REGISTRATION RIGHTS AGREEMENT
Execution Copy
This REGISTRATION RIGHTS AGREEMENT (this
"Agreement") is made and entered into as of July 27, 2001, by and
among Ascent Energy Inc., a Delaware corporation ("Ascent"), and the
purchasers named on the signature pages hereto (each a "Purchaser" and
collectively, the "Purchasers"), each of whom has agreed to purchase
warrants (the "Warrants") to purchase shares (the "Warrant
Shares") of common stock, par value $0.001 per share (the "Common
Stock") of the Company.
In order to induce the Purchasers to purchase the Warrants,
the Company has agreed to provide the registration rights set forth in this
Agreement. Capitalized terms used herein and not otherwise defined shall have
the meaning assigned to them in the Warrant Agreement, dated July 27, 2001 (the
"Warrant Agreement"), among the Company and Mellon Investor Services
LLC, as Warrant Agent, relating to the Warrants.
The parties hereby agree as follows:
"Agreement" shall have the meaning assigned to
such term in the recitals hereto, as constituted on the date hereof and as
amended from time to time.
"Commission" means the Securities and Exchange
Commission, or any other federal agency then administering the Securities
Act.
"Common Stock" shall have the meaning assigned
to such term in the recitals hereto, as constituted on the date hereof, and
any shares into which such Common Stock shall have been changed or any
shares resulting from any reclassification of such Common Stock.
"Controlling Person" shall have the meaning
given to such term in Section 7(a).
"Demand Registration" shall have the meaning
given to such term in Section 3(a).
"Exchange Act" means the Securities Exchange
Act of 1934, as amended, or any similar Federal statute, and the rules and
regulations of the Commission thereunder, all as the same shall be in effect
from time to time.
"Holder" means each Purchaser named on the
signature pages hereto or otherwise party to this Agreement who as of such
date owns outstanding shares of Registrable Securities.
"Indemnified Party" shall have the meaning
given to such term in Section 7(c).
"Indemnifying Party" shall have the meaning
given to such term in Section 7(c).
"Losses" means all losses, claims, damages or
liabilities (other than consequential damages or incidental lost profits)
and all costs and expenses related thereto, including, without limitation,
the reasonable fees and disbursements of counsel.
"Maximum Contribution Amount" shall have the
meaning given to such term in Section 7(d).
"NASD" means the National Association of
Securities Dealers, Inc.
"Person" shall mean any individual,
corporation, partnership, limited liability company, joint venture,
association, joint stock company, trust, unincorporated organization or
government or agency or political subdivision thereof.
"Piggyback Registration" shall have the meaning
given to such term in a Section 4(a).
Proceeding" means any claim, suit, action or
proceeding, including any governmental investigation or inquiry.
"Qualified Holders" means any Holder or Holders
holding at any time not less than 51% of all Registrable Securities.
"Registrable Securities" means (a) the Warrant
Shares and (b) any additional shares of Common Stock or other securities
issued or distributed by Ascent after the date hereof to any Holder with
respect to the Warrants or Warrant Shares by means of exchange,
reclassification, dividend, distribution, split-up, combination,
subdivision, recapitalization, merger, spin-off, reorganization or
otherwise. As to any particular Registrable Securities, once issued such
securities shall cease to be Registrable Securities when (i) a registration
statement with respect to the sale of such securities has become effective
under the Securities Act and such securities have been disposed of in
accordance with such registration statement, (ii) they have become eligible
for resale pursuant to Rule 144(k) under the Securities Act or (iii) they
shall cease to be outstanding.
"Securities Act" means the Securities Act of
1933, as amended, or any similar Federal statute, and the rules and
regulations of the Commission thereunder, all as the same shall be in effect
from time to time.
"Special Counsel" means counsel chosen by the
holders of a majority of the Registrable Securities being sold pursuant to a
registration covered by this Agreement.
Section 2. Acknowledgement of Rights.
Ascent will, upon request of any Holder, acknowledge in writing its
obligations in respect of the rights to which such Holder shall be entitled
under this Agreement; provided that the failure of such Holder to
make any such request shall not affect the continuing obligations of Ascent
to such Holder in respect of such rights.
Section 3. Demand Registration.
(a) At any time after 185 days after the date that the Common Stock is
registered under Sections 12(b) or 12(g) of the Exchange Act, the
Qualified Holders may at any time and from time to time make a written
request for registration under the Securities Act of an amount of
Registrable Securities equal to not less than 5% of the then outstanding
Common Stock (a "Demand Registration"); provided that Ascent
shall not be obligated to effect more than two Demand Registrations in any
12-month period or more than an aggregate of four Demand Registrations
pursuant to this Section 3(a). A registration will not count as a Demand
Registration until the registration statement filed pursuant to such
Demand Registration has been declared effective by the Commission and
remains effective for the period specified in Section 5(b).
(b) If the Qualified Holders so elect, the offering of such Registrable
Securities pursuant to a Demand Registration shall be in the form of an
underwritten offering. The Qualified Holders shall select the managing
underwriters and any additional investment bankers and managers to be used
in connection with the offering; provided that such managing underwriters
must be reasonably satisfactory to Ascent.
(c) Neither Ascent nor any of its security holders (other than the Holders
with respect to their Registrable Securities) shall be entitled to include
any of Ascent's securities in a registration statement initiated as a
Demand Registration under this Section 3(a) without the consent of the
Qualified Holders.
Section 4. Piggyback Registration.
(a) If Ascent proposes to register Common Stock under the Securities Act
(other than on registration statements with respect to corporate
reorganizations or other transactions under Rule 145 under the Securities
Act or registration statements on Form S-8), (i) for its own account or
(ii) for the account of other holders of Common Stock (other than a Demand
Registration pursuant to Section 3(a)), then Ascent shall give written
notice of such proposed filing to the Holders as soon as practicable (but
in no event later than 20 days before the filing date) and such notice
shall offer the Holders the opportunity to register such number of shares
of Registrable Securities as the Holders may request within 20 days after
receipt by the Holders of Ascent's notice on the same terms and conditions
as Ascent or such other holders of Common Stock (a "Piggyback
Registration"). The Holders will be permitted to withdraw all or any
part of their Registrable Securities from a Piggyback Registration any
time prior to the date the registration statement filed pursuant to such
Piggyback Registration becomes effective with the Commission.
(b) Notwithstanding anything contained herein, if the Piggyback Registration
is an underwritten offering and the lead managing underwriter of such
offering delivers a written opinion to Ascent that the size of the
offering that Ascent, the Holders and any other Persons whose securities
are proposed to be included in such offering propose to make would
materially and adversely affect the offering or offering price, Ascent
will include in such Piggyback Registration all of the Common Stock it
proposes to offer and the Common Stock proposed to be sold by the Holders
and any other Persons in the following order of priority: (i) first, all
of the Registrable Securities requested by the Holders, on a pro rata
basis based on the amount of securities sought to be so registered and
(ii) second, securities proposed to be registered by any other Persons.
Section 5. Registration Procedures.
If and whenever Ascent is required by the provisions of this Agreement to
use commercially reasonable efforts to effect the registration of any of the
Registrable Securities under the Securities Act, Ascent will (except as
otherwise provided in this Agreement):
(a) (i) cooperate with the selling Holders and any underwriters for the
selling Holders, and, in the event of any underwritten public offering,
will enter into usual and customary underwriting agreements with respect
thereto and take all such other reasonable actions as are necessary or
advisable to permit, expedite and facilitate the disposition of such
Registrable Securities in the manner contemplated by the related
registration statement, and in each case to the same extent as if all
the securities then being offered were for the account of Ascent, and
(ii) provide to any selling Holder, any underwriter participating in any
distribution thereof pursuant to a registration statement, and any
attorney, accountant or other agent retained by any selling Holder or
any underwriter reasonable access to appropriate Ascent officers and
employees to answer questions and to supply information reasonably
requested by such selling Holder, or by any such underwriter, attorney,
accountant or agent in connection with such registration statement;
(b) prepare and file with the Commission a registration statement with
respect to such securities and use commercially reasonable efforts to
cause such registration statement to become and remain effective until
the earlier to occur of the passage of 90 days from the date of
effectiveness and the sale of all of the Registrable Securities
registered under such registration statement; and prepare and file with
the Commission such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective for the time
period required pursuant to this Agreement and to comply with the
provisions of the Securities Act with respect to the sale or other
disposition of all securities covered by such registration statement
whenever the selling Holders shall desire to sell or otherwise dispose
of the same;
(c) furnish to such selling Holders, who so request, (i) upon Ascent's
receipt, a copy of the order of the Commission declaring such
registration statement and any post-effective amendment thereto
effective, (ii) such reasonable number of copies of such registration
statement and of each amendment and supplement thereto (in each case
including any documents incorporated therein by reference and all
exhibits), (iii) such reasonable number of copies of the prospectus
included in such registration statement (including each preliminary
prospectus), (iv) such reasonable number of copies of the final
prospectus as filed by Ascent pursuant to Rule 424(b) under the
Securities Act, in conformity with the requirements of the Securities
Act, and (v) such other documents, as any such Person may reasonably
request. Ascent hereby consents to the use of the prospectus by each of
the selling Holders and the underwriters or agents (if any), and dealers
(if any), in connection with the offering and sale of the Registrable
Securities pursuant to, such prospectus and any amendment thereto;
(d) use commercially reasonable efforts to (i) register or qualify the
securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as each selling Holder
shall reasonably request, (ii) keep such registrations or qualifications
in effect and comply with such laws so as to permit the continuance of
offers, sales and dealings therein in such jurisdictions for so long as
may be necessary to enable such Holder, or any such agent or underwriter
to complete its distribution of the securities pursuant to such
registration statement but in no event longer than two years and (iii)
cooperate with such Holders and each underwriter, if any, in
connection with any filings required to be made with the NASD and do any
and all other acts and things which may be reasonably necessary or
advisable to enable such Holder to consummate the disposition in each
such jurisdiction of such Registrable Securities owned by such Holder;
provided, however, that Ascent shall not be required to (A)
qualify to do business as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required
to qualify but for this Section 5(d) or (B) file any general consent to
service of process;
(e) notify each selling Holder and counsel for such selling Holders
identified to Ascent and, if requested by such Persons, confirm such
advice in writing, (i) when the registration statement has become
effective and when any post-effective amendment thereto has been filed
and becomes effective, (ii) of any request by the Commission or
any state securities authority for amendments and supplements to the
registration statement and prospectus or for additional information
after the registration statement has become effective, (iii) of
the issuance by the Commission or any state securities authority of any
stop order suspending the effectiveness of the registration statement or
the initiation of any Proceedings for that purpose, (iv) if
Ascent 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, (v) of the
happening of any event during the period a registration statement is
effective which makes any statement made in such registration statement
or the related prospectus untrue in any material respect or which
requires the making of any changes in such registration statement or any
document incorporated by reference therein in order to make the
statements therein not misleading or which requires the making of any
changes in the prospectus or documents incorporated by reference therein
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading and (vi) of any
determination by Ascent that a post-effective amendment to the
registration statement would be appropriate;
(f) use its best efforts to prevent the issuance of any order suspending
the effectiveness of a registration statement or of any order preventing
or suspending the use of a prospectus or suspending the qualification
(or exemption from qualification) of any of the securities for sale in
any jurisdiction, and, if any such order is issued, to use commercially
reasonable efforts to obtain the withdrawal of any order suspending the
effectiveness of a registration statement at the earliest possible time
and provide prompt notice to each selling Holder of the withdrawal of
any such order;
(g) comply with all applicable rules and regulations of the Commission,
and make available to its security holders, as soon as reasonably
practicable, an earnings statement covering the period of at least
twelve months, beginning with the first fiscal quarter beginning after
the effective date of the registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated
under the Securities Act);
(h) list such securities on any securities exchange or market on which any
stock of Ascent is then listed, if the listing of such securities is
then permitted under the rules of such exchange;
(i) if requested by the managing underwriters, if any, or
the Holders of a majority of the Registrable Securities being registered,
(i) promptly incorporate in a prospectus supplement or post-effective
amendment such information as the managing underwriters, if any, and such
Holders reasonably agree should be included therein to the extent required
by applicable law and (ii) make all required filings of such prospectus
supplement or such post-effective amendment as soon as practicable after
Ascent has received notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment; provided, however, that
Ascent will not be required to take any actions under this Section 5(i) that
are not, in the opinion of counsel for Ascent, required by applicable law;
and
(j) enter into such agreements (including, in the event
of an underwritten offering, an underwriting agreement in form, scope and
substance as is customary in underwritten offerings) and take all such other
commercially reasonable actions in connection therewith (including those
reasonably required by the Holders of a majority of the Registrable
Securities being sold or, in the event of an underwritten offering those
requested by the managing underwriters) in order to permit the disposition
of such Registrable Securities and in such connection, if the registration
is an underwritten registration, (i) make such representations and
warranties to the Holders of such Registrable Securities and underwriters,
if any, with respect to the business of Ascent and its subsidiaries, the
registration statement, the prospectus and documents incorporated by
reference or deemed incorporated by reference in the registration statement,
if any, in each case, in form, substance and scope if and when requested;
(ii) obtain opinions of counsel to Ascent and updates thereof (which counsel
and opinions (in form, scope and substance) shall be reasonably satisfactory
to the managing underwriters, if any, and the Holders of a majority of the
Registrable Securities being sold) addressed to such selling Holders of
Registrable Securities and each of the, underwriters, if any, covering the
matters customarily covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by such Holders and
underwriters, including without limitation the matters referred to in clause
(i) above; (iii) use its reasonable commercial efforts to obtain
"comfort" letters and updates thereof from the independent
certified public accountants of Ascent (and, if necessary, any other
certified public accountants of any subsidiary of Ascent or of any business
acquired by Ascent for which financial statements and financial data is, or
is required to be, included in the Registration Statement), addressed to
each of the underwriters, if any, such letters to be in customary form and
covering matters the type customarily covered in "comfort" letters
in connection with underwritten offerings; and (iv) deliver such documents
and certificates as may reasonably be requested by the Holders of a majority
of the Registrable Securities being sold, the Special Counsel and the
managing underwriters, if any, to evidence the continued validity of the
representations and warranties of Ascent and its subsidiaries made pursuant
to clause (i) above and to evidence compliance with any customary conditions
contained in the underwriting, agreement or similar agreement entered into
by Ascent. The foregoing actions will be taken in connection with each
closing under such underwriting or similar agreement as and to the extent
required thereunder.
From time to time after a transfer of Registrable
Securities pursuant to a registration statement, Ascent will file all
reports required to be filed by it under the Securities Act and the Exchange
Act. Ascent may require each Holder to agree to keep confidential any
non-public information relating to Ascent received by such Holder and not
disclose such information (other than to an Affiliate or prospective
purchaser who agrees to respect the confidentiality provisions of this
Section 5) until such information has been made generally available to the
public unless the release of such information is required by law or
necessary to respond to inquiries of regulatory authorities.
Section 6. Registration Expenses; Hold-Backs.
(a) In connection with any Demand Registration or any Piggyback
Registration, Ascent shall pay the following expenses incurred in
connection with such registration: (i) filing fees with the Commission;
(ii) fees and expenses of compliance with securities or blue sky laws
(including reasonable fees and disbursements of counsel in connection with
blue sky qualifications of the Registrable Securities); (iii) printing
expenses; (iv) fees and expenses incurred in connection with the listing
of the Registrable Securities; (v) fees and expenses of counsel and
independent certified public accountants for Ascent and (vi) the
reasonable fees and expenses of any additional experts retained by Ascent
in connection with such registration. In connection with the preparation
and filing of a Registration Statement pursuant to Section 3(a), Ascent
will also pay the reasonable fees and expenses of the Special Counsel. The
Holders shall pay any underwriting fees, discounts or commissions
attributable to the sale of Registrable Securities and any other expenses
of the Holders.
(b) No person may participate in any underwritten registered offering
contemplated hereunder unless such Person (i) agrees to sell its
securities on the basis provided in any underwriting agreements approved
by the Persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements and this
Agreement.
(c) The Holders agree not to effect any public sale (including a sale
pursuant to Rule 144 of the Securities Act) of any Registrable Securities,
or any securities convertible into or exchangeable or exercisable for such
securities, during the 14 days prior to, and during the 90-day (180 days
in the case of an initial public offering of Common Stock) period
beginning on, the effective date of any underwritten Demand Registration
or any underwritten Piggyback Registration (other than the Registrable
Securities to be sold pursuant to such registration statement).
Section 7. Indemnification.
(a) In the event of any registration of any of its securities under the
Securities Act pursuant to this Agreement, to the extent permitted by law,
Ascent shall indemnify and hold harmless the Holders, the Holders'
directors, officers, partners, employees, representatives and agents, and
each other person, if any, who controls any Holder within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange Act (a
"Controlling Person"), to the fullest extent possible against
any Losses, as incurred, directly or indirectly caused by, related to,
based upon, arising out of or in connection with any untrue or alleged
untrue statement of a material fact contained in any registration
statement, prospectus or form of prospectus, or in any amendment or
supplement thereto, or in any preliminary prospectus, or 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, except insofar
as such Losses are based upon information relating to such Holder and
furnished in writing to Ascent by such Holder expressly for use therein;
provided, however, that Ascent shall not be liable to any Indemnified
Party to the extent that any such Losses arise solely out of an untrue
statement or alleged untrue statement or omission or alleged omission made
in any preliminary prospectus if (i) such Indemnified Party or related
Holder failed to send or deliver a copy of the prospectus with or prior to
the delivery of written confirmation of the sale by such Indemnified Party
or the related Holder to the Person asserting the claim from which such
Losses arise; (ii) the prospectus would have corrected such untrue
statement or alleged untrue statement or omission or alleged omission; and
(iii) Ascent has complied with its obligations under Section 5(e). Ascent
shall also, jointly and severally, indemnify underwriters, selling
brokers, dealer managers and similar securities industry professionals
participating in the distribution and their Controlling Persons to the
same extent as provided above with respect to the indemnification of the
Holders.
(b) In connection with any registration statement, prospectus or form of
prospectus, any amendment or supplement thereto, or any preliminary
prospectus in which a Holder is participating, such Holder shall furnish
to Ascent in writing such information as Ascent reasonably requests for
use in connection with any registration statement, prospectus or form of
prospectus, any amendment or supplement thereto, or any preliminary
prospectus and shall, without limitation as to time, indemnify and hold
harmless Ascent, its Controlling Persons, and the officers, directors,
partners, employees, representatives and agents of such Controlling
Persons, to the fullest extent lawful, from and against all Losses arising
out of or based upon any untrue or alleged untrue statement of a material
fact contained in any registration statement, prospectus or form of
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or 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 to the extent, but only to the extent, that such
untrue statement or alleged untrue statement of a material fact or
omission or alleged omission of a material fact is contained in any
information so furnished in writing by such Holder to Ascent expressly for
use therein. In no event shall the liability of any selling Holder be
greater in amount than the dollar amount of the proceeds (net of payment
of all expenses) received by such Holder upon the sale of the Registrable
Securities giving rise to such indemnification obligation.
(c) If any Proceeding shall be brought or asserted against any Person
entitled to indemnity hereunder (an "Indemnified Party"), such
Indemnified Party shall promptly notify the party or parties from which
such indemnity is sought (individually, an "Indemnifying Party"
and, collectively, the "Indemnifying Parties") in writing;
provided, that the failure to so notify the Indemnifying Parties shall not
relieve the Indemnifying Parties from any obligation or liability except
to the extent that it shall be finally determined by a court of competent
jurisdiction (which determination is not subject to appeal) that the
Indemnifying Parties have been prejudiced materially by such failure. The
Indemnifying Party shall have the right, exercisable by giving written
notice to an Indemnified Party, within twenty days after receipt of
written notice from such Indemnified Party of such Proceeding, to assume,
at its expense, the defense of any such Proceeding; provided, that an
Indemnified Party shall have the right to employ separate counsel in any
such Proceeding and to participate in the defense thereof, but, subject to
Section 6, the fees and expenses of such counsel shall be at the expense
of such Indemnified Party unless: (1) the Indemnifying Party has agreed to
pay such fees and expenses; or (2) the Indemnifying Party shall have
failed promptly to assume the defense of such Proceeding or shall have
failed to employ counsel reasonably satisfactory to such Indemnified
Party; or (3) the named parties to any such Proceeding (including any
impleaded parties) include both such Indemnified Party and the
Indemnifying Party or any of its affiliates or Controlling Persons, and
such Indemnified Party shall have been advised by counsel that there may
be one or more defenses available to such Indemnified Party that are in
addition to, or in conflict with, those defenses available to the
Indemnifying Party or such affiliate or Controlling Person (in which case,
if such Indemnified Party notifies the Indemnifying Parties in writing
that it elects to employ separate counsel at the expense of the
Indemnifying Parties, the Indemnifying Parties shall not have the right to
assume the defense thereof and the reasonable fees and expenses of such
counsel shall be at the expense of the Indemnifying Party; it being
understood, however, that, the Indemnifying Party 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).
No Indemnifying Party shall be liable for any settlement
of any such Proceeding effected without its written consent, but if settled
with its written consent, or if there be a final judgment for the plaintiff
in any such Proceeding, each Indemnifying Party jointly and severally
agrees, subject to the exceptions and limitations set forth above, to
indemnify and hold harmless each Indemnified Party from and against any and
all Losses by reason of such settlement or judgment. The Indemnifying Party
shall not consent to the entry of any judgment against an Indemnified Party
or enter into any settlement that imposes any obligation on any Indemnified
Party that does not include as a term thereof the giving by the claimant or
plaintiff to each Indemnified Party of a release, in form and substance
reasonably satisfactory to the Indemnified Party, from all liability in
respect of such Proceeding for which such Indemnified Party would be
entitled to indemnification hereunder (regardless of whether any Indemnified
Party is a party thereto).
(d) If the indemnification provided for in this Section 7 is unavailable to
an Indemnified Party or is insufficient to hold such Indemnified Party
harmless for any Losses in respect of which this Section 7 would otherwise
apply by its terms (other than by reason of exceptions provided in this
Section 7), then each applicable Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall have a joint and several
obligation to contribute to the amount paid or payable by such Indemnified
Party as a result of such Losses, in such proportion as is appropriate to
reflect the relative fault of each Indemnifying Party, on the one hand,
and such Indemnified Party, on the other hand, in connection with the
actions, statements or omissions that resulted in such Losses as well as
any other relevant equitable considerations. The relative fault of each
Indemnifying Party, on the one hand, and Indemnified Party, on the other
hand, shall be determined by reference to, among other things, whether any
untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied
by such Indemnifying Party or Indemnified Party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent any such statement or omission. The amount paid or payable by an
Indemnified Party as a result of any Losses shall be deemed to include any
legal or other fees or expenses incurred by such party in connection with
any Proceeding, to the extent such party would have been indemnified for
such fees or expenses if the indemnification provided for in Section 7(a)
or 7(b) was available to such party.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 7 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 the immediately
preceding paragraph. Notwithstanding the provisions of this Section 7, an
Indemnifying Party that is a selling Holder shall not be required to
contribute, in the aggregate, any amount in excess of such Holder's Maximum
Contribution Amount. A selling Holder's "Maximum Contribution
Amount" shall equal the excess of (i) the aggregate proceeds received
by such Holder pursuant to the sale of such Registrable Securities over (ii)
the aggregate amount of damages that such Holder has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
The indemnity and contribution agreements contained in
this Section 7 are in addition to any liability that the Indemnifying
Parties may have to the Indemnified Parties.
Section 8. Rule 144.
Ascent covenants that it will file any reports required to be filed by it
under the Securities Act and the Exchange Act and that it will take such
further action as any Holder may request to the extent required from time to
time to enable the Holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 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. Upon the request of a Holder, Ascent will deliver
to the Holder a written statement as to whether it has complied with such
reporting requirements.
Section 9. Assignment of Registration Rights.
A Holder may assign its
rights hereunder to a transferee or assignee at any time such Holder
transfers or assigns Registrable Securities representing not less than 0.5%
of all Registrable Securities subject to this Agreement to such transferee
or assignee; provided, that (a) Ascent is, within a reasonable time after
such transfer, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned; (b) such transferee or assignee
agrees in writing to be bound by and subject to the terms and conditions of
this Agreement by executing a counterpart signature page hereto; (c) such
assignment of Registrable Securities is made in compliance with the
Securities Act; and (d) such assignment shall be effective only if
immediately following such transfer the further disposition of such
securities by the transferee or assignee is restricted under the Securities
Act. This Agreement may not be assigned by Ascent without the prior written
consent of the Qualified Holders.
Section
10. Miscellaneous.
(a) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, certified
first-class mail (return receipt requested), next-day air courier or
facsimile:
(i) if to a Holder, at the address of such Holder
set forth on Ascent's records.
(ii) if to Ascent, at:
Ascent Energy Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Facsimile Number: (000) 000-0000
Attention: President
and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 10(a). All such notices
and communications shall be deemed to have been duly given: when delivered by
hand, if personally delivered; five days after being deposited in the mail,
postage prepaid, if mailed; one day after being timely delivered to a next-day
air courier; and when receipt is acknowledged by the addressee, if sent by
facsimile.
(b) Amendment 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 Ascent has obtained the written consent of
Holders of at least a majority of the then outstanding Registrable
Securities; provided, that Section 7 shall not be amended, modified or
supplemented, and waivers or consents to departures from this proviso may
not be given, unless Ascent has obtained the written consent of each Holder
affected thereby. Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders whose securities are being sold
pursuant to a registration statement and that does not directly or
indirectly affect the rights of other Holders may be given by Holders of at
least a majority of the Registrable Securities being sold by such Holders
pursuant to such registration statement; provided that the provisions of
this sentence may not be amended, modified or supplemented except in
accordance with the provisions of the immediately preceding sentence.
(c) Counterparts.
This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument. Delivery of an
executed counterpart of a signature page of this Agreement by facsimile
transmission shall be effective as delivery of a manually executed
counterpart of this Agreement.
(d) Governing Law.
This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of New York without
regard to rules of conflicts of laws.
(e) Filing.
A copy of this Agreement and of all amendments hereto shall
be filed at the principal office of Ascent.
(f) Headings and Internal References.
The headings in this Agreement are
for convenience of reference only and shall not limit or otherwise affect
the meaning hereof. References in this Agreement to "clauses" and
"Sections" shall be understood to refer to clauses and sections of
this Agreement unless otherwise specified.
(g) Remedies.
In the event of a breach by Ascent of any of its
obligations under this Agreement, each Holder, in addition to being entitled
to exercise all rights provided herein or granted by law, including recovery
of damages, will be entitled to specific performance of its rights under
this Agreement. Ascent agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agrees that, in the event of
any action for specific performance in respect of such breach, it shall
waive the defense that a remedy at law would be adequate.
(h) No Inconsistent Agreements.
Ascent has not entered into, as of the
date hereof, and shall not enter into, after the date of this Agreement, any
agreement with respect to any of its securities that is inconsistent with
the rights granted to the Holders in this Agreement or otherwise conflicts
with the provisions hereof.
(i) Successors and Assigns.
This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties.
(j) Entire Agreement.
This 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. There are no
restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein, with respect to the registration rights granted
by Ascent in respect of the Registrable Securities. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
(k) Attorneys' Fees.
In any Proceeding brought to enforce any provision
of this Agreement, or where any provision hereof is validly asserted as a
defense, the prevailing party, as determined by the courts, shall be
entitled to recover reasonable attorneys' fees in addition to its costs and
expenses and any other available remedy.
(l) Third Party Beneficiary.
Ascent hereby expressly agrees and
acknowledges that the Holders are intended to be express third party
beneficiaries of this Agreement and that each Holder shall be entitled to
exercise any and all rights and remedies afforded to them under this
Agreement and the laws of the relevant jurisdiction applicable to third
party beneficiaries.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
ASCENT ENERGY INC., a Delaware corporation
By:
Xxxxxxx Xxxxxx
President
HOLDERS:
TCW/CRESCENT MEZZANINE PARTNERS, L.P.
By: TCW/Crescent Mezzanine, L.L.C.
its Investment Advisor
By:
Name:
Title:
TCW/Crescent Mezzanine Trust
By: TCW/Crescent Mezzanine, L.L.C.
its Investment Advisor
By:
Name:
Title:
TCW/CRESCENT MEZZANINE INVESTMENT
PARTNERS, L.P.
By: TCW/Crescent Mezzanine, L.L.C.
its Investment Advisor
By:
Name:
Title:
SHARED OPPORTUNITY FUND IIB, L.L.C.
By: TCW Asset Management Company
as its Investment Adviser
By:
Name:
Title:
By:
Name:
Title:
TCW SHARED OPPORTUNITY FUND III, L.P.
`
By: TCW Asset Management Company
Its Investment Adviser
By:
Name:
Title:
By:
Name:
Title:
TCW LEVERAGED INCOME TRUST IV, L.P.
By: TCW Asset Management Company
As its Investment Adviser
By:
Name:
Title:
By:
Name:
Title:
By: TCW (XXXX XX), L.L.C.
As General Partner
By: TCW Asset Management Company
As its Managing Member
By:
Name:
Title:
By:
Name:
Title:
XXXXXXXXX & COMPANY, INC.
By:
Xxxxxx X. Xxxxx
Vice President
XXXXXXXXX PARTNERS OPPORTUNITY
FUND, L.L.C.
By: Xxxxxxxxx & Company, Inc.,
As Manager
By:
Xxxxxx X. Xxxxx
Vice President
JEFFERIES PARTNERS OPPORTUNITY
FUND II, L.L.C.
By: Xxxxxxxxx & Company, Inc.,
As Manager
By:
Xxxxxx X. Xxxxx
Vice President
JEFFERIES EMPLOYEES OPPORTUNITY
FUND, L.L.C.
By: Xxxxxxxxx & Company, Inc.,
As Manager
By:
Xxxxxx X. Xxxxx
Vice President
JEFFERIES INVESTORS XVI, L.L.C.
By: Xxxxxxxxx & Company, Inc.,
As Manager
By:
Xxxxx X. Xxxxx
Executive Vice President
ING XXXXXX XXXX INVESTORS III L.P.
ING BARINGS U.S. LEVERAGED EQUITY
PLAN
LLC
ING BARINGS GLOBAL LEVERAGED
EQUITY PLAN LTD.
By: FS PRIVATE INVESTMENTS III LLC,
Manager
By:
Name:
Title: Managing Member
______________________________________
Xxxxxxx Xxxxxx
______________________________________
Xxxxx Xxxxxx
______________________________________
Xxxx Xxxxxx
______________________________________
Xxxxxxx X. Xxxxxx
______________________________________
Xxxxxxx X. Xxxxxx
ASCENT ENERGY INC.
REGISTRATION RIGHTS AGREEMENT
This signature page is for the Registration Rights Agreement dated as of July
__, 2001 (the "Agreement"), by and among Ascent and the Holders, and
by execution below the undersigned agrees that it shall be attached as a
signature page to such Agreement.
By:
Name:
Title:
Tax I.D. No.:
Address:
Attention:
Fax Number:
Phone Number:
