1
EXHIBIT 10.3
================================================================================
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
FORCENERGY INC
AND
THE PERSONS LISTED ON THE
SIGNATURE PAGES HEREOF
Dated as of February 15, 2000
================================================================================
2
TABLE OF CONTENTS
PAGE
1. Definitions...............................................................................1
2. Demand Registration.......................................................................4
2.1 Request for Registration..............................................................5
2.2 Effective Registration................................................................5
2.3 Selection of Underwriters.............................................................5
2.4 Priority on Demand Registrations......................................................5
3. Piggyback Registrations...................................................................6
3.1 Holder Piggyback Registration.........................................................6
3.2 Priority on Piggyback Registrations...................................................6
4. Shelf Registration........................................................................7
4.1 Shelf Request.........................................................................7
4.2 Required Period.......................................................................7
5. Company Standstill and Suspension Periods.................................................8
5.1 Standstill Period.....................................................................8
5.2 Suspension Period.....................................................................8
5.3 Holder Standstill Period..............................................................9
6. Registration Procedures...................................................................9
6.1 Company Obligations...................................................................9
6.2 Holder Obligations...................................................................13
7. Indemnification..........................................................................13
7.1 Indemnification by the Company.......................................................13
7.2 Indemnification by the Holders.......................................................14
7.3 Notice of Claims, Etc. ..............................................................14
7.4 Contribution.........................................................................15
7.5 Indemnification Payments.............................................................16
8. Registration Expenses....................................................................16
9. Rule 144.................................................................................16
10. Limitations on Subsequent Registration Rights............................................17
i
3
11. Miscellaneous............................................................................18
11.1 Notice Generally....................................................................18
11.2 Successors and Assigns..............................................................18
11.3 Amendments..........................................................................19
11.4 Severability........................................................................19
11.5 Headings............................................................................19
11.6 Governing Law.......................................................................19
11.7 Counterparts........................................................................19
11.8 Entire Agreement....................................................................19
11.9 Specific Performance................................................................19
ii
4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("this Agreement"), dated
as of February 15, 2000, by and among Forcenergy Inc, a Delaware corporation
(the "Company"), and each of the other persons or entities signatory hereto.
W I T N E S S E T H :
WHEREAS, the First Amended Disclosure Statement and Joint Plan
of Reorganization, dated as of October 26, 1999, as modified (the "Plan") was
confirmed on January 19, 2000 by order of the United States Bankruptcy Court for
the Eastern District of Louisiana in Case No. 99-11391 "A";
WHEREAS, pursuant to the Plan, the Company will issue to the
Holders Common Stock, par value $0.01, in partial exchange for their claims
against the Company;
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged and
affirmed, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. DEFINITIONS.
All capitalized terms used but not defined in this Agreement have the
respective meanings assigned to such terms in the Plan. As used in this
Agreement, the following capitalized terms (in their singular and plural forms,
as applicable) have the following meanings:
"Action" has the meaning assigned to such term in Section 7.3.
"Affiliate" has the meaning assigned to such term in Rule 144(a)(1) of
the Securities Act.
"Agreement" has the meaning assigned to such term in the introductory
paragraph to this Agreement.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the Borough of
Manhattan, The City of New York are authorized or obligated by law or executive
order to close.
"Confirmation Date" means the Effective Date of the Plan as confirmed.
5
"Commission" means the United States Securities and Exchange Commission
and any successor United States federal agency or governmental authority having
similar powers.
"Company" has the meaning assigned to such term in the introductory
paragraph to this Agreement.
"Company Standstill Period" has the meaning assigned to such term in
Section 5.1.
"Demand Registration" has the meaning assigned to such term in Section
2.1.
"Demand Request" has the meaning assigned to such term in Section 2.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any successor statute, and the rules and regulations of the Commission
thereunder.
"Inspectors" has the meaning assigned to such term in Section 6.1(k).
"Joining Holder" has the meaning assigned to such term in Section 2.2.
"Holder" means (i) each person or entity signatory hereto or any other
person or entity which owns 5% or greater of the Company's then outstanding
Common Stock, provided, however, that at such time as any Holder shall cease to
own at least 1% of the Company's then outstanding Common Stock such person or
entity shall cease to be a "Holder" for purposes hereof, or (ii) with respect to
and for the purpose of covering only shares of Common Stock issuable upon the
exercise of Subscription Warrants (as defined in the Plan), the Standby
Purchasers (as defined in the Plan).
"Holder Shelf Offering" has the meaning assigned to such term in
Section 4.2(b).
"Loss" has the meaning assigned to such term in Section 7.1.
"Material Adverse Effect" has the meaning assigned to such term in
Section 2.5.
"Material Disclosure Event" means, as of any date of determination, any
pending or imminent event relating to the Company, which, in the determination
of the Board of Directors of the Company upon advice of counsel (i) requires
disclosure of material, non-public information relating to such event in any
registration statement so that such registration statement would not be
materially misleading, (ii) is otherwise not required to be publicly disclosed
at that time (e.g., on Form 8-K or Form 10-Q) under applicable federal or state
securities laws and (iii) if publicly disclosed at the time of such event, would
have a material adverse effect on the business, financial condition or prospects
of the Company.
2
6
"Permitted Assignee" means any (i) Affiliate of any Holder or (ii) any
person or entity that acquires, in a single transaction from any Holder, at
least 10% of the Company's then-outstanding shares of Common Stock, such
percentage to be calculated immediately after such acquisition.
"Piggyback Registration" has the meaning assigned to such term in
Section 3.1(a).
"Piggyback Sale" has the meaning assigned to such term in Section
3.1(a).
"Plan" has the meaning assigned to such term in the recitals to this
Agreement.
"Records" has the meaning assigned to such term in Section 6.1(k).
The terms "register," "registered" and "registration" means a
registration effected by preparing and filing with the Commission a registration
statement on an appropriate form in compliance with the Securities Act, and the
declaration or order of the Commission of the effectiveness of such registration
statement under the Securities Act.
"Registrable Securities" means the shares of Common Stock issued to the
Holders pursuant to the Plan; provided, however, that as to any Registrable
Securities, such securities shall cease to constitute "Registrable Securities"
for purposes of this Agreement if and when (i) a registration statement with
respect to the sale of such securities shall have been declared effective by the
Commission and such securities shall have been sold pursuant thereto in
accordance with the intended plan and method of distribution therefor set forth
in the final prospectus forming part of such registration statement or (ii) such
securities are no longer outstanding or (iii) such securities are distributed in
accordance with the provisions of Rule 144 (or any similar provision then in
force) under the Securities Act or (iv) such securities may be distributed to
the public free from any restrictions imposed by Rule 144 and without the
requirement of the filing of a registration statement covering such securities.
"Requesting Holder" has the meaning assigned to such term in Section
2.1.
"Required Filing Date" has the meaning assigned to such term in Section
2.1.
"Required Period" has the meaning assigned to such term in Section
4.2(a).
"Road Show" has the meaning assigned to such term in Section 6.1(j).
"Securities Act" means the Securities Act of 1933, as amended, or any
successor statute, and the rules and regulations of the Commission thereunder.
3
7
"Shelf Filing Deadline" has the meaning assigned to such term in
Section 4.1.
"Shelf Registration Statement" has the meaning assigned to such term in
Section 4.1.
"Shelf Request" has the meaning assigned to such term in Section 4.1.
"Suspension Period" has the meaning assigned to such term in Section
5.2.
"Suspension Notice" has the meaning assigned to such term in Section
5.2.
2. DEMAND REGISTRATION.
2.1 Request for Registration. Subject to the provisions contained in
this Section 2.1, beginning on the date 120 days after the Confirmation Date,
any Holder or Holders may request (each, a "Requesting Holder") in writing (a
"Demand Request") that the Company effect the registration under the Securities
Act of that number of shares of Registrable Securities requested and owned by
the Requesting Holder(s) (a "Demand Registration"); provided, however, the
shares of Registrable Securities to be included in such Demand Registration
comprise the greater of 2,000,000 shares (subject to adjustment for any stock
split or stock dividend) or 5% of the outstanding Common Stock on such date;
provided, further, that the Company will in no event be required to effect more
than two Demand Registrations for the Holders in total in any 12-month period;
and provided, further, that upon the later of (i) such time as no Holder owns at
least 1% of the Company's then outstanding Common Stock and (ii) termination of
the Required Period (defined below), the Company will in no event be required to
effect more than one Demand Registration for the Holders in total in any
12-month period. Upon receipt of a Demand Request, the Company will cause to be
included in a registration statement on an appropriate form under the Securities
Act, filed with the Commission within 90 days after receiving a Demand Request
(the "Required Filing Date"), such Registrable Securities as may be requested by
such Requesting Holders in their Demand Request together with any other
Registrable Securities as requested by Joining Holders joining in such request
pursuant to Section 2.2. The Company shall use its reasonable best efforts to
cause any such registration statement to be declared effective by the Commission
as promptly as practicable after such filing but in any event not later than 150
days following the date of the Demand Request.
(a) If at any time the Company proposes to register shares of
Common Stock for the account of the Requesting Holders pursuant to Section 2.1
then (i) the Company shall give written notice of such proposed filing to the
Holders as soon as practicable (but in no event less than 30 days before the
anticipated filing date). Upon the written request of any Holder, received by
the Company no later than the 10th business day after receipt by such Holder of
the notice sent by the Company (each such Holder a "Joining Holder"), to
register, on the same terms and
4
8
conditions as the securities otherwise being sold pursuant to such Demand
Registration, any of its Registrable Securities, the Company will use its best
efforts to cause the Registrable Securities to be included in the securities to
be covered by the registration statement proposed to be filed by the Company on
the same terms and conditions as any similar securities included therein, all to
the extent requisite to permit the sale or other disposition by each Holder of
the Registrable Securities so registered.
2.2 Effective Registration. A registration will not count as a Demand
Registration until it has become effective (except with respect to any
Requesting Holder that withdraws all of its Registrable Securities for such
registration and the Company has performed its obligations hereunder in all
material respects, in which case such demand will count as a Demand Registration
on behalf of that Requesting Holder unless the Requesting Holder pays all
reasonable expenses actually incurred by the Company in connection with such
withdrawn registration); provided, however, that if, after it has become
effective, an offering of Registrable Securities pursuant to a registration
statement is terminated by any stop order, injunction, or other order of the
Commission or other governmental agency or court, such registration pursuant
thereto will be deemed not to have been effected and will not count as a Demand
Registration.
2.3 Selection of Underwriters. Unless the Requesting Holders otherwise
elect, all Demand Registrations will be underwritten offerings. With respect to
any offering of Registrable Securities pursuant to a Demand Registration in the
form of an underwritten offering, the Company shall select an investment banking
firm or firms of national standing to manage the underwritten offering, subject
to the consent of the Requesting Holders of a majority of the Registrable
Securities for such registration; provided, however, if a majority of the
Registrable Securities of the Requesting Holders are made by Xxxxxx Brothers,
Inc. or its Affiliates, then the Company shall select Xxxxxx Brothers, Inc. or
its Affiliates to manage the underwritten offering.
2.4 Priority on Demand Registrations. No securities to be sold for the
account of any person or entity (including the Company) other than Requesting
Holders or Joining Holders shall be included in a Demand Registration unless the
managing underwriter or underwriters shall advise the Requesting Holders in
writing that the inclusion of such securities will not materially and adversely
affect the price or success of the offering (a "Material Adverse Effect").
Furthermore, in the event that the managing underwriter or underwriters shall
advise the Requesting Holders that even after exclusion of all securities of the
other persons or entities pursuant to the immediately preceding sentence, the
amount of Registrable Securities proposed to be included in such Demand
Registration by Requesting Holders and Joining Holders is sufficiently large to
cause a Material Adverse Effect, the number of shares to be included in such
Demand Registration shall be allocated among all Holders pro rata based on the
ratio the number of shares each such Holder requests be included bears to the
total number of shares of all Holders that have been requested be included in
such registration.
5
9
3. PIGGYBACK REGISTRATIONS.
3.1 Holder Piggyback Registration. If the Company proposes to file a
registration statement under the Securities Act with respect to an offering of
any securities for the Company's own account (except pursuant to registrations
on Form S-4 or any successor form or on Form S-8 or any successor form relating
solely to securities issued pursuant to any benefit plan) then (i) the Company
shall give written notice of such proposed filing to the Holders as soon as
practicable (but in no event less than (A) 20 days after the receipt of a Demand
Request pursuant to Section 2.1 hereof, or (B) 20 days before the anticipated
filing date in the case of any other registration). Upon the written request of
any Holder, received by the Company no later than the 10th business day after
receipt by such Holder of the notice sent by the Company, to register, on the
same terms and conditions as the securities otherwise being sold pursuant to
such registration, any of its Registrable Securities (which request shall state
the intended method of disposition thereof if the securities otherwise being
sold are being sold by more than one method of disposition), the Company will
use its best efforts to cause the Registrable Securities as to which
registration shall have been so requested to be included in the securities to be
covered by the registration statement proposed to be filed by the Company on the
same terms and conditions as any similar securities included therein, all to the
extent requisite to permit the sale or other disposition by each Holder of such
Registrable Securities so registered; provided, however, that, notwithstanding
the foregoing, the Company may at any time in its sole discretion, or at the
request of Holders holding a majority of the Registrable Securities included in
a Demand Registration without the consent of any other Holder, delay or abandon
the proposed offering in which any Holder had requested to participate or cease
the filing (or obtaining or maintaining the effectiveness) of or withdraw the
related registration statement or other governmental approvals, registrations or
qualifications.
3.2 Priority on Piggyback Registrations. If the Registrable Securities
requested to be included in a registration statement by any Holder pursuant to
Section 3.1 differ from the type of securities proposed to be registered by the
Company and the managing underwriter advises the Company that due to such
differences the inclusion of such Registrable Securities would cause a Material
Adverse Effect, then (i) the number of such Holder's or Holders' Registrable
Securities to be included in the registration statement shall be reduced to an
amount which, in the judgment of the managing underwriter, would eliminate such
Material Adverse Effect or (ii) if no such reduction would, in the judgment of
the managing underwriter, eliminate such Material Adverse Effect, then the
Company shall have the right to exclude all such Registrable Securities from
such registration statement provided no other securities of such type are
included and offered for the account of any other person or entity in such
registration statement. Any partial reduction in the number of Registrable
Securities to be included in the registration statement pursuant to
6
10
clause (i) of the immediately preceding sentence shall be effected pro rata
based on the ratio which such Holder's Registrable Securities bears to the total
number of Registrable Securities requested to be included in such registration
statement by all Holders who have requested that their securities be included in
such registration statement. If the Registrable Securities requested to be
included in the registration statement pursuant to Section 3.1 are of the same
type as the securities being registered by the Company and the managing
underwriter advises the Company that the inclusion of such Registrable
Securities would cause a Material Adverse Effect, the Company will be obligated
to include in such registration statement, as to each Holder, only a portion of
the Registrable Securities such Holder has requested be registered equal to the
ratio which such Holder's requested securities bears to the total number of
shares of Registrable Securities requested to be included in such registration
statement by all Holders who have requested that their securities be included in
such registration statement.
4. SHELF REGISTRATION.
4.1 Shelf Request. Any Holder may request in writing (a "Shelf
Request") that the Company file a shelf registration statement pursuant to Rule
415 under the Securities Act (the "Shelf Registration Statement") relating to
the Holder's Registrable Securities beginning on the earlier of (i) the date on
which the Company is a registrant entitled to use Form S-3 or any successor
thereto to register shares of Common Stock and (ii) April 1, 2001; provided,
however, that the shares of Registrable Securities to be included in such Shelf
Registration Statement comprise the greater of 2,000,000 shares (subject to
adjustment for any stock split or stock dividend) or 5% of the outstanding
Common Stock on such date. Upon receipt of such request, the Company will, on or
before 90 days after such request (the "Shelf Filing Deadline"), file such Shelf
Registration Statement. The Company shall use its reasonable best efforts to
cause such registration statement to be declared effective by the Commission as
promptly as practicable after such filing but in any event not later than 150
days following the date of the Shelf Request.
4.2 Required Period and Shelf Registration Procedures.
(a) The Company shall (i) cause the Shelf Registration
Statement to include a resale prospectus intended to permit each Holder to sell,
at such Holder's election, all or part of the Registrable Securities held by
such Holder without restriction and (ii) use its reasonable best efforts to
prepare and file with the Commission such amendments and post-effective
amendments to the Shelf Registration Statement as may be necessary to keep the
Shelf Registration Statement continuously effective (subject to any Suspension
Periods referred to below) for a period (the "Required Period") ending on the
earlier of (1) the date which is three years after the date the Shelf
Registration Statement is declared effective plus the aggregate number of days
in all Suspension Periods and (2) the first date on which the securities covered
by the Shelf Registration Statement no longer constitute Registrable Securities
owned by a Holder,
7
11
and (iii) use its best efforts to cause the resale prospectus to be supplemented
by any required prospectus supplement.
(b) During the period of effectiveness of the Shelf
Registration Statement, any Holder shall be entitled to sell all or part of the
Registrable Securities registered on behalf of such Holder pursuant to the Shelf
Registration Statement ("Holder Shelf Offering").
(c) Any Holder may, by written notice to the Company, request
that the Company take any reasonable steps necessary to assist and cooperate
with such Holder to facilitate a Holder Shelf Offering, subject to the
provisions hereof. Such request will specify the number of shares of Registrable
Securities proposed to be sold and will also specify the intended method of
disposition thereof.
5. STANDSTILL AND SUSPENSION PERIODS.
5.1 Company Standstill Period. Except for distribution of Common Stock
pursuant to the Plan, without the prior written consent of the lead managing
underwriter in a Holder Shelf Offering during the Required Period the Company
agrees not to effect any public sale or distribution of any securities the same
as or similar to the Registrable Securities, or any securities convertible into
or exchangeable or exercisable for any Company securities the same as or similar
to the Registrable Securities (except pursuant to registrations on Form S-4 or
any successor form, or otherwise in connection with the acquisition of a
business or assets of a business, a merger, or an exchange offer for the
securities of the issuer of another entity, or registrations on Form S-8 or any
successor form relating solely to securities offered pursuant to any benefit
plan), during the 14-day period prior to and through the period (i) beginning on
the commencement of the public distribution of Registrable Securities pursuant
to the Shelf Registration Statement in an underwritten offering by or on behalf
of any Holder to the extent timely notified in writing by the selling Holders or
the underwriters managing such distribution and (ii) ending on the first to
occur of (A) the 90th day after such commencement and (B) the end of such
distribution (the "Company Standstill Period"), including that portion of such
period following an underwritten distribution commenced during the Company
Standstill Period that does not coincide with the Company Standstill Period.
5.2 Suspension Period. The Company may, by notice in writing to each
Holder, suspend the Demand Registration rights of the Holder and/or require the
Holders to suspend use of any resale prospectus included in the Shelf
Registration Statement for any period determined by the Company if there shall
occur a Material Disclosure Event (such period, a "Suspension Period").
Notwithstanding the foregoing, no Suspension Period shall exceed 30 days in any
one instance and, when combined with any other such Suspension Periods, 90 days
in any 12-month period; provided, however, that each day during any Suspension
Period shall only be counted
8
12
once in determining the aggregate number of days in such Suspension Period
notwithstanding the occurrence of multiple concurrent deferrals; and, provided,
further, if the Company deems it necessary to file a post-effective amendment to
the Shelf Registration Statement in order to comply with Section 4.1 hereof as a
result of any Shelf Request or other information provided by a Holder for
inclusion in the prospectus included in the Shelf Registration Statement, then
such period of time from the date of filing such post-effective amendment until
the date on which the Shelf Registration Statement is declared effective by the
commission shall not be treated as a Suspension Period. Each Holder agrees that,
upon receipt of notice from the Company of the occurrence of a Material
Disclosure Event (a "Suspension Notice"), such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the Shelf Registration
Statement or any public sale or distribution pursuant to Rule 144 until the
earlier of (i) the expiration of the Suspension Period and (ii) such Holder's
receipt of a notice from the Company to the effect that such suspension has
terminated. Any Suspension Notice shall be accompanied by a certificate of the
President or any Vice President of the Company confirming the existence of the
Material Disclosure Event. If so directed by the Company, such Holder will
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such Holder's possession, of the most recent
prospectus covering such Registrable Securities at the time of receipt of such
Suspension Notice.
5.3 Holder Standstill Period. Without the prior written consent of the
Company or the lead managing underwriter prior to the closing, or the prior
written consent of the lead managing underwriter of the offering thereafter, no
Holder shall effect any disposition of Registrable Securities under the Shelf
Registration Statement or any public sale or distribution pursuant to Rule 144
(except in accordance with Section 3.1) during the 14-day period prior to, and
through the period (i) beginning on the commencement of the public distribution
of securities of the Company the same as or similar to the Registrable
Securities, or any securities convertible into or exchangeable or exercisable
for any Company securities the same as or similar to the Registrable Securities
in an underwritten offering by or on behalf of the Company or any other Holder
to the extent timely notified in writing (prior to such Holder giving any Demand
Request) by the Company, the Selling Holders or the underwriters managing such
distribution and (ii) ending on the first to occur of (A) the 90th day after
such commencement and (B) the end of such distribution.
6. REGISTRATION PROCEDURES.
6.1 Company Obligations. Whenever the Company is required pursuant to
this Agreement to register Registrable Securities, it will:
(a) provide the Holders with a reasonable opportunity to
review and comment on any registration statement to be filed pursuant to this
Agreement prior to the filing thereof
9
13
with the Commission, and shall make all changes thereto as any Holder may
request in writing to the extent such changes are required, in the judgment of
the Company, by the Securities Act;
(b) cause any such registration statement and the related
prospectus and any amendment or supplement thereto, as of the effective date of
such registration statement, amendment or supplement, (i) to comply in all
material respects with the applicable requirements of the Securities Act and the
rules and regulations of the Commission promulgated thereunder and (ii) not to
contain any 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;
(c) furnish to the Holders such number of conformed copies of
such registration statement and of each such amendment thereto (in each case
including all exhibits thereto), such number of copies of the prospectus
included in such registration statement (including each preliminary prospectus
and each supplement thereto), and such number of the documents, if any,
incorporated by reference in such registration statement or prospectus, as the
Holders reasonably may request;
(d) use its reasonable best efforts to register or qualify the
Registrable Securities covered by such registration statement under such
securities or "blue sky" laws of the states of the United States as the Holders
reasonably shall request, to keep such registration or qualification in effect
for so long as such registration statement remains in effect, and to do any and
all other acts and things that may be necessary or advisable to enable the
Holders to consummate the disposition in such jurisdictions of the Registrable
Securities covered by such registration statement, except that the Company shall
not for any such purpose be required to qualify generally to do business as a
foreign corporation in any jurisdiction in which it is not obligated to be so
qualified, or to subject itself to taxation in any such jurisdiction, or to
consent to general service of process in any such jurisdiction;
(e) immediately notify the Holders, at any time when a
prospectus or prospectus supplement relating thereto is required to be delivered
under the Securities Act, upon discovery that, or upon the occurrence of any
event as a result of which, the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, which untrue statement or omission requires amendment
of the registration statement or supplementing of the prospectus, and, at the
request of the Holders, prepare and furnish to the Holders a reasonable number
of copies of a supplement to such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated
10
14
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that with respect to Registrable Securities registered pursuant to such
registration statement, each Holder agrees that it will not sell any Registrable
Securities pursuant to such registration statement during the time after the
furnishing of the Company's notice that the Company is preparing and filing with
the Commission a supplement to or an amendment of such prospectus or
registration statement;
(f) use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission, and make available to
holders of its securities, as soon as reasonably practicable, an earnings
statement covering the period of at least 12 months, but not more than 18
months, beginning with the first month of the first fiscal quarter after the
effective date of such registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act;
(g) provide and cause to be maintained a transfer agent and
registrar for the Registrable Securities covered by such registration statement
from and after a date not later than the effective date of such registration
statement; it being hereby agreed that the Holders shall furnish to the Company
such information regarding the Holders and the plan and method of distribution
of Registrable Securities intended by the Holders as the Company may from time
to time reasonably request in writing and as shall be required by law or by the
Commission in connection therewith;
(h) notify the Holders and the managing underwriters, if any,
promptly, and (if requested by any such person) confirm such notice in writing,
(i) when a prospectus, prospectus supplement or post-effective amendment related
to such registration statement has been filed, and, with respect to such
registration statement or any post-effective amendment thereto, when the same
has become effective, (ii) of any request by the Commission or any other federal
or state governmental authority for amendments or supplements to such
registration statement or related prospectus, (iii) of the issuance by the
Commission or any other federal or state governmental authority of any stop
order suspending the effectiveness of such registration statement or the
initiation of any proceedings for that purpose and (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose;
(i) use reasonable commercial efforts to obtain the withdrawal
of any order suspending the effectiveness of such registration statement, or the
lifting of any suspension of the qualification (or exemption from qualification)
of any of the Registrable Securities for sale in any jurisdiction, at the
earliest possible moment;
11
15
(j) enter into customary agreements (including underwriting
agreements in customary form, which shall include "lock-up" obligations as may
be requested by the managing underwriters, not to exceed 90 days in duration,
but excluding shares that may be issued pursuant to benefit plans or in
connection with mergers or acquisitions) and take such other actions (including
using its reasonable efforts to make such domestic road show presentations (it
being agreed that such presentations by officers of the Company in excess of an
aggregate of fourteen days in duration during any 12-month period for all Demand
and Shelf Registrations under this Agreement shall be unreasonable) and
otherwise engaging in such reasonable marketing support in connection with any
underwritten offering, including without limitation the obligation to make its
executive officers available for such purpose if so requested by the selling
Holder (a "Road Show")) as are reasonably requested by any selling Holder in
order to expedite or facilitate the sale of any registrable securities covered
by a registration statement pursuant to an underwritten offering in accordance
herewith;
(k) make available for inspection by each Holder, any
underwriter participating in any disposition pursuant to such registration, and
any attorney, accountant or other agent retained by such Holder or any such
underwriter (collectively, the "Inspectors"), all financial and other records,
pertinent corporate documents and properties of the Company (collectively, the
"Records") as shall be reasonably necessary to enable them to exercise their due
diligence responsibility, and cause the officers, directors and employees of the
Company to supply all information reasonably requested by any such Inspector in
connection with such registration, provided, however, that (i) in connection
with any such inspection, any such Inspectors shall cooperate to the extent
reasonably practicable to minimize any disruption to the operation by the
Company of its business, (ii) Records and information obtained hereunder shall
be used by such Inspectors only to exercise their due diligence responsibility
and (iii) Records or information furnished or made available hereunder shall be
kept confidential and shall not be disclosed by such Holder, underwriter or
Inspectors unless (A) the disclosure of such Records or information is necessary
to avoid or correct a misstatement or omission in a registration statement, (B)
the release of such Records or information is ordered pursuant to a subpoena or
other order from a court or governmental authority of competent jurisdiction or
(C) such Records or information otherwise become generally available to the
public other than through disclosure by such Holder, underwriter or Inspector in
breach hereof or by any person in breach of any other confidentiality
arrangement; and
(l) use its best efforts to furnish to each Holder and to each
managing underwriter, if any, a signed counterpart, addressed to such Holder or
such underwriter, if any, of (i) an opinion or opinions of counsel to the
Company and (ii) a comfort letter or comfort letters from the Company's
independent public accountants pursuant to SAS 72, each in customary
12
16
form and covering such matters of the type customarily covered by opinions or
comfort letters, as the case may be, as such Holder or the managing underwriter
reasonably requests.
6.2 Holder Obligations. Each Holder agrees that:
(a) information obtained by it or by its Inspectors shall be
deemed confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company or its Affiliates unless and until
such information is made generally available to the public; and
(b) it will use all reasonable efforts, prior to making any
disclosure allowed by Section 6.1(k)(iii)(A) or (B), to inform the Company that
such disclosure is necessary to avoid or correct a misstatement or omission in
the registration statement or ordered pursuant to a subpoena or other order from
a court or governmental authority of competent jurisdiction or otherwise
required by law. Such Holder further agrees that it will, upon learning that
disclosure of such Records or information is sought by a court or governmental
authority or otherwise required by law, give notice to the Company and allow the
Company, at the expense of the Company, to undertake appropriate action to
prevent disclosure of the Records or information deemed confidential.
7. INDEMNIFICATION.
7.1 Indemnification by the Company. The Company shall indemnify and
hold harmless (i) each Holder and its Affiliates, with respect to any
registration statement filed pursuant to this Agreement, (ii) any underwriter or
selling agent selected by the Holders with respect to such Registrable
Securities and (iii) each person who controls the Holder or Affiliate thereof,
including directors and officers of each Holder, and any underwriter or selling
agent, within the meaning of Section 15 of the Securities Act and Section 20 of
the Exchange Act, against any losses, claims, damages, liabilities or expenses
(each a "Loss" and collectively "Losses"), joint or several, to which the Holder
or any such persons may become subject under the Securities Act or otherwise, to
the extent that such Losses (or related actions or proceedings) arise out of or
are based upon (A) any untrue statement or alleged untrue statement of any
material fact contained in an effective registration statement in which such
Registrable Securities were included for registration under the Securities Act,
any preliminary prospectus if used prior to the effective date of the
registration statement (unless such statement is corrected in the final
prospectus and the Company shall have furnished a sufficient number of copies
thereof to the Holder in a manner and at a time sufficient to permit delivery of
the same to prospective purchasers concurrently with or prior to the sale of the
related Registrable Securities), final prospectus (as supplemented, if the
Company shall have filed with the Commission any supplement thereto) if used
during the period in which the Company is required to keep the
13
17
registration statement to which such prospectus relates current and otherwise in
compliance with Section 10(a) of the Securities Act or (B) any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the Company
shall have no obligation to provide any indemnification hereunder if any such
Losses (or actions or proceedings in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, preliminary prospectus or final
prospectus, as the case may be, in reliance upon and in conformity with written
information furnished to the Company by the Holder or on the Holder's behalf
specifically for inclusion in such registration statement. The indemnity
provided in this Section 7.1 shall remain in full force and effect regardless of
any investigation made by or on behalf of the Holder or any such other persons
and shall survive the transfer of the Registrable Securities by the Holder or
any such other persons.
7.2 Indemnification by the Holders. Each Holder shall indemnify and
hold harmless (in the same manner and to the same extent as set forth in Section
7.1 hereof) the Company, each director and officer of the Company and each other
person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, with respect to any untrue
statement in or omission from any registration statement filed by the Company
pursuant to this Agreement, any preliminary prospectus or any final prospectus
included in such registration statement, or any amendment or supplement to such
registration statement or prospectus, as the case may be, of a material fact if
such statement or omission was made in reliance upon and in conformity with
written information furnished to the Company or any of its representatives by
the Holder or such other persons, if any, who control the Holder within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
or on the Holder's behalf, specifically for inclusion in such registration
statement, preliminary prospectus or final prospectus, as the case may be;
provided, a Holder's aggregate liability under this Agreement shall be limited
to an amount equal to the net proceeds (after deducting the underwriter's
discount but before deducting expenses) received by the Holder from the sale of
the securities effected pursuant to such registration.
7.3 Notice of Claims, Etc. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding (an "Action")
involving a claim referred to in Sections 7.1 and 7.2 hereof, such indemnified
party shall, if indemnification is sought against an indemnifying party, give
written notice to the indemnifying party of the commencement of such Action;
provided, however, that the failure of any indemnified party to give said notice
shall not relieve the indemnifying party of its obligations under Sections 7.1
or 7.2 hereof, except to the extent that the indemnifying party is actually and
materially prejudiced by such failure. In case an Action is brought against any
indemnified party, and such indemnified party notifies an
14
18
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent it may elect by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice, to assume the defense thereof with counsel reasonably satisfactory to
such indemnified party. Notwithstanding the foregoing, the indemnified party
shall have the right to employ its own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of such indemnified party,
unless (i) the employment of such counsel shall have been authorized in writing
by the indemnifying party, (ii) the indemnifying party shall not have employed
counsel (reasonably satisfactory to the indemnified party) to take charge of the
defense of such Action, within a reasonable time after notice of the
commencement thereof or (iii) such indemnified party reasonably shall have
concluded that there may be defenses available to it which are different from or
additional to those available to the indemnifying party which, if the
indemnifying party and the indemnified party were to be represented by the same
counsel, could result in a conflict of interest for such counsel or materially
prejudice the prosecution of the defenses available to such indemnified party.
If any of the events specified in clauses (i), (ii) or (iii) of the preceding
sentence shall have occurred or otherwise shall be applicable, then the fees and
expenses of one counsel (or firm of counsel) for the indemnified party shall be
borne by the indemnifying party. Anything in this Section 7.3 to the contrary
notwithstanding, an indemnifying party shall not be liable for the settlement of
any action effected without its prior written consent (which consent in the case
of an action exclusively seeking monetary relief shall not unreasonably be
withheld or delayed), but if settled with the prior written consent of the
indemnifying party, or if there be a final judgment adverse to the indemnified
party, the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior consent of the indemnified party,
consent to entry of any judgment or enter into any settlement which does not
include as a term thereof the unconditional release of the indemnified party
from all liability in respect of such claim or litigation.
7.4 Contribution. If the indemnification provided for in this Article 7
is unavailable or insufficient to hold harmless an indemnified party in respect
of any Losses, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such Losses in such proportion as appropriate to reflect
the relative fault of the Company, on the one hand, and the Holder, on the other
hand, and the parties' relative intent, knowledge, access to information and
opportunity to correct or mitigate the damage in respect of or prevent any
untrue statement or omission giving rise to such indemnification obligation. The
Company and the Holders agree that it would not be just and equitable if
contributions pursuant to this Section 7.4 were determined by pro rata
allocation or by any other method of allocation which did not take account of
the equitable considerations referred to above. No person guilty of fraudulent
misrepresentation (within the
15
19
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who is not guilty of such fraudulent
misrepresentation.
7.5 Indemnification Payments. Periodic payments of amounts required to
be paid pursuant to this Article 7 shall be made during the course of the
investigation or defense, as and when reasonably itemized bills therefor are
delivered to the indemnifying party in respect of any particular Loss as
incurred.
8. REGISTRATION EXPENSES.
In connection with any offerings pursuant to a registration statement
hereunder, the Company will pay (i) all registration and filing fees, (ii) all
fees and expenses of compliance with state securities or Blue Sky Laws
(including reasonable fees and disbursements of counsel in connection with Blue
Sky Laws qualifications of the Registrable Securities), (iii) printing expenses,
(iv) internal expenses of the Company (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), (v) reasonable fees and disbursements of counsel for the
Company and fees and expenses of independent certified public accountants
retained by the Company (including the expenses of any comfort letters or costs
associated with the delivery by independent certified public accountants of a
comfort letter or comfort letters but excluding costs associated with special
audits), (vi) the reasonable fees and expenses of any special experts retained
by the Company in connection with such registration, (vii) fees and expenses in
connection with any review of underwriting arrangements by the National
Association of Securities Dealers, Inc. including fees and expenses of any
"qualified independent underwriter" in connection with an underwritten offering,
and (viii) reasonable fees and expenses of not more than one counsel for the
Holders (not to exceed $50,000). In connection with any offerings pursuant to a
registration statement, the selling Holders will pay (i) any underwriting fees,
discounts or commissions attributable to the sale of Registrable Securities by
such Holder in connection with an underwritten offering; (ii) costs of any
special audits in connection with an underwritten offering pursuant to a Demand
Registration Request or Shelf Registration Request; and (iii) any out-of-pocket
expenses of such Holder including any fees and expenses of counsel to such
Holder.
9. RULE 144.
The Company shall at all times comply with the requirements of Rule
144(c) under the Securities Act, as such Rule may be amended from time to time
(or any similar rule or regulation hereafter adopted by the Commission),
regarding the availability of current public information to the extent required
to enable any Holder to sell Registrable Securities without registration under
the Securities Act pursuant to the resale provisions of Rule 144 (or any similar
rule or regulation). Upon the request of any Holder, the Company will deliver to
such Holder a written
16
20
statement as to whether it has complied with such requirements and, upon such
Holder's compliance with the applicable provisions of Rule 144, will take such
action as may be required (including, without limitation, causing legal counsel
to issue an appropriate opinion) to cause its transfer agent to effectuate any
transfer of Registrable Securities properly requested by such Holder, in
accordance with the terms and conditions of Rule 144.
10. LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS.
Prior to the expiration of all registration rights granted hereunder,
the Company will not, without the prior written consent of each Holder, enter
into any agreement with any holder or prospective holder of any securities of
the Company that would grant such holder or prospective holder registration
rights with respect to securities of the Company other than piggyback
registration rights that do not interfere with, or cause the Company to be
unable to perform, the registration rights granted herein.
17
21
11. MISCELLANEOUS.
11.1 Notice Generally. Any notice, demand, request, consent, approval,
declaration, delivery or other communication hereunder to be made pursuant to
the provisions of this Agreement shall specify the Section of this Agreement
pursuant to which it is given or being made and shall be deemed sufficiently
given or made if in writing and signed by the party making the same, and either
delivered in person with receipt acknowledged or sent by registered or certified
mail, return receipt requested, postage prepaid, or by telecopy and confirmed by
telecopy answerback, addressed, if to any Holder, at the address of such Holder
as set forth on the signature pages hereto; and if to the Company, at
Forcenergy Inc
0000 XX 0xx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000-0000
Attention: President
Telecopy Number: (000) 000-0000
With a copy to:
Xxxxxxx & Xxxxx L.L.P.
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxx
Telecopy Number: (000) 000-0000
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration, delivery or other communication hereunder shall
be deemed to have been duly given or served on the date on which personally
delivered, with receipt acknowledged, telecopied and confirmed by telecopy
answerback or three Business Days after the same shall have been deposited in
the United States mail (by registered or certified mail, return receipt
requested, postage prepaid), whichever is earlier.
11.2 Successors and Assigns. This Agreement may not be assigned by any
Holder (except that this Agreement may be assigned by any Holder to a Permitted
Assignee, whereupon such Permitted Assignee shall be deemed to be an Holder for
all purposes of this Agreement). This Agreement shall be binding on all
successors to the Company and the Holders.
18
22
11.3 Amendments. This Agreement may be amended or modified only by a
written agreement signed by each party hereto.
11.4 Severability. Wherever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
11.5 Headings. The headings used in this Agreement are for the
convenience of reference only and shall not, for any purpose, be deemed a part
of this Agreement.
11.6 Governing Law. This Agreement shall be governed exclusively by,
construed and enforced in accordance with, the laws of the State of New York,
without regard to the provisions thereof relating to conflict of laws.
11.7 Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
11.8 Entire Agreement. This Agreement embodies the entire agreement and
understanding between the Company and the Holders in respect of the subject
matter contained herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to the subject matter of this
Agreement.
11.9 Specific Performance. The parties hereto acknowledge and agree
that they would not have adequate remedies at law and would be irreparably
harmed if any of the provisions of this Agreement were not performed by the
parties hereto in accordance with the specific terms hereof or were otherwise
breached, and that, in such case, it would be impossible to measure in money the
damages to such parties. It is accordingly agreed that the parties hereto shall
be entitled to injunctive relief or the enforcement of other equitable remedies,
without bond or other security, to compel performance and to prevent breaches of
this Agreement and specifically to enforce the terms and provisions hereof, in
addition to any other remedy to which they may be entitled, at law or in equity.
19
23
IN WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be duly executed and delivered as of the date first above
written.
FORCENERGY INC
By: /s/ XXXX XXXXXXXXXXX
---------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: President
[Remainder of Page Intentionally Left Blank - additional signature pages of
Holders to follow]
20
24
The Anschutz Corporation
By: /s/ Xxxxx Xxxxxx
------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
Address: 000 00xx Xxxxxx,
Xxxxx 0000
Xxxxxx, XX 00000
Xxxxxx Brothers, Inc.
By: /s/ J. Xxxxxx Xxxxxxxx
------------------------------
Name: J. Xxxxxx Xxxxxxxx
Title: Senior Vice President
Address: 000 Xxxxxx Xx.,
Xxxxx 0000
Xxxxxxx, XX 00000
Oaktree Capital Management, LLC,
as general partner or investment
manager of the funds and
accounts set forth on Schedule I
hereto
By: /s/ Xxxxx Karsm
------------------------------
Name: Xxxxx Karsm
Title: President
Address: 000 Xxxxx Xxxxx Xxxxxx
XX, XX 00000
By: /s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Principal
Address: 000 Xxxxx Xxxxx Xxxxxx
XX, XX 00000
21
25
SCHEDULE I
Oaktree Capital management, LLC is acting as general partner or investment
manager of the following funds and accounts:
OCM Principal Opportunities Fund, L.P.
OCM Opportunities Fund II, L.P.
Columbia/ HCA Master Retirement Trust
22
