requirements of the Securities
Act, including all Participating Broker-Dealers, and include a statement
describing the means by which Participating Broker-Dealers may resell the
Exchange Notes.
Each of the Issuers shall use its reasonable best efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement the
Prospectus contained therein, in order to permit such Prospectus to be lawfully
delivered by any Participating Broker-Dealer subject to the prospectus delivery
requirements of the Securities Act for such period of time as is necessary to
comply with applicable law in connection with any resale of the Exchange Notes;
provided, however, that such period shall not exceed 90 days after the
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consummation of the Exchange Offer (the "Applicable Period").
If, prior to consummation of the Exchange Offer, an Initial Purchaser
holds any Notes acquired by it and having the status of an unsold allotment in
the initial distribution, the Issuers shall, upon the request of such Initial
Purchaser delivered to the Company not later than 10 days prior to the
consummation of the Exchange Offer, simultaneously with the delivery of the
Exchange Notes in the Exchange Offer issue and deliver to such Initial Purchaser
in exchange (the "Private Exchange") for such Notes held by such Initial
Purchaser a like principal amount of debt securities of the Company, guaranteed
by the Subsidiary Guarantors, that are identical in all material respects to the
Exchange Notes (the "Private Exchange Notes") (and which are issued pursuant to
the same Indenture as the Exchange Notes) except for the placement of a
restrictive legend on such Private Exchange Notes. The Private Exchange Notes
shall bear the same CUSIP number as the Exchange Notes.
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Interest on the Exchange Notes and the Private Exchange Notes will
accrue from the last interest payment date on which interest was paid on the
Notes surrendered in exchange therefor or, if no interest has been paid on the
Notes, from the Issue Date.
In connection with the Exchange Offer, the Issuers shall:
(1) mail 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;
(2) utilize the services of a depositary for the Exchange Offer with
an address in the Borough of Manhattan, the City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to the
close of business, New York time, on the last business day on which the
Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable
laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer or the
Private Exchange, as the case may be, the Issuers shall:
(1) accept for exchange all Notes validly tendered and not validly
withdrawn pursuant to the Exchange Offer or the Private Exchange;
(2) deliver to the Trustee for cancellation all Notes so accepted for
exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each
Holder of Notes so accepted for exchange, Exchange Notes or Private
Exchange Notes, as the case may be, equal in principal amount to the Notes
of such Holder so accepted for exchange.
The Exchange Notes and the Private Exchange Notes shall be issued
under (i) the Indenture or (ii) an indenture identical in all material respects
to the Indenture, which in either event shall provide that (1) the Exchange
Notes shall not be subject to the transfer restrictions set forth in the
Indenture and (2) the Private Exchange Notes shall be subject to the transfer
restrictions set forth in the Indenture. The Indenture or such indenture shall
provide that the Exchange Notes, the Private Exchange Notes and the Notes shall
vote and consent together on all matters as one class and that none of the
Exchange Notes, the Private Exchange Notes or the Notes will have the right to
vote or consent as a separate class on any matter.
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(c) Notwithstanding any other provisions hereof, the Issuers shall
ensure that (i) any Exchange Offer Registration Statement and any amendment
thereto and any Prospectus forming part thereof and any supplement thereto
complies in all material respects with the Securities Act, (ii) any Exchange
Offer 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 Exchange
Offer Registration Statement, and any supplement to such Prospectus, does not
include, as of the consummation of the Exchange Offer, an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(d) If, (i) because of any change in law or in currently prevailing
interpretations of the Staff of the SEC, the Issuers determine that they are not
permitted to effect an Exchange Offer, (ii) for any other reason the Exchange
Offer is not consummated by October 20, 1997, (iii) any holder of Private
Exchange Notes so requests by notice to the Company within 10 days after the
consummation of the Private Exchange, or (iv) any Holder (other than a
Participating Broker-Dealer) is not eligible under applicable law or SEC policy
to participate in the Exchange Offer or does not receive freely tradeable
Exchange Notes in the Exchange Offer (other than due solely to the status of
such Holder as an affiliate of any of the Issuers within the meaning of the
Securities Act) and so notifies the Company (which notice shall specify in
reasonable detail the reasons therefor) within 10 days after the consummation of
the Exchange Offer, then the Company shall promptly deliver written notice
thereof (the "Shelf Notice") to the Trustee and, in the case of clauses (i) and
(ii) above, all Holders, and shall file a Shelf Registration pursuant to Section
3 hereof.
3. Shelf Registration
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If a Shelf Notice is delivered as contemplated by Section 2(d) hereof,
then:
(a) Shelf Registration. The Issuers shall as promptly as reasonably
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practicable file with the SEC a Registration Statement for an offering to be
made on a continuous basis pursuant to Rule 415 covering all of the Registrable
Notes (the "Shelf Registration") provided, however, that no holder of Notes or
Exchange Notes (other than the Initial Purchasers) shall be entitled to have
Notes or Exchange Notes held by it covered by such Shelf Registration Statement
unless such holder agrees in writing to be bound by the provisions of this
Agreement applicable to such holder. If the Issuers shall not have yet filed an
Exchange Offer Registration Statement, each of the Issuers shall use its
reasonable best efforts to file with the SEC the Shelf Registration Statement on
or prior to the Filing Date. The Shelf Registration Statement shall be on Form
S-3 or another appropriate form permitting registration of such Registrable
Notes for resale by Holders in the manner or manners designated by them
(including, without limitation, one or more underwritten offerings). The
Issuers
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shall not permit any securities other than the Registrable Notes to be included
in the Shelf Registration Statement.
Each of the Issuers shall use its reasonable best efforts to (i) cause
the Shelf Registration Statement to be declared effective under the Securities
Act on or prior to the Effectiveness Date (in the case where the Issuers have
not yet filed an Exchange Offer Registration Statement) and on or prior to the
60th day after the filing of the Shelf Registration Statement (in all other
cases) and (ii) keep the Shelf Registration Statement continuously effective
under the Securities Act until the date which is two years from the Issue Date,
or such shorter period ending when all Registrable Notes covered by the Shelf
Registration Statement have been sold in the manner set forth and as
contemplated in the Shelf Registration Statement (in either case, the
"Effectiveness Period"). The Issuers shall be deemed not to have used their
reasonable best efforts to keep the Shelf Registration Statement effective
during the requisite period if any of them voluntarily takes any action that
would result in Holders of the Registrable Notes covered thereby not being able
to offer and sell such Registrable Notes during that period, unless such action
is required by applicable law; provided, however, that the foregoing shall not
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apply to actions taken by the Issuers in good faith and for valid business
reasons (not including avoidance of their obligations hereunder), including,
without limitation, the acquisition or divestiture of assets, so long as the
Issuers within 120 days thereafter comply with the requirements of Section 5
hereof.
(b) Withdrawal of Stop Orders. If the Shelf Registration Statement
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ceases to be effective for any reason at any time during the Effectiveness
Period, each of the Issuers shall use its reasonable best efforts to obtain the
prompt withdrawal of any order suspending the effectiveness thereof.
(c) Supplements and Amendments. The Issuers shall promptly supplement
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and amend the Shelf Registration Statement if required by the rules, regulations
or instructions applicable to the registration form used for such Shelf
Registration, if required by the Securities Act, or if reasonably requested by
the Holders of a majority in aggregate principal amount of the Registrable Notes
covered by such Registration Statement or by any underwriter of such Registrable
Notes.
4. Special Interest. (a) The parties hereto agree that the Holders of
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Transfer Restricted Notes (as defined below) will suffer damages if the Issuers
fail to fulfill their obligations under Section 2 or Section 3 hereof, as
applicable, and that it would not be feasible to ascertain the extent of such
damages. Accordingly, if (i) by the Filing Date, neither the Exchange Offer
Registration Statement nor the Shelf Registration Statement has been filed with,
the SEC, (ii) by the Effectiveness Date, neither the Exchange Offer Registration
Statement has been declared effective by, nor the Shelf Registration Statement
has been filed with, the SEC, (iii) by October 20, 1997, neither the Exchange
Offer has been consummated nor the Shelf Registration Statement has been
declared effective by the SEC or (iv) after either the Exchange Offer
Registration Statement or the Shelf Registration
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Statement has been declared effective, such Registration Statement thereafter
ceases to be effective or usable (except as permitted under the last sentence of
Section 3(a) or under Section 5(b) hereof) in connection with resales of
Registrable Notes in accordance with and during the periods specified herein
(each such event referred to in clauses (i) through (iv), a "Registration
Default"), interest ("Special Interest") will accrue on the Registrable Notes
(in addition to the stated interest on the Registrable Notes) from and including
the date on which any such Registration Default shall occur to but excluding the
date on which all Registration Defaults have been cured. Special Interest will
accrue at a rate of 0.5% per annum during the 90-day period immediately
following the occurrence of any Registration Default and shall increase by an
additional 0.25% per annum with respect to each subsequent 90-day period, but in
no event shall such rate exceed 1.50% per annum with respect to all Registration
Defaults. Following the cure of all Registration Defaults, the accrual of
Special Interest will cease. "Transfer Restricted Notes" means (a) with respect
to a Note or a Private Exchange Note or an Exchange Note as to which Section
2(d)(iv) applies, such Note or Private Exchange Note or Exchange Note as to
which Section 2(d)(iv) applies until (i) the date on which such Note has been
exchanged for a freely transferrable Exchange Note in the Exchange Offer, (ii)
the date of consummation of the Exchange Offer in the case where the Holder of
such Note was eligible to participate in the Exchange Offer and elected not to
tender such Note in the Exchange Offer (iii) the date on which such Note or
Private Exchange Note or Exchange Note as to which Section 2(d)(iv) applies has
been effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement or (iv) the date on which such
Note or Private Exchange Note or Exchange Note as to which Section 2(d)(iv)
applies is distributed to the public pursuant to Rule 144 under the Securities
Act or is salable pursuant to Rule 144(k) under the Securities Act and (b) with
respect to an Exchange Note received by a Participating Broker-Dealer, such
Exchange Note until sold by such Participating Broker-Dealer through the
delivery of the Prospectus contained in the Exchange Offer Registration
Statement. Notwithstanding anything to the contrary in this Section 4(a), the
Company shall not be required to pay Special Interest to the holder of Transfer
Restricted Notes if such holder: (a) failed to comply with its obligations to
make the representations in the first paragraph of Section 2; or (b) failed to
provide the information required to be provided by it, if any, pursuant to the
second to last paragraph of Section 5.
(b) The Issuers shall notify the Trustee and the paying agent (which
shall not be any of the Issuers for these purposes) under the Indenture
immediately upon the happening of each and every Registration Default. The
Issuers shall pay the Special Interest due on the Transfer Restricted Notes by
depositing with the paying agent, in trust, for the benefit of the Holders
thereof, prior to 10:00 a.m., New York City time on the next interest payment
date specified by the Indenture, sums sufficient to pay the Special Interest
then due. The Special Interest due shall be payable on each interest payment
date specified by the Indenture to the record holder entitled to receive the
interest payment to be made on such date. Each obligation to pay Special
Interest shall be deemed to accrue from and including the date of the applicable
Registration Default.
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(c) Notwithstanding the foregoing, the time periods specified in
Section 4(a) shall be tolled during the pendency of any circumstances beyond the
Company's control that prevent performance by the Company of its obligations
hereunder despite the Company's best efforts. Such matters include events
affecting issuers generally, such as the temporary closure of federal agencies,
and events directly affecting the Company, such as the Company's inability to
obtain all information regarding an acquisition entity within a time period that
would permit independent auditors to prepare any required audited financial
information on a timely basis.
(d) The parties hereto agree that the Special Interest provided for in
this Section 4 constitutes a reasonable estimate of and is intended to
constitute the sole remedy for the damages that will be suffered by holders of
Transfer Restricted Notes by reason of the failure of the Shelf Registration
Statement or the Exchange Offer Registration Statement, as the case may be, to
be filed, to be declared effective or to remain effective, or the Exchange Offer
to be consummated, as the case may be, to the extent required by this Agreement.
5. Registration Procedures
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In connection with the filing of a Registration Statement pursuant to
Section 2 or 3 hereof, the Issuers shall effect such registration(s) to permit
the sale of the securities covered thereby in accordance with the intended
method or methods of disposition thereof, and pursuant thereto and in connection
with any Registration Statement filed by the Issuers hereunder, the Issuers
shall:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by Section 2 or 3 hereof, and use their
reasonable best efforts to cause each such Registration Statement to become
effective and remain effective as provided herein; provided, however, that, if
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(1) such filing is pursuant to Section 3 hereof, or (2) a Prospectus contained
in an Exchange Offer Registration Statement filed pursuant to Section 2 hereof
is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period,
before filing any Registration Statement or Prospectus or any amendments or
supplements thereto, the Issuers shall, if requested at least 10 business days
prior to such filing, furnish to and afford the Holders of the Registrable Notes
covered by such Registration Statement or each such Participating Broker-Dealer,
as the case may be, their counsel and the managing underwriters, if any, a
reasonable opportunity to review copies of all such documents (including copies
of any documents to be incorporated by reference therein and all exhibits
thereto) proposed to be filed (in each case at least five business days prior to
such filing). The Issuers shall not file any Registration Statement or
Prospectus or any amendments or supplements thereto in respect of which the
Holders must be afforded an opportunity to review prior to the filing of such
document, if the Holders of a majority in aggregate principal amount of the
Registrable Notes covered by such Registration Statement, or any such
Participating Broker-Dealer, as the case may be, their counsel,
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or the managing underwriters, if any, shall reasonably object within five days
after the receipt thereof.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration Statement or Exchange Offer Registration
Statement, as the case may be, as may be necessary to keep such Registration
Statement continuously effective for the Effectiveness Period or the Applicable
Period or until consummation of the Exchange Offer, as the case may be; cause
the related Prospectus to be supplemented by any Prospectus supplement required
by applicable law, and as so supplemented to be filed, if required, pursuant to
Rule 424 (or any similar provisions then in force) promulgated under the
Securities Act; and comply with the provisions of the Securities Act and the
Exchange Act applicable to it with respect to the disposition of all securities
covered by such Registration Statement as so amended or in such Prospectus as so
supplemented and with respect to the subsequent resale of any securities being
sold by a Participating Broker-Dealer covered by any such Prospectus; the
Company shall be deemed not to have used its reasonable best efforts to keep a
Registration Statement effective during the Effectiveness Period or the
Applicable Period if it voluntarily takes any action that would result in
selling Holders of the Registrable Notes covered thereby or Participating
Broker-Dealers seeking to sell Exchange Notes not being able to sell such
Registrable Notes or such Exchange Notes during that period unless such action
is required by applicable law or unless such action is taken in good faith and
for valid business reasons (not including avoidance of its obligations
hereunder), including without limitation, the acquisition or divestiture of
assets so long as the Company within 120 days thereafter complies with this
Agreement, including without limitation, the provisions of paragraph 5(k) hereof
and the last paragraph of this Section 5.
(c) If (1) a Shelf Registration Statement is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, the Company shall notify the selling Holders
of Registrable Notes, or each such Participating Broker-Dealer, as the case may
be, their counsel and the managing underwriters, if any, promptly (but in any
event within two business days), and confirm such notice in writing, (i) when a
Registration Statement or any Prospectus supplement or post-effective amendment
has been filed, and, with respect to a Registration Statement or any post-
effective amendment, when the same has become effective under the Securities Act
(including in such notice a written statement that any Holder may, upon request,
obtain, at the sole expense of the Issuers, one conformed copy of such
Registration Statement or post-effective amendment including financial
statements and schedules, documents incorporated or deemed to be incorporated
therein by reference and exhibits), (ii) of the issuance by the SEC of any stop
order suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus or the initiation
of any proceedings for that purpose, (iii) if at any time when a Prospectus is
required by the Securities Act to be delivered in connection with sales of the
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Registrable Notes or resales of Exchange Notes by Participating Broker-Dealers
the representations and warranties of the Issuers contained in any agreement
(including any underwriting agreement) contemplated by Section 5(n) hereof cease
to be true and correct, (iv) of the receipt by the Issuers of any notification
with respect to the suspension of the qualification or exemption from
qualification of a Registration Statement or any of the Registrable Notes or the
Exchange Notes to be sold by any Participating Broker-Dealer for offer or sale
in any jurisdiction, or the initiation or threatening of any proceeding for such
purpose, (v) of the happening of any event, the existence of any condition or
any information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect or
that requires the making of any changes in or amendments or supplements to such
Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, it 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, and that in the case of
the Prospectus, it 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, in light of the circumstances under which they were
made, not misleading, and (vi) of the determination by the Issuers that a post-
effective amendment to a Registration Statement would be appropriate.
(d) Use its reasonable best efforts to prevent the issuance of any
order suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus or suspending the qualification
(or exemption from qualification) of any of the Registrable Notes or the
Exchange Notes for sale in any jurisdiction, and, if any such order is issued,
to use its reasonable best efforts to obtain the withdrawal of any such order at
the earliest possible moment.
(e) If a Shelf Registration is filed pursuant to Section 3 hereof and
if requested by the managing underwriter or underwriters (if any), or the
Holders of a majority in aggregate principal amount of the Registrable Notes
being sold in connection with an underwritten offering, (i) promptly incorporate
in a prospectus supplement or post-effective amendment such information as the
managing underwriter or underwriters (if any), such Holders, or counsel for any
of them reasonably request to be included therein or (ii) make all required
filings of such prospectus supplement or such post-effective amendment as soon
as practicable after the Issuers have received notification of the matters to be
incorporated in such prospectus supplement or post-effective amendment.
(f) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, furnish to each selling Holder of Registrable
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Notes and to each such Participating Broker-Dealer who so requests, their
respective counsel, and each managing underwriter, if any, at the sole expense
of the Issuers, one conformed copy of the Registration Statement or Registration
Statements and each post-effective amendment thereto, including financial
statements and schedules, and, if requested, all documents incorporated or
deemed to be incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, deliver to each selling Holder of Registrable Notes, or
each such Participating Broker-Dealer, as the case may be, their respective
counsel, and the underwriters, if any, at the sole expense of the Issuers, as
many copies of the Prospectus or Prospectuses (including each form of
preliminary prospectus) and each amendment or supplement thereto and any
documents incorporated by reference therein as such Persons may reasonably
request; and, subject to the last paragraph of this Section 5, each Issuer
hereby consents to the use of such Prospectus and each amendment or supplement
thereto by each of the selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, and the underwriters or agents,
if any, and dealers (if any), in connection with the offering and sale of the
Registrable Notes covered by, or the sale by Participating Broker-Dealers of the
Exchange Notes pursuant to, such Prospectus and any amendment or supplement
thereto.
(h) Prior to any public offering of Registrable Notes or any delivery
of a Prospectus contained in the Exchange Offer Registration Statement by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, use their reasonable best efforts to register or qualify such
Registrable Notes (and to cooperate with selling Holders of Registrable Notes or
each such Participating Broker-Dealer, as the case may be, the managing
underwriter or underwriters, if any, and their respective counsel in connection
with the registration or qualification (or exemption from such registration or
qualification) of such Registrable Notes) for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any selling Holder, Participating Broker-Dealer, or the managing underwriter or
underwriters reasonably request in writing; provided, however, that where
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Exchange Notes held by Participating Broker-Dealers or Registrable Notes are
offered other than through an underwritten offering, the Issuers agree to cause
their counsel to perform Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this Section 5(h); keep each
such registration or qualification (or exemption therefrom) effective during the
period such Registration Statement is required to be kept effective and do any
and all other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Exchange Notes held by Participating
Broker-Dealers or the Registrable Notes covered by the applicable Registration
Statement; provided, however, that none of the Issuers shall be required to (A)
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qualify generally to do business in any jurisdiction where it is not then so
qualified, (B) take any action that would subject it to general
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service of process in any such jurisdiction where it is not then so subject or
(C) subject itself to taxation in excess of a nominal dollar amount in any such
jurisdiction where it is not then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3 hereof,
cooperate with the selling Holders of Registrable Notes and the managing
underwriter or underwriters, if any; facilitate the timely preparation and
delivery of certificates representing Registrable Notes to be sold, which
certificates shall not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Company; and enable such
Registrable Notes to be in such denominations and registered in such names as
the managing underwriter or underwriters, if any, or Holders may reasonably
request at least two business days prior to any sale thereof.
(j) Use its reasonable best efforts to cause the Registrable Notes
covered by the Registration Statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the
Holders thereof or the underwriter or underwriters, if any, to dispose of such
Registrable Notes, except as may be required solely as a consequence of the
nature of a selling Holder's business, in which case each of the Issuers will
cooperate in all reasonable respects with the filing of such Registration
Statement and the granting of such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, upon the occurrence of any event contemplated by
paragraph 5(c)(v) or 5(c)(vi) hereof, as promptly as practicable prepare and
(subject to Section 5(a) hereof) file with the SEC, at the sole expense of the
Issuers, a supplement or post-effective amendment to the Registration Statement
or a supplement to the related Prospectus or any document incorporated or deemed
to be incorporated therein by reference, or file any other required document so
that, as thereafter delivered to the purchasers of the Registrable Notes being
sold thereunder or to the purchasers of the Exchange Notes to whom such
Prospectus will be delivered by a Partici pating Broker-Dealer, any such
Prospectus will not 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, in light of the circumstances under which they were made,
not misleading.
(l) Prior to the effective date of the first Registration Statement
relating to the Registrable Notes, (i) provide the Trustee with certificates for
the Registrable Notes or Exchange Notes, as the case may be, in a form eligible
for deposit with The Depository Trust Company and (ii) provide a CUSIP number
for the Registrable Notes or Exchange Notes, as the case may be.
(m) In connection with any underwritten offering of Registrable Notes
pursuant to a Shelf Registration, enter into an underwriting agreement as is
customary in underwritten offerings of debt securities similar to the Notes and
take all such other actions as are reasonably
-15-
requested by the managing underwriter or underwriters in order to facilitate the
registration or the disposition of such Registrable Notes and, in such
connection, (i) make such representations and warranties to, and covenants with,
the underwriters with respect to the business of the Issuers and their
respective subsidiaries and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by reference
therein, in each case, as are customarily made by Issuers to underwriters in
underwritten offerings of debt securities similar to the Notes, and confirm the
same in writing if and when requested; (ii) obtain the written opinion of
counsel to the Issuers and written updates thereof in form, scope and substance
reasonably satisfactory to the managing underwriter or underwriters, addressed
to the underwriters covering the matters customarily covered in opinions
requested in underwritten offerings of debt securities similar to the Notes and
such other matters as may be reasonably requested by the managing underwriter or
underwriters; (iii) obtain "cold comfort" letters and updates thereof in form,
scope and substance reasonably satisfactory to the managing underwriter or
underwriters from the independent certified public accountants of the Issuers
(and, if necessary, any other independent certified public accountants of any
subsidiary of any of the Issuers or of any business acquired by any of the
Issuers for which financial statements and financial data are, or are required
to be, included or incorporated by reference in the Registration Statement),
addressed to each of the underwriters, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort" letters in
connection with underwritten offerings of debt securities similar to the Notes
and such other matters as reasonably requested by the managing underwriter or
underwriters; and (iv) if an underwriting agreement is entered into, the same
shall contain indemnification provisions and procedures no less favorable than
those set forth in Section 7 hereof (or such other provisions and procedures
acceptable to Holders of a majority in aggregate principal amount of Registrable
Notes covered by such Registration Statement and the managing underwriter or
underwriters or agents) with respect to all parties to be indemnified pursuant
to said Section. The above shall be done at each closing under such underwriting
agreement, or as and to the extent required thereunder.
(n) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, make available for inspection by any selling Holder of
such Registrable Notes being sold, or each such Participating Broker-Dealer, as
the case may be, any underwriter participating in any such disposition of
Registrable Notes, if any, and any attorney, accountant or other agent retained
by any such selling Holder or each such Participating Broker-Dealer, as the case
may be, or underwriter (collectively, the "Inspectors"), at the offices where
normally kept, during reasonable business hours, all financial and other
records, pertinent corporate documents and instruments of the Issuers and their
respective subsidiaries (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of the Issuers
and their respective subsidiaries to make available for inspection all
information reasonably requested by any
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such Inspector in connection with such Registration Statement. Records which any
of the Issuers determine, in good faith, to be confidential and any Records
which it notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in such Registration Statement, (ii) the
release of such Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction, (iii) disclosure of such information is, in the
opinion of counsel (a copy of which shall be delivered to the Issuers) for any
Inspector, necessary or advisable in connection with any action, claim, suit or
proceeding, directly or indirectly, involving or potentially involving such
Inspector and arising out of, based upon, relating to, or involving this
Agreement, or any transactions contemplated hereby or arising hereunder, or (iv)
the information in such Records has been made generally available to the public
(other than as a result of a violation of this Agreement). Each selling Holder
of such Registrable Securities and each such Participating Broker-Dealer will be
required to agree in writing that information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it as the
basis for any market transactions in the securities of the Issuers unless and
until such information is generally available to the public. Each selling Holder
of such Registrable Notes and each such Participating Broker-Dealer will be
required to further agree that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give notice to the
Issuers and allow the Issuers to undertake appropriate action to prevent
disclosure of the Records deemed confidential at the Issuers' sole expense.
(o) Provide an indenture trustee for the Registrable Notes or the
Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(a) hereof, as the case may be, to be
qualified under the TIA not later than the effective date of the Exchange Offer
Registration Statement or the first Registration Statement relating to the
Registrable Notes; and in connection therewith, cooperate with the trustee under
any such indenture and the Holders of the Registrable Notes, to effect such
changes to such indenture as may be required for such indenture to be so
qualified in accordance with the terms of the TIA; and execute, and use its
reasonable best efforts to cause such trustee to execute, all documents as may
be required to effect such changes, and all other forms and documents required
to be filed with the SEC to enable such indenture to be so qualified in a timely
manner.
(p) Comply in all material respects with all applicable rules and
regulations of the SEC and make generally available to its securityholders an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) (which need not be audited) no later than 45 days after the end
of any 12-month period (or 90 days after the end of any 12-month period if such
period is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Notes are sold to underwriters in a firm commitment or best
efforts underwritten offering and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter of the
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Company after the effective date of a Registration Statement, which statements
shall cover said 12-month periods.
(q) If an Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Registrable Notes by Holders to the Issuers (or to such
other Person as directed by the Issuers) in exchange for the Exchange Notes or
the Private Exchange Notes, as the case may be, xxxx, or cause to be marked, on
such Registrable Notes that such Registrable Notes are being cancelled in
exchange for the Exchange Notes or the Private Exchange Notes, as the case may
be; in no event shall such Registrable Notes be marked as paid or otherwise
satisfied.
(r) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Notes and their respective counsel in connection
with any filings required to be made with the National Association of Securities
Dealers, Inc. (the "NASD").
(s) Use their reasonable best efforts to take all other steps
reasonably necessary or advisable to effect the registration of the Registrable
Notes covered by a Registration Statement contemplated hereby.
The Issuers may require each seller of Registrable Notes as to which
any Registration Statement is being effected to furnish to the Issuers such
information regarding such seller and the distribution of such Registrable Notes
as the Issuers may, from time to time, reasonably request. The Issuers may
exclude from such Registration Statement the Registrable Notes of any seller who
unreasonably fails to furnish such information within 15 days after receiving
such request. Each seller as to which any Shelf Registration is being effected
agrees to furnish promptly to the Issuers all information required to be
disclosed in order to make the information previously furnished to the Issuers
by such seller not materially misleading. All Holders shall cooperate in the
Company's preparation for the Exchange Offer and any Shelf Registration.
Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by acquisition of such Registrable Notes or Exchange Notes to be sold by
such Participating Broker-Dealer, as the case may be, that, upon actual receipt
of any notice from the Issuers of the happening of any event of the kind
described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi) hereof, such
Holder will forthwith discontinue disposition of such Registrable Notes covered
by such Registration Statement or Prospectus or Exchange Notes to be sold by
such Holder or Participating Broker-Dealer, as the case may be, until such
Holder's or Participating Broker-Dealer's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 5(k) hereof, or until
it is advised in writing by the Issuers that the use of the applicable
Prospectus may be resumed, and has received copies of any amendments or
supplements thereto. If so directed by the Company, each
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Holder shall deliver to the Company all copies of the Prospectus covering such
Registrable Notes that was current at the time of receipt of such notice.
6. Registration Expenses
---------------------
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Issuers shall be borne by the Issuers whether or not
the Exchange Offer Registration Statement or a Shelf Registration Statement is
filed or becomes effective, including, without limitation, (i) all registration
and filing fees (including, without limitation, (A) fees with respect to filings
required to be made with the NASD in connection with an underwritten offering
and (B) fees and expenses of compliance with state securities or Blue Sky laws
(including, without limitation, reasonable fees and disbursements of one counsel
in connection with Blue Sky qualifications of the Registrable Notes or Exchange
Notes and determination of the eligibility of the Registrable Notes or Exchange
Notes for investment under the laws of such jurisdictions (x) where the holders
of Registrable Notes are located, in the case of the Exchange Notes, or (y) as
provided in Section 5(h) hereof, in the case of Registrable Notes or Exchange
Notes to be sold by a Participating Broker-Dealer during the Applicable
Period)), (ii) printing expenses, including, without limitation, expenses of
printing certificates for Registrable Notes or Exchange Notes in a form eligible
for deposit with The Depository Trust Company and of printing Prospectuses if
the printing of Prospectuses is requested by the managing underwriter or
underwriters, if any, (iii) messenger, telephone and delivery expenses, (iv)
fees and disbursements of counsel for the Issuers, (v) fees and disbursements of
all independent certified public accountants referred to in Section 5(n)(iii)
hereof (including, without limitation, the expenses of any special audit and
"cold comfort" letters required by or incident to such performance by or
incident to such performance), (vi) rating agency fees, if any, and any fees
associated with making the Registrable Notes or Exchange Notes eligible for
trading through The Depository Trust Company, (vii) Securities Act liability
insurance, if the Issuers desire such insurance, (viii) fees and expenses of all
other Persons retained by the Issuers, (ix) internal expenses of the Issuers
(including, without limitation, all salaries and expenses of officers and
employees of the Issuers performing legal or accounting duties), (x) the expense
of any annual audit, (xi) the fees and expenses incurred in connection with the
listing of the securities to be registered on any securities exchange or any
inter-dealer quotation system, if applicable, and (xii) the expenses relating to
word processing and distributing all Registration Statements, underwriting
agreements, securities sales agreements, indentures and any other documents
necessary in order to comply with this Agreement. Each Holder of Registrable
Notes offered pursuant to a Registration Statement and each Participating
Broker-Dealer shall pay any discounts or commissions incurred upon the sale of
Registrable Notes or Exchange Notes pursuant to a Registration Statement.
(b) The Issuers, jointly and severally, shall reimburse the Holders of
the Registrable Notes being registered in a Shelf Registration for the
reasonable fees and disbursements of not more than one counsel (in addition to
appropriate local counsel) chosen by the Holders of a
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majority in aggregate principal amount of the Registrable Notes to be included
in such Registration Statement. In addition, the Issuers, jointly and severally,
shall reimburse the Initial Purchasers for the reasonable fees and expenses of
one counsel in connection with the Exchange Offer and shall not be required to
pay any other legal expenses of the Initial Purchasers in connection therewith.
7. Indemnification. (a) Each of the Issuers, jointly and
---------------
severally, agrees to indemnify and hold harmless each Holder of Registrable
Notes offered pursuant to a Shelf Registration Statement and each Participating
Broker-Dealer selling Exchange Notes during the Applicable Period, the
affiliates, directors, officers, agents, representatives and employees of each
such Person or its affiliates, and each other Person, if any, who controls any
such Person or its affiliates within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act (each, a "Participant") from
and against any and all losses, claims, damages and liabilities (including,
without limitation, the reasonable legal fees and other expenses actually
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement pursuant to which the offering of such Registrable Notes or Exchange
Notes, as the case may be, is registered (or any amendment thereto) or related
Prospectus (or any amendments or supplements thereto) or any related preliminary
prospectus, or caused by, arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that the Issuers will
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not be required to indemnify a Participant if (i) such losses, claims, damages
or liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
relating to any Participant furnished to the Issuers in writing by or on behalf
of such Participant expressly for use therein or (ii) if such Participant sold
to the person asserting the claim the Registrable Notes or Exchange Notes which
are the subject of such claim and such untrue statement or omission or alleged
untrue statement or omission was contained or made in any preliminary prospectus
and corrected in the Prospectus or any amendment or supplement thereto and the
Prospectus does not contain any other untrue statement or omission or alleged
untrue statement or omission of a material fact that was the subject matter of
the related proceeding and it is established by the Issuers in the related
proceeding that such Participant failed to deliver or provide a copy of the
Prospectus (as amended or supplemented) to such Person with or prior to the
confirmation of the sale of such Registrable Notes or Exchange Notes sold to
such Person if required by applicable laws, unless such failure to deliver or
provide a copy of the Prospectus (as amended or supplemented) was a result of
noncompliance by the Issuers with Section 5 of this Agreement.
(b) Each Participant agrees, severally and not jointly, to indemnify
and hold harmless the Issuers, their respective directors and officers and each
Person who controls the Issuers within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Issuers to each Participant, but only (i) with
reference to
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information relating to such Participant furnished to the Issuers in writing by
or on behalf of such Participant expressly for use in any Registration Statement
or Prospectus, any amendment or supplement thereto, or any preliminary
prospectus or (ii) with respect to any untrue statement or representation made
by such Participant in writing to the Issuers. The liability of any Participant
under this paragraph shall in no event exceed the proceeds received by such
Participant from sales of Registrable Notes or Exchange Notes giving rise to
such obligations.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such Person (the "Indemnified Person") shall promptly
notify the Person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may reasonably designate in such proceeding and shall pay
the reasonable fees and expenses actually incurred by such counsel related to
such proceeding; provided, however, that the failure to so notify the
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Indemnifying Person shall not relieve it of any obligation or liability which it
may have hereunder or otherwise (unless and only to the extent that such failure
directly results in the loss or compromise of any material rights or defenses by
the Indemnifying Person and the Indemnifying Person was not otherwise aware of
such action or claim). In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed in
writing to the contrary, (ii) the Indemnifying Person shall have failed within a
reasonable period of time to retain counsel reasonably satisfactory to the
Indemnified Person or (iii) the named parties in any such proceeding (including
any impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the Indemnifying Person shall not, in connection with any one
such proceeding or separate but substantially similar related proceeding in the
same jurisdiction arising out of the same general allegations, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed promptly as they are incurred. Any such separate firm for the
Participants and such control Persons of Participants shall be designated in
writing by Participants who sold a majority in interest of Registrable Notes and
Exchange Notes sold by all such Participants and any such separate firm for the
Issuers, their directors, their officers and such control Persons of the Issuers
shall be designated in writing by the Issuers. The Indemnifying Person shall
not be liable for any settlement of any proceeding effected without its prior
written consent, but if settled with such consent or if there be a final non-
appealable judgment for the plaintiff for which the Indemnified Person is
entitled to indemnification pursuant to this Agreement, the Indemnifying Person
agrees to indemnify and hold harmless each Indemnified Person from and against
any loss or liability by reason of such
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settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested an Indemnifying Person to reimburse
the Indemnified Person for reasonable fees and expenses actually incurred by
counsel as contemplated by the third sentence of this paragraph, the
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 60 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement; provided, however, that the Indemnifying Person shall not be liable
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for any settlement effected without its consent pursuant to this sentence if the
Indemnifying Person is contesting, in good faith, the request for reimbursement.
No Indemnifying Person shall, without the prior written consent of the
Indemnified Person, effect any settlement or compromise of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party, and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement (A) includes an unconditional written
release of such Indemnified Person, in form and substance reasonably
satisfactory to such Indemnified Person, from all liability on claims that are
the subject matter of such proceeding and (B) does not include any statement as
to an admission of fault, culpability or failure to act by or on behalf of any
Indemnified Person.
(d) If the indemnification provided for in Section 7(a) and 7(b)
hereof is for any reason unavailable to, or insufficient to hold harmless, an
Indemnified Person in respect of any losses, claims, damages or liabilities
referred to therein, than each Indemnifying Person under such paragraphs, in
lieu of indemnifying such Indemnified Person thereunder and in order to provide
for just and equitable contribution, shall contribute to the amount paid or
payable by such Indemnified Person as a result of such losses, claims, damages
or liabilities in such proportion as is appropriate to reflect (i) the relative
benefits received by the Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons on the other from the offering of the Notes or
(ii) if the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the Indemnifying Person or Persons on the one hand and the Indemnified Person or
Persons on the other in connection with the statements or omissions or alleged
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof). The relative fault of the parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Issuers on the
one hand or such Participant or such other Indemnified Person, as the case may
be, on the other, the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission, and any other
equitable considerations appropriate in the circumstances.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
--- ----
(even if the Participants were treated as one entity for such purposes) or by
any other method of allocation that does not take
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account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any reasonable legal or other expenses actually incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Notes, Exchange Notes
or Private Exchange Notes, as the case may be, exceeds the amount of any damages
that such Participant has otherwise been required to pay or has paid by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in this
Section 7 will be in addition to any liability which the Indemnifying Persons
may otherwise have to the Indemnified Persons referred to above.
8. Rules 144 and 144A. The Company covenants that it will use
------------------
commercially reasonable efforts to file the reports required to be filed by it
under the Securities Act and the Exchange Act and the rules and regulations
adopted by the SEC thereunder in a timely manner in accordance with the
requirements of the Securities Act and the Exchange Act and, if at any time the
Company is not required to file such reports, it will, upon the written request
of any Holder of Registrable Notes, make publicly available such other
information necessary to permit sales of such Registrable Notes pursuant to Rule
144. The Company further covenants for so long as any Registrable Notes remain
outstanding, to make available to any Holder or beneficial owner of Registrable
Notes in connection with any sale thereof and any prospective purchaser of such
Registrable Notes from such Holder or beneficial owner the information required
by Rule 144(d)(4) under the Securities Act in order to permit resales of such
Registrable Notes pursuant to Rule 144A.
9. Underwritten Registrations. If any of the Registrable Notes
--------------------------
covered by any Shelf Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
manage the offering will be selected by the Holders of a majority in aggregate
principal amount of such Registrable Notes included in such offering and
reasonably acceptable to the Issuers; provided that the Company shall not be
obligated to arrange for more than one underwritten offering during the
Effectiveness Period.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes 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,
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underwriting agreements and other documents required under the terms of such
underwriting arrangements.
10. Miscellaneous. (a) No Inconsistent Agreements. None of the
------------- --------------------------
Issuers have entered, as of the date hereof, and none of the Issuers shall,
after the date of this Agreement, enter into any agreement with respect to any
of its securities that is inconsistent with the rights granted to the Holders of
Registrable Notes in this Agreement or otherwise conflicts with the provisions
hereof. None of the Issuers have entered and none of the Issuers will enter into
any agreement with respect to any of its securities which will grant to any
Person piggy-back registration rights with respect to a Registration Statement.
(b) Adjustments Affecting Registrable Notes. None of the Issuers
---------------------------------------
shall, directly or indirectly, take any action with respect to the Registrable
Notes as a class that would adversely affect the ability of the Holders of
Registrable Notes to include such Registrable Notes in a registration undertaken
pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not
----------------------
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, otherwise than with the prior written
consent of the Holders of not less than a majority in aggregate principal amount
of the then outstanding Registrable Notes. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders of Registrable Notes whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect, impair, limit or compromise the rights of other
Holders of Registrable Notes may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Notes being sold by such Holders
pursuant to such Registration Statement; provided, however, that the provisions
-------- -------
of this sentence may not be amended, modified or supplemented except in
accordance with the provisions of the immediately preceding sentence.
(d) Notices. All notices and other communications (including without
-------
limitation any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, next-day air courier or facsimile:
1. if to a Holder of the Registrable Notes or any Participating
Broker-Dealer, at the most current address of such Holder or Participating
Broker-Dealer, as the case may be, set forth on the records of the
registrar under the Indenture, with a copy in like manner to the Initial
Purchasers as follows:
-24-
Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No: (000) 000-0000
Attention: Corporate Finance
Department
with a copy to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxx Xxxxxx
0000 Xxxxxxxx Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Facsimile No: (000) 000-0000
Attention: Xxx X. Xxxxxx, Esq.
2. if to the Initial Purchasers, at the address specified for
Salomon Brothers Inc in Section 10(d)(1);
3. if to an Issuer, as follows:
The Wiser Oil Company
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Facsimile No: (000) 000-0000
Attention: Chief Financial Officer
with a copy to:
Xxxxxxxx & Xxxxxx
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days after
being deposited in the mail, postage prepaid, if mailed; one business day after
being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
-25-
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the successors and assigns of each of the parties hereto;
provided, however, that this Agreement shall not inure to the benefit of or be
-------- -------
binding upon a successor or assign of a Holder unless and to the extent such
successor or assign holds Registrable Notes.
(f) 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.
(g) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law; Submission to Process. (1) THIS AGREEMENT SHALL BE
------------------------------------
DEEMED A CONTRACT AND INSTRUMENT MADE UNDER THE LAWS OF THE STATE OF NEW YORK
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK AND THE LAWS OF THE UNITED STATES OF AMERICA, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH PARTY HEREBY IRREVOCABLY SUBMITS
ITSELF TO THE JURISDICTION OF THE STATE AND FEDERAL COURTS OF THE STATE OF NEW
YORK AND AGREES AND CONSENTS THAT SERVICE OF PROCESS MAY BE MADE UPON IT IN ANY
LEGAL PROCEEDING RELATING TO THIS AGREEMENT BY ANY MEANS ALLOWED UNDER NEW YORK
OR FEDERAL LAW. THE PARTIES HERETO HEREBY WAIVE AND AGREE NOT TO ASSERT, BY WAY
OF MOTION, AS A DEFENSE OR OTHERWISE, THAT ANY SUCH PROCEEDING IS BROUGHT IN AN
INCONVENIENT FORUM OR THAT THE VENUE THEREOF IS IMPROPER. IN FURTHERANCE
THEREOF, EACH PARTY HEREBY ACKNOWLEDGES AND AGREES THAT IT WAS NOT INCONVENIENT
FOR IT TO NEGOTIATE AND RECEIVE FUNDING OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT IN SUCH STATE AND THAT IT WILL BE NEITHER INCONVENIENT NOR UNFAIR TO
LITIGATE OR OTHERWISE RESOLVE ANY DISPUTES OR CLAIMS IN A COURT SITTING IN SUCH
STATE.
(2) EACH PARTY HEREBY IRREVOCABLY DESIGNATES CT CORPORATION SYSTEM
LOCATED AT 0000 XXXXXXXX, XXX XXXX, XXX XXXX 00000, AS THE DESIGNEE, APPOINTEE
AND AGENT OF SUCH PARTY TO RECEIVE,
-26-
FOR AND ON BEHALF OF SUCH PARTY, SERVICE OF PROCESS IN SUCH RESPECTIVE
JURISDICTIONS IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT.
IT IS UNDERSTOOD THAT A COPY OF SUCH PROCESS SERVED ON SUCH AGENT WILL BE
PROMPTLY FORWARDED BY OVERNIGHT COURIER TO SUCH PARTY AT ITS ADDRESS SET FORTH
IN SECTION 10(D), BUT THE FAILURE OF SUCH PARTY TO RECEIVE SUCH COPY SHALL NOT
AFFECT IN ANY WAY THE SERVICE OF SUCH PROCESS. EACH PARTY FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY
SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PARTY AT ITS SAID ADDRESS, SUCH SERVICE
TO BECOME EFFECTIVE THIRTY (30) DAYS AFTER SUCH MAILING.
(i) Severability. If any term, provision, covenant or restriction of
------------
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Notes Held by the Issuers or their Affiliates. Whenever the
---------------------------------------------
consent or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Issuers or their affiliates
(as such term is defined in Rule 405 under the Securities Act) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
(k) Third Party Beneficiaries. Holders of Registrable Notes and
-------------------------
Participating Broker-Dealers are intended third party beneficiaries of this
Agreement and this Agreement may be enforced by such Persons.
-27-
IN WITNESS WHEREOF, the parties have executed the Agreement as of the
date first written above.
Company:
THE WISER OIL COMPANY
By: /s/ Xxxxxxxx X. Xxxx
----------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President Finance, Chief Financial
Officer & Assistant Secretary
Subsidiary Guarantors:
WISER OIL DELAWARE, INC.
By: /s/ Xxxxxxxx X. Xxxx
----------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President, Treasurer &
Assistant Secretary
WISER DELAWARE LLC
By: /s/ Xxxxxxxx X. Xxxx
----------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President, Treasurer &
Assistant Secretary
THE WISER MARKETING COMPANY
By: /s/ Xxxxxxxx X. Xxxx
----------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President &
Assistant Secretary
-28-
THE WISER OIL COMPANY OF CANADA
By: /s/ Xxxxxxxx X. Xxxx
----------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President &
Assistant Secretary
T.W.O.C., INC.
By: /s/ Xxxxxxxx X. Xxxx
----------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President &
Assistant Secretary
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written:
SALOMON BROTHERS INC
NATIONSBANC CAPITAL MARKETS, INC.
XXXXXXX XXXXX SECURITIES INC.
By: Salomon Brothers Inc
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Associate
-29-
