REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of JULY 27, 1995 between
FOREST OIL CORPORATION, a New York corporation (the "Company"), and JOINT
ENERGY DEVELOPMENT INVESTMENTS LIMITED PARTNERSHIP, a Delaware limited
partnership ("JEDI") (the "Shareholder").
Terms not otherwise defined herein have the meanings stated in the
Restructure Agreement (as defined below).
RECITALS
A. The Shareholder and the Company are parties to the Loan Agreement
dated as of December 28, 1993, as amended as of the date hereof and by the
Restructure Agreement dated as of the date hereof (the "Restructure Agreement"),
pursuant to which, concurrently herewith, the Shareholder is acquiring the
Tranche B Warrants to purchase the Tranche B Warrant Shares. The Tranche B
Warrant Shares acquired by JEDI are referred to as the "Registrable Shares".
B. The Company and The Anschutz Corporation, a Kansas corporation
(the "Other Shareholder"), are parties to a Purchase Agreement (the "Purchase
Agreement") dated as of May 17, l995, pursuant to which, among other things,
(i) on May l9, 1995 the Other Shareholder purchased the Purchaser Note (as
defined in the Purchase Agreement) and may, upon the conversion thereof,
thereafter acquire the Purchaser Note Conversion Shares (as defined in the
Purchase Agreement) and (ii) concurrently herewith the Other Shareholder is
purchasing the Purchaser Additional Shares, the Purchaser Preferred Shares and
the Tranche A Warrants (each as defined in the Purchase Agreement) and may, upon
conversion of the Purchaser Preferred Shares and exercise of the Tranche A
Warrants, thereafter acquire the Purchaser Preferred Conversion Shares and the
Tranche A Warrant Shares (each as defined in the Purchase Agreement). The
Purchaser Note Conversion Shares, the Purchaser Additional Shares, the Purchaser
Preferred Conversion Shares and the Tranche A Warrant Shares are collectively
referred to as the "Other Shareholder Shares".
C. Pursuant to the Purchase Agreement, on May l9, 1995 the Company and
the Other Shareholder entered into a Registration Rights Agreement (the "Other
Registration Rights Agreement") pursuant to which the Company granted to the
Other Shareholder and certain other persons (the Other Shareholder and such
other persons, collectively, the "Other
Registering Shareholders") certain rights with respect to the registration under
the Securities Act of the disposition of the Other Registrable Shares (as
defined below).
D. Concurrently herewith, the Shareholder will execute and deliver to
tbe Other Shareholder the JEDI/Anschutz Option providing for an option to
purchase the Tranche B Warrant Shares. The Other Shareholder Shares and, when
acquired by the Other Shareholder, the Tranche A Warrant Shares and the Tranche
B Warrant Shares are hereinafter referred to as the "Other Registrable Shares".
E. The Company and the Shareholder desire to enter into this Agreement
providing for the registration under the Securities Act of the disposition of
the Registrable Shares.
AGREEMENT
The parties agree as follows:
Section 1. Registration Rights.
(a) From and after the date that is the Termination Date (as defined
in the JEDI/Anschutz Option) (the "Effective Date") and to and including the
tenth anniversary of the Effective Date, subject to extension pursuant to
Section l(f), on one or more occasions when the Company shall have received the
written request of the Shareholder, any pledgee of Registrable Shares from the
Shareholder or holders of at least l,OOO,OOO Registrable Shares in the aggregate
(as such number of shares may be adjusted in the event of any change in the
Registerable Shares by reason of stock dividends, split-ups, reverse split-ups,
mergers, recapitalizations, subdivisions, conversions, exchanges of shares or
the like) that shall have been acquired directly or indirectly from the
Shareholder, in each case in a transaction or series of transactions not
constituting a Rule 144 Transaction (as defined in Section l(h)) (each such
person, when requesting registration under this Section 1 and thereafter in
connection with any such registration, being hereinafter referred to as a
"Registering Shareholder"), as expeditiously as practicable the Company shall
include not less than l,OOO,OOO Registrable Shares (as such number may be
adjusted) specifled by the Registering Shareholder in a Registration Statement
(as defined in Section l(h)). If the requested registration pursuant to this
Section l(a) shall involve an underwritten offering, the Registering Shareholder
initiating a request for registration of Registrable Shares pursuant to this
Section l(a) shall select (with the consent of the Company, not to be
unreasonably withheld) the managing underwriter in connection with the offering
and any additional investment bankers and managers to be used in connection with
the offering. Notwithstanding anything to the contrary in the foregoing:
(1) The Company shall not be required to prepare and file pursuant to this
Section l more than two Registration Statements; provided, that if lO% or more
of the Registrable Shares requested to be registered by the Registering
Shareholder initiating a request for registration of Registrable Shares pursuant
to this Section l(a) are excluded
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from any registration in accordance with Section l(a)(2) and an investment
banking firm of recognized national standing shall advise the Company that the
number of the Registerable Shares requested to be registered by the Registering
Shareholder was not so great, at the time of the request and in light of the
market conditions then prevailing, as would adversely affect the offering,
including the price at which the Registerable Shares can be sold, there shall be
provided one additional registration under this Section (l)(a)(l) in respect of
each such exclusion, and
(2) if a requested registration pursuant to this Section 1(a) shall involve
an underwritten offering, and if the managing underwriter shall advise in
writing the Company and the Registering Shareholders that, in its opinion, the
number of Registrable Shares of any class proposed to be included in the
registration (including securities of the Company which are proposed to be
offered by persons other than Registering Shareholders) exceeds the number which
would have an adverse effect on the offering, including the price at which the
Registrable Shares can be sold, the Company will include in the registration the
maximum number of securities which it is so advised can be sold without the
adverse effect, allocated as follows:
(A) first, all Registrable Shares owned by Registering Shareholders
and requested to be included in such registration (if necessary, allocated pro
rata among all Registering Shareholders on the basis of the relative number of
Registrable Shares each such Registering Shareholder has requested to be
included in the registration);
(B) second, any other Registrable Shares owned by Other Registering
Shareholders and requested to be included in the registration or otherwise (if
necessary, allocated pro rata among all Other Registering Shareholders on the
basis of the relative number of Other Registrable Shares each such Other
Registering Shareholder has requested to be included in the registration); and
(C) third, any other securities proposed to be included in the
registration.
(b) From and after the Effective Date to and including the tenth
anniversary thereof, if the Company shall determine to register or qualify by a
registration statement filed under the Securities Act and under any applicable
state securities laws, any offering of any Equity Securities of the Company,
whether pursuant to Section l(a) or otherwise, the Company shall give notice of
such determination to each potential Registering Shareholder and Other
Registering Shareholder (collectively, the "Transaction Registering
Shareholders" about which the Company has knowledge; it being understood that
without prior notice to the Company, the Company shall not be deemed to have
knowledge of the existence of any pledgee of Registrable Shares. The Company
shall, as expeditiously as possible and in good faith, include in the
registration statement such Registrable Shares and Other Registrable Shares
(collectively, the "Transaction Registrable Shares"), as those persons shall
specify by notice received by the Company not later than 3O days after the
giving of the notice by the Company
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(each person so notifying the Company being hereinafter referred to as a "Piggy-
Back Shareholder"). Notwithstanding anything in the foregoing to the contrary,
(1) the Company shall not be required to include any shares owned by
Piggy-Back Shareholders in a registration statement on Form S-4 or S-8 (or any
successor form) or a registration statement filed in connection with an exchange
offer or other offering of securities solely to the then existing shareholders
of the Company;
(2) if a registration pursuant to this Section 1(b) is made with respect
to a registration under Section 1(a) of the Other Registration Rights Agreement,
and if the registration involves an underwritten offering, the Other Shareholder
shall select (with the consent of the Company, not to be unreasonably withheld)
the managing underwriter for the offering and any additional investment bankers
and managers to be used in connection with the offering, and if the managing
underwriter advises the Company in writing that, in its opinion, the number of
securities requested to be included in the registration is so great as would
adversely affect the offering, including the price at which the Registrable
Shares can be sold, the Company will include in the registration the maximum
number of securities which it is so advised can be sold without the adverse
effect, allocated as follows:
(A) first, all Other Registrable Shares proposed to be registered
pursuant to the request under the Other Registration Rights Agreement (if
necessary, allocated pro rata among the Other Registering Shareholders on the
basis of the relative number of Other Registrable Shares each such Other
Registering Shareholder has requested to be included in the registration); and,
(B) second, all Registrable Shares owned by Registering Shareholders
and requested to be included in the registration (if necessary, allocated pro
rata among all the Registering Shareholders on the basis of the relative number
of Registrable Shares each such Registering Shareholder has requested to be
included in the registration), and
(C) third, any other securities proposed to be registered by the
Company; and
(3) if a registration pursuant to this Section 1(b) is not made pursuant to
a request under Section l(a) of the Other Registration Rights Agreement, and if
the registration involves an underwritten offering, the Company shall select the
managing underwriter for the offering and any additional investment bankers and
managers to be used in connection with the offering, and if the managing
underwriter advises the Company in writing that, in its opinion, the number of
securities requested to be included in the registration is so great as would
adversely affect the offering, including the price at which the Registrable
Shares can be sold, the Company will include in the registration the maximum
number of securities which it is so advised can be sold without the adverse
effect, allocated as follows:
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(A) first, all securities proposed to be registered by the Company for
its own account,
(B) second, all Transaction Registrable Shares requested to be
included in the registration under Section l(b) of this Agreement or under
Section l(b) of the Other Registration Rights Agreement (if necessary, allocated
pro rata among all requesting Transaction Registering Shareholders, on the basis
of the relative number of Transaction Registrable Shares, each Transaction
Registering Shareholder has requested to be included in the registration); and
(C) third, any other securities proposed to be registered by the
Company other than for its own account;
(c) The Company shall provide each Registering Shareholder and its
representatives reasonable opportunity for due diligence in connection with each
registration of Registrable Shares of the Registering Shareholder pursuant to
this Section 1.
(d) At the request of one or more of the Registering Shareholders or
the Company in connection with any registration pursuant to this Section 1, the
Company and the requesting Registering Shareholders shall enter into an
appropriate underwriting agreement containing terms and provisions customary in
agreements of that nature, including provisions with respect to expenses
substantially the same as those set forth in Section 2 and provisions with
respect to indemnification and contribution substantially the same as those set
forth in Section 3.
(e) Notwithstanding anything herein to the contrary, the Company shall
not be required to include in any registration pursuant to this Section 1 any
Registrable Shares owned by a Registering Shareholder (l) if the Company shall
deliver to the Registering Shareholder an opinion, satisfactory in form, scope
and substance to the Registering Shareholder and addressed to the Registering
Shareholder by legal counsel satisfactory to the Registering Shareholder, to the
effect that the distribution of Registrable Shares proposed by the Registering
Shareholder is exempt from registration under the Securities Act and all
applicable state securities laws or (2) if such Registering Shareholder or any
underwriter of Registrable Shares shall fail to furnish to the Company the
information in respect of the distribution of the shares that may be required
under this Agreement to be furnished by the Registering Shareholder or the
underwriter to the Company.
(f) Upon written notice to each Registering Shareholder, the Company
may postpone effecting a registration pursuant to this Section 1 on one occasion
during any period of nine consecutive months, may require other holders of
shares registered pursuant to this Section 1 to refrain from disposing of the
shares under the registration or may require Transaction Registering
Shareholders to refrain from otherwise disposing of any shares of Equity
Securities of the Company owned by them (whether pursuant to Rule 144 under the
Securities Act or otherwise), in each case for a reasonable time specified in
the notice but not exceeding
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90 days (which period may not be extended or renewed), if (1) an investment
banking firm of recognized national standing shall advise the Company and the
Registering Shareholders in writing that effecting the registration or
disposition would materially and adversely affect an offering of Equity
Securities of the Company the preparation of which had then been commenced or
(2) the Company is in possession of material non-public information the
disclosure of which during the period specified in such notice the Company
believes would not be in the best interests of the Company. The period during
which the rights granted under Section 1 may be exercised by a Registering
Shareholder shall be extended by one day beyond the tenth-anniversary of the
Effective Date for each day that pursuant to this Section 1(f), the Company
postpones effecting a registration, requires the Registering Shareholder to
refrain from disposing of Registrable Shares under a registration or otherwise
requires the Registering Shareholder to refrain from disposing of shares of
Equity Securities of the Company pursuant to this Section l(f).
(g) In the event the registration of Registrable Shares shall be
required by this Section l:
(l) Each Registering Shareholder shall furnish, and shall cause each
underwriter of the Registrable Shares of the Registering Shareholder to be
distributed pursuant to the registration to furnish, to the Company in writing
promptly upon the request of the Company the additional information regarding
the Registering Shareholder or the underwriter, the contemplated distribution of
the Registrable Shares and the other information regarding the proposed
distribution by the Registering Shareholder and the underwriter that shall be
required in connection with the proposed distribution by the applicable
securities laws of the United States of America and the states thereof in which
the Registrable Shares are contemplated to be distributed. The information
furnished by any Registering Shareholder or any underwriter shall be certified
by the Registering Shareholder or the underwriter, as the case may be, and shall
be stated to be specifically for use in connection with the registration.
(2) The Company shall prepare and file with the Securities and Exchange
Commission the Registration Statement, including the Prospectus (as defined in
Section l(h)), under the Securities Act and as required under any applicable
state securities laws, on the form that is then required or available for use by
the Company to permit each Registering Shareholder, upon the effective date of
the Registration Statement, to use the Prospectus in connection with the
contemplated distribution by the Registering Shareholder of the Registrable
Shares so registered. The Company shall deliver to each Registering Shareholder
one executed copy of the Registration Statement and each amendment thereof. If
the registration shall have been initiated solely by the Company or shall not
have been initiated by the Registering Shareholder, the Company shall not be
obligated to prosecute the registration, and may withdraw the Registration
Statement at any time prior to the effectiveness thereof, if the Company shall
determine in good faith not to proceed with the offering of securities included
in the Registration Statement. In all other cases, the Company shall use its
best efforts to cause the
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Registration Statement to become effective and, as soon as practicable after the
effectiveness thereof, shall deliver to each Registering Shareholder evidence of
the effectiveness and a reasonable supply of copies of the Prospectus. In
addition, if necessary for resale by the Registering Shareholders, the Company
shall qualify or register in such states as may be reasonably requested by each
Registering Shareholder the Registrable Shares of the Registering Shareholder
that shall have been included in the Registration Statement; provided that the
Company shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation in any state in which it is not subject
to process or qualified as of the date of the request.
(3) The Company shall use its best efforts to cause the Registration
Statement and the Prospectus to remain current, including the filing of
necessary amendments and supplements, and shall furnish copies of such
amendments and supplements to the Registering Shareholders, so as to permit
distributions by the Registering Shareholders during the respective contemplated
periods of distribution, but in no event longer than three months from the
effective date of the Registration Statement; provided that the period shall be
increased by the number of days that any Registering Shareholder shall have been
required by Section l(f) to refrain from disposing of the Registrable Shares
owned by the Registering Shareholder in the distribution. Notwithstanding
anything in the foregoing to the contrary, the Company may at any time upon
notice to each Registering Shareholder terminate the effectiveness of the
Registration Statement or upon notice to any Registering Shareholder withdraw
from the Registration Statement the Registrable Shares of the Registering
Shareholder if, in the opinion of counsel for the Company, there shall have
arisen any legal impediment to the offer of the Registrable Shares made by the
Prospectus or if any legal action or administrative proceeding shall have been
instituted or threatened or any other claim shall have been made relating to the
offer made by the Prospectus or against any of the parties involved in the
offer; provided that, promptly after those matters shall be resolved to the
satisfaction of counsel for the Company, pursuant to this Section l the Company
shall cause the registration of Registrable Shares formerly covered by the
Registration Statement that were removed from registration by the action of the
Company.
(4) Each Registering Shareholder shall report to the Company distributions
made by the Registering Shareholder of Registrable Shares pursuant to the
Prospectus and, upon written notice by the Company that an event has occurred as
a result of which an amendment or supplement to the Registration Statement or
the Prospectus is required, the Registering Shareholder shall cease further
distributions pursuant to the Prospectus until notified by the Company of the
effectiveness of the amendment or supplement. Each Registering Shareholder shall
distribute Registrable Shares only in accordance with the manner of distribution
contemplated by the Prospectus with respect to the Registrable Shares. Each
Registering Shareholder, by participating in a registration pursuant to this
Section 1, acknowledges that the remedies of the Company at law for failure by
the Registering Shareholder to comply with the undertaking contained in this
Section l(g) would be inadequate and that the failure would not be adequately
compensable in
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damages and would cause irreparable harm to the Company, and therefore agrees
that undertakings made by the Registering Shareholder in this Section l(g) may
be specifically enforced.
(5) The Company shall deliver to the Registering Shareholders, their
counsel and the underwriters, if any, of Registrable Shares owned by Registering
Shareholders to be distributed pursuant to such registration, the certificates,
opinions of counsel and comfort letters that are customarily delivered in
connection with underwritten public offerings.
(h) For the purposes of this Section 1, the following terms shall
have the following meanings:
(1) "Action" against any person means an action, suit, investigation,
complaint or other proceeding pending against or affecting the person or its
property, whether civil or criminal, in law or in equity or before any
Governmental Body.
(2) "Affiliate" of a person means any other person (1) that directly or
indirectly controls, is controlled by or is under common control with, the
person or any of its subsidiaries, (2) that directly or indirectly beneficially
owns or holds 5% or more of any class of voting stock of the person or any of
its subsidiaries or (3) 5 % or more of the voting stock of which is directly or
indirectly beneficially owned or held by the person or any of its subsidiaries.
The term "Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a person,
whether through the ownership of voting securities, by contract or otherwise.
(3) "Consolidated Subsidiary" of a person at any date means any subsidiary
of the person or other entity the accounts of which would be consolidated with
those of the person in its consolidated financial statements as of that date.
(4) "Equity Securities" of a person means the capital stock of the person
and all other securities convertible into or exchangeable or exercisable for any
shares of its capital stock, all rights to subscribe for or to purchase, all
options for the purchase of, and all calls, commitments or claims of any
character relating to, any shares of its capital stock and any securities
convertible into or exchangeable or exercisable for any of the foregoing.
(5) "Registration Statement" means a registration statement filed by the
Company in accordance with Section l(g)(2), including exhibits and financial
statements thereto, in the form in which it shall become effective and, in the
event of any amendment thereto after the effective date of the registration
statement, also means (from and after the effectiveness of the amendment) the
registration statement as so amended;
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(6) "Rule 144 Transaction" means a transaction involving the sale of
Registrable Shares to a person other than an affiliate of the Company under
circumstances in which all of the applicable conditions of Rule 144 or Rule 144A
(or any similar provisions then in force) under the Securities Act are
satisfied.
(7) "Prospectus" means the prospectus relating to the Registrable Shares
owned by the Registering Shareholders included in a Registration Statement at
the time it becomes effective and, in the event of any amendment or supplement
to the Prospectus after the effective date of the Registration Statement, also
means (from and after the effectiveness of the amendment or the filing with the
Securities and Exchange Commission of the supplement) the Prospectus as so
amended or supplemented; and
Section 2. Expenses.
(a) The Company shall bear all expenses of the following:
(l) preparing, printing and filing each Registration Statement and
Prospectus and each qualification required to be filed under federal and state
securities laws in connection with a registration pursuant to Section 1;
(2) furnishing to each Registering Shareholder one executed copy of the
related Registration Statement and the number of copies of the related
Prospectus that may be required by Sections l(g)(2) and l(g)(3) to be so
furnished, together with a like number of copies of each amendment or
supplement;
(3) performing its obligations under Section l(g)(5);
(4) printing and issuing share certificates, including the transfer agent's
fees, in connection with each distribution so registered; and
(5) preparing audited financial statements required by the Securities Act
and the rules and regulations thereunder to be included in the Registration
Statement and preparing audited financial statements for use in connection with
the registration other than audited financial statements required by the
Securities Act and the rules and regulations thereunder;
(6) internal expenses (including without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties;
(7) listing of the Registrable Shares; and
(8) fees and expenses of any special experts retained by the Company in
connection with the registration.
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(b) The Registering Shareholders shall bear all other expenses
incident to the distribution by the respective Registering Shareholders of their
Registrable Shares in connection with a registration pursuant to Section 1,
including without limitation the selling expenses of the Registering
Shareholders, commissions, underwriting discounts, insurance, fees of counsel
for the Registering Shareholders and their underwriters.
Section 3. Indemnification
(a) The Company shall indemnify and hold harmless each Registering
Shareholder participating in a registration pursuant to Section 1, each
underwriter of any of the Registrable Shares owned by the Registering
Shareholder to be distributed pursuant to the registration, each partner in each
Registering Shareholder, the officers and directors of the Registering
Shareholder and the underwriter and each person, if any, who controls the
Registering Shareholder, each partner in each Registering Shareholder or the
underwriter within the meaning of Section 15 (or any successor provision) of the
Securities Act, and their respective successors, against all claims, losses,
damages and liabilities to third parties (or actions in respect thereof) arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in the Registration Statement or the Prospectus or other
document incident thereto or any omission (or alleged omission) to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and shall reimburse each such Registering
Shareholder and each other person indemnified pursuant to this Section 3(a) for
any legal and any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action;
provided that the Company shall not be liable in any case to the extent that any
such claim, loss, damage or liability arises out of or is based on any untrue
statement or omission based upon written information furnished to the Company by
any Registering Shareholder or underwriter for a Registered Shareholder
specifically for use in the Registration Statement or the Prospectus.
(b) Each Registering Shareholder, by participating in a registration
pursuant to Section 1, thereby agrees to indemnify and to hold harmless the
Company and its officers and directors and each person, if any, who controls any
of them within the meaning of Section 15 (or any successor provision) of the
Securities Act, and their respective successors, against all claims, losses,
damages and liabilities to third parties (or actions in respect thereof)
arising out of or based upon any untrue statement (or alleged untrue statement)
of a material fact contained in the Registration Statement or the Prospectus or
other document incident thereto or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and shall reimburse the Company and each
other person indemnified pursuant to this Section 3(b) for any legal and any
other expenses reasonably incurred in connection with investigating or defending
any such claim, loss, damage, liability or action; provided that this Section
3(b) shall apply only if (and only to the extent that) the statement or omission
was made in reliance upon and in conformity with information furnished to the
Company in writing by the Registering Shareholder specifically for use in the
Registration Statement or the Prospectus.
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(c) If any action or proceeding (including any governmental
investigation or inquiry) shall be brought or asserted against any person
indemnified under this Section 3, the indemnified person shall promptly notify
the indemnifying party in writing, and the indemnifying party shall assume the
defense of the action or proceeding, including the employment of counsel
satisfactory to the indemnified person and the payment of all expenses. The
indemnified person shall have the right to employ separate counsel in any action
or proceeding and to participate in the defense of the action or proceeding, but
the fees and expenses of that counsel shall be at the expense of the indemnified
person unless
(1) the indemnifying party shall have agreed to pay those fees and
expenses; or
(2) the indemnifying party shall have failed to assume the defense of the
action or proceeding or shall have failed to employ counsel reasonably
satisfactory to the indemnified person in the action or proceeding; or
(3) the named parties to the action or proceeding (including any impleaded
parties) include both the indemnified person and the indemnifying party, and the
indemnified person shall have been advised by counsel that there may be one or
more legal defenses available to the indemnifed person that are different from
or additional to those available to the indemnifying party (in which case, if
the indemnified person notifies the indemnifying party in writing that it
elects to employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such
action or proceeding on behalf of the indemnified person; it being understood,
however, that the indemnifying party shall not, in connection with any one
action or proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys at any time for the indemnifed person, which firm
shall be designated in writing by the indemnified person).
The indemnifying party shall not be liable for any settlement of any action or
proceeding effected without its written consent, but if settled with its written
consent, or if there be a final judgment for the plaintiff in any such action or
proceedings, the indemnifying party shall indemnify and hold harmless the
indemnified person from and against any loss or liability by reason of the
settlement or judgment.
(d) If the indemnification provided for in this Section 3 is
unavailable to an indemnified person (other than by reason of exceptions
provided in this Section 3, in respect of losses, claims, damages, liabilities
or expenses referred to in this Section 3, then each applicable indemnifying
party, in lieu of indemnifying the indemnified person, shall contribute to the
amount paid or payable by the indemnified person as a result of the losses,
claims, damages, liabilities or expenses in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand and of the
indemnified person on the other in
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connection with the statements or omissions which resulted in the losses,
claims, damages, liabilities or expenses as well as any other relevant equitable
considerations. The relative fault of the indemnifying party on the one hand and
of the indemnified person on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified person and
by these persons' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid
or payable by a person as a result of the losses, claims, damages, liabilities
and expenses shall be deemed to include any legal or other fees or expenses
reasonably incurred by the person in connection with investigating or defending
any action or claim.
(e) Each Registering Shareholder participating in a registration
pursuant to Section l shall cause each underwriter of any of the Registrable
Shares owned by the Registering Shareholder to be distributed pursuant to the
registration to agree in writing on terms reasonably satisfactory to the
Company to indemnify and to hold harmless the Company and its officers and
directors and each person, if any, who controls any of them within the meaning
of Section 15 (or any successors provision) of the Securities Act, and their
respective successors, against all claims, losses, damages and liabilities to
third parties (or actions in respect thereof) arising out of or based upon any
untrue statement (or alleged untrue statement) of a material fact contained in
the Registration Statement or the Prospectus or other document incident thereto
or any omission (or alleged omission) to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and to reimburse the Company and each other person indemnified pursuant to the
agreement for any legal or any other expense reasonably incurred in connection
with investigating or defending any claim, loss, damage, liability or action;
provided that the agreement shall apply only if (and only to the extent that)
the statement or omission was made in reliance upon and in conformity with
information furnished to the Company in writing by the underwriter specifically
for use in the Registration Statement or the Prospectus.
Section 4. Transfer Restrictions.
(a) The Shareholder acknowledges that the Company issued and sold the
Registrable Shares owned by the Shareholder in reliance upon the exemption
afforded by Section 4(2) of the Securities Act for transactions by an issuer not
involving any public offering. The Shareholder represents that (l) it has
acquired the Tranche B Warrants for investment and without any view toward
distribution of any of the shares to any other person, (2) it will not sell or
otherwise dispose of the Registrable Shares except in compliance with the
registration requirements or exemption provisions under the Securities Act and
(3) before any sale or other disposition of any of the Registrable Shares other
than in a sale registered under the Securities Act, or pursuant to Rule 144
under the Securities Act unless the Company shall have been advised by counsel
that the sale does not meet the requirements of Rule 144 for the sale, it will
deliver to the Company an opinion of counsel reasonably satisfactory to the
Company to the effect that such registration is unnecessary.
12
(b) Each certificate for Registrable Shares and any certificate issued
in exchange therefor or on conversion or upon transfer, except certificates
issued in connection with a sale registered under the Securities Act and except
as provided below, shall bear the legends to the following effect:
(1) "The shares represented by this certificate have not been registered
under the Securities Act of 1933 and may not be offered, sold, transferred or
otherwise disposed of except in compliance with said Act."
(2) "The shares represented by this certificate are subject to the
restrictions contained in the Registration Rights Agreement dated as of
, l995, a copy of which is on file at the office of the
Secretary of the Company."
(3) "This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in a Rights Agreement between Forest Oil Corporation
and Mellon Securities Trust Company, dated as of October 14, 1993 (the "Rights
Agreement"), the terms of which are hereby incorporated herein by reference and
a copy of which is on file at the principal executive offices of Forest Oil
Corporation. Under certain circumstances, as set forth in the Rights Agreement,
those Rights will be evidenced by separate certificates and will no longer be
evidenced by this certificate. Forest Oil Corporation will mail to the holder of
this certificate a copy of the Rights Agreement without charge after receipt of
a written request therefor. As described in the Rights Agreement, Rights issued
to or acquired by any Acquiring Person (as defined in the Rights Agreement)
shall, under certain circumstances, become null and void."
(c) The legend stated in Section 4(b)(1) shall be removed by delivery
of one or more substitute certificates without such legend if the holder thereof
shall have delivered to the Company a copy of a letter from the staff of the
Securities and Exchange Commission or an opinion of counsel, in form and
substance reasonably satisfactory to the Company, to the effect that the legend
is not required for purposes of the Securities Act.
(d) The legend stated in Section 4(b)(2) shall be removed at such time
as the related securities are no longer subject to this Agreement.
Section 5. Filings. The Company shall make all filings with the
Securities and Exchange Commission required in order to make available to the
holders of Registrable Shares the exemption from the registration requirements
provided by Rule 144 (or any successor regulation) under the Securities Act.
Section 6. Merger, Consolidation, Exchange, Etc. In the event,
directly or indirectly, (1) the Company shall merge with and into, or
consolidate with, or consummate a share exchange pursuant to Article 9 of the
New York Business Corporation Law (or successor provisions or statutes) with,
any other person, or (2) any person shall merge with and into, or
13
consolidate, the Company and the Company shall be the surviving corporation of
such merger or consolidation and, in connection with such merger or
consolidation, all or part of the Registrable Shares shall be changed into or
exchanged for stock or other securities of any other person, then, in each such
case, proper provision shall be made so that such other person shall be bound by
the provisions of this Agreement and the term "Company" shall thereafter be
deemed to refer to such other person.
Section 7. Other Agreements.
(a) The Company shall cause the Other Registration Rights Agreement at
all times to contain provisions consistent with clause (2) of the last sentence
of Section 1(a) and with clauses (2) and (3) of the last sentence of Section
1(b) (collectively, the "Priority Clauses").
(b) The Company, on behalf of itself and its Affiliates (other than a
Registering Shareholder), agrees (1) not to effect any public sale or
distribution of any securities similar to the Registrable Shares being
registered pursuant to this Agreement or any securities convertible into or
exchangeable or exercisable for such Registrable Shares during the 14 days prior
to, and during the 9O-day period beginning on, the effective date of the
Registration Statement (except (x) on Form S-4 or Form S-8 (or comparable form)
or (y) as part of the Registration Statement; provided, that with respect to
clause (y) in the case of a registration pursuant to Section l(a) the
Registering Shareholder initiating the registration consents to such inclusion),
or the commencement of a public distribution of Registrable Shares; (2) not to
enter into any agreement inconsistent with any of the Priority Clauses or any
other provision of this Agreement; (3) that any agreement entered into after the
date of this Agreement pursuant to which the Company issues or agrees to issue
any privately placed securities shall contain a provision under which holders of
such securities agree not to effect any public sale or distribution of any of
the securities during the periods described in clause (1) of this Section 7(b),
in each case including a sale in a Rule 144 Transaction (except as part of any
such registration, if permitted); provided, the provisions of this Section 7(b)
shall not prevent the conversion or exchange of any securities pursuant to their
terms into or for other securities or the issuance of Common Stock in lieu of
cash dividends otherwise payable in respect of the Convertible Preferred Stock.
(c) If and to the extent requested by the Company in the case of a
non-underwritten public offering and if and to the extent requested by the
managing underwriter in the case of an underwritten public offering, the
Registering Shareholder agrees not to effect any public sale or distribution of
any securities similar to the securities being registered or any securities
convertible into or exchangeable or exercisable for such securities during the
14 days prior to, and during the 9O-day period beginning on, the effective date
of such registration statement (except as part of such registration agreement).
Section 8. Notices. All notices, requests and other communications to
any party under this Agreement shall be in writing. Communications may be made
by telecopy or similar
14
writing. Each communication shall be given to the party at its address stated on
the signature pages of this Agreement or at any other address as the party may
specify for this purpose by notice to the other party. Each communication shall
be effective (l) if given by telecopy, when the telecopy is transmitted to the
proper address and the receipt of the transmission is confirmed, (2) if given by
mail, 72 hours after the communication is deposited in the mails properly
addressed with first class postage prepaid or (3) if given by any other means,
when delivered to the proper address and a written acknowledgement of delivery
is received.
Section 9. No Waivers; Remedies. No failure or delay by any party in
exercising any right, power or privilege under this Agreement shall operate as a
waiver of the right, power or privilege. A single or partial exercise of any
right, power or privilege shall not preclude any other or further exercise of
the right, power or privilege or the exercise of any other right, power or
privilege. The rights and remedies provided in this agreement shall be
cumulative and not exclusive of any rights or remedies provided by law.
Section lO. Amendments, Etc.
(a) No amendment, modification, termination or waiver of any provision
of this Agreement, and no consent to any departure by a party to this Agreement
from any provision of this Agreement, shall be effective unless it shall be in
writing and signed and delivered by the other party to this Agreement, and then
it shall be effective only in the specific instance and for the specific purpose
for which it is given.
(b) If and so long as any Other Registrable Shares remain subject to
the Other Registration Rights Agreement, (1) the Company shall not agree to any
amendment or modification of this Agreement without the prior written consent of
the Other Shareholder and (2) the Company shall not agree to any amendment or
modification of the Other Registration Rights Agreement without the prior
written consent of the Shareholder.
Section 11. Successors and Assigns.
(a) The Shareholder may assign to any transferee of Tranche B Warrants
or Registrable Shares its rights and delegate its obligations under this
Agreement; provided that such transferee assignee shall accept those rights and
assume those obligations for the benefit of the Company in writing in form
reasonably satisfactory to the Company. Thereafter, without any further action
by any person, all references in this Agreement to the "Shareholder", and all
comparable references, shall be deemed to be references to the transferee, and
the Shareholder shall be released from any obligation or liability under this
Agreement with respect to the Tranche B Warrants or Registrable Shares so
transferred.
(b) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties to this Agreement and their respective successors
and permitted assigns pursuant to Section 1l(a). The provisions of Section
lO(b) shall inure to the benefit of the Other Shareholder.
15
Section 12. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York. All
rights and obligations of the Company and the Shareholder shall be in addition
to and not in limitation of those provided by applicable law.
Section 13. Counterparts; Effectiveness. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the
same effect as if all signatures were on the same instrument.
Section 14. Severability of Provisions. Any provision of this
Agreement that is prohibited or unenforceable in any jurisdiction shall, as to
that jurisdiction, be ineffective to the extent of the prohibition or
unenforceability without invalidating the remaining provisions of this Agreement
or affecting the validity or enforceability of the provision in any other
jurisdiction.
Section l5. Headings and References. Section headings in this
Agreement are included for the convenience of reference only and do not
constitute a part of this Agreement for any other purpose. References to parties
and sections in this Agreement are references to the parties to or the sections
of this Agreement, as the case may be, unless the context shall require
otherwise.
Section 16. Entire Agreement. Except as otherwise specifically
provided in the following sentence, the Transaction Documents embody the entire
agreement and understanding of the respective parties and supersede all prior
agreements or understandings with respect to the subject matters of those
documents.
Section 17. Survival. Except as otherwise specifically provided in
this Agreement, each representation, warranty or covenant of each party to this
Agreement contained in or made pursuant to this Agreement shall survive each
Closing and remain in full force and effect, notwithstanding any investigation
or notice to the contrary or any waiver by any other party of a related
condition precedent to the performance by the other party of an obligation under
this Agreement.
Section 18. Non-Exclusive Jurisdiction. Each party (1) agrees that any
legal action with respect to this Agreement may be brought in the courts of the
State of New York or of the United States of America for the Southern District
of New York, (2) accepts for itself and in respect of its property, generally
and unconditionally, the jurisdiction of those courts and (3) irrevocably waives
any objection, including, without limitation, any objection to the laying of
venue or based on the grounds of forum non conveniens, which it may now or
hereafter have to the bringing of any legal action in those jurisdictions.
Section 19. Waiver of Jury Trial. Each party waives any right to a
trial by jury in any Action to enforce or defend any right under this Agreement
or any amendment, instrument, document or agreement delivered, or which in the
future may be delivered, in
16
connection with this Agreement and agrees that any Action shall be tried before
a court and not before a jury.
Section 2O. Affiliate. Nothing contained in this Agreement shall constitute
the Shareholder an "affiliate" of any of the Company and its Subsidiaries within
the meaning of Rule 13e-3 under the Exchange Act.
17
IN WITNESS WHEREOF, the parties have executed and delivered this
Registration Rights Agreement as of the date first written above in New York,
New York.
FOREST OIL CORPORATION
By: /s/ Xxxxxx X.Xxxxxxx
---------------------------
Xxxxxx X. Xxxxxxx
President
Address: l500 Colorado National Building
000 - 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
JOINT ENERGY DEVELOPMENT INVESTMENTS
LIMITED PARTNERSHIP
By: Enron Capital Corp., its
General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Attorney-in-fact
Address: Joint Energy Development
Investments Limited Partnership
Attention: Xxxxx Xxxxx
Telecopy: (000) 000-0000
With a Copy to:
Enron Capital & Trade Resources Corp.
0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxxx Xxxxxx
Telecopier: (000) 000-0000
18
