EXHIBIT 10.6
COMMON STOCK REGISTRATION RIGHTS AGREEMENT
DATED AS OF JANUARY 23, 1998
AMONG
GOTHIC ENERGY CORPORATION
AND
THE PURCHASERS NAMED HEREIN
TABLE OF CONTENTS
Page
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1. Definitions........................................................ 1
2. Registration Rights................................................ 4
3. Transfers of Warrant Shares........................................ 9
4. Registration Procedures............................................ 15
5. Indemnification and Contribution................................... 18
6. Miscellaneous...................................................... 21
a. No Inconsistent Agreements................................... 21
b. Amendments and Waivers....................................... 21
c. Notices...................................................... 22
d. Successors and Assigns....................................... 22
e. Rules 144 and 144A........................................... 22
f. Counterparts................................................. 23
g. Headings..................................................... 23
h. Governing Law................................................ 23
i. Severability................................................. 23
j. Entire Agreement............................................. 23
Exhibit A
This Common Stock Registration Rights Agreement (this "Agreement") is made
and entered into as of January 23, 1998, among Gothic Energy Corporation, an
Oklahoma corporation (the "Company"), and the Purchasers named on the signature
pages hereto (the "Purchasers").
This Agreement is made pursuant to the Securities Purchase Agreement, dated
as of January 23, 1998, among the Company and the Purchasers (the "Purchase
Agreement"), relating to the sale by the Company to the Purchasers of up to
$45,000,000 in aggregate liquidation value of its Senior Redeemable Preferred
Stock, Series A, par value $.05 per share (the "Preferred Stock"), along with
warrants (the "Warrants") for the purchase of shares of its Common Stock, par
value $0.01 per share ("Common Stock"), constituting up to 50.00% of the
Company's fully diluted Common Stock. In order to induce the Purchasers to
enter into the Purchase Agreement, the Company has agreed to provide to the
Purchasers and their direct and indirect transferees (the "Holders") the
registration rights for the Common Stock set forth in this Agreement. The
execution of this Agreement is a condition to the obligations of the Purchasers
to purchase the Preferred Stock and Warrants under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
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defined terms shall have the following meanings:
"Business Day" shall mean a day that is not a Legal Holiday.
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"Closing Date" shall mean the date of Closing, as that term is defined
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in the Purchase Agreement.
"Common Stock" shall mean the Common Stock, par value $.0l per share,
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of the Company.
"Company" shall have the meaning set forth in the preamble and shall
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also include the Company's successors.
"Definitive Certificate" shall mean a certificate representing Warrant
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Shares in definitive registered form, other than a Global Certificate.
"Demand Registration" shall have the meaning set forth in Section 2.1.
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"Depositary" shall mean, with respect to Shares represented by one or
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more Global Certificates, The Depository Trust Company or another person
designated as Depositary by the Company, which must be a clearing agency
registered under the Exchange Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
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amended from time to time.
"Global Certificate" shall mean a certificate representing all or part
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of the Warrant Shares issued to the Depositary and bearing the legend set forth
in Section 3.4(g)(iii).
"Holders" shall mean the Purchasers, for so long as the Purchasers own
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any Common Stock, and each of their successors, assigns and direct and indirect
transferees who become registered owners of Common Stock.
"Included Shares" shall have the meaning set forth in Section 2.1(a).
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"Indemnified Party" shall have the meaning set forth in Section 5(c).
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"Indemnifying Party" shall have the meaning set forth in Section 5(c).
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"Legal Holiday" shall mean a Saturday, a Sunday or a day on which
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banking institutions in New York, New York are required by law, regulation or
executive order to remain closed. If a payment date is a Legal Holiday, payment
may be made on the next succeeding day that is not a Legal Holiday.
"Person" shall mean an individual, corporation, partnership, joint
------
venture, association, joint stock company, trust, unincorporated organization,
or other legal entity.
"Piggy-Back Registration" shall have the meaning set forth in Section
-----------------------
2.2.
"Preferred Stock" shall have the meaning set forth in the preamble.
---------------
"Prospectus" means a prospectus which meets the requirements of
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Section 10 of the Securities Act.
"Purchase Agreement" shall have the meaning set forth in the preamble.
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"Purchasers" shall have the meaning set forth in the preamble.
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"Qualified Institutional Buyer" or "QIB" shall have the meaning
----------------------------- ---
specified in Rule 144A under the Securities Act.
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"Registrable Securities" shall mean the shares of Common Stock
----------------------
issuable upon exercise of the Warrants. As to any particular Registrable
Securities, such securities shall cease to be Registrable Securities when (i) a
Registration Statement with respect to such securities shall have been declared
effective under the Securities Act and such securities shall have been disposed
of pursuant to such Registration Statement, (ii) such securities have been sold
to the public pursuant to Rule 144(k) (or any similar provision then in force,
but not Rule 144A) under the Securities Act, (iii) such securities shall have
been otherwise transferred by such Holder and new certificates for such
securities not bearing a legend restricting further transfer shall have been
delivered by the Company or its transfer agent and subsequent disposition of
such securities shall not require registration or qualification under the
Securities Act or any similar state law then in force or (iv) such securities
shall have ceased to be outstanding.
"Registration Expenses" shall mean all expenses incident to the
---------------------
Company's performance of or compliance with this Agreement, including, without
limitation, all SEC and stock exchange or National Association of Securities
Dealers, Inc. registration and filing fees and expenses, fees and expenses of
compliance with securities or blue sky laws (including, without limitation,
reasonable fees and disbursements of counsel for the underwriters in connection
with blue sky qualifications of the Registrable Securities), rating agency fees,
printing expenses, messenger, telephone and delivery expenses, fees and
disbursements of counsel for the Company and all independent certified public
accountants (but not including any underwriting discounts or commissions or
transfer taxes, if any, attributable to the sale of Registrable Securities by
Holders of such Registrable Securities).
"Registration Statement" shall mean any registration statement of the
----------------------
Company which covers any of the Warrant Shares 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.
"Regulation S" shall mean Regulation S under the Securities Act.
------------
"Requisite Shares" shall mean a number of Registrable Securities equal
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to not less than 25% of the Registrable Securities held in the aggregate by all
Holders.
"Restricted Security" shall have the meaning set forth in Rule
-------------------
144(a)(3) under the Securities Act.
"Rule 144" shall mean Rule 144 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
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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" shall mean Rule 144A under the Securities Act, as such
---------
Rule may be amended from time to time, or any similar rule (other than Rule 144)
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.
"SEC" shall mean the Securities and Exchange Commission.
---
"Securities Act" shall mean the Securities Act of 1933, as amended.
--------------
"Selling Holder" shall mean a Holder who is selling Warrant Shares in
--------------
accordance with the provisions of Section 2.1 or 2.2 hereof.
"Transfer" shall have the meaning set forth in Section 3.2.
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"Transfer Agent" means any transfer agent or registrar appointed by
--------------
the Company for the Common Stock.
"Warrant Shares" means the shares of Common Stock issued and issuable
--------------
upon exercise of the Warrants.
"Warrants" shall have the meaning set forth in the preamble.
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"Withdrawal Election" shall have the meaning set forth in Section 2.3.
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2. Registration Rights.
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2.1 Demand Registration.
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(a) Request for Registration. At any time on or after the
------------------------
Closing Date, Holders owning, individually or in the aggregate, at least the
Requisite Shares may make a written request for registration under the
Securities Act of their Registrable Securities (a "Demand Registration"). Any
such request will specify the number of Registrable Securities proposed to be
sold and will also specify the intended method of disposition thereof. Upon a
demand, the Company prepare, file and use its best efforts to cause to be
effective within 90 days
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of such demand a Registration Statement. The Company shall give written notice
of such registration request within 10 days after the receipt thereof to all
other Holders. Within 20 days after receipt of such notice by any Holder, such
Holder may request in writing that Registrable Securities be included in such
registration and the Company shall include in the Demand Registration the
Registrable Securities of any such Selling Holder requested to be so included
(the "Included Shares"). Each such request by such other Selling Holders shall
specify the number of Included Shares proposed to be sold and the intended
method of disposition thereof. Subject to Section 2.1(b), in no event shall the
Company be required to register Registrable Securities pursuant to this Section
2.1 on more than one occasion
(b) Effective Registration. A registration will not be deemed
----------------------
to have been effected as a Demand Registration unless it has been declared
effective by the SEC and the Company has complied in all material respects with
its obligations under this Agreement with respect thereto; provided that if,
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after it has become effective, the offering of Registrable Securities pursuant
to such registration is or becomes the subject of any stop order, injunction or
other order or requirement of the SEC or any other governmental or
administrative agency, or if any court prevents or otherwise limits the sale of
Registrable Securities pursuant to the registration (for any reason other than
the act or omissions of the Selling Holders), such registration will be deemed
not to have been effected unless the Company uses its best efforts to lift or
remove such limitation, such limitation is removed within 90 days and the 180-
day period referred to in the following sentence is extended by the number of
days the registration was suspended. If (i) a registration requested pursuant to
this Section 2.1 is deemed not to have been effected or (ii) the registration
requested pursuant to this Section 2.1 does not remain effective for a period of
at least 180 days beyond the effective date thereof or until the consummation of
the distribution by the Selling Holders of the Included Shares, then the Company
shall continue to be obligated to effect an additional registration pursuant to
this Section 2.1. The Selling Holders of Registrable Securities shall be
permitted to withdraw all or any part of the Included Shares from a Demand
Registration at any time prior to the effective date of such Demand
Registration. If at any time a Registration Statement is filed pursuant to a
Demand Registration, and subsequently a sufficient number of Included Shares are
withdrawn from the Demand Registration so that such Registration Statement does
not cover at least 25% of the Registrable Securities held by all Holders, the
Selling Holders who have not withdrawn their Included Shares shall have the
opportunity to include an additional number of Registrable Securities in the
Demand Registration so that such Registration Statement covers at least 25% of
the Registrable Securities held by all Holders. If an additional number of
Registrable Securities is not so included so that such Registration Statement
does not cover at least 25% of the Registrable Securities held by all Holders,
the Company may withdraw the Registration Statement. In the event that a
Registration Statement has been filed and the Company withdraws the Registration
Statement solely due to the occurrence of the events specified in the prior two
sentences, such withdrawn Registration Statement will count as a Demand
Registration; otherwise such
5
withdrawn Registration Statement will not count as a Demand Registration and the
Company shall continue to be obligated to effect a registration pursuant to this
Section 2.1.
(c) Priority in Demand Registrations Pursuant to Section 2.1. If
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a Demand Registration pursuant to this Section 2.1 involves an underwritten
offering and the managing underwriter advises the Company in writing that, in
its opinion, the number of securities requested to be included in such
registration (including securities of the Company which are not Registrable
Securities) exceeds the number which can be sold in such offering, the Company
will not include any securities of the Company which are not Registrable
Securities and will include in such registration only the number of Registrable
Securities requested by the managing underwriter(s) to be included in such
registration. In the event that the number of Registrable Securities requested
to be included in such registration exceeds the number which, in the opinion of
such managing underwriter, can be sold, the number of such Registrable
Securities to be included in such registration shall be allocated pro rata among
all requesting Holders on the basis of the relative number of shares of
Registrable Securities then held by each such Holder (provided that any shares
thereby allocated to any such Holder that exceed such Holder's request shall be
reallocated among the remaining requesting Holders in like manner). In the event
that the number of Registrable Securities requested to be included in such
registration is less than the number which, in the opinion of the managing
underwriter, can be sold, the Company may include in such registration the
securities the Company proposes to sell up to the number of securities that, in
the opinion of the managing underwriter, can be sold.
(d) Selection of Underwriter. If the Selling Holders so elect,
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the offering of such Registrable Securities pursuant to such Demand Registration
shall be in the form of an underwritten offering. The Selling Holders making
such Demand Registration shall select one or more nationally recognized firms of
investment bankers, who shall be reasonably acceptable to the Company, to act as
the managing underwriter or underwriters in connection with such offering and
shall select any additional investment banker(s) and manager(s) to be used in
connection with the offering.
(e) Expenses. The Company will pay all Registration Expenses in
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connection with the registrations requested pursuant to Section 2.1(a). Each
Holder shall pay all underwriting discounts and commissions and transfer taxes,
if any, relating to the sale or disposition of such Holder's Registrable
Securities pursuant to a registration statement requested pursuant to this
Section 2.1.
2.2 Piggy-Back Registration. If at any time the Company proposes to
-----------------------
file a Registration Statement under the Securities Act with respect to an
offering by the Company for its own account or for the account of any of its
respective securityholders of any class of its common equity securities (other
than (i) a Registration Statement on Form S-4 or S-8 (or any
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substitute form that may be adopted by the SEC), (ii) a Registration Statement
filed in connection with an offer or offering of securities solely to the
Company's existing securityholders or (iii) any Registration Statement filed by
the Company relating to an offering of shares of Common Stock, the proceeds of
which will be used to refinance or redeem indebtedness or preferred stock
incurred or issued by the Company to consummate the Amoco Acquisition (as
defined in the Purchase Agreement), then the Company shall give written notice
of such proposed filing to the Holders of Registrable Securities as soon as
practicable (but in no event less than 20 Business Days before the anticipated
filing date), and such notice shall offer such Holders the opportunity to
register such number of shares of Registrable Securities as each such Holder may
request (which request shall specify the Registrable Securities intended to be
disposed of by such Selling Holder and the intended method of distribution
thereof) (a "Piggy-Back Registration"). The Company shall use its best efforts
to cause the managing underwriter or underwriters of such proposed underwritten
offering to permit the Registrable Securities requested to be included in a
Piggy-Back Registration to be included on the same terms and conditions as any
similar securities of the Company or any other securityholder included therein
and to permit the sale or other disposition of such Registrable Securities in
accordance with the intended method of distribution thereof except as otherwise
provided in Section 2.3. Any Selling Holder shall have the right to withdraw its
request for inclusion of its Registrable Securities in any Registration
Statement pursuant to this Section 2.2 by giving written notice to the Company
of its request to withdraw no later than 5 Business Days before such
Registration Statement becomes effective. The Company may withdraw a Piggy-Back
Registration at any time prior to the time it becomes effective; provided that
the Company shall give prompt notice thereof to participating Selling Holders.
The Company will pay all Registration Expenses in connection with each
registration of Registrable Securities requested pursuant to this Section 2.2,
and each Holder shall pay all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to a registration statement effected pursuant to
this Section 2.2.
No registration effected under this Section 2.2, and no failure to
effect a registration under this Section 2.2, shall relieve the Company of its
obligation to effect a registration upon the request of Holders pursuant to
Section 2.1, and no failure to effect a registration under this Section 2.2 and
to complete the sale of shares of Common Stock in connection therewith shall
relieve the Company of any other obligation under this Agreement.
2.3 Reduction of Offering.
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(a) Piggy-Back Registration. (i) If the managing underwriter(s)
-----------------------
of any underwritten offering described in Section 2.2 have informed, in writing,
the Selling Holders of the Registrable Securities requesting inclusion in such
offering that it is their opinion that the total number of shares which the
Company, the Selling Holders and any other Persons desiring to
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participate in such registration intend to include in such offering is such as
to adversely affect the success of such offering, including the price at which
such securities can be sold, then the number of shares to be offered for the
account of the Selling Holders and all such other Persons (other than the
Company) participating in such registration shall be reduced or limited pro rata
in proportion to the respective number of shares requested to be registered to
the extent necessary to reduce the total number of shares requested to be
included in such offering to the number of shares, if any, recommended by such
managing underwriters; provided, however, that if such offering is effected for
the account of any securityholder of the Company other than the Selling Holders,
pursuant to the demand registration rights of any such securityholder, then the
number of shares to be offered for the account of the Selling Holders and all
other Persons (other than the Company) participating in such registration (but
not such securityholders who have exercised their demand registration rights)
shall be reduced or limited pro rata in proportion to the respective number of
shares requested to be registered to the extent necessary to reduce the total
number of shares requested to be included in such offering to the number of
shares, if any, recommended by such managing underwriters.
(ii) If the managing underwriter or underwriters of any
underwritten offering described in Section 2.2 notify the Selling Holders
requesting inclusion of Registrable Securities in such offering, that the kind
of securities that the Selling Holders, the Company and any other Persons
desiring to participate in such registration intend to include in such offering
is such as to adversely affect the success of such offering, (x) the Registrable
Securities to be included in such offering shall be reduced as described in
clause (i) above or (y) if a reduction in the Registrable Securities pursuant to
clause (i) above would, in the judgment of the managing underwriter(s) or
underwriters, be insufficient to substantially eliminate such adverse effect
that inclusion of the Registrable Securities requested to be included would have
on such offering, such Registrable Securities will be excluded from such
offering.
(iii) Notwithstanding anything herein to the contrary, this
Section 2.3(a) shall be subject to the provisions of the Warrant to purchase
Common Stock expiring on November 24, 2002 held by Amoco Corporation.
(b) If, as a result of the proration provisions of this Section
2.3, any Selling Holder shall not be entitled to include all Registrable
Securities in a Piggy-Back Registration that such Selling Holder has requested
to be included, such Selling Holder may elect to withdraw his request to include
Registrable Securities in such registration (a "Withdrawal Election"); provided,
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however, that a Withdrawal Election shall be irrevocable and, after making a
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Withdrawal Election, a Selling Holder shall no longer have any right to include
Registrable Securities in the registration as to which such Withdrawal Election
was made.
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3. Transfers of Warrant Shares.
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3.1 Generally. All Warrant Shares at any time and from time to time
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outstanding that are Registrable Securities shall be held subject to the
conditions and restrictions set forth in this Section 3. Each Holder of Warrant
Shares by executing this Agreement or by accepting a certificate representing
Common Stock or other indicia of ownership therefor from the Company agrees with
the Company to such conditions and restrictions.
3.2 Restrictions on Transfer. Each Holder of Registrable Securities
------------------------
agrees that it will not sell, assign, give, transfer, exchange, devise,
bequeath, pledge or otherwise dispose of (collectively, "Transfer") any Warrant
Shares or any interest therein except in compliance with Sections 3.3 and 3.4
hereof. Each certificate representing Warrant Shares shall contain conspicuous
notation on such certificate indicating that the transfer of such Warrant Shares
is subject to the terms and restrictions of this Agreement.
3.3 Registration of Transfers and Exchanges.
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(a) Transfer and Exchange of Definitive Certificates. The
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Company and the Transfer Agent shall not be obligated to register the transfer
or exchange of any Definitive Certificate that is a Restricted Security unless
such Warrant Shares are delivered to the Transfer Agent duly endorsed or
accompanied by written instruments of transfer and are accompanied by the
following additional information and documents, as applicable:
(A) if such Restricted Security is being delivered to the
Transfer Agent by a Holder for registration in the name of such Holder, without
transfer, a certification from such Holder to that effect (in substantially the
form of Exhibit A hereto); or
(B) if such Restricted Security is being transferred to a
Qualified Institutional Buyer in accordance with Rule 144A or pursuant to an
exemption from registration in accordance with Rule 144 or Regulation S or
pursuant to an effective registration statement under the Securities Act, a
certification to that effect (in substantially the form of Exhibit A hereto)
and, with respect to transfers pursuant to Rule 144 or Regulation S, an opinion
of counsel reasonably acceptable to the Company and the Transfer Agent to the
effect that such transfer does not require registration under the Securities
Act; or
(C) if such Restricted Security is being transferred in
reliance on another exemption from the registration requirements of the
Securities Act, a certification to that effect (in substantially the form of
Exhibit A hereto) and an opinion of counsel reasonably acceptable to the Company
and to the Transfer Agent to the effect that such transfer does not require
registration under the Securities Act.
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(b) Restrictions on Transfer of a Definitive Certificate for a
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Beneficial Interest in a Global Certificate. A Definitive Certificate may not
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be exchanged for a beneficial interest in a Global Certificate except upon
satisfaction of the requirements set forth below. Upon receipt by the Transfer
Agent of a Definitive Certificate, duly endorsed or accompanied by appropriate
instruments of transfer, in form satisfactory to the Transfer Agent, together
with:
(A) if such Definitive Certificate represents Restricted
Securities, certification, substantially in the form of Exhibit A hereto, that
such Definitive Certificate is being transferred to a Qualified Institutional
Buyer (as defined in Rule 144A) in accordance with Rule 144A; and
(B) whether or not such Definitive Certificate represents
Restricted Securities, written instructions directing the Transfer Agent to
make, or to direct the Depositary to make, an endorsement on the Global
Certificate to reflect an increase in the aggregate number of shares of Common
Stock represented by the Global Certificate,
then the Transfer Agent shall cancel such Definitive Certificate and cause, or
direct the Depositary to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Transfer Agent, the number of
shares of Common Stock represented by the Global Certificate to be increased
accordingly. If no Global Certificate is then outstanding, the Company shall
issue and the Transfer Agent shall authenticate a new Global Certificate in the
appropriate amount.
(c) Transfer and Exchange of Global Certificate. The transfer
-------------------------------------------
and exchange of a Global Certificate or beneficial interests therein shall be
effected through the Depositary, in accordance with this Agreement (including
the restrictions on transfer set forth herein) and the procedures of the
Depositary therefor.
(d) Transfer of a Beneficial Interest in a Global Certificate for
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a Definitive Certificate.
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(i) Any person having a beneficial interest in a Global
Certificate may upon request exchange such beneficial interest for a Definitive
Certificate. Upon receipt by the Transfer Agent of written instructions or such
other form of instructions as is customary for the Depositary from the
Depositary or its nominee on behalf of any person having a beneficial interest
in a Global Certificate and upon receipt by the Transfer Agent of a written
order or such other form of instructions as is customary for the Depositary or
the person designated by the Depositary as having such a beneficial interest
containing registration instructions and, in the case of a beneficial interest
in shares that are Restricted Securities only, the following additional
information and documents:
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(A) If such beneficial interest is being transferred to
the person designated by the Depositary as being the beneficial owner, a
certification from such person to that effect (in substantially the form of
Exhibit A hereto); or
(B) if such beneficial interest is being transferred to
a Qualified Institutional Buyer in accordance with Rule 144A or pursuant to an
exemption from registration in accordance with Rule 144 or Regulation S or
pursuant to an effective registration statement under the Securities Act, a
certification to that effect from the transferee or transferor (in substantially
the form of Exhibit A hereto) and, with respect to transfers pursuant to Rule
144 or Regulation S, an opinion of counsel reasonably acceptable to the Company
and the Transfer Agent to the effect that such transfer does not require
registration under the Securities Act; or
(C) if such beneficial interest is being transferred in
reliance on another exemption from the registration requirements of the
Securities Act, a certification to that effect from the transferee or transferor
(in substantially the form of Exhibit A hereto) and an opinion of counsel from
the transferee or transferor reasonably acceptable to the Company and to the
Transfer Agent to the effect that such transfer does not require registration
under the Securities Act, then the Transfer Agent will cause, in accordance with
the standing instructions and procedures existing between the Depositary and the
Transfer Agent, the aggregate amount of the Global Certificate to be reduced
and, following such reduction, the Company will execute and, upon receipt of a
written order in the form of an officers' certificate signed by the Chief
Executive Officer, the President, any vice President and the Chief Financial
Officer, the Treasurer, the Secretary or any Assistant Secretary of the Company
(an "Officers' Certificate"), the Transfer Agent will countersign and deliver to
the transferee a Definitive Certificate.
(ii) Definitive Certificates issued in exchange for a
beneficial interest in a Global Certificate pursuant to this Section 3.3(d)
shall be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Transfer Agent in writing. The Transfer Agent
shall deliver such Definitive Certificates to the persons in whose names such
Definitive Certificates are registered.
(e) Restrictions on Transfer and Exchange of Global Certificates.
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Notwithstanding any other provisions of this Agreement (other than the
provisions set forth in subsection (f) of this Section 3.3), a Global
Certificate may not be transferred as a whole except by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
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(f) Issuance of Definitive Certificates in Absence of Depositary.
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If at any time:
(i) the Depositary for the Global Certificates notifies the
Company that the Depositary is unwilling or unable to continue as Depositary for
the Global Certificates and a successor Depositary for the Global Certificates
is not appointed by the Company within 90 days after delivery of such notice; or
(ii) the Company, at its sole discretion, notifies the
Transfer Agent in writing that it elects to cause the issuance of Definitive
Certificates under this Agreement and such action would not cause the Common
Stock to be ineligible for trading in the Private Offerings, Resales and Trading
through Automated Linkages ("PORTAL") Market, then the Company will execute, and
the Transfer Agent, upon receipt of an Officers' Certificate requesting the
issuance and delivery of Definitive Certificates, will countersign and deliver
Definitive Certificates, in an aggregate number equal to the aggregate number of
shares represented by the Global Certificate, in exchange for such Global
Certificate.
(g) Legends.
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(i) Except as permitted by the following paragraph (ii),
each Definitive Certificate (and all shares of Common Stock issued in exchange
therefor or substitution thereof) shall bear a legend substantially to the
following effect:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR
FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY
ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE ACT) OR
(B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)
UNDER THE ACT (AN "ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND
IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT
WILL NOT WITHIN TWO YEARS AFTER ORIGINAL ISSUANCE OF THIS SECURITY RESELL
OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 000X XXXXX
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XXX XXX, (X) XXXXXX XXX XXXXXX XXXXXX TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS'
BEHALF BY A U.S. BROKER-DEALER) TO THE TRANSFER AGENT A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE TRANSFER AGENT FOR THIS SECURITY), (D) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO
WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO
YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY, IF THE PROPOSED
TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR SUCH TRANSFER IS MADE
IN ACCORDANCE WITH CLAUSES (D) OR (E) ABOVE, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE TRANSFER AGENT AND THE COMPANY SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO
AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANING GIVEN TO THEM BY
REGULATION S UNDER THE ACT.
(ii) Upon any sale or transfer of any share of Common Stock
that is a Restricted Security (including any Restricted Security represented by
a Global Certificate) pursuant to Rule 144 under the Securities Act or an
effective registration statement under the Securities Act:
(A) in the case of any Restricted Security represented
by a Definitive Certificate, the Transfer Agent shall permit the holder thereof
to exchange such Restricted Security for a Definitive Certificate (subject to
Section 3.3(a) and (b)) that does not bear the legend set forth above and
rescind any related restriction on the transfer of such Restricted Security; and
-13-
(B) any Restricted Security represented by a Global
Certificate shall not be subject to the provisions set forth in (i) above (such
sales or transfers being subject only to the provisions of Section 3.3(c)
through (f); provided, however, that with respect to any request for an exchange
--------- --------
of a Restricted Security that is represented by a Global Certificate for a
Definitive Certificate that does not bear the legend set forth above, which
request is made in reliance upon Rule 144, the holder thereof shall certify in
writing to the Transfer Agent that such request is being made pursuant to Rule
144 (such certification to be substantially in the form of Exhibit A hereto) and
shall provide an opinion of counsel reasonably acceptable to the Company to the
effect that such transfer does not require registration under the Securities
Act.
(iii) Any Global Certificate shall bear a legend (which would be
in addition to any other legends required in the case of a Restricted Security)
in substantially the following form:
THIS SECURITY IS A GLOBAL CERTIFICATE AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS
SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE COMMON STOCK REGISTRATION RIGHTS AGREEMENT
DATED AS OF JANUARY 23, 1998 AMONG THE COMPANY AND THE STOCKHOLDERS PARTY
THERETO (THE "SHAREHOLDERS AGREEMENT") AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE SHAREHOLDERS AGREEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE
-14-
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
(h) Cancellation and/or Adjustment of a Global Certificate. At such
------------------------------------------------------
time as all beneficial interests in a Global Certificate have either been
exchanged for Definitive Certificates, redeemed, repurchased or canceled, such
Global Certificate shall be returned to or retained and canceled by the Transfer
Agent. At any time prior to such cancellation, if any beneficial interest in a
Global Certificate is exchanged for Definitive Certificates, redeemed,
repurchased or canceled, the number of shares of Common Stock represented by
such Global Certificate shall be reduced and an endorsement shall be made on
such Global Certificate, by the Transfer Agent to reflect such reduction.
(i) Obligations with Respect to Transfers and Exchanges of
--------------------------------------------------- --
Definitive Certificates.
-----------------------
(i) To permit registrations of transfers and exchanges, the
Company shall execute, at the Transfer Agent's request, and the Transfer Agent
shall countersign and register Definitive Certificates and Global Certificates.
(ii) All Definitive Certificates and Global Certificates issued
upon any registration, transfer or exchange of Definitive Certificates or Global
Certificates shall be validly issued, fully paid and non-assessable.
(iii) Prior to due presentment for registration of transfer of any
Warrant Shares, the Company and the Transfer Agent may deem and treat the person
in whose name any Warrant Share is registered as the absolute owner of such
Warrant Share, and neither the Transfer Agent nor the Company shall be affected
by notice to the contrary.
4. Registration Procedures. In connection with the obligations of the
-----------------------
Company with respect to any Registration Statement pursuant to Sections 2.1 and
2.2 hereof, the Company shall:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the Securities Act, which form (i) shall be selected by
the Company and (ii) shall comply as to form in all material respects with the
requirements of the applicable form and include all financial statements
required by the SEC to be filed therewith, and the Company shall use its best
efforts to cause such Registration Statement to become effective and remain
effective in accordance with Section 2 hereof;
-15-
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period, cause each
Prospectus to be supplemented by any required prospectus supplement and, as so
supplemented, to be filed pursuant to Rule 424 under the Securities Act;
(c) furnish to each Selling Holder of Registrable Securities and to
each underwriter of an underwritten offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto and such other documents as
such Selling Holder or underwriter may reasonably request, in order to
facilitate the public sale or other disposition of the Registrable Securities;
(d) use its best efforts to register or qualify the Registrable
Securities under all applicable state securities or "blue sky" laws of such
jurisdictions as any Selling Holder thereof covered by a Registration Statement
shall reasonably request in writing by the time the applicable Registration
Statement is declared effective by the SEC, and do any and all other acts and
things which may be reasonably necessary or advisable to enable such Selling
Holder to consummate the disposition in each such jurisdiction of such
Registrable Securities owned by such Selling-Holder; provided, however, that the
Company shall not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified, (ii) take any action that would
subject it to general service of process in any jurisdiction in which it is not
then so subject or (iii) subject itself to taxation in excess of a nominal
dollar amount in any such jurisdiction;
(e) notify each Selling Holder of Registrable Securities promptly and,
if requested by such Selling Holder, confirm such advice in writing (i) when a
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of any request by the
SEC or any state securities authority for amendments and supplements to a
Registration Statement and Prospectus or for additional information after the
Registration Statement has become effective, (iii) of the issuance by the SEC or
any state securities authority of any stop order suspending the effectiveness of
a Registration Statement or the initiation of any proceedings for that purpose,
(iv) if, between the effective date of a Registration Statement and the closing
of any sale of Registrable Securities covered thereby, the representations and
warranties of the Company contained in any underwriting agreement, securities
sales agreement or other similar agreement, if any, relating to the offering
cease to be true and correct in all material respects or if the Company receives
any notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose and (v) of the happening of any event during the
period a Registration Statement is effective which makes any
-16-
statement made in such Registration Statement or the related Prospectus untrue
in any material respect or which requires the making of any changes in such
Registration Statement or Prospectus in order to make the statements therein not
misleading;
(f) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment;
(g) furnish to each Selling Holder of Registrable Securities and to
the Purchasers, without charge, at least one conformed copy of each Registration
Statement and any post-effective amendment thereto (with documents incorporated
therein by reference or exhibits thereto);
(h) cooperate with the Selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends and
registered in such names as the Selling Holders may reasonably request at least
two business days prior to the closing of any sale of Registrable Securities;
(i) upon the occurrence of any event contemplated by Section 4(e)(v)
hereof, use reasonable efforts to prepare a supplement or post-effective
amendment to a Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to the purchasers of the Registrable Securities, such
Prospectus will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that the Company shall not be required to amend or supplement a Registration
Statement, any related Prospectus or any document incorporated therein by
reference in the event that, and for so long as, an event occurs and is
continuing as a result of which the Registration Statement, any related
Prospectus or any document incorporated therein by reference as then amended or
supplemented would, in the Company's good faith judgment, contain an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in light of the circumstances under which they
are made, not misleading. The Company agrees to notify each Selling Holder to
suspend use of the Prospectus as promptly as practicable after the occurrence of
such an event, and each Selling Holder hereby agrees to suspend use of the
Prospectus until the Company has amended or supplemented the Prospectus to
correct such misstatement or omission. At such time as such public disclosure
is otherwise made or the Company determines in good faith that such disclosure
is not necessary, the Company agrees promptly to notify each Selling Holder of
such determination, to amend or supplement the Prospectus if necessary to
correct any untrue statement or omission therein and to furnish each Selling
Holder such numbers of copies of the Prospectus as so amended or supplemented as
each Selling Holder may reasonably request;
-17-
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or any document which is to be
incorporated by reference into a Registration Statement or a Prospectus after
initial filing and prior to the effective date of a Registration Statement,
provide copies of such document to the Holders and make available for discussion
of such document the representatives of the Company as shall be reasonably
requested by the Holders of Registrable Securities;
(k) obtain a CUSIP number for the Common Stock;
(1) (i) make reasonably available for inspection by a representative
of, and counsel for, any managing underwriter participating in any disposition
pursuant to a Registration Statement, all relevant financial and other records,
pertinent corporate documents and properties of the Company and (ii) cause the
Company's officers, directors and employees to supply all relevant information
reasonably requested by such representative, counsel or any such managing
underwriter in connection with any such Registration Statement;
(m) take all action necessary so that the Warrant Shares will be
listed on the principal securities exchanges and markets within the United
States of America (including the NASDAQ National Market System), if any, on
which other shares of Common Stock are then listed; and
(n) if requested by the Holders in connection with any Registration
Statement, shall use its best efforts to cause (x) counsel for the Company to
deliver an opinion relating to the Registration Statement and the Common Stock,
in customary form, (y) its officers to execute and deliver all customary
documents and certificates requested by a representative of the Holders or any
managing underwriter, as applicable and (z) its independent public accountants
to provide a comfort letter in customary form.
The Company may, as a condition to such Holder's participation in any
Registration Statement, require each Holder of Registrable Securities to (i)
furnish to the Company such information in writing regarding the Holder and the
proposed distribution by such Holder of such Registrable Securities as the
Company may from time to time reasonably request in writing and (ii) agree in
writing to be bound by this Agreement.
5. Indemnification and Contribution.
--------------------------------
(a) The Company agrees to indemnify and hold harmless each Holder and
each person, if any, who controls such Holder within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against all losses, claims, damages
-18-
and liabilities (including, without limitation, any reasonable legal fees or
other expenses actually incurred by any Holder or any such controlling or
affiliated person in connection with defending or investigating any such action
or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement (or any amendment thereto)
pursuant to which Registrable Securities were registered under the Securities
Act, or caused by any omission or alleged omission to state therein a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, or caused by any untrue statement or
alleged untrue statement of a material fact contained in any Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to any Holder furnished to the
Company in writing by such Holder expressly for use in any such Registration
Statement or Prospectus; provided that the foregoing indemnity with respect to
--------
any preliminary prospectus shall not inure to the benefit of any Holder (or to
the benefit of any person controlling such Holder) from whom the person
asserting any such losses, claims, damages or liabilities purchased Registrable
Securities if such untrue statement or omission or alleged untrue statement or
omission made in such preliminary prospectus is completely eliminated or
remedied in the related Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) and a copy of the
related Prospectus (as so amended or supplemented) shall have been furnished to
such Holder at or prior to the sale of such Registrable Securities, as the case
may be, to such person, and (i) such Holder failed to send or deliver a copy of
the Prospectus with or prior to the delivery of written confirmation of the sale
of Registrable Securities and (ii) the Prospectus would have completely
corrected such untrue statement or omission.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers and each person, if any,
who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to such Holder, but only with reference to
information relating to such Holder furnished to the Company in writing by such
Holder expressly for use in any Registration Statement (or any amendment
thereto), any Prospectus (or any amendment or supplement thereto) or any
preliminary prospectus. The liability of any Holder under this paragraph (b)
shall in no event exceed the proceeds received by such Holder from sales of
Registrable Securities giving rise to such obligations.
-19-
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) above, such person (the
"indemnified party") shall promptly notify the person against which such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain one
counsel (and appropriate local counsel) reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
fees and disbursements of such counsel relating to such proceeding. In any such
proceeding any indemnified party shall have the right to retain its own counsel,
but the fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified party
shall have mutually agreed in writing to the contrary or (ii) the indemnifying
party fails promptly to assume the defense of such proceeding or fails to employ
counsel reasonably satisfactory to such indemnified party or parties or (iii)
the named parties to any such proceeding (including any impleaded parties)
include both such indemnified party or parties and the indemnifying parties or
an affiliate of the indemnifying parties or such indemnified parties, and there
may be one or more defenses available to such indemnified party or parties that
are different from or additional to those available to the indemnifying parties,
in which case, if such indemnified party or parties notifies the indemnifying
parties in writing that it elects to employ separate counsel of its choice at
the expense of the indemnifying parties, the indemnifying parties shall not have
the right to assume the defense thereof and such counsel shall be at the expense
of the indemnifying parties, it being understood, however, that unless there
exists a conflict among indemnified parties, the indemnifying parties shall not,
in connection with any one such proceeding or separate but substantially similar
or related proceedings in the same jurisdiction, arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (together with appropriate local counsel) at any
time for such indemnified party or parties. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written consent
but, if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is a party, and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or
(b) of this Section 5 is unavailable to an indemnified party in respect of any
losses, claims, damages or liabilities, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified
-20-
party as a result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect the relative fault of the Company on the
one hand and the Holders on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative fault of the
Company on the one hand and the Holders on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Holders and the
parties, relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The Company and each Holder agrees that it would not be just or
equitable if contribution pursuant to this Section 5 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred (and not otherwise reimbursed) by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5, in no event shall a Selling
Holder be required to contribute any amount in excess of the amount by which
proceeds received by such Selling Holder from sales of Registrable Securities
exceeds the amount of damages that such Selling Holder has otherwise been
required to pay by reason of such untrue or allegedly 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. The remedies provided for in this Section 5 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
6. Miscellaneous.
-------------
(a) No Inconsistent Agreements. The Company has not entered into nor
--------------------------
will the Company on or after the date of this Agreement enter into any agreement
which is inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
The rights granted to the Holders hereunder do not in any way conflict with and
are not inconsistent with the rights granted to the holders of the Company's
other issued and outstanding securities, if any, under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of Holders
of at least a majority in aggregate number of the
-21-
outstanding Registrable Securities affected by such amendment, modification,
supplement, waiver or consent; provided, however, a waiver or consent to
departure from the provisions hereof that relates exclusively to the rights of
Holders of Registrable Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders of Registrable Securities may be given by the Holders of
a majority of the Registrable Securities proposed to be sold.
(c) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand delivery, registered first-
class mail, telex, telecopier, or any courier guaranteeing overnight delivery
(i) if to a Holder, at the most current address given by such Holder to the
Company by means of a notice given in accordance with the provisions of this
Section 6(c), which address initially is, with respect to each Purchaser, the
address set forth in the Purchase Agreement; and (ii) if to the Company,
initially at the Company's address set forth in the Purchase Agreement and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 6(c).
All such notices and communications shall be deemed to have been duly
given: (i) at the time delivered by hand, if personally delivered, five business
days after being deposited in the mail, postage prepaid, if mailed; (ii) when
answered back, if telexed; (iii) when receipt is acknowledged, if telecopied;
and (iv) on the next business day, if timely delivered to an air courier
guaranteeing overnight delivery.
(d) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided, however, that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of this Agreement or the Purchase
Agreement. If any transferee of any Holder shall acquire Registrable
Securities, in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities such person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement and such person shall be entitled to
receive the benefits hereof.
(e) Rules 144 and 144A. The Company covenants that it will 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
and, if at any time the Company is not required to file such reports, it will,
upon the request of any Holder of Registrable Securities, make publicly
available other information of a like nature so long as necessary to permit
sales pursuant to Rule 144 or Rule 144A under the Securities Act. The Company
further covenants
-22-
that so long as any Registrable Securities remain outstanding to make available
to any Holder of Registrable Securities in connection with any sale thereof, the
information required by Rule 144A(d)(4) under the Securities Act in order to
permit resales of such Registrable Securities pursuant to (a) such Rule 144A, or
(b) any similar rule or regulation hereafter adopted by the SEC.
(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. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(i) Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(j) Entire Agreement. This Agreement, together with the Purchase
----------------
Agreement, is intended by the parties as a final expression of their agreement,
and is intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein.
-23-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
Gothic Energy Corporation
By: /s/ Xxxxxxx Xxxxx
-----------------
Xxxxxxx Xxxxx, President
Purchaser
By:
_________________________
Name:
Title:
-24-
EXHIBIT "A"
CERTIFICATE TO BE DELIVERED UPON
EXCHANGE OR REGISTRATION OF RESTRICTED SECURITIES
Re: Common Stock, par value $.01 per share ("Common Stock"),
of Gothic Energy Corporation
This Certificate relates to shares of Common Stock held in book-entry or
definitive form by _________________________ (the "Transferor").
The Transferor (check applicable box):
[_] has requested the Transfer Agent by written order to deliver in
exchange for its beneficial interest in the Global Certificate held by the
Depositary shares of Common Stock in definitive, registered form equal to its
beneficial interest in the shares of Common Stock represented by such Global
Certificate (or the portion thereof indicated above); or
[_] has requested the Transfer Agent by written order to exchange or
register the transfer of shares of Common Stock.
In connection with such request, the Transferor does hereby certify that
Transferor is familiar with the Common Stock Registration Rights Agreement (the
"Agreement") relating to the shares of Common Stock and the restrictions on
transfers thereof as provided in Sections 3.2 and 3.3 of such Agreement, and
that the transfer of shares of Common Stock requested hereby does not require
registration under the Securities Act (as defined below) because:
[_] Such shares of Common Stock are being acquired for the Transferor's
own account, without transfer (in satisfaction of Section 3.3(a)(A) or Section
3.3(d)(i)(A) of the Agreement).
[_] Such shares of Common Stock are being transferred to a qualified
institutional buyer (as defined in Rule 144A under the Securities Act of 1933,
as amended (the "Securities Act")), in reliance on Rule 144A or in accordance
with Regulation S under the Securities Act. If such transfer is in accordance
with Regulation S, an opinion of counsel to the effect that such transfer does
not require registration under the Securities Act accompanies this Certificate.
[_] Such shares of Common Stock are being transferred in accordance with
Rule 144 under the Securities Act. An opinion of counsel to the effect that
such transfer does not require registration under the Securities Act accompanies
this Certificate.
[_] Such shares of Common Stock are being transferred pursuant to an
effective registration statement under the Securities Act.
[_] Such shares of Common Stock are being transferred in reliance on and
in compliance with an exemption from the registration requirements of the
Securities Act, other than Rule 144A or Rule 144 or Regulation S under the
Securities Act. An opinion of counsel to the effect that such transfer does not
require registration under the Securities Act accompanies this Certificate.
[Insert Name of Transferor]
Date: By: ____________________________________
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