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EXHIBIT 4.3
POGO PRODUCING COMPANY
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of January 15, 1999, among Pogo
Producing Company, a Delaware corporation (the "Company"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., as the initial purchasers (the "Initial Purchasers"),
under the Purchase Agreement (as defined herein), of the 10 3/8% Senior
Subordinated Notes due 2009, of the Company.
The Company proposes to issue and sell the Securities (as defined
herein) to the Initial Purchasers upon the terms set forth in the Purchase
Agreement. As an inducement to the Initial Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to the obligations of the Initial
Purchasers thereunder, the Company agrees with the Initial Purchasers for the
benefit of holders (as defined herein) from time to time of the Registrable
Securities (as defined herein) as follows:
1. Certain Definitions.
For purposes of this Registration Rights Agreement, the following terms
shall have the following respective meanings:
"Base Interest" shall mean the interest that would otherwise
accrue on the Securities under the terms thereof and the Indenture,
without giving effect to the provisions of this Agreement.
"broker-dealer" shall mean any broker or dealer registered
with the Commission under the Exchange Act.
"Closing Time" shall have the meaning set forth in the
Purchase Agreement.
"Commission" shall mean the United States Securities and
Exchange Commission, or any other federal agency at the time
administering the Exchange Act or the Securities Act, whichever is the
relevant statute for the particular purpose.
"Effective Time," in the case of (i) an Exchange Registration,
shall mean the time and date as of which the Commission declares the
Exchange Registration Statement effective or as of which the Exchange
Registration Statement otherwise becomes effective and (ii) a Shelf
Registration, shall mean the time and date as of which the Commission
declares the Shelf Registration Statement effective or as of which the
Shelf Registration Statement otherwise becomes effective.
"Electing Holder" shall mean any holder of Registrable
Securities that has returned a completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(d)(ii) or
3(d)(iii) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
or any successor thereto, as the same shall be amended from time to
time.
"Exchange Offer" shall have the meaning assigned thereto in
Section 2(a) hereof.
"Exchange Registration" shall have the meaning assigned
thereto in Section 3(c) hereof.
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"Exchange Registration Statement" shall have the meaning
assigned thereto in Section 2(a) hereof.
"Exchange Securities" shall have the meaning assigned thereto
in Section 2(a) hereof.
"holder" shall mean each of the Initial Purchasers and other
persons who acquire Registrable Securities from time to time (including
any successors or assigns), in each case for so long as such person
owns any Registrable Securities.
"Indenture" shall mean the Indenture, dated as of January 15,
1999, among the Company and State Street Bank and Trust Company, as
Trustee, as the same shall be amended from time to time.
"Purchase Agreement" shall mean the Purchase Agreement, dated
as of January 12, 1999, between the Initial Purchasers and the Company
relating to the Securities.
"Notice and Questionnaire" means a Notice of Registration
Statement and Selling Securityholder Questionnaire substantially in the
form of Exhibit A hereto.
The term "person" shall mean a corporation, association,
partnership, limited liability company, organization, business,
individual, government or political subdivision thereof or governmental
agency.
"Registrable Securities" shall mean the Securities; provided,
however, that a Security shall cease to be a Registrable Security when
(i) in the circumstances contemplated by Section 2(a) hereof, the
Security has been exchanged for an Exchange Security in an Exchange
Offer as contemplated in Section 2(a) hereof (provided that any
Exchange Security received by a broker-dealer in an Exchange Offer in
exchange for a Registrable Security that was not acquired by the
broker-dealer directly from the Company will also be a Registrable
Security through and including the earlier of the 90th day after the
Exchange Offer is completed or such time as such broker-dealer no
longer owns such Security); (ii) in the circumstances contemplated by
Section 2(b) hereof, a Shelf Registration Statement registering such
Security under the Securities Act has been declared or becomes
effective and such Security has been sold or otherwise transferred by
the holder thereof pursuant to and in a manner contemplated by such
effective Shelf Registration Statement; (iii) such Security is sold
pursuant to Rule 144 (or any similar provisions then in force, but not
Rule 144A) under circumstances in which any legend borne by such
Security relating to restrictions on transferability thereof, under the
Securities Act or otherwise, is removed by the Company or pursuant to
the Indenture; (iv) such Security is eligible to be sold pursuant to
paragraph (k) of Rule 144; or (v) such Security shall cease to be
outstanding.
"Registration Default" shall have the meaning assigned thereto
in Section 2(d) hereof.
"Registration Expenses" shall have the meaning assigned
thereto in Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in
Section 2(a) hereof.
"Restricted Holder" shall mean (i) a holder that is an
affiliate of the Company within the meaning of Rule 405, (ii) a holder
who acquires Exchange Securities outside the ordinary course of such
holder's business, (iii) a holder who has arrangements or
understandings with any person to
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participate in the Exchange Offer for the purpose of distributing
Exchange Securities and (iv) a holder that is a broker-dealer, but only
with respect to Exchange Securities received by such broker-dealer
pursuant to an Exchange Offer in exchange for Registrable Securities
acquired by the broker-dealer directly from the Company.
"Rule 144," "Rule 144A," "Rule 405" and "Rule 415" shall mean,
in each case, such rule promulgated under the Securities Act (or any
successor provision), as the same shall be amended from time to time.
"Securities" shall mean, collectively, the 103/8% Senior
Subordinated Notes due 2009 of the Company to be issued and sold to the
Initial Purchasers, and securities issued in exchange therefor or in
lieu thereof pursuant to the Indenture. Under certain circumstances
specified in the Indenture, each Security will entitled to the benefit
of certain guarantees by one or more subsidiaries of the Company (the
"Guarantees") and, unless the context otherwise requires, any reference
herein to a "Security," an "Exchange Security" or a "Registrable
Security" shall include a reference to any such related Guarantees.
"Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto
in Section 2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned
thereto in Section 2(b) hereof.
"Shelf Registration Suspension" shall have the meaning
assigned thereto in Section 2(c) hereof.
"Special Interest" shall have the meaning assigned thereto in
Section 2(d) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, or any successor thereto, and the rules, regulations and forms
promulgated thereunder, all as the same shall be amended from time to
time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Registration Rights Agreement, and the words "herein," "hereof" and "hereunder"
and other words of similar import refer to this Registration Rights Agreement as
a whole and not to any particular Section or other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Company agrees to
use its reasonable best efforts to file under the Securities Act, no later than
60 days after the Closing Time, a registration statement relating to an offer to
exchange (such registration statement, the "Exchange Registration Statement",
and such offer, the "Exchange Offer") any and all of the then outstanding
Registrable Securities (except Registrable Securities held by an Initial
Purchaser and acquired directly from the Company if such Initial Purchaser is
not permitted, in the reasonable opinion of counsel to the Initial Purchasers,
pursuant to applicable law or Commission interpretation, to participate in the
Exchange Offer) for a like aggregate principal amount of debt securities issued
by the Company (and, if applicable, guarantees issued by
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subsidiaries of the Company as may be required pursuant to the Indenture), which
are substantially identical to the Securities (and are entitled to the benefits
of a trust indenture which is substantially identical to the Indenture or is the
Indenture and which has been qualified under the Trust Indenture Act), except
that (i) they have been registered pursuant to an effective registration
statement under the Securities Act, (ii) interest thereon shall accrue from the
last date on which interest was paid or duly provided for on the Securities in
exchange for which such new debt securities are issued in the Exchange Offer,
or, if no interest has been paid, from January 15, 1999, and (iii) they do not
contain provisions for the additional interest contemplated in Section 2(d)
below (such new debt securities, together with any guarantees thereof, as
applicable, are hereinafter called "Exchange Securities"). The Company agrees to
use its reasonable best efforts to cause the Exchange Registration Statement to
become effective under the Securities Act no later than 135 days after the
Closing Time. The Exchange Offer will be registered under the Securities Act on
an appropriate form and will comply with all applicable tender offer rules and
regulations under the Exchange Act. The Company further agrees to use its
reasonable best efforts to commence and complete the Exchange Offer no later
than 180 days after the Closing Time, hold the Exchange Offer open for at least
30 days (or longer if required by law) after notice of the Exchange Offer is
sent to holders of Registrable Securities, and issue Exchange Securities for all
Registrable Securities that have been properly tendered and not withdrawn on or
prior to the expiration of the Exchange Offer. The Exchange Offer will be deemed
to have been "completed" only if the debt securities and related guarantees
received by holders other than Restricted Holders in the Exchange Offer for
Registrable Securities are, upon receipt, transferable by each such holder
without need for further compliance with Section 5 of the Securities Act and the
Exchange Act (except for the requirement to deliver a prospectus included in the
Exchange Registration Statement applicable to resales by broker-dealers of
Exchange Securities received by such broker-dealer pursuant to an Exchange Offer
in exchange for Registrable Securities other than those acquired by the
broker-dealer directly from the Company), and without material restrictions
under the blue sky or securities laws of a substantial majority of the States of
the United States of America. The Exchange Offer shall be deemed to have been
completed upon the Company having exchanged, pursuant to the Exchange Offer,
Exchange Securities for all Registrable Securities that may legally be exchanged
in the Exchange Offer and that have been properly tendered and not withdrawn
before the expiration of the Exchange Offer, which shall be on a date that is at
least 30 days following the commencement of the Exchange Offer. The Company
agrees (x) to include in the Exchange Registration Statement a prospectus for
use in connection with any resales of Exchange Securities by a broker-dealer,
other than resales of Exchange Securities received by a broker-dealer pursuant
to an Exchange Offer in exchange for Registrable Securities acquired by the
broker-dealer directly from the Company, and (y) to keep such Exchange
Registration Statement effective for a period (the "Resale Period") beginning
when Exchange Securities are first issued in the Exchange Offer and ending upon
the earlier of the expiration of the 90th day after the Exchange Offer has been
completed or such time as such broker-dealers no longer own any Registrable
Securities. With respect to such Exchange Registration Statement, each
broker-dealer that holds Exchange Securities received in an Exchange Offer in
exchange for Registerable Securities not acquired by it directly from the
Company shall have the benefit of the rights of indemnification and contribution
set forth in Section 6 hereof.
(b) Subject to Section 2(c), (i) if, prior to the time the Exchange
Offer is completed, existing Commission interpretations are changed such that
the Exchange Offer cannot be completed as contemplated by Section 2(a), (ii) if
the Exchange Registration Statement is not declared effective under the
Securities Act within 135 days after the Closing Time, or (iii) if, for any
other reason the Exchange Offer is not consummated within 180 days of the
Closing Time, then in lieu of conducting the Exchange Offer contemplated by
Section 2(a) the Company shall use its reasonable best efforts to file under the
Securities Act as soon as practicable, but no later than 30 days after the time
such obligation to file arises, a registration statement providing for the
registration of, and the sale on a continuous or delayed basis by the holders
of, all of the Registrable Securities, pursuant to Rule 415 or any similar rule
that may be adopted by the
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Commission (such filing, the "Shelf Registration" and such registration
statement, the "Shelf Registration Statement"). In addition, in the event that
the Initial Purchasers shall not have resold all of the Registrable Securities
initially purchased by them from the Company pursuant to the Purchase Agreement
prior to the consummation of the Exchange Offer, the Company shall use its
reasonable best efforts to file under the Securities Act as soon as practicable
after a request therefor a Shelf Registration Statement. The Company agrees to
use its reasonable best efforts (i) to cause the Shelf Registration Statement to
become or be declared effective no later than 180 days after the Closing Time
(or promptly in the event of a Shelf Registration effected at the request of the
Initial Purchasers pursuant to the preceding sentence) and, subject to Section
2(c), to keep such Shelf Registration Statement continuously effective in order
to permit the prospectus forming a part thereof to be usable by holders for
resales of Registrable Securities for a period (the "Effective Period") ending
on the earlier of the second anniversary of the Effective Time (or one year in
the case of a Shelf Registration Statement filed at the request of an Initial
Purchaser) or such time as there are no longer any Registrable Securities
outstanding, provided, however, that no holder shall be entitled to be named as
a selling securityholder in the Shelf Registration Statement or to use the
prospectus forming a part thereof for resales of Registrable Securities unless
such holder is an Electing Holder, and (ii) after the Effective Time of the
Shelf Registration Statement, promptly upon the request of any holder of
Registrable Securities that is not then an Electing Holder, to take any action
reasonably necessary to enable such holder to use the prospectus forming a part
thereof for resales of Registrable Securities, including, without limitation,
any action necessary to identify such holder as a selling securityholder in the
Shelf Registration Statement, provided, however, that nothing in this clause
(ii) shall relieve any such holder of the obligation to return a completed and
signed Notice and Questionnaire to the Company in accordance with Section
3(d)(iii) hereof. The Company further agrees to supplement or make amendments to
the Shelf Registration Statement, as and when required by the rules, regulations
or instructions applicable to the registration form used by the Company for such
Shelf Registration Statement or by the Securities Act or rules and regulations
thereunder for shelf registration, and the Company agrees to furnish to each
Electing Holder copies of any such supplement or amendment prior to its being
used or promptly following its filing with the Commission.
(c) Notwithstanding anything in Section 2(b) or 3(d) to the contrary,
if the Company determines in its good faith judgment that the filing of any
supplement or amendment to the Shelf Registration Statement to keep such Shelf
Registration Statement continuously effective under the Securities Act and
usable by Electing Holders for resales of Registrable Securities on a particular
date would require the disclosure of material information that the Company has a
bona fide business purpose for preserving as confidential, or the disclosure of
which would materially adversely affect the Company's ability to consummate a
significant transaction, then upon written notice of such determination by the
Company to the Electing Holders, the obligation of the Company to supplement or
amend the Shelf Registration Statement (including any action with respect
thereto contemplated by Section 3(d) hereof) will be suspended until the Company
notifies the Electing Holders in writing that the reasons for suspension of such
obligations on the part of the Company as set forth in Section 2(b) no longer
exist and the Company amends or supplements the Shelf Registration Statement as
may be required (such suspension, a "Shelf Registration Suspension"); provided
that the aggregate number of days (whether or not consecutive) during which the
Company may delay the filing of any such supplement or amendment shall in no
event exceed 60 days during any period of 12 consecutive months and the right of
the Company to suspend its obligation to supplement or amend the Shelf
Registration Statement under the preceding sentence shall not limit any
obligation of the Company to pay Special Interest pursuant to Section 2(d).
(d) In the event that (i) the Exchange Registration Statement is not
filed with the Commission on or prior to the 60th day following the Closing
Time, (ii) the Exchange Registration Statement is not declared effective on or
prior to the 135th day following the Closing Time or (iii) the Exchange Offer
(if then required to be made) is not consummated or a Shelf Registration
Statement (if required pursuant to Section
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2(b)) with respect to the Notes is not declared effective on or prior to the
180th day following the Closing Time, (iv) any Exchange Registration Statement
or Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed
and declared effective but shall thereafter either be withdrawn by the Company
or shall become subject to an effective stop order issued pursuant to Section
8(d) of the Securities Act suspending the effectiveness of such registration
statement (except as specifically permitted herein) without being succeeded
immediately by an additional registration statement filed and declared
effective, or (v) the Company effects a Shelf Registration Suspension for more
than 60 days, whether or not consecutive, within any period of 12 consecutive
months (each such event referred to in clauses (i) through (v), a "Registration
Default") then, as liquidated damages for such Registration Default, subject to
the provisions of Section 9(b), special interest ("Special Interest"), in
addition to the Base Interest, shall accrue on the Securities at a per annum
rate of 0.50% from and including the day following such Registration Default to
but excluding the date on which the Registration default is cured or ceases as
described below (such period being the "Registration Default Period"); provided,
that if the Exchange Registration Statement is not declared effective on or
prior to the 135th day after the Closing Time and the Company sends the Notice
and Questionnaire to holders of Registrable Securities in accordance with
Section 3(d)(ii), then no holder who is not an Electing Holder shall be entitled
to Special Interest after the 180th day after the Closing Time. Special Interest
shall be paid in the same manner as interest is paid on the Securities pursuant
to the Indenture. Upon (A) the filing of the Exchange Registration Statement
after the 60th day described in clause (i) above, (B) the effectiveness of the
Exchange Registration Statement after the 135th day described in clause (ii)
above, (C) the consummation of the Exchange Offer or the effectiveness of the
Shelf Registration Statement, as the case may be, after the 180th day described
in clause (iii) above, (D) removal of the suspension or stop order referred to
in clause (iv) above or the filing and effectiveness of a new registration
statement in respect thereof, (E) cessation of the Shelf Registration Suspension
referred to in clause (v) above or (F) expiration of the Effective Period,
Special Interest shall cease to accrue unless a new Registration Default shall
occur.
(e) The Company shall take all reasonable actions necessary or
advisable to be taken by it to ensure that the transactions contemplated herein
are effected as so contemplated.
(f) Any reference herein to a registration statement as of any time
shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time and any reference herein to
any post-effective amendment to a registration statement as of any time shall be
deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time.
3. Registration Procedures.
If the Company files a registration statement pursuant to Section 2(a)
or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, the Company shall qualify the Indenture under
the Trust Indenture Act of 1939.
(b) In the event that such qualification would require the appointment
of a new trustee under the Indenture, the Company shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Indenture.
(c) In connection with the Company's obligations with respect to the
registration of Exchange Securities as contemplated by Section 2(a) (the
"Exchange Registration"), if applicable, the Company shall, as soon as
practicable (or as otherwise specified):
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(i) use its reasonable best efforts to prepare and file with
the Commission, no later than 60 days after the Closing Time, an
Exchange Registration Statement on any form which may be utilized by
the Company and which shall permit the Exchange Offer and resales of
Exchange Securities by broker-dealers during the Resale Period to be
effected as contemplated by Section 2(a), and use its reasonable best
efforts to cause such Exchange Registration Statement to become
effective as soon as practicable thereafter, but no later than 135 days
after the Closing Time;
(ii) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Exchange
Registration Statement and the prospectus included therein as may be
necessary to effect and maintain the effectiveness of such Exchange
Registration Statement for the periods and purposes contemplated in
Section 2(a) hereof and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to the
form of such Exchange Registration Statement, and promptly provide each
broker-dealer holding Exchange Securities with such number of copies of
the prospectus included therein (as then amended or supplemented), in
conformity in all material respects with the requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder, as such broker-dealer
reasonably may request prior to the expiration of the Resale Period,
for use in connection with resales of Exchange Securities;
(iii) promptly notify each broker-dealer that has requested or
received copies of the prospectus included in such registration
statement, and confirm such advice in writing, (A) when such Exchange
Registration Statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has been
filed, and, with respect to such Exchange Registration Statement or any
post-effective amendment, when the same has become effective, (B) of
any comments are made to the Company or its counsel by the Commission
and by the blue sky or securities commissioner or regulator of any
state with respect thereto or any request is made to the Company or its
counsel by the Commission for amendments or supplements to such
Exchange Registration Statement or prospectus or for additional
information, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of such Exchange Registration Statement or
the initiation or threatening of any proceedings for that purpose, (D)
if at any time the Company becomes aware that the representations and
warranties of the Company contemplated by Section 5 cease to be true
and correct in all material respects, (E) of the receipt by the Company
of any notification with respect to the suspension of the qualification
of the Exchange Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, or (F) at
any time during the Resale Period when a prospectus is required to be
delivered under the Securities Act, that such Exchange Registration
Statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material respects to
the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances then existing;
(iv) in the event that the Company would be required, pursuant
to Section 3(c)(iii)(F) above, to notify any broker-dealers holding
Exchange Securities, without unreasonable delay prepare and furnish to
each such holder a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to purchasers
of such Exchange Securities during the Resale Period, such prospectus
shall conform in all material respects to the applicable requirements
of the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and shall not contain an
untrue statement of a material fact or omit to state a material fact
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required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
(v) use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of such Exchange Registration
Statement or any post-effective amendment thereto at the earliest
practicable date;
(vi) use its reasonable best efforts to (A) register or
qualify the Exchange Securities under the securities laws or blue sky
laws of such jurisdictions as are contemplated by Section 2(a) no later
than the commencement of the Exchange Offer, (B) 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 until the expiration of the Resale Period and (C)
take any and all other actions as may be reasonably necessary or
advisable to enable each broker-dealer holding Exchange Securities to
consummate the disposition thereof in such jurisdictions; provided,
however, that the Company shall not be required for any such purpose to
(1) qualify as a foreign corporation or as a dealer in securities in
any jurisdiction wherein it would not otherwise be required to qualify
but for the requirements of this Section 3(c)(vi), (2) consent to
general service of process, or take any action that would subject it to
general service of process or taxation, in any such jurisdiction if it
is not then so subject or (3) make any changes to its certificate of
incorporation or by-laws or any agreement between it and its
stockholders;
(vii) use its reasonable best efforts to obtain the consent or
approval of each governmental agency or authority, whether federal,
state or local, which may be required to effect the Exchange
Registration, the Exchange Offer and the offering and sale of Exchange
Securities by broker-dealers during the Resale Period;
(viii) provide a CUSIP number for all Exchange Securities, not
later than the applicable Effective Time;
(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as soon
as practicable but no later than eighteen months after the effective
date of such Exchange Registration Statement, an earning statement
complying with Section 11(a) of the Securities Act (including, at the
option of the Company, Rule 158 thereunder).
(d) In connection with the Company's obligations with respect to the
Shelf Registration, if applicable, the Company shall, subject to Section 2(c),
as soon as practicable (or as otherwise specified):
(i) use its reasonable best efforts to prepare and file with
the Commission, as soon as practicable but in any case within the time
periods specified in Section 2(b), a Shelf Registration Statement on
any form which may be utilized by the Company and which shall register
all of the Registrable Securities for resale by the holders thereof in
accordance with such method or methods of disposition as may be
specified by such of the holders as, from time to time, may be Electing
Holders and use its reasonable best efforts to cause such Shelf
Registration Statement to become effective as soon as practicable but
in any case within the time periods specified in Section 2(b);
(ii) not less than 30 calendar days prior to the Effective
Time of the Shelf Registration Statement, mail the Notice and
Questionnaire to the holders of Registrable Securities; no holder shall
be entitled to be named as a selling securityholder in the Shelf
Registration Statement as of the
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Effective Time, and no holder shall be entitled to use the prospectus
forming a part thereof for resales of Registrable Securities at any
time, unless such holder has returned a completed and signed Notice and
Questionnaire to the Company by the deadline for response set forth
therein; provided, however, holders of Registrable Securities shall
have at least 28 calendar days from the date on which the Notice and
Questionnaire is first mailed to such holders to return a completed and
signed Notice and Questionnaire to the Company;
(iii) after the Effective Time of the Shelf Registration
Statement, upon the request of any holder of Registrable Securities
that is not then an Electing Holder, promptly send a Notice and
Questionnaire to such holder; provided that the Company shall not be
required to take any action to name such holder as a selling
securityholder in the Shelf Registration Statement or to enable such
holder to use the prospectus forming a part thereof for resales of
Registrable Securities until such holder has returned a completed and
signed Notice and Questionnaire to the Company;
(iv) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Shelf Registration
Statement and the prospectus included therein as may be necessary to
effect and maintain the effectiveness of such Shelf Registration
Statement for the period specified in Section 2(b) hereof and as may be
required by the applicable rules and regulations of the Commission and
the instructions applicable to the form of such Shelf Registration
Statement, and furnish to the Electing Holders copies of any such
supplement or amendment simultaneously with or prior to its being used
or filed with the Commission;
(v) comply with the provisions of the Securities Act with
respect to the disposition of all of the Registrable Securities covered
by such Shelf Registration Statement in accordance with the intended
methods of disposition by the Electing Holders provided for in such
Shelf Registration Statement;
(vi) provide (A) the Electing Holders, (B) the underwriters
(which term, for purposes of this Registration Rights Agreement, shall
include a person deemed to be an underwriter within the meaning of
Section 2(11) of the Securities Act), if any, thereof, (C) any sales or
placement agent therefor, (D) not more than one counsel for all such
underwriters and agents and (E) not more than one counsel for all the
Electing Holders the opportunity to participate in the preparation of
such Shelf Registration Statement, each prospectus included therein or
filed with the Commission and each amendment or supplement thereto;
(vii) for a reasonable period prior to the filing of such
Shelf Registration Statement, and throughout the period specified in
Section 2(b), make available (solely for the purpose of verifying the
accuracy of information contained in the Shelf Registration Statement)
at reasonable times at the Company's principal place of business or
such other reasonable place as the Company shall determine for
inspection by the persons referred to in Section 3(d)(vi) who shall
certify to the Company that they have a current intention to sell the
Registrable Securities pursuant to the Shelf Registration such relevant
financial and other information and books and records of the Company,
and cause the officers, employees, counsel and independent certified
public accountants of the Company to respond to such inquiries, as
shall be reasonably necessary, in the judgment of the respective
counsel referred to in such Section, to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act;
provided, however, that each such party shall be required to maintain
in confidence and not to disclose to any other person any information
or records reasonably designated by the Company as being confidential,
until such time as (A) such information becomes a matter of public
record (whether by virtue of its inclusion in such registration
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statement or otherwise), or (B) such person shall be required so to
disclose such information pursuant to a subpoena or order of any court
or other governmental agency or body having jurisdiction over the
matter (subject to the requirements of such order, and only after such
person shall have given the Company prompt prior written notice of such
requirement);
(viii) promptly notify each of the Electing Holders, any sales
or placement agent therefor and any underwriter thereof (which
notification may be made through any managing underwriter that is a
representative of such underwriter for such purpose) and confirm such
advice in writing, (A) when such Shelf Registration Statement or the
prospectus included therein or any prospectus amendment or supplement
or post-effective amendment has been filed, and, with respect to such
Shelf Registration Statement or any post-effective amendment, when the
same has become effective, (B) of any comments made to the Company or
its counsel by the Commission and by the blue sky or securities
commissioner or regulator of any state with respect thereto or any
request made to the Company or its counsel by the Commission for
amendments or supplements to such Shelf Registration Statement or
prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of such Shelf
Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the Company becomes
aware that representations and warranties of the Company contemplated
by Section 3(d)(xvii) or Section 5 cease to be true and correct in all
material respects, (E) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose, or (F) if at any
time when a prospectus is required to be delivered under the Securities
Act, such Shelf Registration Statement, prospectus, prospectus
amendment or supplement or post-effective amendment does not conform in
all material respects to the applicable requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder or contains an untrue statement of a material
fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in light of
the circumstances then existing;
(ix) use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of such registration
statement or any post-effective amendment thereto at the earliest
practicable date;
(x) if requested by any managing underwriter or underwriters,
any placement or sales agent or any Electing Holder, promptly
incorporate in a prospectus supplement or post-effective amendment such
information as is required by the applicable rules and regulations of
the Commission and as such managing underwriter or underwriters, such
agent or such Electing Holder specifies should be included therein
relating to the terms of the sale of such Registrable Securities,
including information with respect to the principal amount of
Registrable Securities being sold by such Electing Holder or agent or
to any underwriters, the name and description of such Electing Holder,
agent or underwriter, the offering price of such Registrable Securities
and any discount, commission or other compensation payable in respect
thereof, the purchase price being paid therefor by such underwriters
and with respect to any other terms of the offering of the Registrable
Securities to be sold by such Electing Holder or agent or to such
underwriters; and make all required filings of such prospectus
supplement or post-effective amendment promptly after notification of
the matters to be incorporated in such prospectus supplement or
post-effective amendment;
(xi) furnish to each Electing Holder, each placement or sales
agent, if any, therefor, each underwriter, if any, thereof and the
respective counsel referred to in Section 3(d)(vi) a copy of such
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Shelf Registration Statement, each such amendment and supplement
thereto (in each case including all exhibits thereto (in the case of an
Electing Holder of Registrable Securities, upon request) and documents
incorporated by reference therein) and such number of copies of such
Shelf Registration Statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically so requested by
such Electing Holder, agent or underwriter, as the case may be) and of
the prospectus included in such Shelf Registration Statement (including
each preliminary prospectus and any summary prospectus), in conformity
in all material respects with the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder, and such other documents, as
such Electing Holder, agent, if any, and underwriter, if any, may
reasonably request in order to facilitate the offering and disposition
of the Registrable Securities owned by such Electing Holder, offered or
sold by such agent or underwritten by such underwriter and to permit
such Electing Holder, agent and underwriter to satisfy the prospectus
delivery requirements of the Securities Act; and the Company hereby
consents to the use of such prospectus (including such preliminary and
summary prospectus) and any amendment or supplement thereto by each
such Electing Holder and by any such agent and underwriter, in each
case in the form most recently provided to such person by the Company,
in connection with the offering and sale of the Registrable Securities
covered by the prospectus (including such preliminary and summary
prospectus) or any supplement or amendment thereto;
(xii) use its reasonable best efforts to (A) register or
qualify the Registrable Securities to be included in such Shelf
Registration Statement under such securities laws or blue sky laws of
such jurisdictions as any Electing Holder and each placement or sales
agent, if any, therefor and underwriter, if any, thereof shall
reasonably request, (B) 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 during the
period the Shelf Registration is required to remain effective under
Section 2(b) above and for so long as may be necessary to enable any
such Electing Holder, agent or underwriter to complete its distribution
of Securities pursuant to such Shelf Registration Statement and (C)
take any and all other actions as may be reasonably necessary or
advisable to enable each such Electing Holder, agent, if any, and
underwriter, if any, to consummate the disposition in such
jurisdictions of such Registrable Securities; provided, however, that
the Company shall not be required for any such purpose to (1) qualify
as a foreign corporation or as a dealer in securities in any
jurisdiction wherein it would not otherwise be required to qualify but
for the requirements of this Section 3(d)(xii), (2) consent to general
service of process or take any action that would subject it to general
service of process or taxation, in any such jurisdiction if it is not
then so subject or (3) make any changes to its certificate of
incorporation or by-laws or any agreement between it and its
stockholders;
(xiii) use its reasonable best efforts to obtain the consent
or approval of each governmental agency or authority, whether federal,
state or local, which may be required to effect the Shelf Registration
or the offering or sale in connection therewith or to enable the
selling holder or holders to offer, or to consummate the disposition
of, their Registrable Securities;
(xiv) cooperate with the Electing Holders and the managing
underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold, which
certificates shall be printed, lithographed or engraved, or produced by
any combination of such methods, and which shall not bear any
restrictive legends; and, in the case of an underwritten offering,
enable such Registrable Securities to be in such denominations and
registered in such names as the managing underwriters may request at
least two business days prior to any sale of the Registrable
Securities;
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(xv) provide a CUSIP number for all Registrable Securities,
not later than the applicable Effective Time;
(xvi) enter into one or more underwriting agreements,
engagement letters, agency agreements, "best efforts" underwriting
agreements or similar agreements, as appropriate, in each case, that
are satisfactory to the Company, including customary provisions
relating to indemnification and contribution, and take such other
actions in connection therewith as any Electing Holders shall
reasonably request and as are customarily taken in order to expedite or
facilitate the disposition of such Registrable Securities;
(xvii) whether or not an agreement of the type referred to in
Section 3(d)(xvi) hereof is entered into and whether or not any portion
of the offering contemplated by the Shelf Registration is an
underwritten offering or is made through a placement or sales agent or
any other entity, (A) make such representations and warranties to the
Electing Holders and the placement or sales agent, if any, therefor and
the underwriters, if any, thereof in form, substance and scope as are
customarily made in connection with a similar offering of debt
securities pursuant to any appropriate agreement or to a registration
statement filed on the form applicable to the Shelf Registration; (B)
obtain an opinion of counsel to the Company in customary form and
covering such matters, of the type customarily covered by such an
opinion, as the managing underwriters, if any, or as any Electing
Holders may reasonably request, addressed to such Electing Holder or
Electing Holders and the placement or sales agent, if any, therefor and
the underwriters, if any, thereof, dated the effective date of such
Shelf Registration Statement (and if such Shelf Registration Statement
contemplates an underwritten offering of a part or all of the
Registrable Securities, dated the date of the closing under the
underwriting agreement relating thereto) (it being agreed that the
matters to be covered by such opinion shall include the due
incorporation and good standing of the Company and its significant
subsidiaries; the qualification of the Company and its significant
subsidiaries to transact business as foreign corporations; the due
authorization, execution and delivery of the relevant agreement of the
type referred to in Section 3(d)(xvi) hereof; the due authorization,
execution, authentication and issuance, and the validity and
enforceability, of the Securities; the absence of material legal or
governmental proceedings involving the Company; the absence of
governmental approvals required to be obtained in connection with the
Shelf Registration, the offering and sale of the Registrable
Securities, this Registration Rights Agreement or any agreement of the
type referred to in Section 3(d)(xvi) hereof, except such approvals as
may be required under state securities or blue sky laws; the material
compliance as to form of such Shelf Registration Statement and any
documents incorporated by reference therein and of the Indenture with
the requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission thereunder, respectively;
and, as of the date of the opinion and of the Shelf Registration
Statement or most recent post-effective amendment thereto, as the case
may be, the absence from such Shelf Registration Statement and the
prospectus included therein, as then amended or supplemented, and from
the documents incorporated by reference therein (in each case other
than the financial statements and other financial information contained
therein) of an untrue statement of a material fact or the omission to
state therein a material fact necessary to make the statements therein
not misleading (in the case of such documents, in the light of the
circumstances existing at the time that such documents were filed with
the Commission under the Exchange Act)); (C) obtain a "cold comfort"
letter or letters from the independent certified public accountants of
the Company addressed to the placement or sales agent, if any, or the
underwriters, if any, and use its reasonable best efforts to have such
letter also addressed to the selling Electing Holders (provided,
however, that such letter need not be addressed to any person to whom,
in the reasonable opinion of the Company's public accountants,
addressing such letter is not permissible under applicable accounting
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standards) dated (i) the effective date of such Shelf Registration
Statement and (ii) the effective date of any prospectus supplement to
the prospectus included in such Shelf Registration Statement or
post-effective amendment to such Shelf Registration Statement which
includes unaudited or audited financial statements as of a date or for
a period subsequent to that of the latest such statements included in
such prospectus (and, if such Shelf Registration Statement contemplates
an underwritten offering pursuant to any prospectus supplement to the
prospectus included in such Shelf Registration Statement or
post-effective amendment to such Shelf Registration Statement which
includes unaudited or audited financial statements as of a date or for
a period subsequent to that of the latest such statements included in
such prospectus, dated the date of the closing under the underwriting
agreement relating thereto), such letter or letters to be in customary
form and covering such matters of the type customarily covered by
letters of such type; (D) deliver such documents and certificates,
including officers' certificates, as may be reasonably requested by any
Electing Holders or the placement or sales agent, if any, therefor and
the managing underwriters, if any, thereof to evidence the accuracy of
the representations and warranties made pursuant to clause (A) above or
those contained in Section 5(a) hereof and the compliance with or
satisfaction of any agreements or conditions contained in the
underwriting agreement or other agreement entered into by the Company;
and (E) undertake such obligations relating to expense reimbursement,
indemnification and contribution as are provided in Section 6 hereof;
(xviii) notify in writing each holder of Registrable
Securities of any proposal by the Company to amend or waive any
provision of this Registration Rights Agreement pursuant to Section
9(h) hereof and of any amendment or waiver effected pursuant thereto,
each of which notices shall contain the text of the amendment or waiver
proposed or effected, as the case may be;
(xix) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or participate
as a member of an underwriting syndicate or selling group or "assist in
the distribution" (within the meaning of the Rules of Fair Practice and
the By-Laws of the National Association of Securities Dealers, Inc.
("NASD") or any successor thereto, as amended from time to time)
thereof, whether as a holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, assist such broker-dealer in complying
with the requirements of such Rules and By-Laws, including by (A) if
such Rules or By-Laws shall so require, engaging a "qualified
independent underwriter" (as defined in such Schedule (or any successor
thereto)) to participate in the preparation of the Shelf Registration
Statement relating to such Registrable Securities, to exercise usual
standards of due diligence in respect thereto and, if any portion of
the offering contemplated by such Shelf Registration Statement is an
underwritten offering or is made through a placement or sales agent, to
recommend the yield of such Registrable Securities, (B) indemnifying
any such qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 6 hereof, and (C)
providing such information to such broker-dealer as may be required in
order for such broker-dealer to comply with the requirements of the
Rules of Fair Practice of the NASD; and
(xx) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as soon
as practicable but in any event not later than eighteen months after
the effective date of such Shelf Registration Statement, an earning
statement complying with Section 11(a) of the Securities Act
(including, at the option of the Company, Rule 158 thereunder).
(e) In the event that the Company would be required, pursuant to
Section 3(d)(viii)(F) above, to notify the Electing Holders, the placement or
sales agent, if any, therefor and the managing underwriters,
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if any, thereof, the Company shall without delay prepare and furnish to each of
the Electing Holders, to each placement or sales agent, if any, and to each such
underwriter, if any, a reasonable number of copies of a prospectus supplemented
or amended so that, as thereafter delivered to purchasers of Registrable
Securities, such prospectus shall conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission thereunder and shall not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing. Each Electing Holder agrees that upon
receipt of any notice from the Company pursuant to Section 3(d)(viii)(F) hereof,
such Electing Holder shall forthwith discontinue the disposition of Registrable
Securities pursuant to the Shelf Registration Statement applicable to such
Registrable Securities until such Electing Holder shall have received copies of
such amended or supplemented prospectus, and if so directed by the Company, such
Electing Holder shall deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in such Electing Holder's
possession of the prospectus covering such Registrable Securities at the time of
receipt of such notice.
(f) In the event of a Shelf Registration, in addition to the
information required to be provided by each Electing Holder in its Notice
Questionnaire, the Company may require such Electing Holder to furnish to the
Company such additional information regarding such Electing Holder and such
Electing Holder's intended method of distribution of Registrable Securities as
may be required in order to comply with the Securities Act. Each such Electing
Holder agrees to notify the Company as promptly as practicable of any inaccuracy
or change in information previously furnished by such Electing Holder to the
Company or of the occurrence of any event in either case as a result of which
any prospectus relating to such Shelf Registration contains or would contain an
untrue statement of a material fact regarding such Electing Holder or such
Electing Holder's intended method of disposition of such Registrable Securities
or omits to state any material fact regarding such Electing Holder or such
Electing Holder's intended method of disposition of such Registrable Securities
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they are made, not misleading, and promptly
to furnish to the Company any additional information required to correct and
update any previously furnished information or required so that such prospectus
shall not contain, with respect to such Electing Holder or the disposition of
such Registrable Securities, an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they are made, not
misleading.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly upon
request being made therefor all expenses incident to the Company's performance
of or compliance with this Registration Rights Agreement, including (a) all
Commission and any NASD registration, filing and review fees and expenses
including fees and disbursements of counsel for the placement or sales agent or
underwriters in connection with such registration, filing and review, (b) all
fees and expenses in connection with the qualification of the Securities for
offering and sale under the State securities and blue sky laws referred to in
Section 3(d)(xii) hereof and determination of their eligibility for investment
under the laws of such jurisdictions as any managing underwriters or the
Electing Holders may designate, including any fees and disbursements of counsel
for the Electing Holders (subject to the limitations of Clause (i) below) or
underwriters in connection with such qualification and determination, (c) all
expenses relating to the preparation, printing, production, distribution and
reproduction of each registration statement required to be filed hereunder, each
prospectus included therein or prepared for distribution pursuant hereto, each
amendment or supplement to the foregoing, the expenses of preparing the
Securities for delivery and preparation and printing of certificates
representing the Securities or delivery of Securities to be disposed of
(including certificates representing the
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Securities), (d) messenger, telephone and delivery expenses relating to the
offering, sale or delivery of Securities and the preparation of documents
referred in clause (c) above, (e) fees and expenses of the Trustee under the
Indenture, any agent of the Trustee and any counsel for the Trustee and of any
collateral agent or custodian, (f) internal expenses (including all salaries and
expenses of the Company's officers and employees performing legal or accounting
duties), (g) fees, disbursements and expenses of counsel and independent
certified public accountants of the Company (including the expenses of any
opinions or "cold comfort" letters required by or incident to such performance
and compliance), (h) fees, disbursements and expenses of one counsel for the
Electing Holders retained in connection with a Shelf Registration, as selected
by the Electing Holders of at least a majority in aggregate principal amount of
the Registrable Securities held by Electing Holders (which counsel shall be
reasonably satisfactory to the Company), (i) any fees charged by securities
rating services for rating the Securities, and (j) fees, expenses and
disbursements of any other persons, including special experts, retained by the
Company in connection with such registration (collectively, the "Registration
Expenses"). To the extent that any Registration Expenses are incurred, assumed
or paid by any holder of Registrable Securities or any placement or sales agent
therefor or underwriter thereof, the Company shall reimburse such person for the
full amount of the Registration Expenses so incurred, assumed or paid promptly
after receipt of a request therefor. Notwithstanding the foregoing, the holders
of the Registrable Securities being registered shall pay all agency fees and
commissions and underwriting discounts and commissions attributable to the sale
of such Registrable Securities and the fees and disbursements of any counsel,
any "qualified independent underwriter" engaged pursuant to Section 3(d)(xix)
hereof, or other advisors or experts retained by such holders (severally or
jointly), other than the counsel and experts specifically referred to above.
5. Representations and Warranties.
The Company represents and warrants to, and agrees with, each Purchaser
and each of the holders from time to time of Registrable Securities that:
(a) Each registration statement covering Registrable
Securities and each prospectus (including any preliminary or summary
prospectus) contained therein or furnished pursuant to Section 3(d) or
Section 3(c) hereof and any further amendments or supplements to any
such registration statement or prospectus, when it becomes effective or
is filed with the Commission, as the case may be, and, in the case of
an underwritten offering of Registrable Securities, at the time of the
closing under the underwriting agreement relating thereto, will conform
in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and at all times subsequent to the Effective Time when a
prospectus would be required to be delivered under the Securities Act,
other than from (i) such time as a notice has been given to holders of
Registrable Securities pursuant to Section 3(d)(viii)(F) or Section
3(c)(iii)(F) hereof until (ii) such time as the Company furnishes an
amended or supplemented prospectus pursuant to Section 3(e) or Section
3(c)(iv) hereof, each such registration statement, and each prospectus
(including any summary prospectus) contained therein or furnished
pursuant to Section 3(d) or Section 3(c) hereof, as then amended or
supplemented, will conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein in light of the circumstances in which they were made not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or
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omissions made in reliance upon and in conformity with information
furnished in writing to the Company by a holder of Registrable
Securities expressly for use therein.
(b) Any documents incorporated by reference in any prospectus
referred to in Section 5(a) hereof, when they become or became
effective or are or were filed with the Commission, as the case may be,
will conform or conformed in all material respects to the requirements
of the Securities Act or the Exchange Act, as applicable, and none of
such documents will contain or contained an untrue statement of a
material fact or will omit or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by a holder of
Registrable Securities expressly for use therein.
(c) The compliance by the Company with all of the provisions
of this Registration Rights Agreement and the consummation of the
transactions herein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any subsidiary of the
Company is a party or by which the Company or any subsidiary of the
Company is bound or to which any of the property or assets of the
Company or any subsidiary of the Company is subject, nor will such
action result in any violation of the provisions of the certificate of
incorporation, as amended, or the by-laws of the Company or any statute
or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any subsidiary of the
Company or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the consummation
by the Company of the transactions contemplated by this Registration
Rights Agreement, except the registration under the Securities Act of
the Securities, qualification of the Indenture under the Trust
Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under State
securities or blue sky laws in connection with the offering and
distribution of the Securities.
(d) This Registration Rights Agreement has been duly
authorized, executed and delivered by the Company.
6. Indemnification.
(a) Indemnification by the Company. The Company shall indemnify and
hold harmless each of the holders of Registrable Securities included in an
Exchange Registration Statement, each of the Electing Holders of Registrable
Securities included in a Shelf Registration Statement and each person who
participates as a placement or sales agent or as an underwriter in any offering
or sale of such Registrable Securities as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in any Exchange
Registration Statement or Shelf Registration Statement, as the case may
be, under which such Registrable Securities were registered under the
Securities Act, or any preliminary, final or summary prospectus
contained therein or furnished by the Company to any such holder,
Electing Holder, agent or underwriter, or any amendment or supplement
thereto, or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading;
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(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the holders
of Registrable Securities), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that the Company shall not be liable to any such person in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in such registration statement, or
preliminary, final or summary prospectus, or amendment or supplement thereto, in
reliance upon and in conformity with written information furnished to the
Company by such person expressly for use therein;
(b) Indemnification by the Holders and any Agents and Underwriters. The
Company may require, as a condition to including any Registrable Securities in
any registration statement filed pursuant to Section 2(b) hereof and to entering
into any underwriting agreement with respect thereto, that the Company shall
have received an undertaking reasonably satisfactory to it from the Electing
Holder of such Registrable Securities and from each underwriter named in any
such underwriting agreement, severally and not jointly, to (i) indemnify and
hold harmless the Company, and all other holders of Registrable Securities,
against any losses, claims, damages or liabilities to which the Company or such
other holders of Registrable Securities may become subject, under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in such registration
statement, or any preliminary, final or summary prospectus contained therein or
furnished by the Company to any such Electing Holder, agent or underwriter, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of such Electing Holder or underwriter expressly for use therein, and
(ii) reimburse the Company for any legal or other expenses reasonably incurred
by the Company in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that no such Electing
Holder shall be required to undertake liability to any person under this Section
6(b) for any amounts in excess of the dollar amount of the proceeds to be
received by such Electing Holder from the sale of such Electing Holder's
Registrable Securities pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of written notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party pursuant to the indemnification provisions of
or contemplated by this Section 6, notify such indemnifying party in writing of
the commencement of such action; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party other than under the indemnification provisions of or
contemplated by
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Section 6(a) or 6(b) hereof. In the case of parties indemnified pursuant to
Section 6(a) above, counsel to the indemnified parties shall be selected by the
holders of a majority of the Registrable Securities held by Electing Holders,
and, in the case of parties indemnified pursuant to Section 6(b) above, counsel
to the indemnified parties shall be selected by the Company. In case any such
action shall be brought against any indemnified party and it shall notify an
indemnifying party of the commencement thereof, such indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, such
indemnifying party shall not be liable to such indemnified party for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement. Notwithstanding the immediately preceding sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, an indemnifying party shall
not be liable for any settlement of the nature contemplated by Section 6(a)(ii)
effected without its consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent the indemnifying
party considers such request to be reasonable and (ii) provided written notice
to the indemnified party substantiating the unpaid balance as unreasonable, in
each case prior to the date of such settlement.
(e) Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) are unavailable to or insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the 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 by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this Section 6(e) were determined by
pro rata allocation (even if the holders or any agents or underwriters or all of
them were
18
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treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in this
Section 6(e). The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, or liabilities (or actions in respect thereof)
referred to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 6(e), no holder shall be required to contribute any amount in excess of
the amount by which the dollar amount of the proceeds received by such holder
from the sale of any Registrable Securities (after deducting any fees, discounts
and commissions applicable thereto) exceeds the amount of any damages which such
holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission, and no underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such underwriter 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 holders' and any underwriters'
obligations in this Section 6(e) to contribute shall be several in proportion to
the principal amount of Registrable Securities registered or underwritten, as
the case may be, by them and not joint.
(f) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each officer, director and partner of
each holder, agent and underwriter and each person, if any, who controls any
holder, agent or underwriter within the meaning of the Securities Act; and the
obligations of the holders and any agents or underwriters contemplated by this
Section 6 shall be in addition to any liability which the respective holder,
agent or underwriter may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Company (including any
person who, with his consent, is named in any registration statement as about to
become a director of the Company) and to each person, if any, who controls the
Company within the meaning of the Securities Act.
7. Underwritten Offerings.
(a) Right to Effect Underwritten Offering. The holders of Registrable
Securities covered by a Shelf Registration Statement filed pursuant to this
Registration Rights Agreement may sell such Registrable Securities in an
underwritten offering, provided that the holders of at least 20% in the
aggregate principal amount of the Registrable Securities initially outstanding
elect to participate in such offering and except that any such underwritten
offering shall be suspended during any Shelf Registration Suspension.
(b) Selection of Underwriters. If any of the Registrable Securities
covered by the Shelf Registration are to be sold pursuant to an underwritten
offering, the managing underwriter or underwriters thereof shall be designated
by Electing Holders holding at least a majority in aggregate principal amount of
the Registrable Securities to be included in such offering, provided that such
designated managing underwriter or underwriters is or are reasonably acceptable
to the Company.
(c) Participation by Holders. Each holder of Registrable Securities
hereby agrees with each other such holder that no such holder may participate in
any underwritten offering hereunder unless such holder (i) agrees to sell such
holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
19
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8. Rule 144.
The Company covenants to the holders of Registrable Securities that to
the extent it shall be required to do so under the Exchange Act, the Company
shall timely file the reports required to be filed by it under the Exchange Act
or the Securities Act (including the reports under Section 13 and 15(d) of the
Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted by the
Commission under the Securities Act) and the rules and regulations adopted by
the Commission thereunder, and shall take such further action as any holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such holder to sell Registrable Securities without
registration under the Securities Act within the limitations of the exemption
provided by Rule 144 under the Securities Act, as such Rule may be amended from
time to time, or any similar or successor rule or regulation hereafter adopted
by the Commission. Upon the request of any holder of Registrable Securities in
connection with that holder's sale pursuant to Rule 144, the Company shall
deliver to such holder a written statement as to whether it has complied with
such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant, registration
rights with respect to Registrable Securities or any other securities which
prevents the exercise of or otherwise conflicts with the terms contained in this
Registration Rights Agreement.
(b) Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if the Company fails to perform any of its
obligations hereunder and that the Initial Purchasers and the holders from time
to time of the Registrable Securities may be irreparably harmed by any such
failure, and accordingly agree that the Initial Purchasers and such holders, in
addition to any other remedy to which they may be entitled at law or in equity,
shall be entitled to compel specific performance of the respective obligations
of the Company under this Registration Rights Agreement in accordance with the
terms and conditions of this Registration Rights Agreement, in any court of the
United States or any State thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: If to the Company, to it
at Pogo Producing Company, ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, attention Corporate Secretary, and if to a holder, to the address of
such holder set forth in the security register or other records of the Company,
or to such other address as the Company or any such holder may have furnished to
the other in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt. For purposes of any notice to
holders required hereunder, the Company, absent knowledge to the contrary, may
presume that all holders are listed in the security register.
(d) Parties in Interest. All the terms and provisions of this
Registration Rights Agreement shall be binding upon, shall inure to the benefit
of and shall be enforceable by the parties hereto and the holders from time to
time of the Registrable Securities and the respective successors and assigns of
the parties hereto and such holders. In the event that any transferee of any
holder of Registrable Securities shall acquire Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be deemed a
beneficiary hereof for all purposes and such Registrable Securities shall be
held subject to all of the terms of this Registration Rights
20
21
Agreement, and by taking and holding such Registrable Securities such transferee
shall be entitled to receive the benefits of, and be conclusively deemed to have
agreed to be bound by all of the applicable terms and provisions of this
Registration Rights Agreement. If the Company shall so request, any such
successor, assign or transferee shall agree in writing to acquire and hold the
Registrable Securities subject to all of the applicable terms hereof.
(e) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Registration Rights
Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof) made by
or on behalf of any holder of Registrable Securities, any director, officer or
partner of such holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and shall
survive delivery of and payment for the Registrable Securities pursuant to the
Purchase Agreement and the transfer and registration of Registrable Securities
by such holder and the consummation of an Exchange Offer.
(f) LAW GOVERNING. THIS REGISTRATION RIGHTS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Registration Rights Agreement are inserted for convenience
only, do not constitute a part of this Registration Rights Agreement and shall
not affect in any way the meaning or interpretation of this Registration Rights
Agreement.
(h) Entire Agreement; Amendments. This Registration Rights Agreement
and the other writings referred to herein (including the Indenture and the form
of Securities) or delivered pursuant hereto which form a part hereof contain the
entire understanding of the parties with respect to its subject matter. This
Registration Rights Agreement supersedes all prior agreements and understandings
between the parties with respect to its subject matter. This Registration Rights
Agreement may be amended and the observance of any term of this Registration
Rights Agreement may be waived (either generally or in a particular instance and
either retroactively or prospectively) only by a written instrument duly
executed by the Company and the holders of at least a majority in aggregate
principal amount of the Registrable Securities at the time outstanding. Each
holder of any Registrable Securities at the time or thereafter outstanding shall
be bound by any amendment or waiver effected pursuant to this Section 9(h),
whether or not any notice, writing or marking indicating such amendment or
waiver appears on such Registrable Securities or is delivered to such holder.
(i) Inspection. For so long as this Registration Rights Agreement shall
be in effect, this Registration Rights Agreement and a complete list of the
names and addresses of all the holders of Registrable Securities shall be made
available upon reasonable prior written notice for inspection and copying on any
business day by any holder of Registrable Securities for proper purposes only
(which shall include any purpose related to the rights of the holders of
Registrable Securities under the Securities, the Indenture and this Agreement)
at the offices of the Company at the address thereof set forth in Section 9(c)
above and at the office of the Trustee under the Indenture.
(j) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
21
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Agreed to and accepted as of the date referred to above.
POGO PRODUCING COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Chief Financial Officer
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇▇▇▇▇▇▇, SACHS & CO.
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇
& ▇▇▇▇▇ INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------------
Authorized signatory
On behalf of each of the Initial Purchasers
22
23
EXHIBIT A
POGO PRODUCING COMPANY.
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE](1/)
The Depository Trust Company ("DTC") has identified you as a DTC
Participant through which beneficial interests in the Pogo Producing Company
(the "Company") 10 3/8% Senior Subordinated Notes due 2009 (the "Securities")
are held.
The Company is in the process of registering the Securities under the
Securities Act of 1933 for resale by the beneficial owners thereof. In order to
have their Securities included in the registration statement, beneficial owners
must complete and return the enclosed Notice of Registration Statement and
Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy
of the enclosed materials as soon as possible as their rights to have the
Securities included in the registration statement depend upon their returning
the Notice and Questionnaire by [DEADLINE FOR RESPONSE]. Please forward a copy
of the enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact Pogo Producing
Company, ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention
Corporate Secretary, (▇▇▇) ▇▇▇-▇▇▇▇.
----------------------
(1/) Not less than 28 calendar days from date of mailing.
23
24
Pogo Producing Company
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Registration Rights Agreement (the
"Registration Rights Agreement") among Pogo Producing Company (the "Company")
and the Initial Purchasers named therein. Pursuant to the Registration Rights
Agreement, the Company has filed with the United States Securities and Exchange
Commission (the "Commission") a registration statement on Form [___] (the "Shelf
Registration Statement") for the registration and resale under Rule 415 of the
Securities Act of 1933, as amended (the "Securities Act"), of the Company's
10 3/8% Senior Subordinated Notes due 2009 (the "Securities"). A copy of the
Registration Rights Agreement is attached hereto. All capitalized terms not
otherwise defined herein shall have the meanings ascribed thereto in the
Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined below) is
entitled to have the Registrable Securities beneficially owned by it included in
the Shelf Registration Statement. In order to have Registrable Securities
included in the Shelf Registration Statement, this Notice of Registration
Statement and Selling Securityholder Questionnaire ("Notice and Questionnaire")
must be completed, executed and delivered to the Company's counsel at the
address set forth herein for receipt ON OR BEFORE [DEADLINE FOR RESPONSE].
Beneficial owners of Registrable Securities who do not complete, execute and
return this Notice and Questionnaire by such date (i) will not be named as
selling securityholders in the Shelf Registration Statement and (ii) may not use
the Prospectus forming a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and related Prospectus.
The term "Registrable Securities" is defined in the Registration Rights
Agreement.
24
25
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable
Securities hereby elects to include in the Shelf Registration Statement the
Registrable Securities beneficially owned by it and listed below in Item (3).
The undersigned, by signing and returning this Notice and Questionnaire, agrees
to be bound with respect to such Registrable Securities by the terms and
conditions of this Notice and Questionnaire and the Registration Rights
Agreement, including, without limitation, Section 6 of the Registration Rights
Agreement, as if the undersigned Selling Securityholder were an original party
thereto.
Upon any sale of Registrable Securities pursuant to the Shelf
Registration Statement, the Selling Securityholder will be required to deliver
to the Company and Trustee the Notice of Transfer set forth in Appendix A to the
Prospectus and as Exhibit B to the Registration Rights Agreement.
The Selling Securityholder hereby provides the following information to
the Company and represents and warrants that such information is accurate and
complete:
25
26
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
-------------------------------------------------------------
(b) Full Legal Name of Registered Holder (if not the same as in
(a) above) of Registrable Securities Listed in Item (3) below:
-------------------------------------------------------------
(c) Full Legal Name of DTC Participant (if applicable and if not
the same as (b) above) Through Which Registrable Securities
Listed in Item (3) below are Held:
-------------------------------------------------------------
(2) Address for Notices to Selling Securityholder:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Telephone:
-----------------------------
Fax:
-----------------------------
Contact Person:
-----------------------------
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Principal amount of Registrable Securities beneficially
owned:
------------------------------------------------------------
CUSIP No(s). of such Registrable Securities:
----------------------
(b) Principal amount of Securities other than Registrable Securities
beneficially owned:
-----------------------------------------------
CUSIP No(s). of such other Securities:
----------------------------
26
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(c) Principal amount of Registrable Securities which the
undersigned wishes to be included in the Shelf Registration
Statement:
---------------------------------------------------
CUSIP No(s). of such Registrable Securities to be
included in the Shelf Registration Statement:
----------------
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other securities
of the Company, other than the Securities listed above in Item (3).
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any
of its affiliates, officers, directors or principal equity holders (5% or more)
has held any position or office or has had any other material relationship with
the Company (or its predecessors or affiliates) during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in Item (3) only
as follows (if at all): Such Registrable Securities may be sold from time to
time directly by the undersigned Selling Securityholder or, alternatively,
through underwriters, broker-dealers or agents. Such Registrable Securities may
be sold in one or more transactions at fixed prices, at prevailing market prices
at the time of sale, at varying prices determined at the time of sale, or at
negotiated prices. Such sales may be effected in transactions (which may involve
crosses or block transactions) (i) on any national securities exchange or
quotation service on which the Registered Securities may be listed or quoted at
the time of sale, (ii) in the over-the-counter market, (iii) in transactions
otherwise than on such exchanges or services or in the over-the-counter market,
or (iv) through the writing of options. In connection with sales of the
Registrable Securities or otherwise, the Selling Securityholder may enter into
hedging transactions with broker-dealers, which may in turn engage in short
sales of the Registrable Securities in the course of hedging the positions they
assume. The Selling Securityholder may also sell Registrable Securities short
and deliver Registrable Securities to close out such short positions, or loan or
pledge Registrable Securities to broker-dealers that in turn may sell such
securities.
27
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State any exceptions here:
(7) Specify the number of copies of the prospectus needed:
----------------
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
provisions of the Exchange Act and the rules and regulations thereunder,
particularly Regulation M thereunder.
In the event that the Selling Securityholder transfers all or any
portion of the Registrable Securities listed in Item (3) above after the date on
which such information is provided to the Company, the Selling Securityholder
agrees to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Registration Rights
Agreement.
By signing below, the Selling Securityholder consents to the disclosure
of the information contained herein in its answers to Items (1) through (7)
above and the inclusion of such information in the Shelf Registration Statement
and related Prospectus. The Selling Securityholder understands that such
information will be relied upon by the Company in connection with the
preparation of the Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under
Section 3(d) of the Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Securityholder agrees to promptly notify the Company of any inaccuracies
or changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Exchange and Registration
Rights Agreement shall be made in writing, by hand-delivery, first-class mail,
or air courier guaranteeing overnight delivery to the Company as follows:
Pogo Producing Company
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Secretary
(▇▇▇) ▇▇▇-▇▇▇▇
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company's counsel, the terms of this Notice
and Questionnaire, and the representations and warranties contained herein,
shall be binding on, shall inure to the benefit of and shall be enforceable by
the respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder (with respect to the Registrable
Securities beneficially owned by such Selling Securityholder and listed in Item
(3) above. This Agreement shall be governed in all respects by the laws of the
State of New York.
28
29
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Dated:
--------------------
--------------------------------------------------
Selling Securityholder
(Print/type full legal name of beneficial
owner of Registrable Securities)
By:
-----------------------------------------------
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR
RECEIPT ON OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY AT
Pogo Producing Company
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Secretary
(▇▇▇) ▇▇▇-▇▇▇▇
29
30
EXHIBIT B
[FORM OF REPRESENTATION LETTER TO TRANSFER
NOTES TO UNRESTRICTED CUSIP]
[DATE]
Pogo Producing Company
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
State Street Bank and Trust Company, as Trustee
▇▇▇▇▇▇▇ Square
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Re: Pogo Producing Company 10 3/8% Senior Subordinated Notes due 2009
Gentlemen:
We hereby certify that Pogo Producing Company (the "Company") and to
State Street Bank and Trust Company, as Trustee, that [NAME OF SELLER] (the
"Seller") sold $[AMOUNT SOLD] of the Company's 103/8% Series A Senior
Subordinated Notes due 2009 (the "Notes") held on behalf of the Seller in the
name of [DTC NOMINEE'S NAME] with The Depository Trust Company as a portion of
the unregistered Global Security and representing a portion of the Notes (CUSIP
▇▇. ▇▇▇▇▇▇ ▇▇ ▇). The Notes sold by the undersigned were sold pursuant to a
prospectus for the Notes dated [DATE OF PROSPECTUS, AS SUPPLEMENTED] (the
"Prospectus"). In connection with the sale of the Notes, Seller hereby
represents and warrants to the Company and the Trustee that: (i) such Notes were
sold in accordance with the section of the Prospectus entitled "Plan of
Distribution", (ii) a copy of the Prospectus was delivered in connection with
the sale, (iii) to Seller's knowledge, the purchaser was not an Affiliate (as
such term is defined in the Securities Act of 1933, as amended (the "Act")) of
the Company, and (iv) that all of the provisions of the Act were complied with
in connection with such sale. The amount of Notes sold, and their trade date(s)
is a follows:
TRADE DATE AMOUNT OF NOTES SOLD
---------- --------------------
[INSERT TRADE DATE] [AMOUNT SOLD]
The undersigned represents and warrants that he is a duly authorized
officer or representative of Seller, with the full power and authority to make
the representations and statements contained herein, and
B-1
31
that such representations and statements are for the benefit of the Company and
Trustee and may be relied upon by them in effecting the transfer of the amount
of Notes sold from the Global Security representing the Notes (CUSIP No. 730448
AK 3) to the Global Security representing the 10 3/8% Series B Senior
Subordinated Notes due 2009 of the Company (CUSIP No. 730448 AL 1).
[SELLER]
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
B-2
