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EXHIBIT 4.4
Execution Copy
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered as of June 13, 1997, among PETSEC ENERGY INC., a Nevada corporation
(the "Company"), and XXXXXXX XXXXX & CO., XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED, XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION and SALOMON
BROTHERS INC (the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated June
6, 1997 among the Company and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial
Purchasers of an aggregate of $100,000,000 principal amount of the Company's 9
1/2% Series A Senior Subordinated Notes due 2007 (the "Debt Securities"). In
order to induce the Initial Purchasers to enter into the Purchase Agreement,
the Company has agreed to provide to the Initial Purchasers and their direct
and indirect transferees the registration rights set forth in this Agreement.
The execution of this Agreement is a condition to the closing under the
Purchase Agreement.
In consideration of the foregoing, the parties hereto agree, and all
other Holders (as defined below) of Registrable Securities (as defined below)
from time to time, by their acceptance thereof, shall be conclusively deemed to
have agreed, as follows:
SECTION 1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time
to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Agreement" shall have the meaning set forth in the preamble.
"Closing Date" shall mean the date on which the Closing Time (as
defined in the Purchase Agreement) occurs.
"Company" shall have the meaning set forth in the preamble and also
includes the Company's successors.
"Debt Securities" shall have the meaning set forth in the preamble.
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"Depositary" shall mean the Trustee, or any other exchange agent
appointed by the Company.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Securities for Registrable Securities pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the 1933
Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement, in
each case including the Prospectus contained therein and all exhibits thereto.
"Exchange Securities" shall mean 9 1/2% Series B Senior Subordinated
Notes due 2007 issued by the Company under the Indenture containing terms
identical in all material respects to the Debt Securities (except that (i)
interest on the Exchange Securities shall accrue from the last date on which
interest was paid or duly provided for on the Debt Securities or, if no such
interest has been paid, from June 13, 1997, (ii) the transfer restrictions on
the Debt Securities shall be eliminated and (iii) certain provisions relating
to an increase in the stated rate of interest on the Debt Securities shall be
eliminated), to be offered to Holders of Debt Securities in exchange for Debt
Securities pursuant to the Exchange Offer.
"Holders" shall mean each of the Initial Purchasers, for so long as
they own any Registrable Securities, and each of its successors, assigns and
direct and indirect transferees who shall at the time be owners of Registrable
Securities under the Indenture; provided, however, that the term Holder shall
exclude any underwriter who purchased Registrable Securities for distribution
in an underwritten public offering pursuant to an effective Registration
Statement.
"Indenture" shall mean the Indenture relating to the Debt Securities
dated as of June 13, 1997 between the Company and The Bank of New York, as
trustee, as the same may be amended from time to time in accordance with the
terms thereof.
"Initial Purchasers" shall have the meaning set forth in the preamble.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities; provided,
however, that whenever the consent or approval of Holders of a specified
percentage of Registrable Securities is required hereunder, Registrable
Securities directly or indirectly held by the Company shall be disregarded in
determining whether such consent or approval was given by the Holders of such
required percentage or amount; and provided, further, that whenever the consent
or approval of Holders of Registrable Securities is required hereunder with
regard to matters related to a registered underwritten or similar offering or
with regard to matters pertaining to a Registration Statement, Registrable
Securities held by Holders
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not participating in such registered underwritten or similar offering, or
Registrable Securities not registered pursuant to such Registration Statement
(or, at any time prior to the filing of a Subject Registration Statement and
after the determination to file such Subject Registration Statement is made,
Registrable Securities whose Holders have not requested that such Registrable
Securities be included in such Subject Registration Statement), as the case may
be, shall be disregarded in determining whether such consent or approval was
given by the Holders of such required percentage or amount.
"Xxxxxxx Xxxxx" shall mean Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, on behalf of the Initial Purchasers.
"Person" shall mean an individual, partnership, corporation, trust,
unincorporated organization, limited liability company, joint stock company,
joint venture, charitable foundation or other entity, or a government or any
agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Subject Registration Statement, and by all
other amendments and supplements to a prospectus, including post-effective
amendment.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Purchaser Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company pursuant to the provisions of Section
2(b)(iii) of this Agreement with respect to offers and sales of Registrable
Securities held by any or all of the Initial Purchasers (except Registrable
Securities which the Initial Purchasers have elected not to include in such
Purchaser Shelf Registration Statement or the Initial Purchasers of which have
not complied with their obligations under the penultimate paragraph of Section
3 hereof or under the penultimate sentence of Section 2(b) hereof) after
completion of the Exchange Offer on an appropriate form under Rule 415 under
the 1933 Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein and all exhibits thereto.
"Registrable Securities" shall mean the Debt Securities; provided,
however, that any Debt Securities shall cease to be Registrable Securities when
(i) a Registration Statement with respect to such Debt Securities shall have
been declared effective under the 1933 Act and such Debt Securities shall have
been disposed of pursuant to such Registration Statement, (ii) such Debt
Securities shall have been sold to the public pursuant to Rule 144 (or any
similar provision then in force, but not Rule 144A) under the 1933 Act, (iii)
such Debt Securities shall have become eligible for resale pursuant to Rule
144(k) under the 1933 Act, (iv) such Debt Securities shall have ceased to be
outstanding or (v) such Debt Securities have been exchanged for Exchange
Securities upon consummation of the Exchange Offer.
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"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC or National Association of Securities Dealers,
Inc. ("NASD") registration and filing fees, (ii) all fees and expenses
incurred in connection with compliance with state securities or blue sky laws
(including reasonable fees and disbursements of one firm of legal counsel for
any underwriters and Holders in connection with blue sky qualification of any
of the Exchange Securities or Registrable Securities), (iii) all expenses of
printing and distributing any Registration Statement, any Prospectus and any
amendments or supplements thereto, (iv) all rating agency fees, (v) the fees
and disbursements of counsel(s) for the Company and of the independent public
accountants of the Company, including the expenses of "cold comfort" letters
required by this Agreement, (vi) the fees and expenses of the Trustee, and any
escrow agent or custodian, (vii) all fees and expenses incurred in connection
with listing the Debt Securities or the Exchange Securities, as the case may
be, on any securities exchange or on any securities quotation system and (viii)
the reasonable fees and expenses of any special experts retained by the Company
in connection with any Registration Statement, but excluding fees of counsel to
the underwriters or the Holders and underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of Registrable
Securities by a Holder.
"Registration Statement" shall mean any registration statement of the
Company which covers any of the Exchange Securities or Registrable Securities
pursuant to the provisions of this Agreement, and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein and all
exhibits thereto.
"SEC" shall mean the Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b)(i) or (ii)
of this Agreement which covers all of the Registrable Securities (except
Registrable Securities which the Holders have elected not to include in such
Shelf Registration Statement or the Holders of which have not complied with
their obligations under the penultimate paragraph of Section 3 hereof or under
the penultimate sentence of Section 2(b) hereof) on an appropriate form under
Rule 415 under the 1933 Act, or any similar rule that may be adopted by the
SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein and all exhibits thereto.
"Subject Registration Statement" shall mean a Shelf Registration
Statement or a Purchaser Shelf Registration Statement or both (as the context
requires).
"Trustee" shall mean the trustee with respect to the Debt Securities
under the Indenture.
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SECTION 2. Registration Under the 1933 Act.
(a) Exchange Offer Registration. To the extent not
prohibited by law (including, without limitation, any applicable interpretation
of the staff of the SEC), the Company shall use its best efforts (i) to file
within 60 days after the Closing Date an Exchange Offer Registration Statement
covering the offer by the Company to the Holders to exchange all of the
Registrable Securities (except Registrable Securities held by an Initial
Purchaser and acquired directly from the Company if such Initial Purchaser is
not permitted, in the opinion of counsel to the Initial Purchasers, pursuant to
applicable law or SEC interpretation, to participate in the Exchange Offer) for
Exchange Securities, (ii) to cause such Exchange Offer Registration Statement
to be declared effective by the SEC within 120 days after the Closing Date,
(iii) to cause such Exchange Offer Registration Statement to remain effective
until the closing of the Exchange Offer and (iv) to consummate the Exchange
Offer within 180 days following the Closing Date. The Exchange Securities will
be issued under the Indenture. Upon the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Exchange Offer,
it being the objective of such Exchange Offer to enable each Holder (other than
Participating Broker-Dealers (as defined in Section 3(f) hereof) and
broker-dealers who purchased Debt Securities directly from the Company to
resell pursuant to Rule 144A or any other available exemption under the 0000
Xxx) eligible and electing to exchange Registrable Securities for Exchange
Securities (assuming that such Holder is not an affiliate of the Company,
acquires the Exchange Securities in the ordinary course of such Holder's
business and has no arrangements or understandings with any person to
participate in the distribution (within the meaning of the 0000 Xxx) of
Exchange Securities) to trade or sell such Exchange Securities from and after
their receipt without any limitations or restrictions under the registration
requirement of the 1933 Act.
In connection with the Exchange Offer, the Company shall:
(A) mail to each Holder a copy of the
Prospectus forming part of the Exchange Offer Registration
Statement, together with an appropriate letter of transmittal
and related documents;
(B) keep the Exchange Offer open for not
less than 30 days after the date notice thereof is mailed to
the Holders (or longer if required by applicable law);
(C) use the services of the Depositary
for the Exchange Offer;
(D) permit Holders to withdraw tendered
Registrable Securities at any time prior to the close of
business, New York City time, on the last business day on
which the Exchange Offer shall remain open, by sending to the
institution specified in the notice, a telegram, telex,
facsimile transmission or letter setting forth the name of
such Holder, the principal amount of Registrable Securities
delivered for
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exchange and a statement that such Holder is withdrawing his
election to have such Debt Securities exchanged; and
(E) otherwise comply in all respects
with all applicable laws relating to the Exchange Offer.
As soon as practicable after the close of the Exchange
Offer, the Company shall:
(x) accept for exchange
Registrable Securities duly tendered and not validly withdrawn
pursuant to the Exchange Offer in accordance with the terms of
the Exchange Offer Registration Statement and the letter of
transmittal which is an exhibit thereto;
(y) deliver, or cause to be
delivered, to the Trustee for cancellation all Registrable
Securities so accepted for exchange by the Company; and
(z) cause the Trustee promptly to
authenticate and deliver Exchange Securities to each Holder of
Registrable Securities equal in amount to the Registrable
Securities of such Holder so accepted for exchange.
Interest on each Exchange Security will accrue from the last date on
which interest was paid or duly provided for on the Registrable Securities
surrendered in exchange therefor or, if no interest has been paid on the
Registrable Securities, from June 13, 1997. The Exchange Offer shall not be
subject to any conditions, other than (1) that the Exchange Offer, or the
making of any exchange by a Holder, does not violate applicable law or any
applicable interpretation of the staff of the SEC, (2) that no action or
proceeding shall have been instituted or threatened in any court or by or
before any governmental agency or body with respect to the Exchange Offer, (3)
that there shall not have been adopted or enacted any law, statute, rule or
regulation prohibiting or limiting the Exchange Offer, (4) that there shall not
have been declared by United States federal, New York or Texas state
authorities a banking moratorium, (5) that trading on the New York Stock
Exchange or generally in the United States over-the-counter market shall not
have been suspended by order of the SEC or any other governmental authority and
(6) such other conditions as may be reasonably acceptable to Xxxxxxx Xxxxx
which, in the Company's judgment, would reasonably be expected to impair the
ability of the Company to proceed with the Exchange Offer. In addition, each
Holder of Registrable Securities (other than Participating Broker-Dealers) who
wishes to exchange such Registrable Securities for Exchange Securities in the
Exchange Offer will be required to represent that (I) it is not an affiliate of
the Company, (II) any Exchange Securities to be received by it were acquired in
the ordinary course of business and (III) it is not engaged in, and does not
intend to engage in, and has no arrangement or understanding with any person to
participate in, the distribution (within the meaning of the 0000 Xxx) of the
Exchange Securities. Each Participating Broker-Dealer shall be required to make
such representations as, in the reasonable judgment of the Company, may be
necessary under applicable SEC rules, regulations or interpretations or
customary in connection with
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similar exchange offers. Each Holder (including Participating Broker-Dealers)
shall be required to make such other representations as may be reasonably
necessary under applicable SEC rules, regulations or interpretations to render
the use of Form S-4 or another appropriate form under the 1933 Act available
and will be required to agree to comply with their agreements and covenants set
forth in this Agreement. The Exchange Offer shall be subject to the further
condition that no stop order, injunction or similar order shall have been
issued or obtained by the SEC or any state securities authority suspending the
effectiveness of the Exchange Offer Registration Statement and no proceedings
shall have been initiated or, to the knowledge of the Company, threatened for
that purpose. To the extent permitted by law, the Company shall, upon written
request of Xxxxxxx Xxxxx, inform the Initial Purchasers of the names and
addresses of the Holders to whom the Exchange Offer is made, and the Initial
Purchasers shall have the right to, and, if requested by the Company, shall,
contact such Holders and otherwise facilitate the tender of Registrable
Securities in the Exchange Offer.
Prior to effectiveness of the Exchange Offer Registration Statement,
the Company shall, if requested by the staff of the SEC, provide a supplemental
letter to the SEC (aa) stating that the Company is registering the Exchange
Offer in reliance on the position of the SEC enunciated in Exxon Capital
Holdings Corporation (available May 13, 1988) and Xxxxxx Xxxxxxx and Co., Inc.
(available June 5, 1991) and (bb) including a representation that the Company
has not entered into any arrangement or understanding with any Person to
distribute the Exchange Securities and that, to the best of the Company's
information and belief, each Holder participating in the Exchange Offer is
acquiring the Exchange Securities in its ordinary course of business and has no
arrangement or understanding with any Person to participate in the distribution
of the Exchange Securities received in the Exchange Offer.
If in the opinion of counsel to the Company there is a question as to
whether the Exchange Offer is permitted by applicable law, the Company hereby
agrees to seek a no-action letter or other favorable decision from the SEC
allowing the Company to consummate the Exchange Offer. The Company hereby
agrees to pursue the issuance of such a decision to the SEC staff level, but
shall not be required to take action to effect a change of stated or recognized
SEC policy. The Company hereby agrees, however, to (xx) participate in
telephonic conferences with the SEC and the staff of the SEC, (yy) deliver to
the staff of the SEC an analysis prepared by counsel to the Company setting
forth the legal bases, if any, upon which such counsel has concluded that the
Exchange Offer should be permitted and (zzz) diligently pursue a resolution
(which need not be favorable) by the staff of the SEC of such submission.
(b) Shelf Registration. (i) If, because of any change in
law or applicable interpretations thereof by the staff of the SEC, the Company
is not permitted to effect the Exchange Offer as contemplated by Section 2(a)
hereof, or (ii) if for any other reason the Exchange Offer Registration
Statement is not declared effective within 120 days after the Closing Date or
the Exchange Offer is not consummated within 180 days after the Closing Date,
or (iii) upon the request of Xxxxxxx Xxxxx (but only with respect to any
Registrable Securities which the Initial Purchasers acquired directly from the
Company) following the consummation of the Exchange Offer if any of
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the Initial Purchasers shall hold Registrable Securities which such Initial
Purchaser acquired directly from the Company and if such Initial Purchaser is
not permitted, in the opinion of counsel to the Initial Purchasers, pursuant to
applicable law or applicable interpretation of the staff of the SEC to
participate in the Exchange Offer, then the Company shall, at its cost:
(A) in the event clause (i) or (ii) is
applicable, as promptly as practicable (but in no event (x)
more than 30 days from the date on which the Company
determined that it is not permitted to effect the Exchange
Offer as contemplated by Section 2(a) hereof in the case of
clause (i) or (y) on the 150th day after the Closing Date in
the case of clause (ii)), use its best efforts to file with
the SEC a Shelf Registration Statement relating to the offer
and sale of the Registrable Securities (other than Registrable
Securities owned by Holders who have elected not to include
such Registrable Securities in such Shelf Registration
Statement or who have not complied with their obligations
under the penultimate paragraph of Section 3 hereof or under
the penultimate sentence of this Section 2(b)) by the Holders
from time to time in accordance with the methods of
distribution elected by the Majority Holders of such
Registrable Securities and set forth in such Shelf
Registration Statement, and use its best efforts to cause such
Shelf Registration Statement to be declared effective by the
SEC by the 180th day after the Closing Date. In the event that
the Company is required to file a Purchaser Shelf Registration
Statement upon the request of Xxxxxxx Xxxxx pursuant to clause
(iii) above, the Company shall use its best efforts (unless
clause (i) or (ii) above is applicable) to file and have
declared effective by the SEC an Exchange Offer Registration
Statement pursuant to Section 2(a) with respect to all
Registrable Securities (other than Registrable Securities
acquired directly from the Company and held by the Initial
Purchasers) and use its best efforts to file, promptly after
any such request from Xxxxxxx Xxxxx, and have declared
effective, a Purchaser Shelf Registration Statement (which may
be a combined Registration Statement with the Exchange Offer
Registration Statement or, if clause (i) or (ii) above is
applicable, a combined Registration Statement with the Shelf
Registration Statement);
(B) use its best efforts to keep the
relevant Subject Registration Statement continuously effective
in order to permit the Prospectus forming part thereof to be
usable by Holders for a period of two years from the date a
Shelf Registration Statement is declared effective by the SEC
(or, in the case of a Purchaser Shelf Registration Statement,
one year from the date a Purchaser Shelf Registration
Statement is declared effective) or in each case such shorter
period which will terminate when all of the Registrable
Securities covered by the relevant Subject Registration
Statement have been sold pursuant to such Subject Registration
Statement or otherwise are no longer Registrable Securities;
and
(C) notwithstanding any other provisions
hereof, use its best efforts to ensure that (x) any Subject
Registration Statement and any amendment
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thereto and any Prospectus forming part thereof and any
supplement thereto complies in all material respects with the
1933 Act and the rules and regulations thereunder, (y) any
Subject Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of
a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading and (z) any Prospectus forming part of any
Subject Registration Statement, and any supplement to such
Prospectus (as amended or supplemented from time to time),
does not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements, in light of the circumstances under which they
were made, not misleading.
To the extent permitted by law, the Company further agrees, if
necessary, to supplement or amend the Shelf Registration Statement (if
reasonably requested by one firm of legal counsel selected by the Majority
Holders) or the Purchaser Shelf Registration Statement (if reasonably requested
by Xxxxxxx Xxxxx), as the case may be, with respect to information relating to
the Holders or the Initial Purchasers, respectively, and otherwise as required
by Section 3(b) below, to use its best efforts to cause any such amendment to
become effective and such Subject Registration Statement to become usable as
soon as thereafter practicable and to furnish to the Holders of Registrable
Securities registered thereby or the relevant Initial Purchasers, as the case
may be, copies of any such supplement or amendment promptly after its being
used or filed with the SEC. The Company may require, as a condition to
including the Registrable Securities of any Holder in any Subject Registration
Statement, that such Holder shall have furnished to the Company a written
agreement to the effect that such Holder agrees to comply with and be bound by
the provisions of this Agreement. For further clarity, the Company shall have
no obligation to keep the Shelf Registration Statement effective after
consummation of the Exchange Offer, and the Company's obligations to use its
best efforts to file a Shelf Registration Statement and to keep such Shelf
Registration Statement effective shall immediately terminate upon effectiveness
of the Exchange Offer Registration Statement (regardless of when such
effectiveness shall occur).
(c) Expenses. The Company (i) shall pay all Registration
Expenses in connection with the registration pursuant to Section 2(a) or 2(b)
and (ii) in connection with the Exchange Offer Registration Statement and the
Shelf Registration Statement, shall reimburse the Holders of Registrable
Securities being tendered in the Exchange Offer and/or resold pursuant to the
"Plan of Distribution" contained in the Exchange Offer Registration Statement
or registered pursuant to the Shelf Registration Statement, as applicable (or
to the extent such fees and disbursements are paid to such counsel by the
Initial Purchasers, the Initial Purchasers), for the reasonable fees and
disbursements of not more than one counsel, to be chosen by the Holders of a
majority in principal amount of the Registrable Securities for whose benefit
such Registration Statement is being prepared. Each Holder (including each
Initial Purchaser) shall pay all expenses of its counsel other than as set
forth in the preceding sentence, underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to any Subject Registration Statement or the
exchange of its Registrable Securities pursuant to any Exchange Offer
Registration Statement. Notwithstanding anything in this Agreement to the
contrary,
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the Company shall not be required to pay the fees and disbursements of legal
counsel for any Holders (including Initial Purchasers) except (A) as provided
in clause (ii) of the first sentence of this paragraph, (B) to the extent such
fees and disbursements constitute Registration Expenses which the Company is
required to pay pursuant to the other provisions of this Agreement and (C) to
the extent required by Section 5 hereof.
(d) Effective Registration Statement. (i) The Company
will be deemed not to have used its best efforts to cause the Exchange Offer
Registration Statement or any Subject Registration Statement, as the case may
be, to become, or to remain, effective during the requisite period if the
Company voluntarily takes any action that would result in any such Registration
Statement not being declared effective or in the Holders of Registrable
Securities covered thereby not being able to exchange or offer and sell such
Registrable Securities during that period unless such action is, in the
reasonable judgment of the Company, required by applicable law (including,
without limitation, any interpretation of the SEC).
(ii) An Exchange Offer Registration Statement
pursuant to Section 2(a) hereof or a Subject Registration Statement
pursuant to Section 2(b) hereof will not be deemed to have become
effective unless it has been declared effective by the SEC; provided,
however, that if, after it has been declared effective, the offering
of Registrable Securities pursuant to such Subject Registration
Statement is interfered with by any stop order, injunction or other
order or requirement of the SEC or any other governmental agency or
court, such Subject Registration Statement will be deemed not to have
been effective during the period of such interference, until the
offering of Registrable Securities pursuant to such Subject
Registration Statement may legally resume.
(e) Increase in Interest Rate. In the event that (i) the
Exchange Offer Registration Statement is not filed with the SEC on or prior to
the 60th calendar day after the Closing Date, (ii) the Exchange Offer
Registration Statement is not declared effective by the SEC on or prior to the
120th calendar day after the Closing Date or (iii) the Exchange Offer is not
consummated or a Shelf Registration Statement required to be filed is not
declared effective by the SEC on or prior to the 180th calendar day after the
Closing Date, the interest rate borne by the Debt Securities shall be increased
by 0.50% per annum, as liquidated damages, following such 60th day in the case
of clause (i) above, such 120th day in the case of clause (ii) above, or such
180th day in the case of clause (iii) above; provided, however, that the
aggregate amount of any such increase in such interest rate will in no event
exceed 1.50% per annum; and provided, further that if the Exchange Offer
Registration Statement is not declared effective by the SEC on or prior to the
120th day following the Closing Date, then Debt Securities owned by Persons who
do not comply in all material respects with their obligations under the
penultimate paragraph of Section 3 will not be entitled to any such increase in
the interest rate for any day after the 180th day following the Closing Date.
Upon (A) the filing of the Exchange Offer Registration Statement after the 60th
day described in clause (i) above, (B) the effectiveness of the Exchange Offer
Registration Statement after the 120th day described in clause (ii) above or
(C) the consummation of the Exchange Offer or the effectiveness of a Shelf
Registration Statement, as the case may be, after the 180th day described in
clause (iii) above, the
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interest rate borne by the Debt Securities from the date of such filing,
effectiveness or consummation (effective immediately preceding such
consummation), as the case may be, will be reduced to the original interest
rate; provided, however, that the interest rate borne by the Debt Securities
will be reduced to the original interest rate only if there is not then
continuing a default with respect to any of the events set forth in the
immediately preceding sentence causing the interest rate borne by the Debt
Securities to increase.
(f) Specific Enforcement. Without limiting the remedies
available to the Initial Purchasers and the Holders, the Company acknowledges
that any failure by the Company to comply with its obligations under Section
2(a) and Section 2(b) hereof may result in material irreparable injury to the
Initial Purchasers or the Holders for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, the Initial Purchasers or any Holder
may, to the extent permitted by law, obtain such relief as may be required to
specifically enforce the Company's obligations under Section 2(a) and Section
2(b) hereof.
SECTION 3. Registration Procedures.
In connection with the obligations of the Company with respect to the
Registration Statements pursuant to Sections 2(a) and 2(b) hereof, but only so
long as the Company shall have an obligation under this Agreement to keep a
Registration Statement effective, the Company shall:
(a) use its best efforts to prepare and file with the SEC
a Registration Statement, within the relevant time period specified in Section
2, on the appropriate form under the 1933 Act, which form (i) shall be selected
by the Company, (ii) shall, in the case of a Shelf Registration, be available
for the sale of the Registrable Securities by the selling Holders thereof and
(iii) shall comply as to form in all material respects with the requirements of
the applicable form and include all financial statements required by the SEC to
be filed therewith, and use its best efforts to cause such Registration
Statement to become effective and use its best efforts to cause such
Registration Statement to remain effective in accordance with Section 2 hereof;
(b) to the extent permitted by law, use its best efforts
to (i) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary under applicable
law to keep such Registration Statement effective for the applicable period,
(ii) cause each Prospectus to be supplemented by any required prospectus
supplement, and as so supplemented to be filed (if required) pursuant to Rule
424 under the 1933 Act, and (iii) comply with the provisions of the 1933 Act
with respect to the disposition of all securities covered by each Registration
Statement during the applicable period in accordance with the intended method
or methods of distribution by the selling Holders thereof;
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Securities, at least ten business days prior to filing,
that the Shelf Registration Statement with respect to the Registrable
Securities is being filed and advising such Holders that the distribution of
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Registrable Securities will be made in accordance with the method elected by
the Majority Holders; and (ii) furnish to each Holder of Registrable Securities
registered under the Shelf Registration Statement, to a single firm of legal
counsel for the Holders (including the Initial Purchasers) and to the managing
underwriters of an underwritten offering of Registrable Securities, if any, and
their counsel, without charge, as many copies of each Prospectus, including
each preliminary prospectus, and any amendment or supplement thereto as such
Holder, counsel or underwriters may reasonably request and, if the Holder so
requests, all exhibits thereto in order to facilitate the public sale or other
disposition of the Registrable Securities; and (iii) subject to Section 3(k)
hereof and the last paragraph of this Section 3, hereby consent to the use of
the Prospectus or any amendment or supplement thereto by each of the selling
Holders of Registrable Securities in connection with the offering and sale of
the Registrable Securities covered by the Prospectus or any amendment or
supplement thereto but only during the period of time that the Company is
required to keep the Shelf Registration Statement effective pursuant to this
Agreement;
(d) use its best efforts to register or qualify the
Registrable Securities under all applicable state securities or "blue sky" laws
of such jurisdictions in the United States as the Majority Holders of
Registrable Securities covered by a Registration Statement and the managing
underwriter of an underwritten offering of Registrable Securities shall
reasonably request prior to the time the applicable Registration Statement is
declared effective by the SEC, to cooperate with the Holders in connection with
any filings required to be made with the NASD, and do any and all other acts
and things which may be reasonably necessary or advisable to enable such Holder
to consummate the disposition of such Registrable Securities in the
jurisdiction of such Holder pursuant to such Registration Statement; provided,
however, that the Company shall not be required to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(d) or (ii) take any
action that would subject it to general service of process or taxation in any
such jurisdiction if it is not then so subject;
(e) in the case of a Subject Registration Statement,
promptly notify a single firm of legal counsel for the Holders of Registrable
Securities registered thereby (including any Initial Purchasers) and Xxxxxxx
Xxxxx and, if requested by such counsel or Xxxxxxx Xxxxx, promptly confirm such
advice in writing (by notice to such counsel or to Xxxxxxx Xxxxx) (i) when such
Registration Statement has become effective and when any post-effective
amendments thereto become effective, (ii) of any request by the SEC or any
state securities authority for post-effective amendments and supplements to
such Registration Statement and the related Prospectus or for additional
information after such Registration Statement has become effective, (iii) of
the issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of such Registration Statement or the initiation
of any proceedings for that purpose, (iv) if, between the effective date of
such Registration Statement and the closing of any sale of Registrable
Securities covered thereby pursuant to an underwriting agreement to which the
Company is a party, the representations and warranties of the Company contained
in such underwriting agreement cease to be true and correct in all material
respects, (v) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Registrable Securities covered by
such Registration Statement for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and (vi) upon the
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Company becoming aware thereof, of the happening of any event or the discovery
of any facts during the period such Registration Statement is effective which
(A) makes any statement made in such Registration Statement or the related
Prospectus untrue in any material respect or (B) causes such Registration
Statement or the related Prospectus to omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(f) (i) in the case of the Exchange Offer, (A)
include in the Exchange Offer Registration Statement a "Plan of Distribution"
section covering the use of the Prospectus included in the Exchange Offer
Registration Statement by Participating Broker-Dealers (as defined below) who
have exchanged their Registrable Securities for Exchange Securities for the
resale of such Exchange Securities, (B) furnish to each Participating
Broker-Dealer who notifies the Company in writing that it desires to
participate in the Exchange Offer, without charge, as many copies of each
Prospectus included in the Exchange Offer Registration Statement, including any
preliminary prospectus, and any amendment or supplement thereto, as such
broker-dealer may reasonably request, (C) include in the Exchange Offer
Registration Statement a statement that any broker-dealer who holds Registrable
Securities acquired for its own account as a result of market-making activities
or other trading activities (a "Participating Broker-Dealer"), and who receives
Exchange Securities for Registrable Securities pursuant to the Exchange Offer,
may be a statutory underwriter and must deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of such Exchange
Securities, (D) subject to Section 3(k) hereof and the last paragraph of this
Section 3, hereby consent to the use of the Prospectus forming part of the
Exchange Offer Registration Statement or any amendment or supplement thereto by
any Participating Broker-Dealer in connection with the sale or transfer of the
Exchange Securities covered by the Prospectus or any amendment or supplement
thereto for a period ending 180 days following consummation of the Exchange
Offer or, if earlier, when all Exchange Securities received by such
Participating Broker-Dealer in exchange for Registrable Securities acquired for
their own account as a result of market-making or other trading activities have
been disposed of by such Participating Broker-Dealer, and (E) include in the
letter of transmittal or similar documentation to be executed by an exchange
offeree in order to participate in the Exchange Offer a provision substantially
in the following form (or such similar provision as is reasonably acceptable to
counsel for the Initial Purchasers and as, in the reasonable opinion of the
Company, may at the time be required by applicable law or SEC interpretation):
"If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to
engage in, a distribution of Exchange Securities. If the
undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Registrable
Securities, it represents that the Registrable Securities to
be exchanged for Exchange Securities were acquired by it as a
result of market-making activities or other trading activities
and acknowledges that it will deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of
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such Exchange Securities pursuant to the Exchange Offer;
however, by so acknowledging and by delivering a prospectus,
the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the 1933 Act"; and
(ii) to the extent any Participating Broker-Dealer
participates in the Exchange Offer, the Company shall use its best
efforts to cause to be delivered at the request of an entity
representing the Participating Broker-Dealers (which entity shall be
Xxxxxxx Xxxxx or another Initial Purchaser) (A) a "cold comfort"
letter addressed to the Participating Broker-Dealers from the
Company's independent certified public accountants with respect to the
Prospectus in the Exchange Offer Registration Statement in the form
existing on the last date for which exchanges are accepted pursuant to
the Exchange Offer and (B) an opinion of counsel to the Company
addressed to the Participating Broker-Dealers in customary form
relating to the Exchange Securities; and
(iii) to the extent any Participating Broker-Dealer
participates in the Exchange Offer and notifies the Company or causes
the Company to be notified in writing that it is a Participating
Broker-Dealer, the Company shall use its best efforts to maintain the
effectiveness of the Exchange Offer Registration Statement for a
period of 180 days following the last date on which exchanges are
accepted pursuant to the Exchange Offer, or, if earlier, when all
Exchange Securities received by Participating Broker-Dealers in
exchange for Registrable Securities acquired for their own account as
a result of market-making or other trading activities have been
disposed of by such Participating Broker-Dealers; and
(iv) not be required, however, to amend or
supplement the Prospectus contained in the Exchange Offer Registration
Statement as would otherwise be contemplated by Section 3(b) hereof,
or take any other action as a result of this Section 3(f), at any time
after 180 days after the last date for which exchanges are accepted
pursuant to the Exchange Offer (or such earlier date referred to in
Paragraph (C) above), and Participating Broker-Dealers shall not be
authorized by the Company to, and shall not, deliver such Prospectus
after such period in connection with resales contemplated by this
Section 3 or otherwise;
it being understood that, notwithstanding anything in this Agreement
to the contrary, the Company shall not be required to comply with any provision
of this Section 3(f) or any other provision of this Agreement relating to the
distribution of Exchange Securities by Participating Broker-Dealers, to the
extent that the Company reasonably concludes (with the consent of Xxxxxxx
Xxxxx, not to be unreasonably withheld) that compliance with such provision is
no longer required by applicable law or interpretation of the staff of the SEC;
(g) in the case of an Exchange Offer, furnish to one firm
of legal counsel for the Initial Purchasers and (ii) in the case of a Shelf
Registration, furnish to one firm of legal counsel for the Holders of
Registrable Securities covered thereby copies of any request received by or on
behalf
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of the Company, from the SEC or any state securities authority for amendments
or supplements to the relevant Registration Statement and Prospectus or for
additional information;
(h) make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement as soon
as practicable and provide prompt notice to one firm of legal counsel for the
Holders of the withdrawal of any such order;
(i) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities registered thereby, without charge, at least
one conformed copy of each Registration Statement and any post-effective
amendment thereto (without exhibits thereto, unless requested);
(j) in the case of a Shelf Registration, cooperate with
the selling Holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold and not bearing any restrictive legend (except any customary legend
borne by securities held through The Depository Trust Company or any similar
depository); and cause such Registrable Securities to be in such denominations
(consistent with the provisions of the Indenture) and registered in such names
as the selling Holders or the underwriters, if any, may request at least two
business days prior to the closing of any sale of Registrable Securities;
(k) in the case of a Shelf Registration, upon the Company
becoming aware of the occurrence of any event or the discovery of any facts,
each as contemplated by Section 3(e)(vi) hereof, use its best efforts to
prepare a supplement or post-effective amendment to the relevant Registration
Statement or the related Prospectus or file any other required document so
that, as thereafter delivered to the purchasers of the Registrable Securities,
such Prospectus will not contain at the time of such delivery any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading. The Company agrees to notify each Holder of Registrable
Securities registered under the relevant Subject Registration Statement to
suspend use of the Prospectus as promptly as practicable after the Company
becomes aware of the occurrence of such an event, and each Holder of
Registrable Securities registered under the relevant Subject Registration
Statement hereby agrees to suspend use of the Prospectus after receipt of such
notice until the Company has amended or supplemented the Prospectus to correct
such misstatement or omission or has advised such Holders that use of such
Prospectus may be resumed. At such time as such public disclosure is otherwise
made or the Company determines that such disclosure is not necessary, in each
case to correct any misstatement of a material fact or to include any omitted
material fact, or the Company otherwise determines that use of such Prospectus
may be resumed, the Company agrees promptly to notify each Holder of
Registrable Securities registered under the relevant Subject Registration
Statement of such determination and (if applicable) to furnish each such Holder
such numbers of copies of the Prospectus, as amended or supplemented, as such
Holder may reasonably request;
(l) obtain a CUSIP number for all Exchange Securities, or
Registrable Securities, as the case may be, not later than the effective date
of a Registration Statement, and provide the Trustee with printed certificates
for the Exchange Securities or the Registrable Securities, as the case
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may be, in a form eligible for deposit with The Depository Trust Company;
provided, however, that the Company shall not be required to provide printed
certificates for any Exchange Securities or Registrable Securities to be
so-called "book-entry only" securities;
(m) unless the Indenture, as it relates to the Exchange
Securities or the Registrable Securities, as the case may be, has already been
so qualified, use its best efforts to (i) cause the Indenture to be qualified
under the Trust Indenture Act of 1939, as amended (the "TIA"), in connection
with the registration of the Exchange Securities or Registrable Securities, as
the case may be, (ii) cooperate with the Trustee and the Holders to effect such
changes to the Indenture as may be required for the Indenture to be so
qualified in accordance with the terms of the TIA and (iii) execute, and use
its best efforts to cause the Trustee to execute, all documents as may be
required to effect such changes, and all other forms and documents required to
be filed with the SEC to enable the Indenture to be so qualified in a timely
manner;
(n) in the case of a Shelf Registration, take all
customary and appropriate actions reasonably required (including those
reasonably requested by the Majority Holders) in order to expedite or
facilitate the disposition of the Registrable Securities registered thereby.
If requested as set forth below, the Company agrees that it will in good faith
negotiate the terms of an Underwriting Agreement, which shall be in form and
scope as is customary for similar offerings of debt securities with similar
credit ratings (including, without limitation, representations and warranties
to the underwriters) and shall otherwise be reasonably satisfactory to the
Company and the managing underwriters; and:
(i) if requested by the managing underwriters,
obtain opinions of counsel to the Company (which counsel shall be
reasonably satisfactory to the managing underwriters) addressed to
such underwriters, covering the matters customarily covered in
opinions requested in underwritten sales of securities in
substantially the forms specified in the Underwriting Agreement;
(ii) if requested by the managing underwriters,
obtain a "cold comfort" letter and an update thereto not later than
two weeks after the date of the original letter (or if not available
under applicable accounting pronouncements or standards, a single
"procedures" letter and a single update thereto) from the Company's
independent certified public accountants addressed to the underwriters
named in the Underwriting Agreement and use its best efforts to have
such letter addressed to the selling Holders of Registrable Securities
(provided, however, that such letter need not be addressed to any
Holders to whom, in the reasonable opinion of the Company's
independent certified public accountants, addressing such letter is
not permissible under applicable accounting standards), such letters
to be in customary form and covering matters of the type customarily
covered in "cold comfort" (or "procedures") letters to underwriters in
connection with similar underwritten offerings; and
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(iii) deliver such documents and certificates as
may be reasonably requested and as are customarily delivered in
similar underwritten offerings.
Notwithstanding anything herein to the contrary, the Company shall
have no obligation to enter into any underwriting agreement or permit an
underwritten offering of Registrable Securities unless a request therefor shall
have been received from the Majority Holders of all Registrable Securities then
outstanding within ten business days of the date of the notice from the Company
as required by Section 3(c). In the case of such a request for an underwritten
offering, the Company shall provide reasonable advance written notice to the
Holders of all Registrable Securities of such proposed underwritten offering.
Such notice shall (A) offer each such Holder the right to participate in such
underwritten offering (but may indicate that whether or not all Registrable
Securities are included will be at the discretion of the underwriters), (B)
specify a date, which shall be no earlier than ten business days following the
date of such notice, by which such Holder must inform the Company of its intent
to participate in such underwritten offering and (C) include the instructions
such Holder must follow in order to participate in such underwritten offering;
(o) in the case of a Shelf Registration, and to the
extent customary in connection with a "due diligence" investigation for an
offering of debt securities with a similar credit rating to that of the
Registrable Securities, make available for inspection by representatives
appointed by the Majority Holders and any underwriters participating in any
disposition pursuant to a Shelf Registration Statement and one firm of legal
counsel retained for all Holders participating in such Shelf Registration, and
one firm of legal counsel to the underwriters, if any, all financial and other
records, pertinent corporate documents and properties of the Company reasonably
requested by any such persons, and cause the respective officers, employees and
any other agents of the Company to supply all information reasonably requested
by any such representative, underwriters or counsel in connection with the
Shelf Registration Statement; provided, however, that, if any such records,
documents or other information relates to pending or proposed acquisitions or
dispositions, or otherwise relates to matters reasonably considered by the
Company to constitute sensitive or proprietary information, the Company need
not provide such records, documents or information unless the foregoing parties
enter into a confidentiality agreement in customary form and reasonably
acceptable to such parties and the Company;
(p) (i) a reasonable time prior to the filing of any
Exchange Offer Registration Statement, any Prospectus forming a part thereof,
any amendment to an Exchange Offer Registration Statement or amendment or
supplement to such Prospectus, provide copies of such document to the Initial
Purchasers, and make such changes in any such document prior to the filing
thereof as Xxxxxxx Xxxxx or one firm of legal counsel to the Initial Purchasers
may reasonably request; (ii) in the case of a Shelf Registration, a reasonable
time prior to filing any Shelf Registration Statement, any Prospectus forming a
part thereof, any amendment to such Shelf Registration Statement or amendment
or supplement to such Prospectus, provide copies of such document to Xxxxxxx
Xxxxx, one firm of legal counsel appointed by the Majority Holders to represent
the Holders participating in such Shelf Registration, the managing underwriters
of an underwritten offering of Registrable Securities, if any, and their
counsel, and make such changes in any such
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document prior to the filing thereof as Xxxxxxx Xxxxx, such one firm of legal
counsel for the Holders, such managing underwriters or their counsel may
reasonably request; and (iii) cause the representatives of the Company to be
available for discussion of such document as shall be reasonably requested by
Xxxxxxx Xxxxx, one firm of legal counsel to the Holders, the managing
underwriters and their counsel; and shall not at any time make any filing of
any such document of which Xxxxxxx Xxxxx, one firm of legal counsel to the
Holders, the managing underwriters and their counsel shall not have previously
been advised and furnished a copy or to which Xxxxxxx Xxxxx, one firm of legal
counsel to the Holders, the managing underwriters and their counsel shall
reasonably object;
(q) in the case of a Shelf Registration and if requested
by the managing underwriters, if any, or the Majority Holders, (i) as soon as
practicable incorporate in a prospectus supplement or post-effective amendment
such information or revisions to information therein relating to such
Underwriters or selling Holders as the managing underwriters, if any, or such
Holders or their counsel reasonably request to be included or made therein,
(ii) make all required filings of such prospectus supplement or such
post-effective amendment as soon as practicable after the Company has received
notification of the matters to be incorporated in such prospectus supplement or
post-effective amendment and (iii) if required, supplement or make amendments
to such Shelf Registration Statement;
(r) upon delivery of the Registrable Securities by
Holders to the Company (or to such other Person as directed by the Company) in
exchange for the Exchange Securities, the Company shall xxxx, or cause to be
marked, on such Registrable Securities that such Registrable Securities are
being canceled in exchange for the Exchange Securities; in no event shall such
Registrable Securities be marked as paid or otherwise satisfied;
(s) use its best efforts to cause the Exchange
Securities, if applicable, and, in the event of a Shelf Registration, the Debt
Securities to be rated with not more than two rating agencies selected by the
Company, if so requested by the Majority Holders or by the managing
underwriters of an underwritten offering of Registrable Securities, if any,
unless the Exchange Securities or the Registrable Securities, as the case may
be, are already so rated or unless the Company has obtained such ratings for
its long-term debt securities generally;
(t) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC and make available to its security
holders, as soon as practicable, an earnings statement covering at least 12
months which shall satisfy the provisions of Section 11(a) of the 1933 Act and
Rule 158 thereunder; and
(u) cooperate and assist in any filings required to be
made with the NASD and in the performance of any due diligence investigation by
any managing underwriters and their counsel.
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In the case of a Subject Registration Statement, the Company may (as a
condition to such Holder's participation in the Shelf Registration) (i) require
each Holder of Registrable Securities to furnish to the Company such
information regarding such Holder and the proposed distribution by such Holder
of such Registrable Securities as the Company may from time to time reasonably
request in writing and such other information as, in the reasonable opinion of
the Company, is required for inclusion in the Subject Registration Statement,
and (ii) further require each Holder of Registrable Securities, through one
firm of legal counsel on behalf of all such Holders, to furnish to the Company
any comments on the Subject Registration Statement and the Prospectus included
therein or any amendment or supplement to any of the foregoing not later than
such times as the Company reasonably may request.
In the case of a Subject Registration Statement, each Holder agrees
and, in the case of the Exchange Offer Registration Statement, each
Participating Broker-Dealer agrees that, upon receipt of any notice from the
Company of the happening of any event or the discovery of any facts, each of
the kind described in Section 3(e)(ii)-(vi) or Section 3(k) hereof (it being
understood and agreed that, for purposes of this paragraph, all references in
Sections 3(e)(ii)-(vi) and Section 3(k) to a "Subject Registration Statement",
a "Shelf Registration Statement" or a "Registration Statement" shall be deemed
to mean and include the Shelf Registration Statement, the Purchaser Shelf
Registration Statement or the Exchange Offer Registration Statement or all or
any combination thereof (as the context requires), mutatis mutandis), such
Holder or Participating Broker-Dealer, as the case may be, will forthwith
discontinue disposition of Registrable Securities pursuant to such Registration
Statement and discontinue use of the Prospectus included therein until such
Holder's or Participating Broker-Dealer's receipt, as the case may be, of (A)
copies of the supplemented or amended Prospectus contemplated by Section 3(k)
hereof or (B) notice from the Company that the sale of the Registrable
Securities may be resumed, and, if so directed by the Company, such Holder or
Participating Broker-Dealer, as the case may be, will deliver to the Company
(at its expense) all copies in its possession, other than permanent file copies
then in its possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice. If the Company shall give any
such notice to suspend the disposition of Registrable Securities pursuant to a
Registration Statement as a result of the happening of any event or the
discovery of any facts, each of the kind described in Section 3(e) (ii)-(vi) or
3(k) hereof, the Company shall be deemed to have used its best efforts to keep
such Registration Statement effective during such period of suspension,
provided that the Company shall use its best efforts to file and have declared
effective (if an amendment) as soon as practicable an amendment or supplement
to such Registration Statement or the related Prospectus and shall extend the
period during which such Registration Statement shall be maintained effective
pursuant to this Agreement by the number of days during the period from and
including the date of the giving of such notice to and including the date when
the Holders shall have received copies of the supplemented or amended
Prospectus necessary to resume such dispositions or the date on which the
Company has given notice that the sale of Registrable Securities may be
resumed, as the case may be. Each Holder of Registrable Securities hereby
agrees that it will at all times use the then most current Prospectus, as then
amended or supplemented, which has been provided to it by the Company in
connection with the resale or transfer of any Registrable Securities pursuant
to a Registration Statement or Prospectus.
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SECTION 4. Underwritten Registrations.
If any of the Registrable Securities covered by the Shelf Registration
Statement are to be sold in an underwritten offering, the underwriter or
underwriters and manager or managers that will manage the offering will be
selected by the Company and shall be reasonably acceptable to the Majority
Holders of such Registrable Securities included in such offering.
No Holder of Registrable Securities may participate in any
underwritten offering hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
SECTION 5. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each
Initial Purchaser, each Holder and each Person, if any, who controls any such
Person within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act as follows:
(i) against any and all losses, liabilities,
claims, damages and expenses whatsoever, as incurred, arising out of
any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (or any amendment thereto)
pursuant to which Exchange Securities or Registrable Securities were
registered under the 1933 Act, including the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus (or any amendment or supplement thereto)
or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all losses, liabilities,
claims, damages and expenses whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue
statement or omission; provided that (subject to Section 5(e) below)
any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expenses whatsoever, as
incurred (including (subject to Section 5(c) below) the fees and
disbursements of counsel chosen by Xxxxxxx Xxxxx or, in the event that
Xxxxxxx Xxxxx is not an indemnified party, by a majority of the
indemnified parties), reasonably incurred in investigating, preparing
or defending against any
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litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under subparagraph (i) or (ii) of this Section 5(a);
provided, however, that this indemnity does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of any Initial Purchaser, any Holder or any underwriter expressly for
use in the Registration Statement (or any amendment thereto) or the Prospectus
(or any amendment or supplement thereto); and provided, further, that this
indemnity agreement with respect to any Prospectus shall not inure to the
benefit of any Initial Purchaser or Holder from whom the person asserting any
such losses, claims, damages or liabilities purchased Registrable Securities or
Exchange Securities (or any person who controls such Initial Purchaser or
Holder within the meaning of Section 15 of the 1933 Act or Section 20 of the
0000 Xxx) if a copy of the Prospectus (as then amended or supplemented and
furnished by the Company to such Initial Purchaser or Holder, as the case may
be) was not sent or given by or on behalf of such Initial Purchaser or Holder,
as the case may be, to such person at or prior to the sale of such Registrable
Securities or Exchange Securities and if the Prospectus (as so amended or
supplemented) would have corrected any untrue statement or omission, or alleged
untrue statement or omission, giving rise to such loss, liability, claim,
damage or expense (provided the Company has delivered the Prospectus (as then
amended or supplemented) to the several Initial Purchasers or Holders in
requisite quantity on a timely basis to permit such delivery or sending).
(b) In the case of a Shelf Registration, each Holder
agrees, severally and not jointly, to indemnify and hold harmless the Company,
each Initial Purchaser, each underwriter who participates in an offering of
Registrable Securities and the other Holders and each of their respective
directors and officers (including each officer of the Company who signed the
Registration Statement in question) and each Person, if any, who controls the
Company, any Initial Purchaser, any underwriter or any other Holder within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against
any and all losses, liabilities, claims, damages and expenses described in the
indemnity contained in Section 5(a) hereof, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto) or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity
with written information furnished to the Company by or on behalf of such
Holder expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto); provided,
however, that no such Holder shall be liable for any claims hereunder in excess
of the amount of net proceeds received by such Holder from the sale of
Registrable Securities pursuant to such Registration Statement.
(c) Each indemnified party shall give notice as promptly
as reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such
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indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have other than on account of this indemnity
agreement or the contribution agreement set forth in Section 5(d) below. In the
case of parties indemnified pursuant to Section 5(a) above, counsel to the
indemnified parties shall be selected by Xxxxxxx Xxxxx (or, in the event that
Xxxxxxx Xxxxx is not an indemnified party, by a majority in interest of the
indemnified parties), and, in the case of parties indemnified pursuant to
Section 5(b) above, counsel to the indemnified parties shall be selected by the
Company. Notwithstanding the foregoing, in case any action or proceeding shall
be instituted and the indemnified party shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be entitled to
participate therein, and, after written notice from the indemnifying party to
such indemnified party, to assume the defense thereof with counsel of its
choice reasonably acceptable to the indemnified parties in such action.
Notwithstanding the election of the indemnifying party to assume defense of
such action or proceeding, the indemnified party shall have the right, at its
own expense, to employ one additional firm as separate counsel and to
participate in the defense of the action or proceeding; provided that the
indemnifying party shall pay the reasonable fees and expenses of such separate
counsel reasonably satisfactory to the indemnifying party if (i) the
indemnifying party shall have failed to employ counsel to represent the
indemnified party in a reasonably timely manner or (ii) the defendants in any
such action or proceeding include both the indemnified party and the
indemnifying party and counsel to the indemnified party shall have concluded
and notified the indemnifying party that in its reasonable judgment
representation of both parties by the same counsel would be inappropriate due
to actual or potential differing interests between them. In no event shall the
indemnifying parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) (which counsels shall be selected by
Xxxxxxx Xxxxx or, in the event that Xxxxxxx Xxxxx is not an indemnified party,
by a majority in interest of the indemnified parties) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 5 (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) In order to provide for just and equitable
contribution in circumstances in which any of the indemnity provisions set
forth in this Section 5 are for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with its terms, the
Company, the Initial Purchasers and the Holders shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement incurred by the Company, the Initial
Purchasers and the Holders, as incurred; provided, however, that no person
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guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 0000 Xxx) shall be entitled to contribution from any Person that was not
guilty of such fraudulent misrepresentation. As between the Company, the
Initial Purchasers and the Holders, such parties shall contribute to such
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement in such proportion as shall be
appropriate to reflect the relative fault of the Company on the one hand, the
Initial Purchasers on another hand, and the Holders on another hand, with
respect to the statements or omissions which resulted in such loss, liability,
claim, damage or expense, or action in respect thereof, as well as any other
relevant equitable considerations. The relative fault of the Company on the one
hand, the Initial Purchasers on another hand, and the Holders on another hand
shall be determined 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
Initial Purchasers or by the Holders and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue or alleged untrue statement or omission. The Company, the Initial
Purchasers and the Holders agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were to be determined by pro rata
allocation or by any other method of allocation that does not take into account
the relevant equitable considerations. For purposes of this Section 5(d), each
Person, if any, who controls an Initial Purchaser or a Holder within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as such Initial Purchaser or such Holder, and
each director of the Company, each officer of the Company who signed the
Registration Statement in question, and each Person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company.
(e) If at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 5(a)(ii) effected without
its written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement
at least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
SECTION 6. Miscellaneous.
(a) Rule 144 and Rule 144A. Until the earliest of (i) the
completion of the Exchange Offer, (ii) two years following the Closing Date (or
such shorter period as may be specified in Rule 144(k) as then amended) and
(iii) the date when all Registrable Securities have been sold pursuant to the
Subject Registration Statement or are no longer Registrable Securities, the
Company covenants that it will file the reports required to be filed by it
under Section 13(a) or 15(d) of the 1934 Act and the rules and regulations
adopted by the SEC thereunder for so long as the Company is subject to the
reporting requirements of Section 13 or 15 of the 1934 Act, and if the Company
ceases to be so required to file such reports, it will upon the request of any
Holder of
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Registrable Securities (i) make publicly available such information as is
necessary to permit sales pursuant to Rule 144 under the 1933 Act, (ii) deliver
such information to a prospective purchaser as is necessary to permit sales
pursuant to Rule 144A under the 1933 Act and (iii) take such further action
that is reasonable in the circumstances, in each case, to the extent required
from time to time to enable such Holder to sell its Registrable Securities
without registration under the 1933 Act within the limitation of the exemptions
provided by (A) Rule 144 under the 1933 Act, as such Rule may be amended from
time to time, (B) Rule 144A under the 1933 Act, as such Rule may be amended
from time to time or (C) any similar rules or regulations hereafter adopted by
the SEC (provided that the obligations of the Company under any such similar
rules or regulations shall not be more burdensome in any substantial respect
than those referred to in clauses (A) or (B)). Upon the request of any Holder
of Registrable Securities, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements.
(b) No Inconsistent Agreements. The Company has not
entered into nor will the Company on or after the date of this Agreement enter
into any agreement which is inconsistent with the rights granted to the Holders
of Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any
way conflict with and are not inconsistent with the rights granted to the
holders of the Company's other issued and outstanding securities under any such
agreements.
(c) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given unless the Company has obtained the written
consent of Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Securities affected by such amendment, modification,
supplement, waiver or departure; provided, however, that to the extent any
provision of this Agreement relates to the Purchaser Shelf Registration
Statement or otherwise to the Initial Purchasers, such provision may be
amended, modified or supplemented, and waivers or consents to departures from
such provisions thereof may be given, by Xxxxxxx Xxxxx; and provided, further,
that no amendment, modification, supplement or waiver or consent to any
departure from the provisions of Section 5 hereof shall be effective as against
any Holder of Registrable Securities unless consented to in writing by such
Holder. Notwithstanding anything in this Agreement to the contrary, this
Agreement may be amended, modified or supplemented, and waivers and consents to
departures from the provisions hereof may be given, by written agreement signed
by the Company and Xxxxxxx Xxxxx to the extent that any such amendment,
modification, supplement, waiver or consent is, in their reasonable judgment,
necessary or appropriate to comply with applicable law (including any
interpretation of the staff of the SEC) or any change therein.
(d) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
registered or certified first-class mail, telex, telecopier or any courier
providing overnight delivery (i) if to a Holder, at its address appearing in
the register of the Debt Securities and/or Exchange Securities kept by the
Registrar (as defined in the Indenture) or at such other address as shall have
been given by such Holder to the Company by
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means of a notice given in accordance with the provisions of this Section 6(d),
which address initially is, with respect to the Initial Purchasers, the address
care of Xxxxxxx Xxxxx set forth in the Purchase Agreement, and (ii) if to the
Company initially at or in care of the Company's address set forth in the
Purchase Agreement, or in each case to such other address notice of which is
given in accordance with the provisions of this Section 6(d).
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, if telecopied; and on the next business day if timely delivered
to an air courier providing overnight delivery.
(e) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors, assigns and transferees of
each of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided, however, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms hereof or of the Purchase
Agreement, the Indenture or the Offering Memorandum dated June 6, 1997; and
provided, further, that Holders of Registrable Securities may not assign their
rights under this Agreement except in connection with the permitted transfer of
Registrable Securities and then only insofar as relates to such Registrable
Securities. If any transferee of any Holder shall acquire Registrable
Securities, in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities, such Person
shall be conclusively deemed to have agreed to be bound by and to perform all
of the terms and provisions of this Agreement, including the restrictions on
resale set forth in this Agreement and, if applicable, the Purchase Agreement,
and such Person shall be entitled to receive the benefits hereof.
(f) Third-Party Beneficiary. The Holders from time to
time shall each be a third-party beneficiary to the agreements made hereunder
between the Company, on the one hand, and the Initial Purchasers, on the other
hand, and Xxxxxxx Xxxxx shall have the right to enforce such agreements
directly to the extent it deems such enforcement necessary or advisable to
protect its rights or the rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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(j) Severability. In the event that 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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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
PETSEC ENERGY INC.
By: /s XXXXXXX X. XXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By: /s/ XXX X. XXXXX, XX.
-------------------------------------
Name: Xxx X. Xxxxx, Xx.
Title: Director
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By: /s/ XXXXXX X. XXXXXXXX, XX.
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx, Xx.
Title: Vice President
SALOMON BROTHERS INC
By: /s/ M. XXXXX XXX XXXXX
-------------------------------------
Name: M. Xxxxx Xxx Xxxxx
Title: Managing Director
Registration Rights Agreement Signature Page
