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REGISTRATION RIGHTS AGREEMENT
BETWEEN
FOREST OIL CORPORATION
AND
THE FORCENERGY INC STOCKHOLDERS LISTED ON THE SIGNATURE PAGE HERETO
DATED JULY 10, 2000
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS...................................................1
1.1 DEFINITIONS...................................................1
1.2 Internal References...........................................2
ARTICLE II REGISTRATION RIGHTS..........................................3
2.1 Demand Registration...........................................3
2.2 Piggyback Registration........................................5
2.3 Shelf Registration............................................6
ARTICLE III REGISTRATION PROCEDURES.....................................7
3.1 Filings; Information..........................................7
3.2 Registration Expenses........................................11
ARTICLE IV INDEMNIFICATION AND CONTRIBUTION............................11
4.1 Indemnification by the Company...............................11
4.2 Indemnification by Selling Holders...........................12
4.3 Conduct of Indemnification Proceedings.......................12
4.4 Contribution.................................................13
ARTICLE V MISCELLANEOUS................................................14
5.1 Participation in Underwritten Registrations..................14
5.2 Rule 144.....................................................14
5.3 Holdback Agreements..........................................15
5.4 Effective Time; Termination..................................15
5.5 Amendments, Waivers, Etc.....................................15
5.6 Counterparts.................................................15
5.7 Entire Agreement.............................................15
5.8 Governing Law................................................15
5.9 Subsequent Registration Rights...............................16
5.10 Specific Performance.........................................16
This REGISTRATION RIGHTS AGREEMENT (this
"AGREEMENT"), is made as of July 10, 2000, by and
between Forest Oil Corporation, a New York corporation
(the "Company") and the other signatories to this
Agreement.
WHEREAS, Forcenergy Inc, a Delaware corporation
("Forcenergy"), the Company and Forest Acquisition I Corporation, a Delaware
corporation and wholly owned subsidiary of Forest ("FOREST SUB") entered into an
Agreement and Plan of Merger dated the date hereof (as the same may be amended
or supplemented, the "MERGER AGREEMENT") providing for the merger of Forest Sub
with and into Forcenergy (the "MERGER") upon the terms and subject to the
conditions set forth in the Merger Agreement;
WHEREAS, simultaneously with the execution and delivery of the
Merger Agreement, the Company and certain principal stockholders of Forcenergy
(the "PRINCIPAL FORCENERGY STOCKHOLDERS") entered into the Forcenergy
Stockholders Agreement (the "FORCENERGY STOCKHOLDERS AGREEMENT") in the form of
Exhibit A to the Merger Agreement pursuant to which the Principal Forcenergy
Stockholders agreed to vote to adopt the Merger Agreement and to take certain
other actions in furtherance of the Merger; and
WHEREAS, each Principal Forcenergy Stockholder desires that
the Company enter into this Agreement as an inducement to the Principal
Forcenergy Stockholders entering into and executing the Forcenergy Stockholders
Agreement.
NOW, THEREFORE, in consideration of the execution and delivery
by the Principal Forcenergy Stockholders of the Forcenergy Stockholders
Agreement and the mutual covenants, conditions and agreements contained herein
and therein, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS.
Terms defined in the Merger Agreement are used herein as therein
defined except as otherwise indicated below. In addition, the following terms,
as used herein, have the following meanings:
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means the common stock, par value $0.10 per
share, of the Company.
"DEMAND REGISTRATION" means a registration under the
Securities Act requested in accordance with Section 2.1.
"HOLDERS" means the Principal Forcenergy Stockholders who hold
Registrable Securities.
"PIGGYBACK REGISTRATION" has the meaning set forth in
Section 2.2.
"REGISTRABLE COMMON STOCK" means shares of Common Stock issued
or issuable to the Principal Forcenergy Stockholders upon the Closing of the
Merger, plus any additional shares of Common Stock issued in respect thereof in
connection with any stock split, stock dividend or similar event with respect to
the Common Stock.
"REGISTRABLE SECURITIES" means (a) the Registrable Common
Stock and (b) any securities of the Company or any successor entity into which
Registrable Common Stock may hereafter be converted or changed. As to any
particular Registrable Securities, such securities shall cease to be Registrable
Securities when (i) a registration statement with respect to the sale of such
securities shall have become effective under the Securities Act and such
securities shall have been disposed of under such registration statement, (ii)
such securities shall have been transferred pursuant to Rule 144, (iii) such
securities shall have been otherwise transferred or disposed of by the Principal
Forcenergy Stockholders (other than to an (A) Affiliate of such transferring or
disposing stockholder or (B) any transferee who acquires 2.5% or more of the
outstanding Common Stock and who agrees to be bound by the terms of this
Agreement) or (iv) such securities shall have ceased to be outstanding.
"REQUESTING HOLDERS" means the Holders requesting a Demand
Registration, and shall include parties deemed "Requesting Holders" pursuant to
Section 2.1(a)(iii).
"RULE 144" means Rule 144 (or any successor rule of similar
effect) promulgated under the Securities Act.
"SELLING HOLDER" means any Holder who is selling Registrable
Securities pursuant to a public offering registered hereunder.
"SHELF REGISTRATION" has the meaning set forth in Section 2.3.
"UNDERWRITER" means a securities dealer who purchases any
Registrable Securities as principal and not as part of such dealer's
market-making activities.
1.2 INTERNAL REFERENCES
Unless the context indicates otherwise, references to Articles,
Sections and paragraphs shall refer to the corresponding articles, sections and
paragraphs in this Agreement.
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ARTICLE II
REGISTRATION RIGHTS
2.1 DEMAND REGISTRATION
(a)
(i) Each Holder may make, until the fifth anniversary
of the date of this Agreement, one or more written requests for a
Demand Registration of all or any part of the Registrable Securities
held by such Holder; provided, that (A) the Company shall in no event
be required to effect more than two Demand Registrations for the
Holders in total in any 12-month period, (B) each such Demand
Registration must be in respect of Registrable Securities with a fair
market value of at least $25 million or all of the Registrable
Securities then held by the requesting Holder if the aggregate fair
market value of all of such Registrable Securities is less than $25
million and (C) such Holder shall not be entitled to a Demand
Registration if, during the 120 days preceding such request, any Holder
has requested a Demand Registration unless the Company preempted such
Demand Registration in accordance with Section 2.1(d) or the Company
postponed the filing thereof in accordance with Section 3.1(a) and the
requesting Holders withdrew the request for such Demand Registration.
(ii) Any request for a Demand Registration will
specify the aggregate number of shares of Registrable Securities
proposed to be sold by the Requesting Holders and will also specify the
intended method of disposition thereof. A registration will not count
as a Demand Registration until it has become effective. Should a Demand
Registration not become effective due to the failure of a Holder to
perform its obligations under this Agreement or the inability of the
Requesting Holders to reach agreement with the Underwriters for the
proposed sale on price or other customary terms for such transaction,
or in the event the Requesting Holders withdraw or do not pursue the
request for the Demand Registration (in each of the foregoing cases,
provided that at such time the Company is in compliance in all material
respects with its obligations under this Agreement), then such Demand
Registration shall be deemed to have been effected (provided that (A)
if, the Demand Registration does not become effective because a
material adverse change has occurred, or is reasonably likely to occur,
in the condition (financial or otherwise), business, assets or results
of operations of the Company and its subsidiaries taken as a whole
subsequent to the date of the written request made by the Requesting
Holders, or (B) if the Company withdraws the Demand Registration for
any reason or preempts the request for the Demand Registration, or (C)
if, after the Demand Registration has become effective, an offering of
Registrable Securities pursuant to a registration is interfered with by
any stop order, injunction, or other order or requirement of the
Commission or other governmental agency or court or (D) if the Demand
Registration is withdrawn at the request of the Requesting Holders
pursuant to Section 2.1(e) or Section 3.1(a), then the Demand
Registration shall not be deemed to have been effected and will not
count as a Demand Registration).
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(iii) Upon receipt of any request for a Demand
Registration by a Holder, the Company shall promptly (but in any event
within ten (10) days) give written notice of such proposed Demand
Registration to the other Holders, and all such other Holders shall
have the right, exercisable by written notice to the Company within
twenty (20) days of their receipt of the Company's notice, to elect to
include in such Demand Registration such portion of their Registrable
Securities as they may request. All such Holders requesting to have
their Registrable Securities included in a Demand Registration in
accordance with the preceding sentence shall be deemed to be
"Requesting Holders" for purposes of this Section 2.1.
(b) If the Requesting Holders so elect, the offering of such
Registrable Securities pursuant to such Demand Registration shall be in the form
of a "firm commitment" underwritten offering. With respect to any such
underwritten offering, the Company shall select an investment banking firm or
firms of national standing to manage the underwritten offering, subject to the
consent of a majority in interest of the Requesting Holders, which consent shall
not be unreasonably withheld; provided, however, that if a majority of the
Registrable Securities of the Requesting Holders are held by Xxxxxx Brothers
Inc. or any Affiliate thereof, then the Company shall select Xxxxxx Brothers
Inc. or one of its Affiliates to manage the underwritten offering.
(c) The Requesting Holders will inform the Company of the time
and manner of any disposition of Registrable Common Stock, and agree to
reasonably cooperate with the Company in effecting the disposition of the
Registrable Common Stock in a manner that does not unreasonably disrupt the
public trading market for the Common Stock; provided, however, that the Holders'
only right to a shelf registration statement shall be pursuant to Section 2.3.
(d) The Company will have the right to preempt any Demand
Registration with a primary registration by delivering written notice (within
seven business days after the Company has received a request for such Demand
Registration) of such intention to the Requesting Holders indicating that the
Company has identified a specific business need and use for the proceeds of the
sale of such securities and had contemplated such sale of securities prior to
receiving the Requesting Holders' notice, and the Company shall use commercially
reasonable efforts to effect a primary registration within 90 days of such
notice. In the ensuing primary registration, the Holders will have such
piggyback registration rights as are set forth in Section 2.2 hereof. Upon the
Company's preemption of a requested Demand Registration, such requested
registration will not count as the Holders' Demand Registration. If the Company
thereafter decides to abandon its intention to pursue such sale of securities,
it shall give notice thereof to any preempted Holders within five business days
following the Company's decision. The Company may exercise the right to preempt
a Demand Registration only once in any 360-day period; provided, that during any
360-day period the Company shall use its reasonable best efforts to permit a
period of at least 180 consecutive days during which the Selling Holders may
effect a Demand Registration.
(e) Securities to be sold for the account of any Person
(including the Company) other than a Requesting Holder shall not be included in
a Demand Registration if the managing Underwriter or Underwriters shall advise
the Company and the Requesting Holders in writing that the inclusion of such
securities will materially and adversely affect the price of the offering
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(a "MATERIAL ADVERSE EFFECT"). Furthermore, in the event the managing
Underwriter or Underwriters shall advise the Company or the Requesting
Holders that even after exclusion of all securities of other Persons
(including the Company) pursuant to the immediately preceding sentence, the
amount of Registrable Securities proposed to be included in such Demand
Registration by Requesting Holders is sufficiently large to cause a Material
Adverse Effect, the Registrable Securities of the Requesting Holders to be
included in such Demand Registration shall equal the number of shares which
the Company and the Requesting Holders are so advised can be sold in such
offering without a Material Adverse Effect and such shares shall be allocated
pro rata among the Requesting Holders on the basis of the number of
Registrable Securities requested to be included in such registration by each
such Requesting Holder; provided, however, that if any Registrable Securities
requested to be registered pursuant to a Demand Registration under Section
2.1 are excluded from registration hereunder, then the Holder(s) having
shares excluded ("EXCLUDED HOLDERS") shall have the right to withdraw all, or
any part, of their shares from such registration and if withdrawn in full
such Demand Registration shall not be deemed to have been effected and will
not count as a Demand Registration.
(f) If any Holder is exercising a demand registration right
under any other agreement with the Company, such Holder shall notify all other
Holders of the exercise of such demand.
2.2 PIGGYBACK REGISTRATION
(a) If the Company proposes to file, at any time until the
tenth anniversary of the date of this Agreement, a registration statement under
the Securities Act with respect to an offering of Common Stock for its own
account or for the account of another Person (other than a registration
statement on Form S-4 or S-8, or, except as provided for in Section 2.3,
pursuant to Rule 415 (or any substitute form or rule, respectively, that may be
adopted by the Commission)), the Company shall give written notice of such
proposed filing to the Holders as soon as reasonably practicable (but in no
event less than 15 days before the anticipated filing date), undertaking to
provide each Holder the opportunity to register on the same terms and conditions
such number of shares of Registrable Securities as such Holder may request (a
"PIGGYBACK REGISTRATION"); provided that the Company shall in no event be
required to provide the Holders with notice of, and the Holders shall not be
entitled to participate in, more than ten Piggyback Registrations for any Holder
and its Affiliates in total. Subject to the foregoing proviso, each Holder will
have seven business days after receipt of any such notice to notify the Company
as to whether it wishes to participate in a Piggyback Registration; provided
that should a Holder fail to provide timely notice to the Company, such Holder
will forfeit any rights to participate in the Piggyback Registration with
respect to such proposed offering other than as described in Section
2.1(a)(iii). In the event that the registration statement is filed on behalf of
a Person other than the Company, the Company will use its best efforts to have
the shares of Registrable Securities that the Holders wish to sell included in
the registration statement. If the Company or the Person for whose account such
offering is being made shall determine in its sole discretion not to register or
to delay the proposed offering, the Company may, at its election, provide
written notice of such determination to the Holders and (i) in the case of a
determination not to effect the proposed offering, shall thereupon be relieved
of the obligation to register such Registrable Securities in connection
therewith, and (ii) in the case of a determination to delay a proposed offering,
shall thereupon be permitted to delay registering such Registrable Securities
for the same period as the
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delay in respect of the proposed offering. As between the Company and the
Selling Holders, the Company shall be entitled to select the Underwriters in
connection with any Piggyback Registration.
(b) If the managing Underwriter advises the Company that the
inclusion of the requested Registrable Securities in the Piggyback Registration
would cause a Material Adverse Effect, the Company will be obligated to include
in such registration statement, as to each Holder only a portion of the shares
such Holder has requested be registered equal to the ratio which such Holder's
requested shares bears to the total number of shares requested to be included in
such registration statement by all Persons (other than the Person or Persons
initiating such registration request) who have the contractual right to request
that their shares be included in such registration statement and who have
requested their shares be included. If the Company initiated the registration,
then the Company may include all of its securities in such registration
statement before any such Holder's requested shares are included. If another
security holder initiated the registration, then the Company may not include any
of its securities in such registration statement unless all Registrable
Securities requested to be included in the registration statement by all Holders
are included in such registration statement. If as a result of the provisions of
this Section 2.2(b) any Holder shall not be entitled to include all Registrable
Securities in a registration that such Holder has requested to be so included,
such Holder may withdraw such Holder's request to include Registrable Securities
in such registration statement prior to its effectiveness and if withdrawn in
full such registration shall not be deemed to reduce the number of Piggyback
Registrations in which such Holder is entitled to participate under Section
2.2(a) of this Agreement.
2.3 SHELF REGISTRATION
Each Holder may, at any time after the 60th day after the Effective
Time of the Merger or, if longer, after such period of time as would be required
not to prevent the treatment of the Merger as a pooling of interests for
accounting purposes, make a written request that the Company effect a shelf
registration of all or a portion of the Registrable Securities held by such
Holder (a "SHELF REGISTRATION") pursuant to Rule 415. Upon receipt of a request
for a Shelf Registration, the Company shall promptly (but in any event within 10
business days) give written notice of the proposed Shelf Registration to all
other Holders, and all such Holders shall have the right to include Registrable
Securities in the Shelf Registration. Each Holder will have seven business days
after receipt of any such notice to notify the Company as to whether it wishes
to participate in a Shelf Registration; provided that should a Holder fail to
provide timely notice to the Company, such Holder will forfeit any rights to
participate in the Shelf Registration with respect to such proposed offering.
The Company covenants to prepare and publish, within 60 days after the Effective
Time of the Merger, results covering at least 30 days of combined operations of
the Company and Forcenergy Inc, in the form of a quarterly earnings report, an
effective registration statement filed with the Commission, a report to the
Commission on Form 10-K, 10-Q or 8-K or any other public filing or announcement
that includes the combined results of operations.
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ARTICLE III
REGISTRATION PROCEDURES
3.1 FILINGS; INFORMATION
In connection with the registration of Registrable Securities pursuant
to Section 2.1, Section 2.2 and Section 2.3 hereof, the Company will use its
reasonable best efforts to effect the registration of such Registrable
Securities as promptly as is reasonably practicable, and in connection with any
such request:
(a) The Company will expeditiously prepare and file with the
Commission a registration statement on any form for which the Company then
qualifies and which counsel for the Company shall deem appropriate and available
for the sale of the Registrable Securities to be registered thereunder in
accordance with the intended method of distribution thereof, and use its
reasonable best efforts to cause such filed registration statement to become and
remain effective (i) with respect to any Demand Registration or Piggyback
Registration, for such period, not to exceed 60 days, as may be reasonably
necessary to effect the sale of such securities, (ii) with respect to a Shelf
Registration, until the earlier of the sale of all Registrable Securities
thereunder and the second anniversary of the effective date of such Shelf
Registration (it being understood that if at any time all the Registrable
Securities then permitted to be sold under such Shelf Registration pursuant to
Section 2.3 have been sold but any of the Holders has the right to request a
Shelf Registration in the future pursuant to Section 2.3, the Company may (at
its option) either cause the registration statement to remain effective
(notwithstanding the fact that all securities then registrable on such shelf
registration statement shall have been sold) and file post-effective amendments
when required to permit the sale of the additional Registrable Securities or
prepare and file, and cause to become and remain effective, a new shelf
registration statement to effect the registration of the additional Registrable
Securities when required pursuant to Section 2.3); provided that if the Company
shall furnish to the Selling Holder a certificate signed by the Company's
Chairman, President or any Executive Vice-President or Vice-President stating
that the Company's Board of Directors has determined in good faith that it would
be detrimental or otherwise disadvantageous to the Company or its shareholders
for such a registration statement to be filed as expeditiously as possible
because the sale of Registrable Securities covered by such registration
statement or the disclosure of information in any related prospectus or
prospectus supplement would materially interfere with any acquisition, financing
or other material event or transaction which is then intended or the public
disclosure of which at the time would be materially prejudicial to the Company,
the Company may postpone the filing or effectiveness of a registration statement
for a period of not more than 60 days in any one instance or 120 days in the
aggregate in any 360-day period; provided that during any 360-day period the
Company shall use its reasonable best efforts to permit a period of at least 180
consecutive days during which the Company will make a registration statement
available under this Agreement; and provided further that if (i) the effective
date of any registration statement filed pursuant to a Demand Registration would
otherwise be at least 45 calendar days, but fewer than 90 calendar days, after
the end of the Company's fiscal year, and (ii) the Securities Act requires the
Company to include audited financials as of the end of such fiscal year, the
Company may delay the effectiveness of such registration statement for such
period as is reasonably necessary to include therein its audited financial
statements for such fiscal year. If
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the Company exercises its right to postpone the filing or effectiveness of a
registration statement, the applicable Requesting Holders shall be entitled to
withdraw their request for such Demand Registration and it shall not count as a
Demand Registration.
(b) Anything in this Agreement to the contrary
notwithstanding, it is understood and agreed that the Company shall not be
required to keep any shelf registration effective or useable for offers and
sales of the Registrable Securities, file a post effective amendment to a shelf
registration statement or prospectus supplement or to supplement or amend any
registration statement, if the Company is then involved in discussions
concerning, or otherwise engaged in, any material financing or investment,
acquisition or divestiture transaction or other material business purpose if the
Company determines in good faith that the making of such a filing, supplement or
amendment at such time would interfere with such transaction or purpose. The
Company shall promptly give the Holders of Registrable Securities written notice
of such postponement containing a general statement of the reasons for such
postponement and an approximation of the anticipated delay. Upon receipt by a
Holder of Registrable Securities of notice of an event of the kind described in
this Section 3.1(b), such Holder shall forthwith discontinue such Holder's
disposition of Registrable Securities until such Holder's receipt of notice from
the Company that such disposition may continue and of any supplemented or
amended prospectus indicated in such notice. No such postponement shall extend
for a period of more than 60 days in any one instance or 120 days in the
aggregate in any 360-day period; provided, that the Company shall use its
reasonable best efforts to permit sales of Registrable Securities on such shelf
registration statement for at least 180 days during any 360-day period. In the
event the Company shall give notice of an event of the kind described in this
Section 3.1(b), the Company shall extend the period during which the applicable
registration statement shall be maintained effective as provided in Section
3.1(a) hereof by the number of days during such period from and including the
date of the giving of such notice to the date when the Company shall give notice
to the Selling Holders that such dispositions of such Registrable Securities may
continue and shall have made available to the Selling Holders any such
supplemented or amended prospectus.
(c) The Company will, if requested, prior to filing such
registration statement or any amendment or supplement thereto, furnish to the
Selling Holders, and each applicable managing Underwriter, if any, copies
thereof, and thereafter furnish to the Selling Holders and each such
Underwriter, if any, such number of copies of such registration statement,
amendment and supplement thereto (in each case including all exhibits thereto
and documents incorporated by reference therein) and the prospectus included in
such registration statement (including each preliminary prospectus) as the
Selling Holders or each such Underwriter may reasonably request in order to
facilitate the sale of the Registrable Securities by the Selling Holders.
(d) After the filing of the registration statement, the
Company will promptly notify the Selling Holders of any stop order issued or, to
the Company's knowledge, threatened to be issued by the Commission and take all
reasonable actions required to prevent the entry of such stop order or to remove
it if entered.
(e) The Company will use its commercially reasonable efforts
to qualify the Registrable Securities for offer and sale under such other
securities or blue sky laws of such jurisdictions in the United States as the
Selling Holders reasonably request; keep each such
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registration or qualification (or exemption therefrom) effective during the
period in which such registration statement is required to be kept effective;
and do any and all other acts and things which may be reasonably necessary or
advisable to enable each Selling Holder to consummate the disposition of the
Registrable Securities owned by such Selling Holder in such jurisdictions;
provided that the Company will not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this paragraph 3.1(e), (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction.
(f) The Company will as promptly as is practicable notify the
Selling Holders, at any time when a prospectus relating to the sale of the
Registrable Securities is required by law to be delivered in connection with
sales by an Underwriter or dealer, of the occurrence of any event requiring the
preparation of a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an 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 the light of the circumstances under which they were
made, not misleading and promptly make available to the Selling Holders and to
the Underwriters any such supplement or amendment. Upon receipt of any notice of
the occurrence of any event of the kind described in the preceding sentence,
Selling Holders will forthwith discontinue the offer and sale of Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until receipt by the Selling Holders and the Underwriters of the
copies of such supplemented or amended prospectus and, if so directed by the
Company, the Selling Holders will deliver to the Company all copies, other than
permanent file copies then in the possession of Selling Holders, of the most
recent prospectus covering such Registrable Securities at the time of receipt of
such notice. In the event the Company shall give such notice, the Company shall
extend the period during which such registration statement shall be maintained
effective as provided in Section 3.1(a) hereof by the number of days during the
period from and including the date of the giving of such notice to the date when
the Company shall make available to the Selling Holders such supplemented or
amended prospectus.
(g) The Company will enter into customary agreements
(including an underwriting agreement in customary form) and take such other
actions (including, without limitation, participation in road shows and investor
conference calls as the Selling Holders may reasonably request (it being
understood that such presentations by officers of the Company of 14 days in the
aggregate during any 12-month period shall be deemed a reasonable request)) as
are required in order to expedite or facilitate the sale of such Registrable
Securities.
(h) At the request of any Underwriter in connection with an
underwritten offering the Company will furnish (i) an opinion of counsel,
addressed to the Underwriters, covering such customary matters as the managing
Underwriter may reasonably request and (ii) a comfort letter or comfort letters
from the Company's independent public accountants pursuant to Statement of
Accounting Standards 72 each in customary form and covering such matters as the
managing Underwriter may reasonably request.
(i) If requested by the managing Underwriter or any Selling
Holder, the Company shall promptly incorporate in a prospectus supplement or
post effective amendment such information as the managing Underwriter or any
Selling Holder reasonably requests to be
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included therein, including without limitation, with respect to the Registrable
Securities being sold by such Selling Holder, the purchase price being paid
therefor by the Underwriters and with respect to any other terms of the
underwritten offering of the Registrable Securities to be sold in such offering,
and promptly make all required filings of such prospectus supplement or post
effective amendment.
(j) The Company shall promptly make available for inspection
by any Selling Holder or Underwriter participating in any disposition pursuant
to any registration statement, and any attorney, accountant or other agent or
representative retained by any such Selling Holder or Underwriter (collectively,
the "INSPECTORS"), all financial and other records, pertinent corporate
documents and properties of the Company (collectively, the "RECORDS"), as shall
be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and employees to
supply all information requested by any such Inspector in connection with such
registration statement; provided, however, that unless the disclosure of such
Records is necessary to avoid or correct a misstatement or omission in the
registration statement or the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction, the Company
shall not be required to provide any information under this subparagraph (j) if
(A) the Company believes, after consultation with counsel for the Company, that
to do so would cause the Company to forfeit an attorney-client privilege that
was applicable to such information or (B) if either (1) the Company has
requested and been granted from the Commission confidential treatment of such
information contained in any filing with the Commission or documents provided
supplementally or otherwise or (2) the Company reasonably determines in good
faith that such Records are confidential and so notifies the Inspectors in
writing unless prior to furnishing any such information with respect to (A) or
(B) such Holder of Registrable Securities requesting such information agrees to
enter into a confidentiality agreement in customary form; provided further,
however, that each Holder of Registrable Securities agrees that it will, upon
learning that disclosure of such Records is sought in a court of competent
jurisdiction, give written notice to the Company and allow the Company, at its
expense, to undertake appropriate action and to prevent disclosure of the
Records deemed confidential.
(k) The Company shall cause the Registrable Securities
included in any registration statement to be (A) listed on each securities
exchange, if any, on which similar securities issued by the Company are then
listed, or (B) authorized to be quoted and/or listed (to the extent applicable)
on the Nasdaq National Market if the Registrable Securities so qualify.
(l) The Company shall provide a CUSIP number for the
Registrable Securities included in any registration statement not later than the
effective date of such registration statement.
(m) The Company shall cooperate with each Selling Holder and
each Underwriter participating in the disposition of such Registrable Securities
and their respective counsel in connection with any filings required to be made
with the National Association of Securities Dealers, Inc.
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(n) The Company shall during the period when the prospectus is
required to be delivered under the Securities Act, promptly file all documents
required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act.
(o) The Company will make generally available to its security
holders, as soon as reasonably practicable, an earnings statement covering a
period of 12 months, beginning within three months after the effective date of
the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder.
The Company may require Selling Holders promptly to furnish in writing
to the Company such information regarding such Selling Holders, the plan of
distribution of the Registrable Securities and other information as the Company
may from time to time reasonably request or as may be legally required in
connection with such registration.
3.2 REGISTRATION EXPENSES
In connection with any Registration effected hereunder, the Company
shall pay the following expenses incurred in connection with such registration
(the "REGISTRATION EXPENSES"): (i) registration and filing fees with the
Commission and the National Association of Securities Dealers, Inc., (ii) fees
and expenses of compliance with securities or blue sky laws (including
reasonable fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities), (iii) printing expenses, (iv)
fees and expenses incurred in connection with the listing or quotation of the
Registrable Securities, (v) fees and expenses of counsel to the Company and the
reasonable fees and expenses of independent certified public accountants for the
Company (including fees and expenses associated with the special audits or the
delivery of comfort letters), (vi) the reasonable fees and expenses of any
additional experts retained by the Company in connection with such registration,
(vii) all roadshow costs and expenses not paid by the Underwriter, and (viii)
reasonable fees and expenses of one counsel for the Selling Holders not to
exceed $25,000.
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
4.1 INDEMNIFICATION BY THE COMPANY
The Company agrees to indemnify and hold harmless each Selling Holder
and its Affiliates and their respective officers, directors, partners,
stockholders, members, employees, agents and representatives and each Person (if
any) which controls a Selling Holder within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act, from and against any and
all losses, claims, damages, liabilities, costs and expenses (including
reasonable attorneys' fees), joint or several, caused by, arising out of,
resulting from or related to any untrue statement or alleged untrue statement of
a material fact contained or incorporated by reference in any registration
statement or prospectus relating to the Registrable Securities (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or any preliminary prospectus, or caused by any omission or alleged
omission to state therein a
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material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by or based upon any information furnished in writing to
the Company by or on behalf of such Selling Holder expressly for use therein or
by the Selling Holder's failure to deliver a copy of the prospectus, prospectus
supplement or any amendments or supplements thereto after the Company has
furnished the Selling Holder with copies of the same. The Company also agrees to
indemnify any Underwriters of the Registrable Securities, their officers and
directors and each person who controls such Underwriters on substantially the
same basis as that of the indemnification of the Selling Holders provided in
this Section 4.1, except insofar as such losses, claims, damages or liabilities
are caused by or based upon any information furnished in writing to the Company
by or on behalf of such Underwriter expressly for use therein or by the
Underwriter's failure to deliver a copy of the prospectus, prospectus supplement
or any amendments or supplements thereto after the Company has furnished the
Underwriter with copies of the same.
4.2 INDEMNIFICATION BY SELLING HOLDERS
Each Selling Holder agrees to indemnify and hold harmless the Company,
its officers and directors, and each Person, if any, which controls 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 each Selling Holder, but only with reference to information furnished in
writing by or on behalf of such Selling Holder expressly for use in any
registration statement or prospectus relating to the Registrable Securities, or
any amendment or supplement thereto, or any preliminary prospectus. Each Selling
Holder also agrees to indemnify and hold harmless any Underwriters of the
Registrable Securities, their officers and directors and each person who
controls such Underwriters on substantially the same basis as that of the
indemnification of the Company provided in this Section 4.2, but only with
reference to information furnished in writing by or on behalf of such Selling
Holder expressly for use in any registration statement or prospectus relating to
the Registrable Securities, or any amendment or supplement thereto, or any
preliminary prospectus. Each such Selling Holder's liability under this Section
4.2 shall be limited to an amount equal to the net proceeds (after deducting the
underwriting discount and expenses) received by such Selling Holder from the
sale of such Registrable Securities by such Selling Holder. The obligation of
each Selling Holder shall be several and not joint.
4.3 CONDUCT OF INDEMNIFICATION PROCEEDINGS
In case any proceeding (including any governmental investigation) shall
be instituted involving any Person in respect of which indemnity may be sought
pursuant to Section 4.1 or Section 4.2, such Person (the "INDEMNIFIED PARTY")
shall promptly notify the Person against whom such indemnity may be sought (the
"INDEMNIFYING PARTY") in writing and the Indemnifying Party, upon the request of
the Indemnified Party, shall retain counsel reasonably satisfactory to such
Indemnified Party to represent such Indemnified Party and any others the
Indemnifying Party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any Indemnified Party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party
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shall have mutually agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties) include both
the Indemnified Party and the Indemnifying Party and, in the written opinion of
counsel for the Indemnified Party, representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the Indemnifying Party shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm of attorneys
(in addition to any local counsel) at any time for all such Indemnified Parties,
and that all such fees and expenses shall be reimbursed as they are incurred. In
the case of any such separate firm for the Indemnified Parties, such firm shall
be designated in writing by the Indemnified Parties. The Indemnifying Party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent (not to be unreasonably
withheld), or if there be a final judgment for the plaintiff, the Indemnifying
Party shall indemnify and hold harmless such Indemnified Parties from and
against any loss or liability (to the extent stated above) by reason of such
settlement or judgment. No Indemnifying Party shall, without the prior written
consent (not to be unreasonably withheld) of the Indemnified Party, consent to
entry of any judgment or enter into any settlement with respect to any matter as
to which indemnification may be sought hereunder unless such judgment or
settlement includes as a term thereof the unconditional release of the
Indemnified Party (with no admission of culpability) from all liability in
respect of such proceeding.
4.4 CONTRIBUTION
If the indemnification provided for in this Article IV is unavailable
to an Indemnified Party in respect of any losses, claims, damages or liabilities
in respect of which indemnity is to be provided hereunder, then each such
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall to the
fullest extent permitted by law contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages or liabilities in
such proportion as is appropriate to reflect the relative fault of such party in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company, a Selling Holder and the
Underwriters 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
such party and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and each Selling Holder agrees that it would not be just
and equitable if contribution pursuant to this Section 4.4 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Party as a result of the losses,
claims, damages or liabilities 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 Article IV, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the securities underwritten by it and distributed to the public
were offered to the public exceeds
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the amount of any damages which such Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission, and each Selling Holder shall not be required to contribute any amount
in excess of the amount by which the net proceeds of the offering (after
deducting the underwriting discount and expenses paid or incurred by such
Selling Holder) received by such Selling Holder exceeds the amount of any
damages which such Selling Holder has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
ARTICLE V
MISCELLANEOUS
5.1 PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Person may participate in any underwritten registered offering
contemplated hereunder unless such Person (a) agrees to sell its securities on
the basis provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements, (b) completes and executes all
questionnaires, powers of attorney, custody arrangements, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements and this Agreement and (c) furnishes in
writing to the Company such information regarding such Person, the plan of
distribution of the Registrable Securities and other information as the Company
may from time to time request or as may be legally required in connection with
such registration; provided, however, that no such Person shall be required to
make any representations or warranties in connection with any such registration
other than representations and warranties as to (i) such Person's ownership of
his or its Registrable Securities to be sold or transferred free and clear of
all liens, claims and encumbrances, (ii) such Person's power and authority to
effect such transfer and (iii) such matters pertaining to compliance with
securities laws as may be reasonably requested; provided further, however, that
the obligation of such Person to indemnify pursuant to any such underwriting
agreements shall be several, not joint and several, among such Persons selling
Registrable Securities, and the liability of each such Person will be in
proportion to, and provided further that such liability will be limited to, the
net amount received by such Person from the sale of such Person's Registrable
Securities pursuant to such registration.
5.2 RULE 144
The Company covenants that it will file any reports required to be
filed by it under the Securities Act and the Exchange Act and that it will take
such further action as the Holders may reasonably request to the extent required
from time to time to enable the Holders to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144 under the Securities Act, as such Rule may be amended from
time to time, or any similar rule or regulation hereafter adopted by the
Commission.
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5.3 HOLDBACK AGREEMENTS
Each Principal Forcenergy Stockholder, for so long as it owns
Registrable Securities representing 5% or more of the voting power of the
outstanding voting securities of the Company, agrees, in the event of an
underwritten offering by the Company (whether for the account of the Company or
otherwise) not to offer, sell, contract to sell or otherwise dispose of any
Registrable Securities, or any securities convertible into or exchangeable or
exercisable for such securities, including any sale pursuant to Rule 144 under
the Securities Act (except as part of such underwritten offering), during the 14
days prior to, and during the 90-day period (or such lesser period as the lead
or managing underwriters may require) beginning on, the effective date of the
registration statement for such underwritten offering (or, in the case of an
offering pursuant to an effective shelf registration statement pursuant to Rule
415, the pricing date for such underwritten offering), provided that in
connection with such underwritten offering each officer and director of the
Company and holder of 10% or more of the Common Stock is subject to restrictions
substantially equivalent to those imposed on the Principal Forcenergy
Stockholders.
5.4 EFFECTIVE TIME; TERMINATION
This Agreement, and the rights and obligations of the parties
hereunder, will be effective upon the Effective Time of the Merger and will
terminate upon the first to occur of (a) the date upon which the Merger
Agreement is terminated in accordance with its terms and (b) such time as there
shall no longer be any Registrable Securities.
5.5 AMENDMENTS, WAIVERS, ETC.
This Agreement may not be amended, waived or otherwise modified or
terminated except by an instrument in writing signed by the Company and the
Holders of at least 66% of the Registrable Securities then held by all the
Holders.
5.6 COUNTERPARTS
This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement. Each party need not sign
the same counterpart.
5.7 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement and supersedes all
prior agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof.
5.8 GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York regardless of the laws that might otherwise
govern under applicable principles of conflicts of law thereof.
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5.9 SUBSEQUENT REGISTRATION RIGHTS
Prior to the termination of all registration rights granted hereunder,
the Company will not, without the prior written consent of each Holder, enter
into any agreement with any holder or prospective holder of any securities of
the Company that would grant such holder or prospective holder registration
rights that would conflict with the registration rights granted hereunder.
5.10 SPECIFIC PERFORMANCE
The parties hereto acknowledge and agree that they would not have
adequate remedies at law and would be irreparably harmed if any of the
provisions of this Agreement were not performed by the parties hereto in
accordance with the specific terms hereof or were otherwise breached, and that,
in such case, it would be impossible to measure in money the damages to such
parties. It is accordingly agreed that the parties hereto shall be entitled to
injunctive relief or the enforcement of other equitable remedies, without bond
or other security, to compel performance and to prevent breaches of this
Agreement and specifically to enforce the terms and provisions hereof, in
addition to any other remedy to which they may be entitled at law or in equity.
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IN WITNESS WHEREOF, the Company and each Holder has caused
this Agreement to be signed on its behalf by its officer thereunto duly
authorized as of the date first written above.
FOREST OIL CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
OCM PRINCIPAL OPPORTUNITIES FUND, L.P.
By: Oaktree Capital Management, LLC, as general
partner or investment manager
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Principal
By: /s/ B. Xxxxx Xxxx
----------------------------------------
Name: B. Xxxxx Xxxx
Title: Vice President
OCM OPPORTUNITIES FUND II, L.P.
By: Oaktree Capital Management, LLC, as general
partner or investment manager
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Principal
By: /s/ Xxxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
COLUMBIA/HCA MASTER RETIREMENT TRUST
By: Oaktree Capital Management, LLC, as general
partner or investment manager
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Principal
By: /s/ Xxxxxxx Xxxxx
----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
XXXXXX BROTHERS INC.
By: /s/ J. Xxxxxx Xxxxxxxx
----------------------------------------------
Name: J. Xxxxxx Xxxxxxxx
Title: Managing Director
THE ANSCHUTZ CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and Chief Operating Officer
