EXHIBIT 4.03
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT dated February 27, 2003 (the
"Agreement") is entered into by and among Equitable Resources, Inc., a
Pennsylvania corporation (the "Company"), Xxxxxxx, Xxxxx & Co., Xxxxxx Brothers
Inc. and Xxxxxxx Xxxxx Xxxxxx Inc. (together, the "Representatives") and the
other Initial Purchasers named on Schedule 1 to the Purchase Agreement (together
with the Representatives, the "Initial Purchasers").
The Company and the Initial Purchasers are parties to the Purchase
Agreement dated February 20, 2003 (the "Purchase Agreement"), which provides for
the sale by the Company to the Initial Purchasers of $200,000,000 aggregate
principal amount of the Company's 5.15% Notes due 2018 (the "Securities"). As an
inducement to the Initial Purchasers to enter into the Purchase Agreement, the
Company has agreed to provide to the Initial Purchasers and their direct and
indirect transferees the registration rights set forth in this Agreement. The
execution and delivery of this Agreement is a condition to the closing under the
Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall
have the following meanings:
"Business Day" shall mean any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed.
"Closing Date" shall mean the Closing Date as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Exchange Dates" shall have the meaning set forth in Section 2(a)(ii)
hereof.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Securities for Transfer Restricted Securities pursuant to Section 2(a)
hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
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"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form) and all amendments and supplements to such registration statement, in each
case including the Prospectus contained therein, all exhibits thereto and any
document incorporated by reference therein.
"Exchange Securities" shall mean senior notes issued by the Company
under the Indenture containing terms identical to the Securities (except that
the Exchange Securities will not be subject to restrictions on transfer or to
any increase in annual interest rate for failure to comply with this Agreement)
and to be offered to Holders of Securities in exchange for Securities pursuant
to the Exchange Offer.
"Holders" shall mean the Initial Purchasers, for so long as they own
any Transfer Restricted Securities, and each of their successors, assigns and
direct and indirect transferees who become owners of Transfer Restricted
Securities under the Indenture; provided that for purposes of Sections 4 and 5
of this Agreement, the term "Holders" shall include Participating
Broker-Dealers.
"Initial Purchasers" shall have the meaning set forth in the preamble.
"Indenture" shall mean the Indenture relating to the Securities dated
as of July 1, 1996 between the Company and Bank of Montreal Trust Company, as
trustee.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Transfer Restricted Securities;
provided that whenever the consent or approval of Holders of a specified
percentage of Transfer Restricted Securities is required hereunder, Transfer
Restricted Securities owned directly or indirectly by the Company or any of its
affiliates shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage or amount.
"Participating Broker-Dealers" shall have the meaning set forth in
Section 4(a) hereof.
"Person" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Transfer Restricted Securities covered by a Shelf Registration Statement, and by
all other amendments and supplements to such prospectus, and in each case
including any document incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
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"Registration Default" shall have the meaning set forth in Section
2(d).
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of counsel for any
Underwriters or Holders in connection with blue sky qualification of any
Exchange Securities or Transfer Restricted Securities), (iii) all expenses of
any Persons in preparing or assisting in preparing, word processing, printing
and distributing any Registration Statement, any Prospectus and any amendments
or supplements thereto, any underwriting agreements, securities sales agreements
or other similar agreements and any other documents relating to the performance
of and compliance with this Agreement, (iv) all rating agency fees, (v) all fees
and disbursements relating to the qualification of the Indenture under
applicable securities laws, (vi) the fees and disbursements of the Trustee and
its counsel, (vii) the fees and disbursements of counsel for the Company and, in
the case of a Shelf Registration Statement, the fees and disbursements of one
counsel for the Holders (which counsel shall be selected by the Majority Holders
and which counsel may also be counsel for the Initial Purchasers) and (viii) the
fees and disbursements of the independent public accountants of the Company,
including the expenses of any special audits or "comfort" letters required by or
incident to the performance of and compliance with this Agreement, but excluding
fees and expenses of counsel to the Underwriters (other than fees and expenses
set forth in clause (ii) above) or the Holders and underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
Transfer Restricted Securities by a Holder.
"Registration Statement" shall mean any registration statement of the
Company that covers any of the Exchange Securities or Transfer Restricted
Securities pursuant to the provisions of this Agreement and all amendments and
supplements to any such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and any document incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Shelf Effectiveness Period" shall have the meaning set forth in
Section 2(b) hereof.
"Shelf Filing Date" shall have the meaning set forth in Section 2(b).
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company that covers all the Transfer Restricted Securities (but
no other securities unless
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approved by the Company and the Holders whose Transfer Restricted Securities are
to be covered by such Shelf Registration Statement) on an appropriate form under
Rule 415 under the Securities Act, or any similar rule that may be adopted by
the SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and any document incorporated by
reference therein.
"Transfer Restricted Securities" shall mean the Securities; provided
that the Securities shall cease to be Transfer Restricted Securities (i) when a
Registration Statement with respect to such Securities has been declared
effective under the Securities Act and such Securities have been exchanged or
disposed of pursuant to such Registration Statement, (ii) when such Securities
are distributed to the public pursuant to Rule 144 under the Securities Act or
are eligible to be sold pursuant to Rule 144(k) (or any similar provision then
in force, but not Rule 144A) under the Securities Act or (iii) when such
Securities cease to be outstanding.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended from time to time.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
"Underwriter" shall have the meaning set forth in Section 3 hereof.
"Underwritten Offering" shall mean an offering in which Transfer
Restricted Securities are sold to an Underwriter for reoffering to the public.
2. REGISTRATION UNDER THE SECURITIES ACT. (a) To the extent not
prohibited by any applicable law or applicable interpretations of the Staff of
the SEC, the Company shall (i)(A) cause to be filed an Exchange Offer
Registration Statement covering an offer to the Holders to exchange all the
Transfer Restricted Securities for Exchange Securities not later than 90 days
after the Closing Date, (B) use its reasonable best efforts to cause the
Exchange Offer Registration Statement to be declared effective by the SEC not
later than 180 days after the Closing Date and (C) use its reasonable best
efforts to consummate the Exchange Offer not later than 210 days after the
Closing Date and (ii) use its reasonable best efforts to have such Registration
Statement remain effective until 180 days after the closing of the Exchange
Offer.
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The Company shall commence the Exchange Offer by mailing the related
Prospectus, appropriate letters of transmittal and other accompanying documents
to each Holder stating, in addition to such other disclosures as are required by
applicable law:
(i) that the Exchange Offer is being made pursuant to this Agreement and
that all Transfer Restricted Securities validly tendered and not
properly withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at
least 30 Business Days from the date such notice is mailed) (the
"Exchange Dates");
(iii) that any Registrable Security not tendered will remain outstanding and
continue to accrue interest but will not retain any rights under this
Agreement;
(iv) that any Holder electing to have a Registrable Security exchanged
pursuant to the Exchange Offer will be required to surrender such
Registrable Security, together with the appropriate letters of
transmittal, to the institution and at the address (located in the
Borough of Manhattan, The City of New York) and in the manner specified
in the notice, prior to the close of business on the last Exchange
Date; and
(v) that any Holder will be entitled to withdraw its election, not later
than the close of business on the last Exchange Date, by sending to the
institution and at the address (located in the Borough of Manhattan,
The City of New York) specified in the notice, a telegram, telex,
facsimile transmission or letter setting forth the name of such Holder,
the principal amount of Transfer Restricted Securities delivered for
exchange and a statement that such Holder is withdrawing its election
to have such Securities exchanged.
As a condition to participating in the Exchange Offer, a Holder will be
required to represent to the Company in writing that (i) any Exchange Securities
to be received by it will be acquired in the ordinary course of its business,
(ii) at the time of the commencement of the Exchange Offer it has no arrangement
or understanding with any Person to participate in the distribution (within the
meaning of the Securities Act) of the Exchange Securities in violation of the
provisions of the Securities Act, (iii) it is not an "affiliate" (within the
meaning of Rule 405 under Securities Act) of the Company and (iv) if such Holder
is a broker-dealer that will receive Exchange Securities for its own account in
exchange for Transfer Restricted Securities that were acquired as a result of
market-making or other trading activities, then such Holder will deliver a
Prospectus in connection with any resale of such Exchange Securities.
As soon as practicable after the last Exchange Date, the Company shall:
(i) accept for exchange Transfer Restricted Securities or portions thereof
validly tendered and not properly withdrawn pursuant to the Exchange
Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all
Transfer Restricted Securities or portions thereof so accepted for
exchange by the
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Company and issue, and cause the Trustee to promptly authenticate and
deliver to each Holder, Exchange Securities equal in principal amount
to the principal amount of the Transfer Restricted Securities
surrendered by such Holder.
The Company shall use its reasonable best efforts to complete the
Exchange Offer as provided above and shall comply with the applicable
requirements of the Securities Act, the Exchange Act and other applicable laws
and regulations in connection with the Exchange Offer. The Exchange Offer shall
not be subject to any conditions, other than that the Exchange Offer does not
violate any applicable law or applicable interpretations of the Staff of the
SEC.
(b) If (i) because of any change in law or applicable interpretations
thereof by the SEC's staff, the Company is not permitted to effect the Exchange
Offer as contemplated by Section 2(a) hereof, or (ii) for any other reason the
Exchange Offer is not consummated within 210 days after the Closing Date, or
(iii) any Initial Purchaser so requests with respect to Securities not eligible
to be exchanged for Exchange Securities in the Exchange Offer and held by it
following the consummation of the Exchange Offer, or (iv) any applicable law or
interpretations do not permit any Holder to participate in the Exchange Offer
and such Holder so requests, or (v) any Holder that participates in the Exchange
Offer does not receive freely transferable Exchange Securities in exchange for
tendered Securities and such Holder so requests, the Company shall use its
reasonable best efforts to file as promptly as practicable (but in no event more
than 90 days after so required or requested) with the SEC (the "Shelf Filing
Date"), and thereafter shall use its reasonable best efforts to cause to be
declared effective, a Shelf Registration Statement on an appropriate form under
the Securities Act relating to the offer and sale of the Transfer Restricted
Securities by the Holders thereof from time to time in accordance with the
methods of distribution set forth in such Shelf Registration Statement. Holders
requesting the filing of a Shelf Registration Statement pursuant to clauses
(iii)-(v) of the preceding sentence must notify the Company of their request
within 20 days of the consummation of the Exchange Offer.
In the event that the Company is required to file a Shelf Registration
Statement pursuant to clause (iii) of the preceding paragraph, the Company
shall use its reasonable best efforts to file and have declared effective by the
SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with
respect to all Transfer Restricted Securities and a Shelf Registration Statement
(which may be a combined Registration Statement with the Exchange Offer
Registration Statement) with respect to offers and sales of Transfer Restricted
Securities held by the Initial Purchasers after completion of the Exchange
Offer. The Company shall not be required to file more than one Shelf
Registration Statement pursuant to requests of Holders pursuant to Section
2(b)(iii)-(v) hereof.
The Company agrees to use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective until the expiration of the period
referred to in Rule 144(k) under the Securities Act with respect to the Transfer
Restricted Securities or such shorter period that will terminate when all the
Transfer Restricted Securities covered by the Shelf Registration Statement have
been sold pursuant to the Shelf
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Registration Statement (the "Shelf Effectiveness Period"). The Company further
agrees to supplement or amend the Shelf Registration Statement and the related
Prospectus if 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 by any other rules and regulations thereunder for
shelf registration or if reasonably requested by a Holder of Transfer Restricted
Securities with respect to information relating to such Holder, and to use its
reasonable best efforts to cause any such amendment to become effective and such
Shelf Registration Statement and Prospectus to become usable as soon as
thereafter practicable. The Company agrees to furnish to the Holders of Transfer
Restricted Securities copies of any such supplement or amendment promptly after
its being used or filed with the SEC.
Each Holder as to which a Shelf Registration Statement is being
effected agrees to (i) furnish to the Company in writing, within 15 days after
the receipt of a request therefor, such information as the Company may
reasonably request for use in connection with the Shelf Registration Statement
and (ii) update any such information to make any such information previously
furnished to the Company by such Holder not misleading.
(c) The Company shall pay all Registration Expenses in connection
with the registration pursuant to Section 2(a) and Section 2(b) hereof. Each
Holder shall pay all underwriting discounts and commissions and transfer taxes,
if any, relating to the sale or disposition of such Holder's Transfer Restricted
Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will
not be deemed to have become effective unless it has been declared effective by
the SEC.
In the event that (i) the Exchange Offer Registration Statement is not
filed with the SEC on or prior to 90 days after the Closing Date or the Shelf
Registration Statement is not filed with the SEC on or before the Shelf Filing
Date, (ii) the Exchange Offer Registration Statement is not declared effective
within 180 days after the Closing Date or the Shelf Registration Statement is
not declared effective within 90 days after the Shelf Filing Date, (iii) the
Exchange Offer is not consummated on or prior to 210 days after the Closing
Date, or (iv) the Shelf Registration Statement is filed and declared effective
by the date required but shall thereafter cease to be effective (at any time
that the Company is obligated to maintain the effectiveness thereof) or the
Prospectus contained therein ceases to be usable and such failure to remain
effective or be usable exists for more than 30 days (whether or not successive)
within any 12-month period (each such event referred to in clauses (i) through
(iv), a "Registration Default"), the Company will be obligated to pay additional
cash interest to each Holder of Transfer Restricted Securities, during the
period of one or more such Registration Defaults, in an amount equal to 0.25%
per annum of the principal amount of Transfer Restricted Securities held by such
Holder during the first 90-day period following such registration default,
increasing by an additional 0.25% per annum during each subsequent 90-day period
up to a maximum of 0.50% per annum, until (i) the applicable Registration
Statement is filed, (ii) the Exchange Offer Registration Statement or the Shelf
Registration Statement, as the
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case may be, is declared effective, (iii) the Registered Exchange Offer is
consummated, or (iv) the Shelf Registration Statement again becomes effective,
as the case may be. Following the cure of all Registration Defaults, the accrual
of additional interest will cease. The Company shall notify the Trustee
immediately upon the happening of each and every Registration Default. The
Company shall pay the additional interest due on the Transfer Restricted
Securities by depositing with the Trustee, in trust, for the benefit of the
Holders thereof, prior to 10:00 a.m., New York City time, on the next interest
payment date specified by the Indenture and the Securities, sums sufficient to
pay the additional interest then due. The additional interest due shall be
payable on each interest payment date specified by the Indenture and the
Securities to the record holder entitled to receive the interest payment to be
made on such date. Each obligation to pay additional interest shall be deemed to
accrue from and including the date of the applicable Registration Default.
(e) Without limiting the remedies available to the Initial Purchasers
and the Holders, the Company acknowledges that any failure by the Company to
comply with its obligations under Section 2(a) and Section 2(b) hereof may
result in material irreparable injury to the Initial Purchasers or the Holders
for which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, the Initial Purchasers or any Holder may obtain such relief as may be
required to specifically enforce the Company's obligations under Section 2(a)
and Section 2(b) hereof.
3. REGISTRATION PROCEDURES. In connection with its obligations
pursuant to Section 2(a) and Section 2(b) hereof, the Company shall as
expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the Securities Act, which form (x) shall be selected by
the Company, (y) shall, in the case of a Shelf Registration, be available for
the sale of the Transfer Restricted Securities by the selling Holders thereof
and (z) shall comply as to form in all material respects with the requirements
of the applicable form and include all financial statements required by the SEC
to be filed therewith; and use its reasonable best efforts to cause such
Registration Statement to become effective and remain effective for the
applicable period in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period in accordance with
Section 2 hereof and cause each Prospectus to be supplemented by any required
prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424
under the Securities Act; and keep each Prospectus current during the period
described in Section 4(3) of and Rule 174 under the Securities Act that is
applicable to transactions by brokers or dealers with respect to the Transfer
Restricted Securities or Exchange Securities;
(c) in the case of a Shelf Registration, furnish to each Holder of
Transfer Restricted Securities, to counsel for the Initial Purchasers, to
counsel for such Holders and to each Underwriter of an Underwritten Offering of
Transfer Restricted Securities, if
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any, without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto, in order to
facilitate the sale or other disposition of the Transfer Restricted Securities
thereunder; and the Company consents to the use of such Prospectus and any
amendment or supplement thereto in accordance with applicable law by each of the
selling Holders of Transfer Restricted Securities and any such Underwriters in
connection with the offering and sale of the Transfer Restricted Securities
covered by and in the manner described in such Prospectus or any amendment or
supplement thereto in accordance with applicable law;
(d) use its reasonable best efforts to register or qualify the
Transfer Restricted Securities under all applicable state securities or blue sky
laws of such jurisdictions as any Holder of Transfer Restricted Securities
covered by a Registration Statement shall reasonably request in writing by the
time the applicable Registration Statement is declared effective by the SEC;
cooperate with the Holders in connection with any filings required to be made
with the National Association of Securities Dealers, Inc.; and do any and all
other acts and things that may be reasonably necessary or advisable to enable
each Holder to complete the disposition in each such jurisdiction of the
Transfer Restricted Securities owned by such Holder; PROVIDED that the Company
shall not be required to (i) qualify as a foreign corporation or other entity or
as a dealer in securities in any such jurisdiction where it would not otherwise
be required to so qualify, (ii) file any general consent to service of process
in any such jurisdiction or (iii) subject itself to taxation in any such
jurisdiction if it is not so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Transfer Restricted Securities, counsel for such Holders and counsel for the
Initial Purchasers promptly and, if requested by any such Holder or counsel,
confirm such advice in writing (i) when a Registration Statement has become
effective and when any post-effective amendment thereto has been filed and
becomes effective, (ii) of any request by the SEC or any state securities
authority for amendments and supplements to a Registration Statement and
Prospectus or for additional information after the Registration Statement has
become effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (iv) if,
between the effective date of a Registration Statement and the closing of any
sale of Transfer Restricted Securities covered thereby, the representations and
warranties of the Company contained in any underwriting agreement, securities
sales agreement or other similar agreement, if any, relating to an offering of
such Transfer Restricted Securities cease to be true and correct in all material
respects or if the Company receives any notification with respect to the
suspension of the qualification of the Transfer Restricted Securities for sale
in any jurisdiction or the initiation of any proceeding for such purpose, (v) of
the happening of any event (it being understood that only the existence of the
fact or event must be disclosed and that the nature of the fact or event may be
kept confidential for bona fide business reasons) during the period a Shelf
Registration Statement is effective that makes any statement made in such
Registration Statement or the related Prospectus untrue in any material respect
or that requires the making of any changes in such Registration Statement or
Prospectus in order to make the statements therein not misleading and (vi) of
any determination by the
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Company that a post-effective amendment to a Registration Statement would be
appropriate;
(f) use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the earliest
possible moment and provide immediate notice to each Holder of the withdrawal of
any such order;
(g) in the case of a Shelf Registration, furnish to each Holder of
Transfer Restricted Securities, without charge, at least one conformed copy of
each Registration Statement and any post-effective amendment thereto (without
any documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Transfer Restricted Securities to facilitate the timely preparation
and delivery of certificates representing Transfer Restricted Securities to be
sold and not bearing any restrictive legends and enable such Transfer Restricted
Securities to be issued in such denominations and registered in such names
(consistent with the provisions of the Indenture) as the selling Holders may
reasonably request at least one Business Day prior to the closing of any sale of
Transfer Restricted Securities;
(i) in the case of a Shelf Registration, upon the occurrence of any
event contemplated by Section 3(e)(v) hereof, use its reasonable best efforts to
prepare and file with the SEC a supplement or post-effective amendment to a
Registration Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to purchasers of the Transfer Restricted Securities, such Prospectus
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and the Company shall
notify the Holders of Transfer Restricted Securities to suspend use of the
Prospectus as promptly as practicable after the occurrence of such an event, and
such Holders hereby agree to suspend use of the Prospectus until the Company has
amended or supplemented the Prospectus to correct such misstatement or omission;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus (other than any document that is to be
incorporated by reference into a Registration Statement or a Prospectus after
initial filing of a Registration Statement), provide copies of such document to
the Initial Purchasers and their counsel (and, in the case of a Shelf
Registration Statement, to the Holders of Transfer Restricted Securities and
their counsel) and make such of the representatives of the Company as shall be
reasonably requested by the Initial Purchasers or their counsel (and, in the
case of a Shelf Registration Statement, the Holders of Transfer Restricted
Securities or their counsel) available for discussion of such document; and the
Company shall not, at any time after initial filing of a Registration Statement,
file any Prospectus, any amendment of or supplement to a Registration Statement
or a Prospectus, (other than reports filed by the Company pursuant to the
Exchange Act that are incorporated by reference into a Registration Statement or
a Prospectus after initial filing of a Registration Statement), of
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which the Initial Purchasers and their counsel (and, in the case of a Shelf
Registration Statement, the Holders of Transfer Restricted Securities and their
counsel) shall not have previously been advised and furnished a copy or to which
the Initial Purchasers or their counsel (and, in the case of a Shelf
Registration Statement, the Holders or their counsel) shall reasonably object;
(k) obtain a CUSIP number for all Exchange Securities or Transfer
Restricted Securities, as the case may be, not later than the effective date of
a Registration Statement;
(l) cause the Indenture to be qualified under the Trust Indenture Act
in connection with the registration of the Exchange Securities or Transfer
Restricted Securities, as the case may be; cooperate with the Trustee and the
Holders to effect such changes to the Indenture as may be required for the
Indenture to be so qualified in accordance with the terms of the Trust Indenture
Act; and execute, and use its reasonable best efforts to cause the Trustee to
execute, all documents as may be required to effect such changes and all other
forms and documents required to be filed with the SEC to enable the Indenture to
be so qualified in a timely manner;
(m) in the case of a Shelf Registration, make available for
inspection by a representative of the Holders of the Transfer Restricted
Securities (an "Inspector"), any Underwriter participating in any disposition
pursuant to such Shelf Registration Statement, and attorneys and accountants
designated by the Holders, at reasonable times and in a reasonable manner, all
pertinent financial and other records, documents and properties of the Company,
and cause the respective officers, directors and employees of the Company to
supply all information reasonably requested by any such Inspector, Underwriter,
attorney or accountant in connection with a Shelf Registration Statement;
PROVIDED that if any such information is identified by the Company as being
confidential or proprietary, each Person receiving such information shall take
such actions as are reasonably necessary to protect the confidentiality of such
information to the extent such action is otherwise not inconsistent with, an
impairment of or in derogation of the rights and interests of any Inspector,
Holder or Underwriter;
(n) in the case of a Shelf Registration, use its reasonable best
efforts to cause all Transfer Restricted Securities to be listed on any
securities exchange or any automated quotation system on which similar
securities issued by the Company are then listed if requested by the Majority
Holders, to the extent such Transfer Restricted Securities satisfy applicable
listing requirements;
(o) if reasonably requested by any Holder of Transfer Restricted
Securities covered by a Registration Statement, promptly incorporate in a
Prospectus supplement or post-effective amendment such information with respect
to such Holder as such Holder reasonably requests to be included therein and
make all required filings of such Prospectus supplement or such post-effective
amendment as soon as the Company has received notification of the matters to be
incorporated in such filing; and
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(p) in the case of a Shelf Registration, enter into such customary
agreements and take all such other actions in connection therewith (including
those requested by the Holders of a majority in principal amount of the Transfer
Restricted Securities being sold) in order to expedite or facilitate the
disposition of such Transfer Restricted Securities including, but not limited
to, an Underwritten Offering and in such connection, (i) to the extent possible,
make such representations and warranties to the Holders and any Underwriters of
such Transfer Restricted Securities with respect to the business of the Company
and its subsidiaries, the Registration Statement, Prospectus and documents
incorporated by reference or deemed incorporated by reference, if any, in each
case, in form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings and confirm the same if and when
requested, (ii) obtain opinions of counsel to the Company (which counsel and
opinions, in form, scope and substance, shall be reasonably satisfactory to the
Holders and such Underwriters and their respective counsel) addressed to each
selling Holder and Underwriter of Transfer Restricted Securities, covering the
matters customarily covered in opinions requested in underwritten offerings,
(iii) obtain "comfort" letters from the independent certified public accountants
of the Company (and, if necessary, any other certified public accountant of any
subsidiary of the Company, or of any business acquired by the Company for which
financial statements and financial data are or are required to be included in
the Registration Statement) addressed to each selling Holder and Underwriter of
Transfer Restricted Securities, such letters to be in customary form and
covering matters of the type customarily covered in "comfort" letters in
connection with underwritten offerings and (iv) deliver such documents and
certificates as may be reasonably requested by the Holders of a majority in
principal amount of the Transfer Restricted Securities being sold or the
Underwriters, and which are customarily delivered in underwritten offerings, to
evidence the continued validity of the representations and warranties of the
Company made pursuant to clause (i) above and to evidence compliance with any
customary conditions contained in an underwriting agreement.
In the case of a Shelf Registration Statement, the Company may require
each Holder of Transfer Restricted Securities to furnish to the Company such
information regarding such Holder and the proposed disposition by such Holder of
such Transfer Restricted Securities as the Company may from time to time
reasonably request in writing and the Company may exclude from such Shelf
Registration Statement the Transfer Restricted Securities of any Holder who
unreasonably fails to furnish such information within a reasonable time after
receiving such a request.
In the case of a Shelf Registration Statement, each Holder of Transfer
Restricted Securities agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 3(e)(iii) or
3(e)(v) hereof, such Holder will forthwith discontinue disposition of Transfer
Restricted Securities pursuant to a Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(i) hereof and, if so directed by the Company, such Holder will deliver
to the Company all copies in its possession, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such Transfer
Restricted Securities that is current at the time of receipt of such notice.
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If the Company shall give any such notice to suspend the disposition of
Transfer Restricted Securities pursuant to a Registration Statement, the Company
shall extend the period during which the Registration Statement shall be
maintained effective pursuant to this Agreement by the number of days during the
period from and including the date of the giving of such notice to and including
the date when the Holders shall have received copies of the supplemented or
amended Prospectus necessary to resume such dispositions. The Company may give
any such notice only twice during any 365-day period and any such suspensions
shall not exceed 90 days for each suspension and there shall not be more than
two suspensions in effect during any 365-day period.
The Holders of Transfer Restricted Securities covered by a Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers (the
"Underwriters") that will administer the offering will be selected by the
Majority Holders of the Transfer Restricted Securities included in such
offering, provided that such investment bankers and managers must be reasonably
satisfactory to the Company.
4. PARTICIPATION OF BROKER-DEALERS IN EXCHANGE OFFER. (a) The Staff
of the SEC has taken the position that any broker-dealer that receives Exchange
Securities for its own account in the Exchange Offer in exchange for Securities
that were acquired by such broker-dealer as a result of market-making or other
trading activities (a "Participating Broker-Dealer") may be deemed to be an
"underwriter" within the meaning of the Securities Act and must deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Securities.
The Company understands that it is the Staff's position that if the
Prospectus contained in the Exchange Offer Registration Statement includes a
plan of distribution containing a statement to the above effect and the means by
which Participating Broker-Dealers may resell the Exchange Securities, without
naming the Participating Broker-Dealers or specifying the amount of Exchange
Securities owned by them, such Prospectus may be delivered by Participating
Broker-Dealers to satisfy their prospectus delivery obligation under the
Securities Act in connection with resales of Exchange Securities for their own
accounts, so long as the Prospectus otherwise meets the requirements of the
Securities Act.
(b) In light of the above, and notwithstanding the other provisions
of this Agreement, the Company agrees to amend or supplement the Prospectus
contained in the Exchange Offer Registration Statement, as would otherwise be
contemplated by Section 3(i), for a period of up to 180 days after the last
Exchange Date (as such period may be extended pursuant to the penultimate
paragraph of Section 3 of this Agreement), if requested by the Initial
Purchasers or by one or more Participating Broker-Dealers, in order to expedite
or facilitate the disposition of any Exchange Securities by Participating
Broker-Dealers consistent with the positions of the Staff recited in Section
4(a) above. The Company further agrees that Participating Broker-Dealers shall
be authorized to deliver such Prospectus during such period in connection with
the resales contemplated by this Section 4.
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(c) The Initial Purchasers shall have no liability to the Company or
any Holder with respect to any request that they may make pursuant to Section
4(b) above.
5. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Initial Purchaser and each Holder, their
respective affiliates, directors and officers and each Person, if any, who
controls any Initial Purchaser or any Holder within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, from and against any and
all losses, claims, damages and liabilities (including, without limitation,
legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted, as such fees and expenses are incurred), joint
or several, that arise out of, or are based upon, any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement or any Prospectus or any omission or alleged omission to state therein
a material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except insofar as such losses, claims, damages or
liabilities arise out of, or are based upon, any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with any information relating to any Initial Purchaser or any Holder furnished
to the Company in writing through the Representatives or any selling Holder
expressly for use therein. In connection with any Underwritten Offering
permitted by Section 3, the Company will also indemnify the Underwriters, if
any, selling brokers, dealers and similar securities industry professionals
participating in the distribution, their respective affiliates and each Person
who controls such Persons (within the meaning of the Securities Act and the
Exchange Act) to the same extent as provided above with respect to the
indemnification of the Holders, if requested in connection with any Registration
Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company, the Initial Purchasers and the other selling Holders,
their respective affiliates, the directors of the Company, each officer of the
Company who signed the Registration Statement and each Person, if any, who
controls the Company, any Initial Purchaser and any other selling Holder within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the indemnity set forth in paragraph (a) above, but
only with respect to any losses, claims, damages or liabilities that arise out
of, or are based upon, any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with any
information relating to such Holder furnished to the Company in writing by such
Holder expressly for use in any Registration Statement and any Prospectus.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnification may be sought pursuant to either
paragraph (a) or (b) above, such Person (the "Indemnified Person") shall
promptly notify the Person against whom such indemnification may be sought (the
"Indemnifying Person") in writing; provided that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have
under this Section 5 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and
15
provided, further, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person
otherwise than under this Section 5. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the Indemnified
Person and any others entitled to indemnification pursuant to this Section 5
that the Indemnifying Person may designate in such proceeding and shall pay the
fees and expenses of such counsel related to such proceeding, as incurred. In
any such proceeding, any Indemnified Person shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person
shall have reasonably concluded that there may be legal defenses available to it
that are different from or in addition to those available to the Indemnifying
Person; or (iv) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood and agreed that the Indemnifying Person shall not, in connection with
any proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm (x) for any Initial
Purchaser, its affiliates, directors and officers and any control Persons of
such Initial Purchaser shall be designated in writing by the Representatives,
(y) for any Holder, its affiliates, directors and officers and any control
Persons of such Holder shall be designated in writing by the Majority Holders
and (z) in all other cases shall be designated in writing by the Company. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify each Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Person shall have requested that an Indemnifying
Person reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by this paragraph, the Indemnifying Person shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by the Indemnifying
Person of such request and (ii) the Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the
date of such settlement. No Indemnifying Person shall, without the written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnification could have been sought hereunder by such
Indemnified Person, unless such settlement (A) includes an unconditional release
of such Indemnified Person, in form and substance reasonably satisfactory to
such Indemnified Person, from all liability on claims that are the subject
matter of such proceeding and (B) does not include any statement as to or any
admission of fault, culpability or a failure to act by or on behalf of any
Indemnified Person.
16
(d) If the indemnification provided for in paragraphs (a) and (b)
above is unavailable to an Indemnified Person or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company from the offering of the Securities and the
Exchange Securities, on the one hand, and by the Holders from receiving
Securities or Exchange Securities registered under the Securities Act, on the
other hand, or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) but also the relative fault of the
Company on the one hand and the Holders on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company on the one hand and the Holders on the other shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the Holders
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Company and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 5 were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or payable by
an Indemnified Person as a result of the losses, claims, damages and liabilities
referred to in paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with any such action or claim. Notwithstanding
the provisions of this Section 5, in no event shall a Holder be required to
contribute any amount in excess of the amount by which the total price at which
the Securities or Exchange Securities sold by such Holder exceeds the amount of
any damages that such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
(f) The remedies provided for in this Section 5 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to any
Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained in this
Section 5 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of the Initial Purchasers or any Holder, their respective affiliates or any
Person controlling any Initial Purchaser or any Holder, or by or on behalf of
the Company, its affiliates or the officers or directors of or any Person
controlling the Company, (iii) acceptance of any of the Exchange Securities
17
and (iv) any sale of Transfer Restricted Securities pursuant to a Shelf
Registration Statement.
6. GENERAL. NO INCONSISTENT AGREEMENTS. The Company represents,
warrants and agrees that (i) the rights granted to the Holders hereunder do not
in any way conflict with and are not inconsistent with the rights granted to the
holders of any other outstanding securities issued by the Company under any
other agreement and (ii) the Company has not entered into, or on or after the
date of this Agreement will not enter into, any agreement that is inconsistent
with the rights granted to the Holders of Transfer Restricted Securities in this
Agreement or otherwise conflicts with the provisions hereof.
(a) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of Holders
of at least a majority in aggregate principal amount of the outstanding Transfer
Restricted Securities affected by such amendment, modification, supplement,
waiver or consent; provided that no amendment, modification, supplement, waiver
or consent to any departure from the provisions of Section 5 hereof shall be
effective as against any Holder of Transfer Restricted Securities unless
consented to in writing by such Holder. Any amendments, modifications,
supplements, waivers or consents pursuant to this Section 6(b) shall be by a
writing executed by each of the parties hereto.
(b) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telecopier, or any courier guaranteeing overnight delivery (i)
if to a Holder, at the most current address given by such Holder to the Company
by means of a notice given in accordance with the provisions of this Section
6(c), which address initially is, with respect to the Initial Purchasers, the
address set forth in the Purchase Agreement; (ii) if to the Company, initially
at the Company's address set forth in the Purchase Agreement and thereafter at
such other address, notice of which is given in accordance with the provisions
of this Section 6(c); and (iii) to such other persons at their respective
addresses as provided in the Purchase Agreement and thereafter at such other
address, notice of which is given in accordance with the provisions of this
Section 6(c). All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when receipt is acknowledged, if telecopied; and on the next Business Day if
timely delivered to an air courier guaranteeing overnight delivery. Copies of
all such notices, demands or other communications shall be concurrently
delivered by the Person giving the same to the Trustee, at the address specified
in the Indenture.
(c) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Transfer Restricted
Securities in violation of the terms of the Purchase
18
Agreement or the Indenture. If any transferee of any Holder shall acquire
Transfer Restricted Securities in any manner, whether by operation of law or
otherwise, such Transfer Restricted Securities shall be held subject to all the
terms of this Agreement, and by taking and holding such Transfer Restricted
Securities such Person shall be conclusively deemed to have agreed to be bound
by and to perform all of the terms and provisions of this Agreement and such
Person shall be entitled to receive the benefits hereof. The Initial Purchasers
(in their capacity as Initial Purchasers) shall have no liability or obligation
to the Company with respect to any failure by a Holder to comply with, or any
breach by any Holder of, any of the obligations of such Holder under this
Agreement.
(d) PURCHASES AND SALES OF SECURITIES. The Company shall not, and
shall use its reasonable best efforts to cause its affiliates (as defined in
Rule 405 under the Securities Act) not to, purchase and then resell or otherwise
transfer any Transfer Restricted Securities.
(e) THIRD PARTY BENEFICIARIES. Each Holder shall be a third party
beneficiary to the agreements made hereunder between the Company and the Initial
Purchasers and shall have the right to enforce such agreements directly to the
extent it deems such enforcement necessary or advisable to protect its rights or
the rights of other Holders hereunder.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) HEADINGS. The headings in this Agreement are for convenience of
reference only, are not a part of this Agreement and shall not limit or
otherwise affect the meaning hereof.
(h) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
(i) MISCELLANEOUS. This Agreement contains the entire agreement
between the parties relating to the subject matter hereof and supersedes all
oral statements and prior writings with respect thereto. If any term, provision,
covenant or restriction contained in this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable or against public
policy, the remainder of the terms, provisions, covenants and restrictions
contained herein shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. The Company and the Initial Purchasers shall
endeavor in good faith negotiations to replace the invalid, void or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, void or unenforceable
provisions.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
EQUITABLE RESOURCES, INC.
By:
------------------------------
Name:
Title:
Confirmed and accepted as of the date first above written:
XXXXXXX, XXXXX & CO.
XXXXXX BROTHERS INC.
XXXXXXX XXXXX BARNEY INC.
For themselves and on behalf of the several Initial Purchasers listed in
Schedule 1 to the Purchase Agreement.
By: Xxxxxx Brothers Inc.
By:
-----------------------
Name:
Title:
Signature Page to Purchase Agreement
