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EXHIBIT 4.3
$135,000,000
Xxxxxxx Petroleum Corporation
11 1/2% Senior Notes due 2005
REGISTRATION RIGHTS AGREEMENT
March 30, 1998
BEAR, XXXXXXX & CO. INC.
XXXXXXXXX & COMPANY, INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxx.
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxxx Petroleum Corporation, a Texas corporation (the
"Company"), proposes to issue and sell to you (the "Initial Purchasers"), upon
the terms set forth in a purchase agreement of even date herewith (the "Purchase
Agreement"), $135,000,000 principal amount of the Company's 11 1/2% Senior Notes
due 2005 (the "Notes"). The Notes will be issued pursuant to an indenture, to be
dated as of April 2, 1998 (the "Indenture") by and between the Company and State
Street Bank and Trust Company, as trustee (the "Trustee"), substantially in the
form previously furnished to you.
Capitalized terms used but not specifically defined herein are
defined in the Purchase Agreement and used herein as so defined. As used herein,
"Registrable Notes" shall mean each Note, until the earliest to occur of (a) the
date on which an Exchange Offer is completed for the Notes pursuant to which
such Note may be exchanged in the Exchange Offer for an Exchange Note (each as
defined below) and entitled to be resold to the public by the holder thereof
without complying with the prospectus delivery requirements of the Securities
Act of 1933, as amended (the "Securities Act"), (b) the date on which such Note
has been effectively registered under the Securities Act and disposed of
pursuant to a Notes Shelf Registration (as defined below), (c) the date on which
such Note is distributed to the public pursuant to Rule 144 under the Securities
Act or by a Broker-Dealer (as defined below) pursuant to the "Plan of
Distribution" contemplated by the registration statement relating to the
Exchange Offer (including delivery of the prospectus contained therein) or (d)
the date such Note ceases to be outstanding.
In consideration of the premises, and the mutual covenants,
representations, warranties and agreements herein contained, the parties hereby
agree as follows:
1. Exchange Offer.
(a) Promptly (and in any event not more than 45 days)
following the Closing Date, the Company shall file with the Commission a
registration statement on an appropriate form under the Securities Act with
respect to a proposed offer (the "Exchange Offer") to the holders of the
Registrable Notes to issue and deliver to such holders, in exchange for the
Registrable Notes, a like principal amount of debt securities of the Company
identical in all material respects to the Registrable Notes (the "Exchange
Notes"), shall use its best efforts to cause such registration statement to
become effective under the Securities Act no later than 120 days after the
Closing Date and, upon the effectiveness of that registration statement, shall
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the Exchange Offer and shall cause the same to remain open for such period of
time to be determined by the Company (but not less than 30 nor more than 60 days
after the commencement of the Exchange Offer), and to be conducted in accordance
with such procedures as may be required by the applicable provisions of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), it being the
objective of such Exchange Offer to enable each holder of Registrable Notes
electing to exchange Registrable Notes for Exchange Notes (assuming that such
holder is not an affiliate of the Company within the meaning of the Securities
Act, acquires the Exchange Notes in the ordinary course of such holder's
business and has no arrangements with any person to participate in the
distribution of the Exchange Notes) to trade such Registrable Notes for Exchange
Notes from and after their receipt without any limitations or restrictions under
the Securities Act, subject as to a Broker-Dealer to the provisions of Section
1(b) hereof, or the Exchange Act and without material restrictions under the
securities laws of a substantial proportion of the several states of the United
States. Each holder of Registrable Notes who participates in the Exchange Offer
and who desires to receive Exchange Notes that will not be subject to any
limitations or restrictions on resale under the Securities Act will be required
to represent in writing to the Company that any Exchange Notes received by it
will be acquired in the ordinary course of its business, that at the time of
consummation of the Exchange Offer such holder of Registrable Notes will have no
arrangement or understanding with any person to participate in the distribution
of the Exchange Notes and that such holder of the Registrable Notes is not an
affiliate of the Company within the meaning of the Securities Act. Upon
consummation of the Exchange Offer in accordance with this Section 1, the
Company shall have no further obligation to register Registrable Notes pursuant
to Section 2 of this Agreement.
(b) The Company shall indicate in a "Plan of
Distribution" section contained in the final prospectus constituting a part of
the registration statement relating to the Exchange Offer that any broker or
dealer registered under the Exchange Act (each a "Broker-Dealer") who holds
Registrable Notes that were acquired for its own account as a result of
market-making activities or other trading activities (other than Registrable
Notes acquired directly from the Company), may exchange such Registrable Notes
for Exchange Notes pursuant to the Exchange Offer; however, such Broker-Dealer
may be deemed an "underwriter" within the meaning of the Securities Act and,
therefore, must deliver a prospectus meeting the requirements of the Securities
Act in connection with any resales of the Exchange Notes received by it in the
Exchange Offer, which prospectus delivery requirement may be satisfied by the
delivery by such Broker-Dealer of the final prospectus contained in the
registration statement relating to the Exchange Offer. Such "Plan of
Distribution" section also shall state that the delivery by a Broker-Dealer of
the final prospectus relating to the Exchange Offer in connection with resales
of Exchange Notes shall not be deemed to be an admission by such Broker- Dealer
that it is an "underwriter" within the meaning of the Securities Act, and shall
contain all other information with respect to resales of the Exchange Notes by
Broker-Dealers that the Commission may require in connection therewith, but such
"Plan of Distribution" shall not name any such Broker-Dealer or disclose the
amount of Exchange Notes held by any such Broker-Dealer except to the extent
required by the Commission as a result of a change in policy after the date of
this Agreement.
(c) In connection with such Exchange Offer and the offer
and sale of Exchange Notes by Broker-Dealers as contemplated above, the Company
shall take such other and further action, including making appropriate filings
under state securities laws and delivering such number of final prospectuses
relating to the Exchange Offer as any Broker-Dealer proposing to deliver the
same in connection with its resales of Exchange Notes may reasonably request, as
may be necessary to realize the foregoing objectives. The Company shall cause
the registration statement relating to the Exchange Offer to remain continuously
effective for a period of one year from the date on which such registration
statement is first declared effective, and shall supplement or amend the
prospectus contained therein, in each case, to the extent necessary to
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permit such prospectus (as supplemented or amended) to be delivered by
Broker-Dealers in connection with their resales of Exchange Notes as aforesaid.
2. Notes Shelf Registration. The following provisions
shall apply, only if, because of any change in currently prevailing
interpretations of the Commission's staff, the Company is not permitted to
effect an Exchange Offer, as contemplated by Section 1 hereof:
(a) Promptly (and in any event not more than 45 days)
following the Closing Date, the Company shall file with the Commission, and
thereafter use its best efforts to have declared effective not later than 120
days after the Closing Date, a registration statement on an appropriate form
under the Securities Act relating to the offer and sale of the Registrable Notes
by the holders thereof, from time to time in accordance with the methods of
distribution set forth in such registration statement and Rule 415 under the
Securities Act (the "Notes Shelf Registration").
(b) The Company agrees to use its best efforts to keep
the registration statement relating to the Notes Shelf Registration continuously
effective in order to permit the prospectus included therein to be usable by the
holders of the Registrable Notes for a period of two years from the Closing Date
or such shorter period that will terminate when all the Registrable Notes
covered by the registration statement have been sold pursuant to such
registration statement; provided, that the Company shall be deemed not to have
used its best efforts to keep the registration statement effective during the
requisite period if it voluntarily takes any action that would result in holders
of the Registrable Notes covered thereby not being able to offer and sell such
Registrable Notes during that period, unless such action is required by
applicable law, and provided, further, that the foregoing shall not apply if the
Company determines, in its reasonable judgment, upon advice of counsel, as
authorized by a resolution of its Board of Directors, that the continued
effectiveness and usability of such registration statement would (i) require the
disclosure of material information, which the Company has a bona fide business
reason for preserving as confidential, or (ii) impede the consummation of any
financing, acquisition, corporate reorganization or other material transaction
involving the Company or any of its Affiliates (as defined in the rules and
regulations adopted under the Exchange Act); provided, however, that the failure
to keep the registration statement effective and usable for offers and sales of
Registrable Notes for such reasons shall last no longer than 30 days in any
12-month period, so long as the Company promptly thereafter complies with the
requirements of Section 3(h) hereof, if applicable. Any such period during which
the Company fails to keep the registration statement effective and usable for
offers and sales of Registrable Notes is referred to as a "Suspension Period." A
Suspension Period shall commence on and include the date that the Company gives
notice that the registration statement is no longer effective or the prospectus
included therein is no longer usable for offers and sales of Registrable Notes
and shall end on the date when each seller of Registrable Notes covered by such
registration statement either receives the copies of the supplemented or amended
prospectus contemplated by Section 3(h) hereof or is advised in writing by the
Company that use of the prospectus may be resumed.
(c) Notwithstanding any other provisions of this
Agreement to the contrary, the Company will cause the Notes Shelf Registration
and the related prospectus and any amendment or supplement thereto, as of the
effective date of such registration statement, amendment or supplement, (i) to
comply in all material respects with the applicable requirements of the
Securities Act and the rules and regulations of the Commission and (ii) not to
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading.
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3. Registration Procedures. In connection with, to the
extent applicable, any Exchange Offer pursuant to Section 1 hereof, or any Notes
Shelf Registration pursuant to Section 2 hereof, the following provisions shall
apply:
(a) If requested by any holder of Registrable Notes or
the managing underwriter, if any, with respect to the Notes Shelf Registration,
the Company shall furnish to each such holder of Registrable Notes or such
managing underwriter, prior to the filing thereof with the Commission, a copy of
the applicable registration statement and each amendment thereof and each
supplement, if any, to the prospectus included therein. The Company shall use
its best efforts to reflect in each such document, when so filed with the
Commission, such comments as such holder or managing underwriter reasonably may
propose.
(b) The Company shall advise the holders of Registrable
Notes or the Exchange Notes, and the managing underwriter, if any, and, if
requested by any such person, confirm such advice in writing:
(i) when the applicable registration statement and any
amendment thereto has been filed with the Commission and when the
registration statement or any post-effective amendment thereto has
become effective;
(ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the applicable registration statement
or the initiation of any proceedings for that purpose;
(iii) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Registrable
Notes or the Exchange Notes for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and
(iv) of the happening of any event that requires the
making of any changes in the registration statement or the prospectus
in order to make the statements therein not misleading (which advice
shall be accompanied by an instruction to suspend the use of the
prospectus until the requisite changes have been made).
(c) The Company will make every reasonable effort to
obtain the withdrawal of any order suspending the effectiveness of the
registration statement at the earliest possible time.
(d) The Company will furnish to each holder of the
Registrable Notes or the Exchange Notes included within the coverage of the
Exchange Offer or the Notes Shelf Registration, as appropriate, without charge,
at least one copy of the registration statement in the form in which it was
declared effective by the Commission and any post-effective amendment thereto,
including financial statements and schedules, and, if the holder so requests in
writing, all exhibits (including those incorporated by reference).
(e) The Company will deliver to each holder of the
Registrable Notes or the Exchange Notes included within the coverage of the
Exchange Offer or the Notes Shelf Registration, as appropriate, without charge,
as many copies of the prospectus (including each preliminary prospectus)
included in the registration statement and any amendment or supplement thereto
as such persons may reasonably request; the Company consents to the use of the
prospectus or any amendment or supplement thereto by each of the selling holders
of the Registrable Notes or the Exchange Notes in connection with the offering
and sale of the Registrable Notes or the Exchange Notes covered by the
prospectus or any amendment or supplement thereto.
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(f) Prior to any public offering of the Registrable Notes
or the Exchange Notes pursuant to the Exchange Offer or the Notes Shelf
Registration, as the case may be, the Company will use its best efforts to
register or qualify, or cooperate with the holders of the Registrable Notes or
the Exchange Notes covered thereby and their respective counsel in connection
with the registration or qualification of, such Registrable Notes or Exchange
Notes for offer and sale under the securities or blue sky laws of such
jurisdictions as any seller reasonably requests in writing and do any and all
other acts or things necessary or advisable to enable the offer and sale in such
jurisdictions, of the Registrable Notes or the Exchange Notes covered by the
Exchange Offer or the Notes Shelf Registration, as the case may be; provided,
that the Company will not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action which would
subject it to general service of process or to taxation in any such jurisdiction
where it is not then so subject.
(g) The Company will cooperate with the holders of the
Registrable Notes and the Exchange Notes to facilitate the timely preparation
and delivery of certificates representing the Registrable Notes and the Exchange
Notes to be sold in the Exchange Offer or the Notes Shelf Registration, as the
case may be, free of any restrictive legends and in such denominations and
registered in such names as the holders may request provided such request
complies with the Indenture, prior to sales of the Registrable Notes or the
Exchange Notes, pursuant to the Exchange Offer or the Notes Shelf Registration,
as the case may be.
(h) Upon the occurrence of any event contemplated by
paragraph (b)(iv) above, the Company will prepare a post-effective amendment to
the registration statement or a supplement to the related prospectus or file any
other required document so that, as thereafter delivered to purchasers of the
Registrable Notes or the Exchange Notes, the prospectus will not contain an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein not misleading.
(i) Not later than the effective date of the applicable
registration statement, the Company will provide a CUSIP number for the
Registrable Notes or the Exchange Notes, as the case may be, and provide the
Trustee with printed certificates for the Registrable Notes or the Exchange
Notes, as the case may be, in a form eligible for deposit with The Depository
Trust Company.
(j) The Company will use its best efforts to comply with
all applicable rules and regulations of the Commission and will make generally
available to its security holders an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act, no later than 45 days after
the end of the 12- month period (or 90 days, if such period is a fiscal year)
beginning with the first month of the Company's first fiscal quarter commencing
after the effective date of each of the Registered Exchange Offer and the Notes
Shelf Registration, which statements shall cover such 12-month period.
(k) The Company will cause the Indenture to be qualified
under the Trust Indenture Act of 1939, as amended, upon effectiveness of the
registration statement contemplated by Section 1(a) or Section 2(a).
(l) The Company may require each holder of Registrable
Notes to be sold pursuant to the Notes Shelf Registration to furnish to the
Company such information regarding the holder and the distribution of such
Registrable Notes as the Company may from time to time reasonably require for
inclusion in the registration statement. The Company may exclude from such
registration the Registrable Notes of any holder who unreasonably fails to
furnish such information in writing to the Company within ten business days (or
longer time period if agreed by the Company in writing) after receiving such
request. Each holder of
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Registrable Notes included within the coverage of any Registration Statement
shall furnish promptly to the Company all information required by applicable law
to be disclosed by such party in order to make the information previously
furnished to the Company not materially misleading.
(m) Each holder of Registrable Notes agrees by
acquisition of such Registrable Notes or Exchange Notes to be sold that, upon
receipt of any notice from the Company of the happening of any Suspension Period
of the kind described in Section 2(b) or an event of the kind described in
Section 3(b)(ii)-(iv), such holder will forthwith discontinue disposition of
such Registrable Notes or Exchange Notes covered by such Registration Statement
or Prospectus until such holder's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 3(h) hereof or is advised in writing
by the Company that use of the prospectus may be resumed.
4. Registration Expenses. The Company will bear all
expenses incurred in connection with the performance of its obligations under
Sections 1 through 3 hereof and will bear or reimburse the holders of the
Registrable Notes for the reasonable fees and disbursements of one firm of
counsel designated by the holders of a majority in principal amount of the
Registrable Notes to act as counsel for the holders of the Registrable Notes in
connection therewith; provided that in any underwritten offering the Company
shall not be obligated to pay any underwriters' discounts and commissions nor
any transfer tax related to such offering.
5. Indemnification.
(a) Indemnification by the Company. The Company shall
indemnify and hold harmless (i) each Initial Purchaser, (ii) in the case of the
Notes Shelf Registration, each holder of Registrable Notes, and (iii) in the
case of the Exchange Offer, each Broker-Dealer who holds Exchange Notes acquired
for its own account pursuant to the Exchange Offer, and, in any such case, each
Initial Purchaser's and such holder's officers, directors, employees and agents
and each person who controls each such Initial Purchaser, now or hereafter, and
each such holder within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act (each such person being sometimes hereinafter
referred to as an "Indemnified Person") from and against any and all losses,
claims, damages, awards, liabilities and judgments ("Losses") arising out of or
based upon any untrue statement or alleged untrue statement of a material fact
contained in any registration statement or prospectus or in any amendment or
supplement thereto relating to the Notes Shelf Registration or the Exchange
Offer, as the case may be, or caused by any omission or alleged omission to
state therein 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, except insofar as such Losses are caused by any such
untrue statement or omission or allegation thereof based upon information
relating to such Indemnified Person furnished in writing to the Company by such
Indemnified Person expressly for use therein and used in conformity therewith;
provided, however, that in the event an Initial Purchaser or a Broker-Dealer is
required by law to deliver a final prospectus in connection with an Exchange
Offer or a Note Shelf Registration and the indemnity obligations arising under
this Section 5(a) arise with respect to untrue statements or omissions or untrue
alleged statements or omissions made in a preliminary prospectus, such indemnity
obligations arising under this Section 5(a) shall not inure to the benefit of
any Initial Purchaser or Broker-Dealer and its controlling persons and their
respective directors, officers and employees if the person asserting any such
Losses purchased the Notes from such Initial Purchaser or Broker-Dealer and if a
copy of the final prospectus (as then amended or supplemented if the Company
shall have timely furnished any amendments thereof or supplements thereto), was
not sent or given by such Initial Purchaser or Broker-Dealer or on its behalf to
such person at or prior to the time such delivery was required by law, and if
the final prospectus (as then amended or supplemented if the Company shall have
timely furnished any amendments
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thereof or supplements thereto) would have cured the defect giving rise to such
Losses. The indemnity will be in addition to any liability that the Company
otherwise may have.
If any action or proceeding (including any governmental
investigation or inquiry) shall be brought or asserted against an Indemnified
Person, or notice of any such claim is received, in respect of which indemnity
may be sought from the Company, such Indemnified Person shall promptly notify
the Company in writing, and the Company shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to such Indemnified
Person and the payment of all reasonable fees and expenses of such defense;
provided that the failure by any such Indemnified Person to so notify the
Company shall not relieve the Company of its indemnification obligations under
Section 5(a) hereof, except to the extent that the Company is materially
prejudiced or forfeits substantive rights and defenses by reason of such
failure. Such Indemnified Person shall have the right to employ separate counsel
in any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be the expense of such Indemnified Person unless
(a) the Company shall have agreed in writing to pay such fees and expenses or
(b) the Company shall have failed to assume the defense of such action or
proceeding and to employ counsel reasonably satisfactory to such Indemnified
Person in any such action or proceeding within a reasonable time after notice of
commencement of such action or proceeding or (c) the named parties to any such
action or proceeding (including any impleaded parties) include such Indemnified
Person and the Company, and such Indemnified Person shall have been advised in
writing by counsel that there may be one or more legal defenses available to
such Indemnified Person that are different from or additional to those available
to the Company and in the reasonable judgment of such counsel it is advisable
for such Indemnified Party to employ separate counsel (in which case, if such
Indemnified Person notifies the Company in writing that it elects to employ
separate counsel at the expense of the Company, the Company shall not have the
right to assume the defense of such action or proceeding on behalf of such
Indemnified Person, it being understood, however, that the Company shall not, in
connection with any one such action or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to local
counsel) at any time for such Indemnified Person and any other Indemnified
Persons, which firm shall be designated in writing by such Indemnified Persons
(which shall be reasonably satisfactory to the Company), and that all such fees
and expenses shall be reimbursed as they are billed). The Company shall not be
liable for any settlement of any such action or proceeding effected without its
written consent (not to be unreasonably withheld), but if settled with its
written consent, or if there be a final, unappealable judgment for the plaintiff
in any such action or proceeding, the Company agrees to indemnify and hold
harmless such Indemnified Persons from and against any loss or liability by
reason of such settlement or judgment. The Company shall not, without the prior
written consent of the Indemnified Person (which consent shall not be
unreasonably withheld), effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is a party and indemnity
has been sought hereunder by such Indemnified Person; provided however, that the
Company may effect such a settlement without the consent of such Indemnified
Person if such settlement includes an unconditional release of such Indemnified
Person from all liability for claims that are the subject matter of such
proceeding or the Company indemnifies such Indemnified Person in writing and
posts a bond for an amount equal to the maximum liability for all such claims as
contemplated above or provide other security for such indemnity as shall be
reasonably satisfactory to such Indemnified Person.
(b) Indemnification by Holders. Each holder of
Registrable Notes agrees to indemnify and hold harmless the Company, its
directors and officers, employees and agents and each person, if any,
controlling the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to such holder, but only with respect to
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information relating to such holder or the distribution furnished in writing by
such holder expressly for use in any registration statement or prospectus or any
amendment or supplement thereto or any preliminary prospectus relating thereto,
provided, however, that no such holder shall be liable for any indemnity claims
hereunder in excess of the amount of net proceeds received by such holder from
the sale of Registrable Notes pursuant to the Notes Shelf Registration. If any
action or proceeding shall be brought against the Company or its directors,
officers, employees or agents or any such controlling person, in respect of
which indemnity may be sought against a holder of Registrable Notes, such holder
shall have the rights and duties given the Company and the Company or its
directors, officers, employees or agents or such controlling person shall have
the rights and duties given to each holder by Section 5(a) hereof. The Company
shall be entitled to receive indemnities from underwriters, selling brokers,
dealer managers and similar securities industry professionals participating in
the distribution, to the same extent as provided above with respect to
information so furnished in writing by such persons specifically for inclusion
in any prospectus or registration statement or any amendment or supplement
thereto.
(c) Contribution. If the indemnification provided for in
this Section 5 is unavailable to an indemnified party under Section 5(a) or
Section 5(b) hereof (other than by reason of exceptions provided in those
Sections) in respect of any Losses referred to therein, then each applicable
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 in such proportion as is appropriate to reflect not only the
relative benefits but also the relative fault of the Company and of the
Indemnified Person in connection with the statements or omissions which resulted
in such Losses, as well as any other relevant equitable considerations. The
relative fault of the Company and of the Indemnified Person 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
Indemnified Person and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the Losses referred to
above shall be deemed to include, subject to the limitations set forth in the
second paragraph of Section 5(a), any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any action
or claim.
The Company and the holders of the Registrable Notes and
Exchange Notes agree that it would not be just and equitable if contribution
pursuant to this Section 5(c) were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. 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.
6. Additional Interest Under Certain Circumstances;
Remedies.
If the Company fails to file within 45 days, or cause to
become effective within 120 days, after the Closing Date, the registration
statement relating to the Exchange Offer or the Notes Shelf Registration, as
applicable, or (subject to Section 2(b)) the Notes Shelf Registration is
declared effective but thereafter ceases to be effective in connection with
resales of the Registrable Notes (each such event, a "Registration Default"),
then the Company agrees to pay to each holder of Registrable Notes, accruing
from the date of the first such Registration Default, liquidated damages in an
amount equal to one-half of one percent (0.5%) per annum of the principal amount
of Registrable Notes held by such holder during the first 180-day period
immediately following the occurrence of the first such Registration Default,
increasing by
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an additional one-half of one percent (0.5%) per annum of the principal amount
of such Registrable Notes during each subsequent 180-day period, up to a maximum
amount of liquidated damages equal to two percent (2.0%) per annum of the
principal amount of such Registrable Notes ("Liquidated Damages"), and ceasing
to accrue on the date such Registration Default has been cured by, as
applicable, the filing or declaration of effectiveness of the applicable
registration statement. The Company shall notify the Trustee within one business
day after (i) each and every Registration Default and (ii) the date the
Registration Default has been so cured. Until the Trustee and the Paying Agent
have received an Officers' Certificate from the Company to the effect that all
Liquidated Damages then due have been paid in full, the Company (in respect of
any payment date) shall pay Liquidated Damages then due by depositing with the
Trustee, in trust, for the benefit of the affected holders of Registrable Notes,
on or before the applicable semi-annual interest payment date, immediately
available funds in sums sufficient to pay the Liquidated Damages then due and
provide to the Trustee and the Paying Agent a list of holders entitled to
Liquidated Damages together with the amount of cash such holder is due. The
Liquidated Damages amount due shall be payable as additional interest (from
funds received pursuant to such deposit) on each interest payment date to the
record holder of Registrable Notes entitled to receive the interest payment to
be made on such date as set forth in the Indenture.
7. Miscellaneous.
(a) Amendments and Waivers. The provisions of this
Agreement 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 a majority in aggregate principal
amount of the Registrable Notes (insofar as such matters relate to the
Registrable Notes) or the Exchange Notes (insofar as such matters relate to the
Exchange Notes).
(b) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telex, telecopier, or air courier guaranteeing overnight
delivery:
(1) if to a holder of Registrable Notes or Exchange
Notes, at the most current address given by such holder to the Company
in accordance with the provisions of this Section 7(b), which address
initially is, with respect to each holder, the address of such holder
to which confirmation of the sale of the Notes was first sent by an
Initial Purchaser, with a copy in like manner to Bear, Xxxxxxx & Co.
Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Finance Department, Xxxxxxxxx & Company, Inc., 00000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx Xxxxx, and
Xxxxxxx Xxxxx & Associates, Inc., 000 Xxxxxxxx Xxxxxxx, Xx. Xxxxxxxxxx,
Xxxxxxx 00000, Attention: Corporate Finance Department;
(2) if to an Initial Purchaser, to the addresses set
forth in clause (b)(1) above; and
(3) if to the Company, initially at its respective
address set forth in the Purchase Agreement.
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 answered back, if telexed; when receipt is acknowledged by recipient's
telecopy operator, if telecopied; and on the day delivered, if sent by overnight
air courier guaranteeing next day delivery.
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(a) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent holders of the Registrable Notes.
(b) Counterparts. This Agreement may be executed in any
number of 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.
(c) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(d) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York, without
giving effect to principles of conflicts of laws to the extent the application
of the law of another jurisdiction would be required thereby.
(e) Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
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REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above:
Very truly yours,
XXXXXXX PETROLEUM CORPORATION
By: /s/ XXXXXXX XXXXXX
--------------------------------
Name: Xxxxxxx Xxxxxx
--------------------------------
Title: President
--------------------------------
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REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE
Accepted and agreed to as of
the first date written above
BEAR, XXXXXXX & CO. INC.
By: /s/ T. XXXXXX XXXXX
--------------------------------
Name: T. Xxxxxx Xxxxx
--------------------------------
Title: Senior Managing Director
-------------------------------
JEFFERIES & COMPANY, INC.
By: /s/ XXX XXXX
--------------------------------
Name: Xxx Xxxx
--------------------------------
Title: Managing Director
-------------------------------
XXXXXXX XXXXX & ASSOCIATES, INC.
By: /s/ XXXXX X. XXXXXXXX
--------------------------------
Name: Xxxxx X. XxXxxxxx
--------------------------------
Title: Managing Director
-------------------------------
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