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EXHIBIT 10.19
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XXXXXX PETROLEUM SERVICES CORP.
and the
SUBSIDIARY GUARANTORS
identified herein
$115,000,000
9.75% Senior Notes due 2007
REGISTRATION RIGHTS AGREEMENT
August 19, 1997
Xxxxxxxxx & Company, Inc.
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TABLE OF CONTENTS
PAGE NO.
1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Exchange Offer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3. Shelf Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4. Additional Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5. Registration Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6. Registration Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
8. Rules 144 and 144A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
9. Underwritten Registrations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
10. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
a. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
b. No Inconsistent Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
c. No Piggyback on Registrations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
d. Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
e. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
f. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
g. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
h. Governing Law; Submission to Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . 17
i. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
j. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 00
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XXXXXXXXXXXX RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made
and entered into as of August 19, 1997, by and among Xxxxxx Petroleum Services
Corp., a Delaware corporation (the "Company"), Xxxxxx International, Inc.,
Xxxxxx International Sales Corporation, Columbia Petroleum Services Corp.,
International Petroleum Services Inc., Xxxxxx Environmental Remediation
Technologies, Inc., Xxxxxx Worldwide Services Corp., Air Drilling
International, Inc. and Air Drilling Services, Inc. (the "Subsidiary
Guarantors" and, together with the Company, the "Issuers") and Xxxxxxxxx &
Company, Inc. (the "Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement,
dated August 14, 1997, among the Company, the Subsidiary Guarantors and the
Initial Purchaser (the "Purchase Agreement"). In order to induce the Initial
Purchaser to enter into the Purchase Agreement, the Issuers have agreed to
provide the registration rights provided for in this Agreement to the Initial
Purchaser and its direct and indirect transferees. The execution and delivery
of this Agreement is a condition to the closing of the transactions
contemplated by the Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings:
Additional Interest: As defined in Section 4(a) hereof.
Advice: As defined in the last paragraph of Section 5 hereof.
Affiliate: With respect to any specified person, "Affiliate"
shall mean any other person directly or indirectly controlling or controlled by
or under direct or indirect common control with such specified person. For the
purposes of this definition, "control," when used with respect to any person,
means the power to direct the management and policies of such person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise and the terms "affiliated," "controlling" and "controlled" have
meanings correlative to the foregoing.
Business Day: Any day except a Saturday, a Sunday or a day on
which banking institutions in New York, New York generally are required or
authorized by law or other government action to be closed.
Company: As defined in the preamble hereof.
Consummate or consummate: When used to qualify the term
"Exchange Offer" shall mean validly and lawfully to issue and deliver the
Exchange Notes pursuant to the Exchange Offer for all Notes validly tendered
and not validly withdrawn pursuant thereto in accordance with the terms of this
Agreement.
Consummation Date: The date that is 30 Business Days
immediately following the date that the Exchange Offer Registration Statement
shall have been declared effective by the SEC.
Effectiveness Period: As defined in Section 3(a) hereof.
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Exchange Act: The Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC pursuant thereto.
Exchange Date: As defined in Section 2(d) hereof.
Exchange Notes: The 9.75% Senior Notes due 2007, Series B, of
the Company, unconditionally guaranteed on a joint and severed basis by each of
the Subsidiary Guarantors, issued pursuant to the Indenture, and that are
identical to the Notes in all material respects, except that the provisions
regarding restrictions on transfer shall be modified, as appropriate, and the
issuance thereof pursuant to the Exchange Offer shall have been registered
pursuant to an effective Registration Statement in compliance with the
Securities Act.
Exchange Offer: An offer to issue, in exchange for any and
all of the Notes, a like aggregate principal amount of Exchange Notes, which
offer shall be made by the Company pursuant to Section 2 hereof.
Exchange Offer Registration Statement: As defined in Section
2(a) hereof.
Indemnified Person: As defined in Section 7(a) hereof.
Indenture: The Indenture, dated as of August 19, 1997, among
the Issuers and U.S. Trust Company of Texas, N.A., as trustee thereunder,
pursuant to which the Notes are issued, as amended or supplemented from time to
time in accordance with the terms thereof.
Issue Date: As defined in Section 2(a).
Issuers: As defined in the preamble hereof.
Notes: The 9.75% Senior Notes due 2007, Series A, of the
Company, unconditionally guaranteed on a joint and several basis by each of the
Subsidiary Guarantors and, issued pursuant to the Indenture.
Participating Broker-Dealer: As defined in Section 2(e)
hereof.
Private Exchange: As defined in Section 2(c) hereof.
Private Exchange Notes: As defined in Section 2(c) hereof.
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated pursuant to the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Notes, Exchange
Notes or Private Exchange Notes covered by such Registration Statement, and all
other amendments and supplements to any such prospectus, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference, if any, in such prospectus.
Registration Default: As defined in Section 4(a) hereof.
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Registration Statement: Any registration statement of the
Company and the Subsidiary Guarantors that covers any of the Notes, Exchange
Notes or Private Exchange Notes pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
statement or Prospectus, including pre- and post-effective amendments, all
exhibits thereto and all material incorporated by reference or deemed to be
incorporated by reference, if any, in such registration statement.
Rule 144: Rule 144 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 144A: Rule 144A promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 158: Rule 158 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 174: Rule 174 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 415: Rule 415 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 424: Rule 424 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations promulgated by the SEC thereunder.
Shelf Registration: As defined in Section 3 hereof.
Shelf Registration Statement: As defined in Section 3 hereof.
Special Counsel: Xxxxx & Xxxxx, L.L.P., special counsel to
the holders of Transfer Restricted Securities, or such other counsel as shall
be agreed upon by the Issuers and holders of a majority in aggregate principal
amount of Transfer Restricted Securities, the expenses of which holders of
Transfer Restricted Securities will be reimbursed by the Issuers pursuant to
Section 6.
TIA: The Trust Indenture Act of 1939, as amended.
Transfer Restricted Securities: The Notes, upon original
issuance thereof, and at all times subsequent thereto, each Exchange Note as to
which Section 3(a)(ii) hereof is applicable upon original issuance and at all
times subsequent thereto and each Private Exchange Note upon original issuance
thereof
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and at all times subsequent thereto, until in the case of any such Note,
Exchange Note or Private Exchange Note, as the case may be, the earliest to
occur of (i) the date on which any such Note has been exchanged by a person
other than a Participating Broker-Dealer for an Exchange Note (other than with
respect to an Exchange Note as to which Section 3(a)(ii) hereof applies)
pursuant to the Exchange Offer, (ii) with respect to Exchange Notes received by
Participating Broker-Dealers in the Exchange Offer, the earlier of (x) the date
on which such Exchange Note has been sold by such Participating Broker-Dealer
by means of the Prospectus contained in the Exchange Offer Registration
Statement and (y) the date on which the Exchange Offer Registration Statement
has been effective under the Securities Act for a period of one year after the
Consummation Date, (iii) a Shelf Registration Statement covering such Note,
Exchange Note or Private Exchange Note has been declared effective by the SEC
and such Note, Exchange Note or Private Exchange Note, as the case may be, has
been disposed of in accordance with such effective Shelf Registration
Statement, (iv) the date on which such Note, Exchange Note or Private Exchange
Note, as the case may be, is distributed to the public pursuant to Rule 144 (or
any similar provisions then in effect) or is saleable pursuant to Rule 144(k)
promulgated by the SEC pursuant to the Securities Act or (v) the date on which
such Note, Exchange Note or Private Exchange Note, as the case may be, ceases
to be outstanding for purposes of the Indenture or any other indenture under
which such Exchange Note or Private Exchange Note was issued.
Trustee: The trustee under the Indenture.
Underwritten Registration or Underwritten Offering: A
registration in connection with which securities are sold to an underwriter for
reoffering to the public pursuant to an effective Registration Statement.
2. EXCHANGE OFFER.
a. To the extent not prohibited by any
applicable law or applicable interpretation of the SEC or the staff of the SEC,
the Issuers shall (A) prepare and, on or prior to 60 days after the date of
original issuance of the Notes (the "Issue Date"), file with the SEC a
Registration Statement under the Securities Act with respect to an offer by the
Company to the holders of the Notes to issue and deliver to such holders, in
exchange for Notes, a like principal amount of Exchange Notes, (B) use their
best efforts to cause the Registration Statement relating to the Exchange Offer
to be declared effective by the SEC under the Securities Act on or prior to 180
days after the Issue Date, and (C) commence the Exchange Offer and use best
efforts to issue, on or prior to the Consummation Date, the Exchange Notes.
The offer and sale of the Exchange Notes pursuant to the Exchange Offer shall
be registered pursuant to the Securities Act on the appropriate form (the
"Exchange Offer Registration Statement") and duly registered or qualified under
all applicable state securities or Blue Sky laws and will comply with all
applicable tender offer rules and regulations under the Exchange Act and state
securities or Blue Sky laws. The Exchange Offer shall not be subject to any
condition, other than that the Exchange Offer does not violate any applicable
law or interpretation of the SEC or the staff of the SEC. Upon consummation of
the Exchange Offer in accordance with this Section 2, the Issuers shall have no
further registration obligations other than with respect to (i) Private
Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and
(iii) Notes or Exchange Notes as to which Section 3(a)(ii) hereof applies. No
securities shall be included in the Exchange Offer Registration Statement other
than the Exchange Notes.
b. The Issuers may require each holder of Notes
as a condition to its participation in the Exchange Offer to represent to the
Issuers and their counsel in writing (which may be contained in the applicable
letter of transmittal) that at the time of the consummation of the Exchange
Offer (i) any Exchange Notes received by such holder will be acquired in the
ordinary course of its business, (ii) such holder will
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have no arrangement or understanding with any person to participate in the
distribution (within the meaning of the Securities Act) of the Exchange Notes
and (iii) such holder is not an Affiliate of an Issuer, or if it is an
Affiliate of an Issuer, it will comply with the registration and prospectus
delivery requirements of the Securities Act, to the extent applicable.
c. To the extent not prohibited by applicable
law or applicable interpretation of the SEC or the staff of the SEC, if, prior
to consummation of the Exchange Offer, the Initial Purchaser holds any Notes
acquired by it and having, or which are reasonably likely to be determined to
have, the status of an unsold allotment in the initial distribution, or any
other holder of Notes is not entitled to participate in the Exchange Offer, the
Company upon the request of the Initial Purchaser or any such holder shall,
simultaneously with the delivery of the Exchange Notes in the Exchange Offer,
issue and deliver to the Initial Purchaser and any such holder, in exchange
(the "Private Exchange") for such Notes held by the Initial Purchaser and any
such holder, a like principal amount of debt securities of the Company,
guaranteed by each of the Subsidiary Guarantors on an unsecured senior basis,
that are identical in all material respects to the Exchange Notes (the "Private
Exchange Notes") (and which are issued pursuant to the same indenture as the
Exchange Notes). The Private Exchange Notes shall bear the same CUSIP number
as the Exchange Notes.
d. Unless the Exchange Offer would not be
permitted by any applicable law or interpretation of the SEC or the staff of
the SEC, the Company shall mail the Exchange Offer Prospectus and appropriate
accompanying documents, including appropriate letters of transmittal, to each
holder of Notes providing, 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 Notes validly
tendered will be accepted for exchange;
ii. the date of acceptance for exchange (the
"Exchange Date"), which date shall in no event be later than
the Consummation Date (unless otherwise required by applicable
law);
iii. that holders of Notes electing to have a
Note exchanged pursuant to the Exchange Offer will be required
to surrender such Note, together with the enclosed letters of
transmittal, to the institution and at the address (located
in the city of New York) specified in the notice prior to the
close of business on the Exchange Date; and
iv. that holders of Notes that do not tender all
such securities pursuant to the Exchange Offer may no longer
have any registration rights hereunder with respect to Notes
not tendered.
Promptly after the Exchange Date, the Company shall:
(i) accept for exchange all Notes or portions
thereof validly tendered and not validly withdrawn pursuant to
the Exchange Offer or the Private Exchange; and
(ii) deliver, or cause to be delivered, to the
Trustee for cancellation all Notes or portions thereof so
accepted for exchange by the Company, and issue, cause the
Trustee under the Indenture (or the indenture pursuant to
which the Exchange Notes are issued) to authenticate, and mail
to each holder of Notes, Exchange Notes equal in principal
amount to the principal amount of the Notes surrendered by
such holder.
e. The Issuers and the Initial Purchaser
acknowledge that the staff of the SEC has taken the position that any
broker-dealer that owns Exchange Notes that were received by such broker-dealer
for its
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own account in the Exchange Offer (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 Notes (other than a resale of an
unsold allotment resulting from the original offering of the Notes). The
Issuers and the Initial Purchaser also acknowledge that the staff of the SEC
has taken the 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 Notes, without naming the Participating Broker Dealers or
specifying the amount of Exchange Notes owned by them, such Prospectus may be
delivered by Participating Broker-Dealers to satisfy their prospectus delivery
obligations under the Securities Act in connection with resales of Exchange
Notes for their own accounts, so long as the Prospectus otherwise meets the
requirements of the Securities Act. In light of the foregoing, if requested by
a Participating Broker-Dealer, the Issuers agree (x) to use their best efforts
to keep the Exchange Offer Registration Statement continuously effective for a
period of up to one year or such earlier date as each Participating
Broker-Dealer shall have notified the Company in writing that such
Participating Broker-Dealer has resold all Exchange Notes acquired in the
Exchange Offer, (y) to comply with the provisions of Section 5 of this
Agreement, as they relate to the Exchange Offer and the Exchange Offer
Registration Statement and (z) to deliver to such Participating Broker-Dealer a
"cold comfort" letter of the independent public accountants of the Issuers and
a legal opinion as to matters reasonably requested by such Participating
Broker- Dealer relating to the Exchange Offer Registration Statement and the
related Prospectus and any amendments or supplements thereto.
f. The Initial Purchaser shall have no liability
to any Participating Broker-Dealer with respect to any request made pursuant to
Section 2(e).
g. Accrued but unpaid interest on any Note that
is exchanged for an Exchange Note or a Private Exchange Note pursuant to this
Agreement shall be paid on or before the first interest payment date on the
Exchange Notes and the Private Exchange Notes, as the case may be.
h. The Exchange Notes and the Private Exchange
Notes may be issued under (i) the Indenture or (ii) an indenture identical in
all material respects to the Indenture, which in either event shall provide
that the Exchange Notes shall not be subject to the transfer restrictions set
forth in the Indenture, except in any case where an Exchange Note constitutes a
Transfer Restricted Security. The Indenture or such indenture shall provide
that the Exchange Notes, the Private Exchange Notes and the Notes shall vote
and consent together on all matters as one class and that neither the Exchange
Notes, the Private Exchange Notes nor the Notes will have the right to vote or
consent as a separate class on any matter.
3. SHELF REGISTRATION.
a. If (i) the Company is not permitted to file
the Exchange Offer Registration Statement or to consummate the Exchange Offer
because the Exchange Offer is not permitted by applicable law or SEC policy,
(ii) any holder of a Note notifies the Company on or prior to the Exchange Date
that (A) due to a change in law or policy it is not entitled to participate in
the Exchange Offer, (B) due to a change in law or policy it may not resell the
Exchange Notes acquired by it in the Exchange Offer to the public without
delivering a prospectus and the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales by such
holder or (C) it is a broker-dealer and owns Notes (including the Initial
Purchaser that holds Notes as part of an unsold allotment from the original
offering of the Notes) acquired directly from an Issuer or an Affiliate of an
Issuer or (iii) any holder of Private Exchange Notes so requests within 120
days after the consummation of the Private Exchange (each such event referred
to in clauses (i) through (iii), a "Shelf Filing Event"), the Issuers shall
cause to be filed with the SEC pursuant to
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Rule 415 a shelf registration statement (the "Shelf Registration Statement") on
or prior to the later of (x) 90 days after the Issue Date and (y) 30 days after
the occurrence of such Shelf Filing Event, relating to all Transfer Restricted
Securities (the "Shelf Registration") the holders of which have provided the
information required pursuant to Section 3(b) hereof, and shall use their best
efforts to have the Shelf Registration Statement declared effective by the SEC
on or prior to 90 days after the occurrence of such Shelf Filing Event,
provided that if the Company has not consummated the Exchange Offer within 210
days of the Issue Date, then the Issuers shall cause the Shelf Registration
Statement to be filed with the SEC on or prior to the 211th day after the Issue
Date and shall use their best efforts to have the Shelf Registration Statement
declared effective by the SEC within 60 days of the date of filing thereof. In
such circumstances, the Issuers shall use their best efforts to keep the Shelf
Registration Statement continuously effective under the Securities Act, until
(A) the first anniversary of the Issue Date (subject to extension pursuant to
Section 5 hereof) or (B) if sooner, the date immediately following the date
that all Transfer Restricted Securities covered by the Shelf Registration
Statement have been sold pursuant thereto (the "Effectiveness Period");
provided, however, that the Effectiveness Period shall be extended to the
extent required to permit dealers to comply with the applicable prospectus
delivery requirements of Rule 174 and as otherwise provided herein.
b. No holder of Transfer Restricted Securities
may include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such holder furnishes to
the Company in writing, within 30 days after receipt of a request therefor,
such information as the Company may reasonably request for use in connection
with any Shelf Registration Statement or Prospectus or preliminary prospectus
included therein. No holder of Transfer Restricted Securities shall be
entitled to Additional Interest pursuant to Section 4 hereof unless and until
such holder shall have provided all such reasonably requested information.
Each holder of Transfer Restricted Securities as to which any Shelf
Registration Statement is being effected agrees to furnish promptly to the
Company all information required to be disclosed in order to make the
information previously furnished to the Company by such holder not materially
misleading.
4. ADDITIONAL INTEREST.
a. The parties hereto agree that the holders of
Transfer Restricted Securities will suffer damages if the Issuers fail to
fulfill their obligations pursuant to Section 2 or Section 3, as applicable,
and that it would not be feasible to ascertain the extent of such damages.
Accordingly, in the event that (i) the applicable Registration Statement is not
filed with the SEC on or prior to the date specified herein for such filing,
(ii) the applicable Registration Statement has not been declared effective by
the SEC on or prior to the date specified herein for such effectiveness after
such obligation arises, (iii) if the Exchange Offer is required to be
Consummated hereunder, the Company has not exchanged Exchange Notes for all
Notes validly tendered and not validly withdrawn in accordance with the terms
of the Exchange Offer by the Consummation Date or (iv) the applicable
Registration Statement is filed and declared effective but shall thereafter
cease to be effective without being succeeded immediately by any additional
Registration Statement covering the Notes, the Exchange Notes or the Private
Exchange Notes, as the case may be, which has been filed and declared effective
(each such event referred to in clauses (i) through (iv), a "Registration
Default"), then the interest rate on Transfer Restricted Securities will
increase ("Additional Interest"), with respect to the first 90-day period
immediately following the occurrence of such Registration Default, by 0.50% per
annum and will increase by an additional 0.50% per annum with respect to each
subsequent 90-day period until all Registration Defaults have been cured, up to
a maximum amount of 2% per annum with respect to all Registration Defaults.
Following the cure of a Registration Default, the accrual of Additional
Interest with respect to such Registration Default will cease and upon the cure
of all Registration Defaults the interest rate will revert to the original
rate.
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b. The Company shall notify the Trustee and
paying agent under the Indenture (or the trustee and paying agent under such
other indenture under which the Transfer Restricted Securities are issued)
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 paying agent (which shall not be the Company
for these purposes) for the Transfer Restricted Securities, in trust, for the
benefit of the holders thereof, prior to 11:00 A.M. on the next interest
payment date specified by the Indenture (or such other indenture), 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
(or such other indenture) 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.
c. The parties hereto agree that the Additional
Interest provided for in this Section 4 constitutes a reasonable estimate of
the damages that will be suffered by holders of Transfer Restricted Securities
by reason of the happening of any Registration Default.
5. REGISTRATION PROCEDURES.
In connection with the Issuers' registration
obligations hereunder, the Issuers shall effect such registrations on the
appropriate form available for the sale of the Notes, the Exchange Notes or
Private Exchange Notes, as applicable, to (i) in the case of the Exchange
Offer, permit the exchange of Exchange Notes for Notes in the Exchange Offer
and, if applicable, resales of Exchange Notes by Participating Broker-Dealers
and (ii) in the case of a Shelf Registration, permit the sale of the applicable
Transfer Restricted Securities in accordance with the method or methods of
disposition thereof specified by the holders of such Transfer Restricted
Securities, and pursuant thereto the Issuers shall as expeditiously as
possible:
a. in the case of a Shelf Registration, a
reasonable period of time prior to the initial filing of a Shelf Registration
Statement or Prospectus and a reasonable period of time prior to the filing of
any amendment or supplement thereto (including any document that would be
incorporated or deemed to be incorporated therein by reference), furnish to the
holders of the Transfer Restricted Securities included in such Shelf
Registration Statement, their Special Counsel and the managing underwriters, if
any, copies of all such documents proposed to be filed, which documents (other
than those incorporated or deemed to be incorporated by reference) will be
subject to the review of such holders, their Special Counsel and such
underwriters, if any, and cause the officers and directors of the Issuers,
counsel to the Issuers and independent certified public accountants to the
Issuers to respond to such reasonable inquiries as shall be necessary, in the
opinion of respective counsel to such holders and such underwriters, to conduct
a reasonable investigation within the meaning of the Securities Act; provided,
however, that the foregoing inspection and information gathering shall be
coordinated by the Initial Purchaser, and on behalf of any other persons by one
counsel designated by and on behalf of such other persons; and provided,
further, that the Issuers shall not be deemed to have kept a Shelf Registration
Statement effective during the applicable period if any of them voluntarily
takes or fails to take any reasonable action that results in holders of the
Transfer Restricted Securities covered thereby not being able to sell such
Transfer Restricted Securities pursuant to Federal securities laws during that
period (and the time period during which such Shelf Registration Statement is
required to remain effective hereunder shall be extended by the number of days
during which such holders of Transfer Restricted Securities are not able to
sell such Transfer Restricted Securities). The Issuers shall not file any such
Shelf Registration Statement or related Prospectus or any amendments or
supplements thereto to which the holders of a majority in aggregate principal
amount of the Transfer Restricted Securities included in such Shelf
Registration Statement shall reasonably object on a timely basis;
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b. prepare and file with the SEC such
amendments, including post-effective amendments, to each Registration Statement
as may be necessary to keep such Registration Statement continuously effective
for the applicable time period required hereunder; cause the related Prospectus
to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424; and comply with the provisions
of the Securities Act and the Exchange Act with respect to the disposition of
all securities covered by such Registration Statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such Registration Statement as so amended or in such Prospectus as so
supplemented;
c. notify the holders of Transfer Restricted
Securities to be sold or, in the case of Transfer Restricted Securities
tendered for in an Exchange Offer, their Special Counsel and the managing
underwriters, if any, promptly, and (if requested by any such person), confirm
such notice in writing, (i)(A) when a Prospectus or any Prospectus supplement
or post-effective amendment is proposed to be filed and (B) with respect to a
Registration Statement or any post-effective amendment, when the same has
become effective, (ii) of any request by the SEC or any other Federal or state
governmental authority for amendments or supplements to a Registration
Statement or related Prospectus or for additional information, (iii) of the
issuance by the SEC, any state securities commission, any other governmental
agency or any court of any stop order, order or injunction suspending or
enjoining the use of a Prospectus or the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (iv) of the
receipt by the Company of any notification with respect to the suspension of
the qualification or exemption from qualification of any of the Notes, Exchange
Notes or Private Exchange Notes for sale in any jurisdiction, or the initiation
or threatening of any proceeding for such purpose, and (v) of the happening of
any event or information becoming known that makes any statement made in a
Registration Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect
or that requires the making of any changes in such Registration Statement,
Prospectus or documents so that it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and that in the
case of a Prospectus, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading;
d. use their best efforts to avoid the issuance
of or, if issued, obtain the withdrawal of any order enjoining or suspending
the use of a Prospectus or the effectiveness of a Registration Statement or the
lifting of any suspension of the qualification (or exemption from
qualification) of any of the Notes, Exchange Notes or Private Exchange Notes
for sale in any jurisdiction, at the earliest practicable moment;
e. if a Shelf Registration Statement is filed
pursuant to Section 3 hereof and if requested by the managing underwriters, if
any, or the holders of a majority in aggregate principal amount of the Transfer
Restricted Securities being sold pursuant to such Shelf Registration Statement,
(i) promptly incorporate in a Prospectus supplement or post-effective amendment
such information as the managing underwriters, if any, and such holders
reasonably believe should be included therein and (ii) make all required
filings of such Prospectus supplement or such post-effective amendment under
the Securities Act as soon as practicable after the Company has received
notification of the matters to be incorporated in such Prospectus supplement or
post-effective amendment; provided, however, that the Issuers shall not be
required to take any action pursuant to this Section 5(e) that would, in the
opinion of counsel for the Issuers, violate applicable law;
f. upon written request to the Company, furnish
to each holder of Notes, Exchange Notes or Private Exchange Notes to be
exchanged or sold pursuant to a Registration Statement, their Special Counsel
and each managing underwriter, if any, without charge, at least one conformed
copy of such Registration
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Statement and each amendment thereto, including financial statements and
schedules, all documents incorporated or deemed to be incorporated therein by
reference, and all exhibits to the extent requested (including those previously
furnished or incorporated by reference) as soon as practicable after the filing
of such documents with the SEC;
g. deliver to each holder of Notes, Exchange
Notes or Private Exchange Notes to be exchanged or sold pursuant to a
Registration Statement, their Special Counsel and the underwriters, if any,
without charge, as many copies of the Prospectus (including each form of
prospectus) and each amendment or supplement thereto as such persons reasonably
request; and the Issuers hereby consent to the use of such Prospectus and each
amendment or supplement thereto by each of the selling holders of Transfer
Restricted Securities and the underwriters, if any, in connection with the
offering and sale of the Transfer Restricted Securities covered by such
Prospectus and any amendment or supplement thereto;
h. prior to any public offering of Notes,
Exchange Notes or Private Exchange Notes, use their best efforts to register or
qualify or cooperate with the holders of Notes, Exchange Notes or Private
Exchange Notes to be sold or tendered for the underwriters, if any, and their
respective counsel in connection with the registration or qualification (or
exemption from such registration or qualification) of such Notes, Exchange
Notes or Private Exchange Notes for offer and sale under the securities or Blue
Sky laws of such jurisdictions within the United States as any such holder or
underwriter reasonably requests in writing; keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective hereunder and do any
and all other acts or things necessary or advisable to enable the disposition
in such jurisdictions of the Notes, Exchange Notes or Private Exchange Notes
covered by the applicable Registration Statement; provided, however, that the
Issuers shall not be required to (i) qualify generally to do business in any
jurisdiction where they are not then so qualified or (ii) take any action which
would subject them to general service of process or to taxation in any
jurisdiction where they are not so subject;
i. in connection with any sale or transfer of
Transfer Restricted Securities that will result in such securities no longer
being Transfer Restricted Securities, cooperate with the holders thereof and
the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities to be
sold, which certificates shall not bear any restrictive legends and shall be in
a form eligible for deposit with The Depository Trust Company and to enable
such Transfer Restricted Securities to be in such authorized denominations and
registered in such names as the managing underwriters, if any, or such holders
may request at least two Business Days prior to any sale of Transfer Restricted
Securities;
j. upon the occurrence of any event contemplated
by Section 5(c)(v), as promptly as practicable, prepare a supplement or
amendment, including, if appropriate, a post-effective amendment, to each
Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference, and
file any other required document so that, as thereafter delivered, such
Prospectus will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading;
k. prior to the effective date of the Exchange
Offer Registration Statement, to provide a CUSIP number for the Exchange Notes
(and Private Exchange Notes if applicable);
l. if a Shelf Registration Statement is filed
pursuant to Section 3 hereof, enter into such agreements (including an
underwriting agreement in form, scope and substance as is customary in
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underwritten offerings) and take all such other reasonable actions in
connection therewith (including those reasonably requested by the managing
underwriters, if any, or the holders of a majority in aggregate principal
amount of the Transfer Restricted Securities being sold) in order to expedite
or facilitate the disposition of such Transfer Restricted Securities, and,
whether or not an underwriting agreement is entered into and whether or not the
registration is an underwritten registration, (i) make such representations and
warranties to the holders of such Transfer Restricted Securities and the
underwriters, if any, with respect to the business of the Company and its
subsidiaries (including with respect to businesses or assets acquired or to be
acquired by any of them), and the Shelf Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by reference
therein, 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 Issuers and updates
thereof (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriters, if any, and Special
Counsel to the holders of the Transfer Restricted Securities being sold),
addressed to each selling holder of Transfer Restricted Securities and each of
the underwriters, if any, covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as may be reasonably
requested by such Special Counsel and underwriters; (iii) use their best
efforts to obtain customary "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if necessary, any
other independent certified public accountants of any subsidiary of the Company
or of any business acquired by the Company for which financial statements and
financial data is, or is required to be, included in the Shelf Registration
Statement), addressed (where reasonably possible) to each selling holder of
Transfer Restricted Securities and each of the underwriters, if any, such
letters to be in customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with underwritten offerings;
(iv) if an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable to the selling
holders and the underwriters, if any, than those set forth in Section 7 hereof
(or such other provisions and procedures acceptable to holders of a majority in
aggregate principal amount of Transfer Restricted Securities covered by such
Shelf Registration Statement and the managing underwriters, if any); and (v)
deliver such documents and certificates as may be reasonably requested by the
holders of a majority in aggregate principal amount of the Transfer Restricted
Securities being sold, their Special Counsel and the managing underwriters, if
any, to evidence the continued validity of the representations and warranties
made pursuant to clause (i) above and to evidence compliance with any customary
conditions contained in the underwriting agreement or other agreement entered
into by the Issuers;
m. in the case of a Shelf Registration, make
available for inspection by a representative of the holders of Transfer
Restricted Securities being sold, any underwriter participating in any such
disposition of Transfer Restricted Securities, and any attorney, consultant or
accountant retained by such selling holders or underwriter, at the offices
where normally kept, during reasonable business hours, all financial and other
records, pertinent corporate documents and properties of the Company and its
subsidiaries (including with respect to businesses and assets acquired or to be
acquired to the extent that such information is available to the Company), and
cause the officers, directors, agents and employees of the Company and its
subsidiaries (including with respect to businesses and assets acquired or to be
acquired to the extent that such information is available to the Company) to
supply all information in each case reasonably requested by any such
representative, underwriter, attorney, consultant or accountant in connection
with such Shelf Registration; provided, however, that such persons shall first
agree in writing with the Company that any information that is reasonably and
in good faith designated by the Company in writing as confidential at the time
of delivery of such information shall be kept confidential by such persons,
unless (i) disclosure of such information is required by court or
administrative order or is necessary to respond to inquiries of regulatory
authorities, (ii) disclosure of such information is required by law (including
any disclosure requirements pursuant to Federal securities laws in connection
with the filing of the Shelf Registration Statement or the use of any
Prospectus),
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(iii) such information becomes generally available to the public other than as
a result of a disclosure or failure to safeguard such information by such
person or (iv) such information becomes available to such person from a source
other than the Company and its subsidiaries and such source is not bound by a
confidentiality agreement; and provided, further, that the foregoing inspection
and information gathering shall be coordinated by the Initial Purchaser and on
behalf of any other persons, by one counsel designated by and on behalf of such
other persons;
n. provide an indenture trustee for the Notes
and/or the Exchange Notes and Private Exchange Notes, as the case may be, and
cause an indenture to be qualified under the TIA not later than the effective
date of the first Registration Statement relating to the Notes and/or the
Exchange Notes and Private Exchange Notes, as the case may be; and if such
indenture shall be the Indenture, in connection therewith, cooperate with the
Trustee and the holders of the Notes and/or the Exchange Notes and Private
Exchange Notes, to effect such changes to the Indenture as may be required for
the Indenture to be (or to remain) so qualified in accordance with the terms of
the TIA; and execute, and use its best efforts to cause the Trustee to execute,
all customary 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 (or to remain) so qualified in a timely manner;
o. comply with all applicable rules and
regulations of the SEC and make generally available to their security holders
earning statements satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158, no later than 45 days after the end of any 12-month period
(or 90 days after the end of any 12-month period if such period is a fiscal
year) (i) commencing at the end of any fiscal quarter in which Transfer
Restricted Securities are sold to underwriters in a firm commitment or
reasonable efforts underwritten offering and (ii) if not sold to underwriters
in such an offering, commencing on the first day of the first fiscal quarter
after the effective date of a Registration Statement, which statement shall
cover said period, consistent with the requirements of Rule 158; and
p. cooperate with each seller of Transfer
Restricted Securities covered by any Registration Statement and each
underwriter, if any, participating in the disposition of such Transfer
Restricted Securities and their respective counsel in connection with any
filings required to be made with the National Association of Securities
Dealers, Inc.
The Issuers may require a holder of Transfer
Restricted Securities to be included in a Registration Statement to furnish to
the Issuers such information regarding the distribution of such Transfer
Restricted Securities as is required by law to be disclosed in such
Registration Statement and the Issuers may exclude from such Registration
Statement the Transfer Restricted Securities of any holder who unreasonably
fails to furnish such information within a reasonable time after receiving such
request.
If any such Registration Statement refers to
any holder by name or otherwise as the holder of any securities of an Issuer,
then such holder shall have the right to require (i) the insertion therein of
language, in form and substance reasonably satisfactory to such holder, to the
effect that the holding by such holder of such securities is not to be
construed as a recommendation by such holder of the investment quality of the
Issuers' securities covered thereby and that such holding does not imply that
such holder will assist in meeting any future financial requirements of the
Issuers or (ii) in the event that such reference to such holder by name or
otherwise is not required by the Securities Act, the deletion of the reference
to such holder in any amendment or supplement to the Registration Statement
filed or prepared subsequent to the time that such reference ceases to be
required.
In the case of a Shelf Registration pursuant
to Section 3 hereof, each holder of Transfer Restricted Securities agrees by
acquisition of such Transfer Restricted Securities that, upon receipt of any
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notice from the Company of the happening of any event of the kind described in
Section 5(c)(ii), 5(c)(iii), 5(c)(iv) or 5(c)(v) hereof, such holder will
forthwith discontinue disposition of such Transfer Restricted Securities
covered by such Registration Statement or Prospectus until such holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 5(j) hereof, or until it is advised in writing (the "Advice") by the
Company that the use of the applicable Prospectus may be resumed, and, in
either case, has received copies of any additional or supplemental filings that
are incorporated or deemed to be incorporated by reference in such Prospectus.
If the Company shall give any such notice, the Effectiveness Period shall be
extended by the number of days during such period from and including the date
of the giving of such notice to and including the date when each holder of
Transfer Restricted Securities covered by such Registration Statement shall
have received (x) the copies of the supplemented or amended Prospectus
contemplated by Section 5(j) hereof or (y) the Advice, and, in either case, has
received copies of any additional or supplemental filings that are incorporated
or deemed to be incorporated by reference in such Prospectus.
6. REGISTRATION EXPENSES.
All fees and expenses incident to the
performance of or compliance with this Agreement by the Issuers shall be borne
by the Issuers whether or not any Registration Statement is filed or becomes
effective and whether or not any Notes, Exchange Notes or Private Exchange
Notes are issued or sold pursuant to any Registration Statement. The fees and
expenses referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filing fees (including, without
limitation, fees and expenses (A) with respect to filings required to be made
with the National Association of Securities Dealers, Inc. and (B) in compliance
with securities or Blue Sky laws), (ii) printing expenses (including, without
limitation, expenses of printing Prospectuses), (iii) reasonable fees and
disbursements of counsel for the Issuers and the Special Counsel, (iv) fees and
disbursements of all independent certified public accountants referred to in
Section 2(e) and Section 5(l)(iii) hereof (including, without limitation, the
expenses of any special audit and "cold comfort" letters required by or
incident to such performance), (v) if required by applicable law, including the
rules of the National Association of Securities Dealers, Inc., the reasonable
fees and expenses of any "qualified independent underwriter" and its counsel
and (vi) fees and expenses of all other persons retained by the Issuers. In
addition, the Issuers shall pay their internal expenses (including, without
limitation, all salaries and expenses of their respective officers and
employees performing legal or accounting duties), the expense of any annual
audit and the fees and expenses incurred in connection with the listing of the
Notes, Exchange Notes or Private Exchange Notes to be registered on any
securities exchange. Notwithstanding the foregoing or anything in this
Agreement to the contrary, each holder of Transfer Restricted Securities shall
pay all underwriting discounts and commissions of any underwriters with respect
to any Notes, Exchange Notes or Private Exchange Notes sold by it.
7. INDEMNIFICATION.
a. The Issuers agree, jointly and severally, to
indemnify and hold harmless (i) the Initial Purchaser, each holder of Notes,
Exchange Notes and Private Exchange Notes and each Participating Broker-Dealer,
(ii) each person, if any, who controls (within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act) any of the foregoing (any of the persons
referred to in this clause (ii) being hereinafter referred to as a
("controlling person")) and (iii) the respective officers, directors, partners,
employees, representatives and agents of the Initial Purchaser, each holder of
Notes, Exchange Notes and Private Exchange Notes, each Participating
Broker-Dealer and any controlling person (any person referred to in clause (i),
(ii) or (iii) may hereinafter be referred to as an "Indemnified Person"), from
and against any and all losses, claims, damages, liabilities and judgments
arising out of or relating to any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement, Prospectus or
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preliminary prospectus or in any amendment or supplement thereto, or arising
out of or relating to any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein (in the case of any Prospectus or preliminary prospectus or supplement
thereto, in light of the circumstances under which they were made) not
misleading, except insofar as such losses, claims, damages, liabilities or
judgments are caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to any Indemnified Person
furnished in writing to the Issuers by or on behalf of such Indemnified Person
expressly for use therein; provided, that the indemnity agreement contained in
this Section 7(a) with respect to any preliminary prospectus or amended
preliminary prospectus shall not inure to the benefit of any Indemnified Person
from whom the person asserting any such loss, expense, liability or claim
purchased the securities which is the subject thereof, if the Prospectus
corrected any such alleged untrue statement or omission and if such Indemnified
Person failed to send or give a copy of the written Prospectus, excluding any
documents incorporated by reference, to such person at or prior to the written
confirmation of the sale of securities to such person, provided that the Issuer
has delivered the Prospectus to the Initial Purchaser in requisite quantity on
a timely basis to permit such delivery or sending.
b. In case any action shall be brought against
any Indemnified Person, based upon any Registration Statement or any such
Prospectus or preliminary prospectus or any amendment or supplement thereto and
with respect to which indemnity may be sought against the Issuers hereunder,
such Indemnified Person shall promptly notify the Issuers in writing and the
Company shall assume the defense thereof, including the employment of counsel
reasonably satisfactory to such Indemnified Person and payment of all fees and
expenses. Any Indemnified Person shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such Indemnified
Person, unless (i) the employment of such counsel shall have been specifically
authorized in writing by the Issuers, (ii) the Company shall have failed to
assume the defense and employ counsel or pay all such fees and expenses or
(iii) the named parties to any such action (including any impleaded parties)
include both such Indemnified Person and an Issuer and such Indemnified Person
shall have been advised by counsel that there may be one or more legal defenses
available to it which are different from or additional to those available to
any such Issuer (in which case the Company shall not have the right to assume
the defense of such action on behalf of such Indemnified Person, it being
understood, however, that the Issuers shall not, in connection with any one
such action or separate but substantially similar or related actions 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 (in addition to any local counsel) for all such Indemnified
Persons, which firm shall be designated in writing by such Indemnified Persons,
and that all such reasonable fees and expenses shall be reimbursed as they are
incurred). The Issuers shall not be liable for any settlement of any such
action effected without their written consent but if settled with the written
consent of the Issuers, the Issuers agree, jointly and severally, to indemnify
and hold harmless each Indemnified Person from and against any loss or
liability by reason of such settlement. No Issuer shall, without the prior
written consent of each Indemnified Person, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Person is
a party and indemnity could have been sought hereunder by such Indemnified
Person, unless such settlement includes an unconditional release of such
Indemnified Person from all liability on claims that are the subject matter of
such proceeding.
c. In connection with any Registration Statement
pursuant to which a holder of Transfer Restricted Securities offers or sells
Transfer Restricted Securities, such holder agrees, severally and not jointly,
to indemnify and hold harmless the Issuers, their respective directors and
officers and any person controlling an Issuer within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, to the same extent as
the foregoing indemnity from the Issuers to each Indemnified Person but only
with respect to information relating to such holder furnished in writing by or
on behalf of such holder expressly
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for use in such Registration Statement. In any such case in which any action
shall be brought against an Issuer, any director or officer of an Issuer or any
person controlling an Issuer based on such Registration Statement and in
respect of which indemnity may be sought against a holder of Transfer
Restricted Securities, such holder shall have the rights and duties given to
the Issuers (except that if an Issuer shall have assumed the defense thereof,
such holder shall not be required to do so, but may employ separate counsel
therein and participate in the defense thereof but the fees and expenses of
such counsel shall be at the expense of such holder), and the Issuers, their
respective directors and officers and any person controlling an Issuer shall
have the rights and duties given to the Indemnified Persons by Section 7(b)
hereof.
d. If the indemnification provided for in this
Section 7 is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or judgments referred to herein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by each
indemnifying party on the one hand and the indemnified party on the other hand
from the offering of the Notes, the Exchange Notes or the Private Exchange
Notes, as the case may be (it being expressly understood and agreed that the
relative benefits received by the Issuers from the offering of the Notes,
Exchange Notes or Private Exchange Notes, as the case may be, shall be the
amount of the net proceeds received by the Company from the sale of the Notes
to the Initial Purchaser), or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of each indemnifying party on the one hand and the
indemnified party on the other hand in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The
relative fault of each indemnifying party on the one hand and the indemnified
party on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission to state a material fact relates to information supplied by an
indemnifying party or such indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Issuers and the Initial Purchaser agree
that it would not be just and equitable if contribution pursuant to this
Section 7(d) were determined by pro rata allocation (even if the Indemnified
Person were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities or
judgments referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, no Indemnified Person shall be required to
contribute any amount in excess of the amount by which the net profits received
by it in connection with the sale of the Notes, Exchange Notes or Private
Exchange Notes contemplated by this Agreement exceeds the amount of any damages
which such Indemnified Person has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Indemnified
Person's obligations to contribute pursuant to this Section 7(d) are several in
proportion to the respective amount of Notes, Exchange Notes or Private
Exchange Notes included in any such Registration Statement by each Indemnified
Person and not joint.
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8. RULES 144 AND 144A.
Each of the Issuers shall use its best efforts
to file the reports required to be filed by it under the Securities Act and the
Exchange Act in a timely manner and, if at any time it is not required to file
such reports but in the past had been required to or did file such reports, it
will, upon the request of any holder of Transfer Restricted Securities, make
available other information as required by, and so long as necessary to permit,
sales of its Transfer Restricted Securities pursuant to Rule 144A.
Notwithstanding the foregoing, nothing in this Section 8 shall be deemed to
require an Issuer to register any of its securities pursuant to the Exchange
Act.
9. UNDERWRITTEN REGISTRATIONS.
If any of the Transfer Restricted Securities
covered by any Shelf Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the holders of a majority in
aggregate principal amount of such Transfer Restricted Securities included in
such offering, subject to the consent of the Company (which will not be
unreasonably withheld or delayed). No person may participate in any
underwritten registration hereunder unless such person (i) agrees to sell such
Transfer Restricted Securities on the basis reasonably provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
10. MISCELLANEOUS.
a. Remedies. In the event of a breach by an
Issuer or by a holder of Notes, Exchange Notes or Private Exchange Notes of any
of its obligations under this Agreement, each holder of Notes, Exchange Notes
or Private Exchange Notes and each Issuer, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. Subject
to Section 4 hereof, the Issuers and each holder of Notes, Exchange Notes and
Private Exchange Notes agree that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach of any of the
provisions of this Agreement and each hereby further agrees that, in the event
of any action for specific performance in respect of such breach, it shall
waive the defense that a remedy at law would be adequate.
b. No Inconsistent Agreements. The Issuers will
not enter into any agreement with respect to their securities that is
inconsistent with the rights granted to the holders of Notes, Exchange Notes
and Private Exchange Notes and Indemnified Persons in this Agreement or
otherwise conflicts with the provisions hereof. Without the written consent of
the holders of a majority in aggregate principal amount of the outstanding
Transfer Restricted Securities, the Issuers shall not grant to any person any
rights which conflict with or are inconsistent with the provisions of this
Agreement.
c. No Piggyback on Registrations. The Issuers
shall not grant to any of their security holders (other than the holders of
Transfer Restricted Securities in such capacity) the right to include any of
their securities in any Registration Statement other than Transfer Restricted
Securities.
d. 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, otherwise than with the prior written
consent of the holders of not less than a majority of the then outstanding
aggregate principal amount of Transfer Restricted Securities;
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provided, however, that, for the purposes of this Agreement, Transfer
Restricted Securities that are owned, directly or indirectly, by the Issuers or
any of their Affiliates are not deemed outstanding. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of holders of
Transfer Restricted Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other holders of Transfer Restricted Securities may be given by
holders of a majority in aggregate principal amount of the Transfer Restricted
Securities being sold by such holders pursuant to such Registration Statement;
and provided, further, that the provisions of this sentence may not be amended,
modified or supplemented except in accordance with the provisions of the
immediately preceding sentence. Notwithstanding the foregoing, no amendment,
modification, supplement, waiver or consent with respect to Section 7 shall be
made or given otherwise than with the prior written consent of each Indemnified
Person affected thereby.
e. Notices. All notices and other
communications provided for herein shall be made in writing by hand-delivery,
next-day air courier, certified first-class mail, return receipt requested,
telex or telecopier:
i. if to the Issuers, as provided in
the Purchase Agreement,
ii. if to the Initial Purchaser,
as provided in the Purchase Agreement, or
iii. if to any other person who
is then the registered holder of Notes, Exchange Notes or
Private Exchange Notes, to the address of such holder as it
appears in the register therefor of the Company.
Except as otherwise provided in this Agreement, all such communications shall
be deemed to have been duly given: when delivered by hand, if personally
delivered; one Business Day after being timely delivered to a next-day air
courier; five Business Days after being deposited in the mail, postage prepaid,
if mailed; when answered back, if telexed; and when receipt is acknowledged by
the recipient's telecopier machine, if telecopied.
f. Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors and permitted
assigns of each of the parties and shall inure to the benefit of each holder of
Notes, Exchange Notes and Private Exchange Notes. The Issuers may not assign
any of their rights or obligations hereunder without the prior written consent
of each holder of Transfer Restricted Securities and each Indemnified Person.
Notwithstanding the foregoing, no successor or assignee of an Issuer shall have
any of the rights granted under this Agreement until such person shall
acknowledge its rights and obligations hereunder by a signed written statement
of such person's acceptance of such rights and obligations.
g. 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.
h. Governing Law; Submission to Jurisdiction.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE
STATE OF NEW YORK. THE ISSUERS HEREBY IRREVOCABLY SUBMIT TO THE NONEXCLUSIVE
JURISDICTION OF ANY COMPETENT NEW YORK STATE COURT SITTING IN THE BOROUGH OF
MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH
OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH
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IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS.
i. Severability. If any term, provision,
covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions set forth herein shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated, and the parties hereto shall use their reasonable efforts to find
and employ an alternative means to achieve the same or substantially the same
result as that contemplated by such term, provision, covenant or restriction.
It is hereby stipulated and declared to be the intention of the parties that
they would have executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
j. Headings. The headings in this Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning hereof. All references made in this Agreement to "Section" and
"paragraph" refer to such Section or paragraph of this Agreement, unless
expressly stated otherwise.
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IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first written above.
XXXXXX PETROLEUM SERVICES CORP.
By: /s/ XXXXX X. XXXX
--------------------------------------
Xxxxx X. Xxxx
President and Chief Executive Officer
XXXXXX INTERNATIONAL, INC.
By: /s/ XXXXX X. XXXXX
--------------------------------------
Xxxxx X. Xxxxx
Vice President
XXXXXX INTERNATIONAL SALES CORPORATION
By: /s/ XXXXX X. XXXXX
--------------------------------------
Xxxxx X. Xxxxx
Vice President
COLUMBIA PETROLEUM SERVICES CORP.
By: /s/ XXXXX X. XXXXX
--------------------------------------
Xxxxx X. Xxxxx
Vice President
INTERNATIONAL PETROLEUM SERVICES, INC.
By: /s/ XXXXX X. XXXXX
--------------------------------------
Xxxxx X. Xxxxx
Vice President
22
XXXXXX ENVIRONMENTAL REMEDIATION
TECHNOLOGIES, INC.
By: /s/ XXXXX X. XXXXX
--------------------------------------
Xxxxx X. Xxxxx
Treasurer
XXXXXX WORLDWIDE SERVICES CORP.
By: /s/ XXXXX X. XXXXX
--------------------------------------
Xxxxx X. Xxxxx
Treasurer
AIR DRILLING INTERNATIONAL, INC.
By: /s/ XXXXX X. XXXXX
--------------------------------------
Xxxxx X. Xxxxx
Vice President
AIR DRILLING SERVICES, INC.
By: /s/ XXXXX X. XXXXX
--------------------------------------
Xxxxx X. Xxxxx
Vice President
XXXXXXXXX & COMPANY, INC.
By: /s/ XXX XXXX
------------------------------------
Xxx Xxxx
Vice President
