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REGISTRATION RIGHTS AGREEMENT
Dated as of November 27, 1996
by and among
XXXXXX XXXXXXXXX XXXXXXXXXXXXX X.X.,
XXXXXX XXXXXXXXX XXXXXX INCORPORATED,
THE SUBSIDIARY GUARANTORS NAMED HEREIN
and
XXXXXX, READ & CO. INC.
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This Registration Rights Agreement (the "Agreement") is made and
entered into as of November 27, 1996 by and among STATIA TERMINALS INTERNATIONAL
N.V., a Netherlands Antilles corporation ("Statia"), STATIA TERMINALS CANADA,
INCORPORATED, a corporation organized under the laws of Nova Scotia ("Statia
Canada" and, together with Statia, the "Issuers"), the SUBSIDIARY GUARANTORS (as
defined herein) and XXXXXX, READ & CO. INC. (the "Purchaser"). The execution and
delivery of this Agreement is a condition to the obligations of the Purchaser to
purchase $135,000,000 of the Issuers' 11 3/4% First Mortgage Notes due 2003
under the Purchase Agreement, dated as of November 22, 1996 (the "Purchase
Agreement"), by and among the Issuers and the Purchaser.
The Issuers, the Subsidiary Guarantors and the Purchaser hereby
agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall
have the following meanings:
Act: The Securities Act of 1933, as amended, and the rules and
regulations promulgated by the Commission pursuant thereto.
Action: As defined in Section 8(c) of this Agreement.
Broker-Dealer: Any broker or dealer registered under the Exchange
Act.
Closing Date: The date that the Notes are purchased by the Purchaser
pursuant to the Purchase Agreement.
Commission: The Securities and Exchange Commission.
Consummate: A Registered Exchange Offer shall be deemed
"Consummated" for purposes of this Agreement upon the occurrence of (i) the
filing and effectiveness under the Act of the Exchange Offer Registration
Statement relating to the Notes to be issued in the Exchange Offer, (ii) the
maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum period
required pursuant to Section 3(b) of this Agreement and (iii) the delivery by
the Issuers to the Registrar under the
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Indenture of New Notes in the same aggregate principal amount as the aggregate
principal amount of Old Notes that were so tendered.
Damages Payment Date: With respect to the Notes, each Interest
Payment Date.
Effectiveness Target Date: As defined in Section 5 of this
Agreement.
Exchange Act: The Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated by the Commission pursuant thereto.
Exchange Offer: The registration under the Act by the Issuers and
the Subsidiary Guarantors of the New Notes pursuant to a Registration Statement
pursuant to which the Issuers and the Subsidiary Guarantors offer the Holders of
all outstanding Transfer Restricted Securities the opportunity to exchange all
such outstanding Old Notes that are Transfer Restricted Securities held by such
Holders for New Notes in an aggregate principal amount equal to the aggregate
principal amount of the Old Notes that are Transfer Restricted Securities
tendered in such exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Purchaser propose to
sell the Notes to (i) certain "qualified institutional buyers," as such term is
defined in Rule 144A under the Act, (ii) to a limited number of certain
institutional "accredited investors," as such term is defined in Rule 501(a)(1),
(2), (3) and (7) of Regulation D under the Act and (iii) other eligible
purchasers pursuant to Regulation S under the Act.
Holders: As defined in Section 2(b) of this Agreement.
Indenture: The Indenture, dated as of November 27, 1996, by and
among the Issuers, the Subsidiary Guarantors and Marine Midland Bank, as trustee
(the "Trustee"), pursuant to which the Notes are to be issued, as such Indenture
is amended or supplemented from time to time in accordance with its terms.
Interest Payment Date: As defined in the Notes.
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NASD: National Association of Securities Dealers, Inc.
New Notes: The Issuers' 11 3/4% First Mortgage Notes due 2003 to be
issued pursuant to the Indenture in connection with the Exchange Offer and
evidencing the same debt as the Old Notes.
Notes: Old Notes and New Notes.
Old Notes: The Issuers' 11 3/4% First Mortgage Notes due 2003 to be
issued pursuant to the Indenture on the Closing Date.
Person: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
Prospectus: The prospectus included in a Registration Statement, as
amended or supplemented by any prospectus supplement and by all other amendments
and supplements thereto, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference, if any, in
such Prospectus.
Purchaser: Xxxxxx, Read & Co. Inc.
Record Holder: With respect to any Damages Payment Date relating to
the First Mortgage Notes, each Person who is a Holder of First Mortgage Notes on
the record date with respect to the Interest Payment Date on which such Damages
Payment Date shall occur.
Registration Default: As defined in Section 5 of this Agreement.
Registration Statement: Any registration statement of the Issuers
and the Subsidiary Guarantors relating to (a) an offering of New Notes pursuant
to an Exchange Offer or (b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement that is filed pursuant
to the provisions of this Agreement, in each case, including the Prospectus
included therein, all amendments and supplements thereto (including pre- and
post-effective amendments) and all exhibits and material incorporated by
reference or deemed to be incorporated by reference, if any, therein.
Shelf Filing Deadline: As defined in Section 4(a) of this Agreement.
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Shelf Registration Statement: As defined in Section 4(a) of this
Agreement.
Subsidiary: With respect to any Person, any other Person of which a
majority of the equity ownership or the voting securities is at the time owned,
directly or indirectly, by such Person or by one or more other subsidiaries of
such Person or a combination thereof.
Subsidiary Guarantors: Each Subsidiary of the Issuers that, pursuant
to the Indenture, is required to become a guarantor of the obligations of the
Issuers under the Notes and the Indenture.
TIA: The Trust Indenture Act of 1939, as amended (15 U.S.C. Section
77aaa-77bbbb), as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Note until the earliest to
occur of (i) the date on which such Note has been exchanged by a person other
than a Broker-Dealer for a New Note in the Exchange Offer, (ii) following the
exchange by a Broker-Dealer in the Exchange Offer of a Note for a New Note, the
date on which such New Note is sold to a purchaser who receives from such
Broker-Dealer on or prior to the date of such sale a copy of the prospectus
contained in the Exchange Offer Registration Statement, (iii) the date on which
such Note has been effectively registered under the Act and disposed of in
accordance with the Shelf Registration Statement or (iv) the date on which such
Note is distributed to the public pursuant to Rule 144 under the Act.
Underwritten Registration or Underwritten Offering: A registration
in which securities of the Issuers are sold to an underwriter for reoffering to
the public pursuant to an effective Registration Statement.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to
be a holder of Transfer Restricted Securities (each, a "Holder") whenever such
Person owns Transfer Restricted Securities.
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SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible under
applicable federal law or Commission policy, the Issuers shall (i) cause to be
filed with the Commission as soon as practicable on or prior to 45 days after
the Closing Date, a Registration Statement under the Act relating to the New
Notes and the Exchange Offer and (ii) use their best efforts to cause such
Registration Statement declared effective by the Commission as soon as
practicable on or prior to 105 days after the Closing Date. In connection with
the foregoing, the Issuers shall (A) file all pre-effective amendments to such
Registration Statement as may be necessary to cause such Registration Statement
to become effective, (B) if applicable, file a post-effective amendment to such
Registration Statement pursuant to Rule 430A under the Act, (C) cause all
necessary filings in connection with the registration and qualification of the
New Notes to be made under the Blue Sky laws of such jurisdictions as are
necessary to permit Consummation of the Exchange Offer (provided, however, that
the Issuers shall not be obligated to qualify as foreign corporations in any
jurisdiction in which they are not so qualified or to take any action that would
subject them to general service of process or taxation in any jurisdiction where
they are not so subject) and (D) upon the effectiveness of such Registration
Statement, commence the Exchange Offer and use their best efforts to issue on or
prior to 45 days after the date on which such Registration Statement is declared
effective by the Commission, New Notes in exchange for all Old Notes tendered
prior thereto in the Exchange Offer. The Exchange Offer shall be on the
appropriate form permitting registration of the New Notes to be offered in
exchange for the Transfer Restricted Securities and to permit resales of New
Notes held by Broker-Dealers as contemplated by Section 3(c) below. If, after
such Exchange Offer Registration Statement initially is declared effective by
the Commission, the Exchange Offer or the issuance of New Notes under the
Exchange Offer or the resale of New Notes received by Broker-Dealers in the
Exchange Offer as contemplated by Section 3(c) below is interfered with by any
stop order, injunction or other order or requirement of the Commission or any
other governmental agency or court, such Registration Statement shall be deemed
not to have become effective for purposes of this Agreement during the period
that such stop order, injunction or other similar order or requirement shall
remain in effect.
(b) The Issuers shall cause the Exchange Offer Registration
Statement to be effective continuously and shall keep the Exchange Offer open
for a period of not less than the
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minimum period required under applicable federal and state securities laws to
Consummate the Exchange Offer; provided, however, that in no event shall such
period be less than 20 business days nor longer than 90 days. The Issuers shall
cause the Exchange Offer to comply with all applicable federal and state
securities laws. The Issuers shall only offer to exchange New Notes for Old
Notes in the Exchange Offer, and only the New Notes shall be registered under
the Exchange Offer Registration Statement. The Issuers shall use their best
efforts to cause the Exchange Offer to be Consummated on the earliest
practicable date after the Exchange Offer Registration Statement has become
effective, but in no event later than 45 business days after such effective
date.
(c) The Issuers shall indicate in a "Plan of Distribution" section
contained in the Prospectus included in the Exchange Offer Registration
Statement that any Broker-Dealer that holds Old Notes that are Transfer
Restricted Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Issuers), may exchange such Old
Notes pursuant to the Exchange Offer; provided, however, that such Broker-Dealer
may be deemed to be an "underwriter" within the meaning of the Act and must,
therefore, deliver a prospectus meeting the requirements of the Act in
connection with any resales of the New Notes received by such Broker-Dealer in
the Exchange Offer. Such "Plan of Distribution" section shall allow the use of
the Prospectus by all Persons subject to the prospectus delivery requirements of
the Act, including participating Broker-Dealers, and shall also contain all
other information with respect to such resales by Broker-Dealers that the
Commission may require to permit such resales pursuant thereto, but such "Plan
of Distribution" shall not name any such Broker-Dealer or disclose the amount of
Notes held by any such Broker-Dealer except to the extent required by the
Commission as a result of a change in policy after the date of this Agreement.
The Issuers shall use their best efforts to keep the Exchange Offer
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c) below to the extent necessary to
ensure that it is available for resales of Notes acquired by Broker-Dealers for
their own accounts as a result of market-making activities or other trading
activities, and to ensure that it conforms with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of 180 days from the date on which the
Exchange Offer
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Registration Statement is declared effective. The Issuers shall provide
sufficient copies of the latest version of such Prospectus to Broker-Dealers
promptly upon request at any time during such 180-day period in order to
facilitate such resales.
(d) The Issuers shall not consummate the Exchange Offer after six
months following the Closing Date.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Issuers are not required to file
an Exchange Offer Registration Statement or to consummate the Exchange Offer
because the Exchange Offer is not permitted by applicable law or Commission
policy or (ii) any Holder of Transfer Restricted Securities shall notify the
Issuers within 20 business days of the Consummation of the Exchange Offer that
such Holder (A) is prohibited by applicable law or Commission policy from
participating in the Exchange Offer, or (B) may not resell the New Notes
acquired by it in the Exchange Offer to the public without delivering a
prospectus and the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such Holder or (C)
is a Broker-Dealer and holds Old Notes (including the Purchaser who holds Old
Notes as part of an unsold allotment from the original offering of the Notes)
acquired directly from the Issuers or one of their Affiliates or (iii) the
Issuers do not consummate the Exchange Offer on or prior to six months following
the Closing Date, then the Issuers shall (x) cause to be filed a shelf
registration statement pursuant to Rule 415 under the Act, which may be an
amendment to the Exchange Offer Registration Statement (in either event, the
"Shelf Registration Statement"), on or prior to the earliest to occur of (1) the
45th day after the date on which the Issuers determine that they are not
required to file the Exchange Offer Registration Statement or (2) the 45th day
after the date on which the Issuers receive notice from a Holder of Transfer
Restricted Securities as contemplated by clause (ii) above (such earliest date
being the "Shelf Filing Deadline"), which Shelf Registration Statement shall
provide for resales of all Transfer Restricted Securities the Holders of which
shall have provided the information required pursuant to Section 4(b) of this
Agreement, and (y) use their best efforts to cause such Shelf Registration
Statement to be declared effective by the Commission on or before the 105th day
after the Shelf Filing Deadline. The Issuers shall use their best efforts to
keep such Shelf Registration Statement continuously effective, supplemented and
amended as required by the provisions of Sections 6(b) and (c) of this Agreement
to the extent necessary to ensure that it is available for resales of
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Notes by the Holders of Transfer Restricted Securities entitled to the benefit
of this Section 4(a) and to ensure that it conforms with the requirements of
this Agreement, the Act and the policies, rules and regulations of the
Commission as announced from time to time, for a continuous period of three
years following the date on which such Shelf Registration Statement becomes
effective under the Act or such shorter period that will terminate when all the
Notes covered by the Shelf Registration Statement have been sold pursuant to
such Shelf Registration Statement.
(b) Provision by Holders of Certain Information in Connection with
the Shelf Registration Statement. No Holder of Transfer Restricted Securities
may include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Issuers in writing, within 20 business days after receipt of a request
therefor, such information as the Issuers may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included in such Shelf Registration Statement. No Holder of Transfer
Restricted Securities shall be entitled to liquidated damages pursuant to
Section 5 of this Agreement unless and until such Holder shall have used its
best efforts to provide all such reasonably requested information. Each Holder
as to which any Shelf Registration Statement is being effected agrees to furnish
promptly to the Issuers all information required to be disclosed to make the
information previously furnished to the Issuers by such Holder not materially
misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any of the Registration Statements required by this Agreement
is not filed with the Commission on or prior to the date specified for such
filing in this Agreement, (ii) any of such Registration Statements has not been
declared effective by the Commission on or prior to the date specified for such
effectiveness in this Agreement (the "Effectiveness Target Date"), (iii) the
Exchange Offer has not been Consummated within 45 business days after the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (iv) any Registration Statement required by this Agreement is filed
and declared effective but shall thereafter cease to be effective or usable in
connection with resales of Transfer Restricted Securities during the periods
required by this Agreement (each such event referred to in clauses (i) through
(iv), a "Registration Default"), the Issuers hereby jointly and severally agree
to pay liquidated damages to each Holder of Transfer
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Restricted Securities with respect to the first 90-day period immediately
following the occurrence of such Registration Default, in an amount equal to
$.05 per week per $1,000 principal amount of Notes constituting Transfer
Restricted Securities held by such Holder for each week or portion thereof that
the Registration Default continues. The amount of the liquidated damages shall
increase by an additional $.05 per week per $1,000 in principal amount of Notes
constituting Transfer Restricted Securities with respect to each subsequent
90-day period until all Registration Defaults have been cured, up to a maximum
amount of liquidated damages of $.30 per week per $1,000 in principal amount of
Notes constituting Transfer Restricted Securities. Notwithstanding the
foregoing, the Issuers shall not be required to pay liquidated damages to each
Holder of Transfer Restricted Securities if the Registration Default arises from
the failure of the Issuers to file, or cause to become effective, a Shelf
Registration Statement within the time period required by Section 4 of this
Agreement and such Registration Default is by reason of the failure of the
Holders to make the representations required pursuant to Section 4(b) of this
Agreement, or provide the information reasonably requested by the Issuers, the
NASD or any other regulatory agency having jurisdiction over any of the Holders.
All accrued liquidated damages shall be paid by the Issuers on each Damages
Payment Date to the Global Note Holders by wire transfer of immediately
available funds or by federal funds check and to the Holders of certificated
securities by mailing a check to such Holders' registered addresses. Following
the cure of all Registration Defaults relating to any particular Transfer
Restricted Securities, the accrual of liquidated damages with respect to such
Transfer Restricted Securities will cease.
All obligations of the Issuers set forth in the preceding paragraph
that are outstanding with respect to any Transfer Restricted Security at the
time such security ceases to be a Transfer Restricted Security shall survive
until such time as all such obligations with respect to such Transfer Restricted
Security shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Issuers and the Subsidiary Guarantors shall comply with all
of the provisions of Section 6(c) below, shall use their best efforts to effect
such exchange to permit the sale of Transfer Restricted Securities being sold in
accordance with the intended method or methods of distribution thereof, and
shall comply with all of the following provisions:
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(i) If in the reasonable opinion of special U.S. counsel to the
Issuers there is a question as to whether the Exchange Offer is permitted
by applicable law, the Issuers hereby agree to seek a no-action letter or
other favorable decision from the Commission allowing the Issuers to
Consummate an Exchange Offer for such Old Notes. The Issuers hereby agree
to pursue the issuance of such a decision to the Commission staff level
but shall not be required to take commercially unreasonable action to
effect a change of Commission policy. The Issuers hereby agree, however,
to (A) participate in telephonic conferences with the Commission, (B)
deliver to the Commission an analysis prepared by special counsel to the
Issuers setting forth the legal bases, if any, upon which such counsel has
concluded that such an Exchange Offer should be permitted and (C)
diligently pursue a resolution (which need not be favorable) by the
Commission of such submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Issuers,
prior to the Consummation of the Exchange Offer, a written representation
to the Issuers (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to the effect
that (A) it is not an affiliate of any of the Issuers or the Subsidiary
Guarantors, (B) it is not engaged in, and does not intend to engage in,
and has no arrangement or understanding with any person to participate in,
a distribution of the New Notes to be issued in the Exchange Offer and (C)
it is acquiring the New Notes in its ordinary course of business. In
addition, all such Holders of Transfer Restricted Securities shall
otherwise cooperate in the Issuers' preparations for the Exchange Offer.
(iii) The Issuers and the Purchaser acknowledge that the staff of
the Commission has taken the position that any broker-dealer that owns New
Notes that were received by such broker-dealer for its own account in the
Exchange Offer (a "Participating Broker-Dealer") may be deemed to be an
"underwriter" within the meaning of the Act and must deliver a prospectus
meeting the requirements of the Act in connection with any resale of such
New Notes (other than a resale of an unsold allotment resulting from the
original offering of the Notes).
The Issuers and the Purchaser also acknowledge that it is the
Commission staff's position that if the Prospectus
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contained in the Exchange Offer Registration Statement includes a plan of
distribution containing a statement to the above effect and the means by
which Participating Broker-Dealers may resell the New Notes, without
naming the Participating Broker-Dealers or specifying the amount of New
Notes owned by them, such Prospectus may be delivered by Participating
Broker-Dealers to satisfy their prospectus delivery obligations under the
Act in connection with resales of New Notes for their own accounts, so
long as the Prospectus otherwise meets the requirements of the Act.
(b) Shelf Registration Statement. In the event that a Shelf
Registration Statement is required by this Agreement, the Issuers shall comply
with all the provisions of Section 6(c) of this Agreement and shall use their
best efforts to effect such registration to permit the sale of the Transfer
Restricted Securities being sold in accordance with the intended method or
methods of distribution of such Transfer Restricted Securities and, in
connection therewith, the Issuers will as expeditiously as possible prepare and
file with the Commission a Shelf Registration Statement relating to the
registration on any appropriate form under the Act, which form shall be
available for the sale of the Transfer Restricted Securities in accordance with
the intended method or methods of distribution of such Transfer Restricted
Securities.
(c) General Provisions. In connection with any Registration
Statement and any Prospectus required by this Agreement to permit the sale or
resale of Transfer Restricted Securities (including, without limitation, any
Registration Statement and the related Prospectus, to the extent that the same
are required to be available to permit resales of Notes by Broker-Dealers), each
of the Issuers shall:
(i) use its best efforts to keep such Registration Statement
continuously effective for the applicable time period required hereunder
and provide all requisite financial statements (including, if required by
the Act or any regulation thereunder, financial statements of the
Subsidiary Guarantors) for the period specified in Section 3 or 4 of this
Agreement, as applicable; upon the occurrence of any event that would
cause any such Registration Statement or the Prospectus contained therein
(A) to contain a material misstatement or omission or (B) not to be
effective and usable for resale of Transfer Restricted Securities during
the period required by this Agreement, the Issuers shall promptly notify
the Holders to suspend use of the Prospectus, and the Holders shall
suspend use of the
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Prospectus, and such Holders shall not communicate non-public information
to any third party, in violation of the securities laws, until the Issuers
have made an appropriate amendment to such Registration Statement, in the
case of clause (A), correcting any such misstatement or omission, and, in
the case of either clause (A) or (B), the Issuers shall use their best
efforts to cause such amendment to be declared effective and such
Registration Statement and the related Prospectus to become usable for
their intended purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to such Registration Statement as may be
necessary to keep the Registration Statement effective for the applicable
period set forth in Section 3 or 4 of this Agreement, or such shorter
period as will terminate when all Transfer Restricted Securities covered
by such Registration Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 under the Act during the applicable time
period required hereunder and to comply fully with the applicable
provisions of Rules 424 and 430A under the Act in a timely manner; and
comply with the provisions of the Act and the Exchange Act with respect to
the disposition of all Transfer Restricted Securities covered by such
Registration Statement during such period in accordance with the intended
method or methods of distribution by the sellers of such securities set
forth in such Registration Statement as so amended or in such Prospectus
as so supplemented;
(iii) advise the underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons, to confirm such advice in
writing, (A) when the Prospectus or any prospectus supplement or
post-effective amendment has been filed and, with respect to any
Registration Statement or any post-effective amendment thereto, when the
same has become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements to
the Prospectus or for additional information relating to such Registration
Statement or Prospectus, (C) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement under the
Act or of the suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for offering or sale
in any jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, (D) of the existence of any fact or the happening
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of any event that makes any statement of a material fact made in the
Registration Statement, the Prospectus, any amendment or supplement to
such Registration Statement or Prospectus, as the case may be, or any
document incorporated by reference in such Registration Statement or
Prospectus untrue in any material respect, or that requires the making of
any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements in such Registration Statement
or Prospectus not misleading and that in the case of the Prospectus, it
will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. If at any time the Commission shall issue any
stop order suspending the effectiveness of the Registration Statement, or
any state securities commission or other regulatory authority shall issue
an order suspending the qualification or exemption from qualification of
the Transfer Restricted Securities under state securities or Blue Sky
laws, the Issuers shall use their best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
(iv) furnish to each of the selling Holders and each of the
underwriter(s), if any, before filing with the Commission, copies of any
Registration Statement or any Prospectus included in such Registration
Statement or Prospectus or any amendments or supplements to any such
Registration Statement or Prospectus (including all documents incorporated
by reference after the initial filing of such Registration Statement),
which documents will be subject to the reasonable review of such Holders
and underwriter(s), if any, for a period of at least five business days,
and the Issuers will not file any such Registration Statement or
Prospectus or any amendment or supplement to any such Registration
Statement or Prospectus, as the case may be, (including all such documents
incorporated by reference) to which any selling Holder of Transfer
Restricted Securities covered by such Registration Statement or the
underwriter(s), if any, shall reasonably object within five business days
after the receipt of such Registration Statement or Prospectus. A selling
Holder or underwriter, if any, shall be deemed to have reasonably objected
to such filing if such Registration Statement, Prospectus, amendment or
supplement, as applicable, as proposed to be filed, contains a material
misstatement or omission;
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(v) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus, (a)
provide copies of such document to the selling Holders and to the
underwriter(s), if any, (b) make the Issuers' representatives available
for discussion of such document and other customary due diligence matters
provided that such discussion and due diligence shall be coordinated on
behalf of the selling Holders by one counsel designated by and on behalf
of such selling Holders and (c) include such information in such document
prior to the filing of such document as such selling Holders or
underwriter(s), if any, may reasonably request;
(vi) make available at reasonable times for inspection by the
selling Holders, any underwriter participating in any disposition pursuant
to such Registration Statement and any attorney or accountant retained by
such selling Holders or any of the underwriter(s), if any, at the offices
where normally kept, during reasonable business hours, all relevant
financial and other records, pertinent corporate documents and properties
of the Issuers and cause the Issuers' officers, directors and employees to
supply all information reasonably requested by any such Holder,
underwriter, attorney or accountant in connection with such Registration
Statement subsequent to the filing thereof and prior to its effectiveness;
provided, however, that such persons shall first agree in writing with the
Issuers that any information that is reasonably and in good faith
designated by the Issuers in writing as confidential at the time of
delivery of such information shall be kept confidential by such persons,
unless and to the extent that (i) disclosure of such information is
required by court or administrative order or is necessary to respond to
inquiries of regulatory authorities, (ii) disclosure of such information
is required by law (including any disclosure requirements pursuant to
Federal securities laws in connection with the filing of the Shelf
Registration Statement or the use of any Prospectus), (iii) such
information becomes generally available to the public other than as a
result of a disclosure or failure to safeguard such information by such
person or (iv) such information becomes available to such person from a
source other than the Issuers and their Subsidiaries and such source is
not bound by a confidentiality agreement; and provided further that the
foregoing inspection and information gathering shall be coordinated on
behalf of such parties by one counsel designated by and or on behalf of
such parties;
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(vii) if requested by any selling Holders or the underwriter(s), if
any, promptly incorporate in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as such selling Holders and underwriter(s), if any, may
reasonably request to have included therein, including, without
limitation, information relating to the "Plan of Distribution" of the
Transfer Restricted Securities, information with respect to the principal
amount of Transfer Restricted Securities being sold to such
underwriter(s), the purchase price being paid for Transfer Restricted
Securities and any other terms of the offering of the Transfer Restricted
Securities to be sold in such offering; and make all required filings of
such Prospectus supplement or post-effective amendment as soon as
practicable after the Issuers are notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment;
provided, however, that the Issuers shall not be required to take any
action pursuant to this Section 6(c)(vii) that would, in the opinion of
counsel for the Issuers, violate applicable law;
(viii) upon request to the Company by a selling Holder or
underwriter, if any, furnish to each such Person without charge, at least
one conformed copy of the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including, upon the request of
such Person, all documents incorporated by reference therein and all
exhibits to the extent requested (including exhibits incorporated therein
by reference);
(ix) deliver to each selling Holder and each of the underwriter(s),
if any, without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such
Persons may reasonably request; the Issuers hereby consent to the use of
the Prospectus and any amendment or supplement to the Prospectus by each
of the selling Holders and each of the underwriter(s), if any, in
connection with the offering and the sale of the Transfer Restricted
Securities in accordance with the terms thereof and with U.S. Federal
securities laws and Blue Sky laws covered by the Prospectus or any
amendment or supplement thereto;
(x) enter into such agreements (including an underwriting agreement
in form, scope and substance as is customary in underwritten offerings)
and take all such other reasonable actions in connection therewith in
order to expedite or facilitate the disposition of the Transfer
-17-
Restricted Securities pursuant to any Registration Statement contemplated
by this Agreement, all as may be reasonably requested by any Holder of
Transfer Restricted Securities or the underwriter(s), if any, in
connection with any sale or resale of Transfer Restricted Securities
pursuant to any Registration Statement contemplated by this Agreement; and
whether or not an underwriting agreement is entered into and whether or
not the registration is an Underwritten Registration, the Issuers and the
Subsidiary Guarantors shall (i) make such representations and warranties
to the Holders of such Transfer Restricted Securities and the
underwriters, if any, with respect to the business of the Issuers and
their Subsidiaries (including with respect to businesses or assets
acquired or to be acquired by any of them), and the Shelf Registration
Statement, Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, in form, substance and
scope as are customarily made by issuers to underwriters in underwritten
offerings, and confirm the same if and when customarily requested; (ii)
obtain opinions of counsel to the Issuers and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the underwriters, if any, and special counsel to the
Holders of the Transfer Restricted Securities being sold), addressed to
each selling Holder of Transfer Restricted Securities and each of the
underwriters, if any, covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as may be
reasonably requested by such underwriters, if any, and special counsel to
Holders of Transfer Restricted Securities; (iii) use their best efforts to
obtain customary "cold comfort" letters and updates thereof from the
independent certified public accountants of the Issuers (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Issuers or of any business acquired by an Issuer or any
such subsidiary for which financial statements and financial data is, or
is required to be, included in the Shelf Registration Statement),
addressed (where reasonably possible) to each selling Holder of Transfer
Restricted Securities and each of the underwriters, if any, such letters
to be in customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with underwritten
offerings; (iv) if an underwriting agreement is entered into, the same
shall contain indemnification provisions and procedures no less favorable
to the selling Holders and the underwriters, if any, than those set forth
in Section 8 hereof (or such other provisions and procedures acceptable
-18-
to Holders of a majority in aggregate principal amount of Transfer
Restricted Securities covered by such Shelf Registration Statement and the
underwriters, if any); and (v) deliver such documents and certificates as
may be reasonably requested by the Holders of a majority in aggregate
principal amount of the Transfer Restricted Securities being sold and the
underwriters, if any, to evidence the continued validity of the
representations and warranties made pursuant to clause (i) above and to
evidence compliance with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Issuers.
If at any time the representations and warranties of the Issuers
contemplated in clause (A)(1) above cease to be true and correct, the
Issuers shall so advise the Purchaser and the underwriter(s), if any, and
each selling Holder promptly and, if requested by any of them, shall
confirm such advice in writing;
(xi) prior to any public offering of Transfer Restricted Securities,
cooperate with and cause the Subsidiary Guarantors to cooperate with the
selling Holders, the underwriter(s), if any, and their respective counsel
in connection with the registration and qualification (or exemption from
such registration or qualification) of the Transfer Restricted Securities
for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the selling Holders and underwriter(s), if any, may
reasonably request in writing and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of
the Transfer Restricted Securities covered by the Shelf Registration
Statement; provided, however, that neither the Issuers nor the Subsidiary
Guarantors shall be required to register or qualify as a foreign
corporation where it is not now so qualified or to take any action that
would subject it to the service of process in suits or to taxation, other
than as to matters and transactions relating to the Registration
Statement, in any jurisdiction where it is not now so subject;
(xii) shall issue, upon the request of any Holder of Old Notes
covered by the Shelf Registration Statement, if any, New Notes having an
aggregate principal amount equal to the aggregate principal amount of Old
Notes surrendered to the Issuers by such Holder in exchange therefor or
being sold by such Holder; such New Notes to be registered in the name of
such Holder or, if being sold by such Holder in the name of
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the purchaser(s) of such New Notes, as the case may be; in return, the Old
Notes held by such Holder shall be surrendered to the Issuers for
cancellation;
(xiii) in connection with any sale or transfer of Transfer
Restricted Securities that will result in such securities no longer being
Transfer Restricted Securities, cooperate with and cause the Subsidiary
Guarantors to cooperate with the selling Holders and the underwriter(s),
if any, to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing any
restrictive legends; and enable such Transfer Restricted Securities to be
in such denominations and registered in such names as the Holders or the
underwriter(s), if any, may request at least two business days prior to
any sale of Transfer Restricted Securities made by such underwriter(s);
(xiv) use its best efforts to cause the Transfer Restricted
Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers of such Transfer Restricted
Securities or the underwriter(s), if any, to consummate the disposition of
such Transfer Restricted Securities, subject to the proviso contained in
clause (xi) above;
(xv) if any fact or event contemplated by Section 6(c)(iii)(D) of
this Agreement shall exist or have occurred, prepare a supplement or
post-effective amendment to the Registration Statement or related
Prospectus or any document incorporated in such Registration Statement or
Prospectus by reference or file any other required document so that, as
thereafter delivered to the purchasers of Transfer Restricted Securities,
the Registration Statement will not contain an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading and the 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
contained therein, in the light of the circumstances under which they were
made, not misleading;
(xvi) provide a CUSIP number for all Transfer Restricted Securities
not later than the effective date of the Registration Statement and
provide the Trustee under the Indenture with printed certificates for the
Transfer
-20-
Restricted Securities that are in a form eligible for deposit with The
Depository Trust Company;
(xvii) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter") that is
required to be retained in accordance with the rules and regulations of
the NASD, and use its reasonable best efforts to cause such Registration
Statement to become effective and approved by such governmental agencies
or authorities as may be necessary to enable the selling Holders of
Transfer Restricted Securities to consummate the disposition of such
Transfer Restricted Securities subject to the proviso of clause (xi)
above;
(xviii) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission in regards to any Registration
Statement, and make generally available to its securityholders, as soon as
practicable, a consolidated earning statement of Statia meeting the
requirements of Rule 158 (which need not be audited) for the twelve-month
period (A) commencing at the end of any fiscal quarter in which Transfer
Restricted Securities are sold to underwriters in a firm commitment or
reasonable best efforts Underwritten Offering or (B) if not sold to
underwriters in such an offering, beginning with the first month of
Statia's first fiscal quarter commencing after the effective date of the
Registration Statement;
(xix) cause the Indenture to be qualified under the TIA not later
than the effective date of the first Registration Statement required by
this Agreement, and, in connection therewith, cooperate with the Trustee
and the Holders to effect such changes to the Indenture, if any, as may be
required for such Indenture to be so qualified in accordance with the
terms of the TIA; and execute, and use their best efforts to cause the
Trustee to execute, all customary documents that may be required to effect
such changes and all other forms and documents required to be filed with
the Commission to enable such Indenture to be so qualified in a timely
manner.
The Issuers may require a holder of Transfer Restricted Notes to be
included in a Registration Statement to furnish to the Issuers such information
regarding the distribution of such Transfer Restricted Notes as is required by
law to be disclosed in such Registration Statement and the Issuers may exclude
from
-21-
such Registration Statement the Transfer Restricted Notes of any Holder who
unreasonably fails to furnish such information within a reasonable time after
receiving such request.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Issuers of the existence of any fact
of the kind described in Section 6(c)(iii)(D) of this Agreement, such Holder
will forthwith discontinue disposition of Transfer Restricted Securities
pursuant to the applicable Registration Statement until such Holder's receipt of
the copies of the supplemented or amended Prospectus contemplated by Section
6(c)(xvi) of this Agreement, or until it is advised in writing (the "Advice") by
the Issuers that the use of the Prospectus may be resumed, and has received
copies of any additional or supplemental filings that are incorporated by
reference in the Prospectus. If so directed by the Issuers, each Holder will
deliver to the Issuers (at the Issuers' expense) all copies, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Transfer Restricted Securities that was current at the time of
receipt of such notice. In the event that the Issuers shall give any such
notice, the time period regarding the effectiveness of such Registration
Statement set forth in Section 3 or 4 of this Agreement, as applicable, shall be
extended by the number of days during the period from and including the date of
the giving of such notice pursuant to Section 6(c)(iii)(D) of this Agreement to
and including the date when each selling Holder covered by such Registration
Statement shall have received the copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(xvi) of this Agreement or shall have
received the Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All fees and expenses incident to the Issuers' performance of or
compliance with this Agreement will be borne by the Issuers regardless of
whether a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses (including filings
made with the NASD (and, if applicable, the fees and expenses of any "qualified
independent underwriter" and its counsel that may be required by the rules and
regulations of the NASD)); (ii) all fees and expenses of compliance with federal
securities and state Blue Sky or securities laws; (iii) all expenses of printing
(including printing certificates for the New Notes to be issued in the Exchange
Offer and printing of Prospectuses); (iv) all fees and disbursements of counsel
for the Issuers, the Subsidiary Guarantors and, subject to Section 7(b) below,
the Holders of
-22-
Transfer Restricted Securities; (v) all application and filing fees in
connection with listing the Notes on a national securities exchange or automated
quotation system pursuant to the requirements of this Agreement; and (vi) all
fees and disbursements of independent certified public accountants of the
Issuers (including the expenses of any special audit and comfort letters
required by or incident to such performance).
Each of the Issuers will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by it.
Notwithstanding the foregoing or anything in this Agreement to the
contrary, each Holder of Transfer Restricted Notes shall pay all underwriting
discounts and commissions of any underwriters with respect to any Notes sold by
or on behalf of it.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Issuers will reimburse the
Purchaser and the Holders of Transfer Restricted 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, for the reasonable fees and
disbursements of not more than one counsel, who shall be Xxxxxx Xxxxxx & Xxxxxxx
or such other counsel as may be chosen by the Holders of a majority in principal
amount of the Transfer Restricted Securities for whose benefit such Registration
Statement is being prepared.
SECTION 8. INDEMNIFICATION
(a) The Issuers and each of the Subsidiary Guarantors jointly and
severally agree to indemnify and hold harmless (i) the Purchaser, each Holder of
Transfer Restricted Securities and each participating Broker Dealer, (ii) each
person, if any, who controls any of the foregoing within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act (any of the persons referred
to in this clause (ii) being hereinafter referred to as a "controlling person")
and (iii) the agents, employees, officers and directors and the agents,
employees, officers and directors of any such controlling person
-23-
(collectively, the "Indemnified Persons") from and against any and all losses,
liabilities, claims, damages and reasonable expenses whatsoever (including but
not limited to reasonable attorneys' fees and any and all reasonable expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation) to which they or any of
them may become subject under the Act, the Exchange Act or otherwise, insofar as
such losses, liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or
Prospectus, or in any supplement thereto or amendment thereof, or arise out of
or are based upon the omission or alleged omission to state therein a 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;
provided, however, that the Issuers and the Subsidiary Guarantors will not be
liable in any such case to the extent, but only to the extent, that any such
loss, liability, claim, damage or expense arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Issuers or the Subsidiary Guarantors by or on
behalf of any Indemnified Person relating to such Indemnified Person expressly
for use therein; provided, further, that the Issuers and the Subsidiary
Guarantors shall not be liable to any Indemnified Person under the indemnity
agreement in this subsection with respect to any preliminary Prospectus to the
extent that any such loss, claim, damage or liability of such Indemnified Person
results from an untrue statement of a material fact contained in, or the
omission of a material fact from, such preliminary Prospectus that was corrected
in the final Prospectus, if the Issuers or the Subsidiary Guarantors shall
sustain the burden of proving that such Indemnified Person sold Notes to the
person alleging such loss, claim, damage or liability without sending or giving,
at or prior to the written confirmation of such sale, a copy of the Prospectus
or of the Prospectus as then amended or supplemented if the Issuers and the
Subsidiary Guarantors had previously furnished copies thereof to such
Indemnified Person. This indemnity agreement will be in addition to any
liability that the Issuers or any of the Subsidiary Guarantors may otherwise
have, including, but not limited to, under this Agreement.
(b) In connection with any Registration Statement pursuant to which
a Holder of Transfer Restricted Securities offers or sells Transfer Restricted
Securities, such Holder
-24-
agrees, severally and not jointly, to indemnify and hold harmless the Issuers
and the Subsidiary Guarantors, their respective directors and officers and any
person controlling an Issuers or a Subsidiary Guarantor within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, to the same
extent as the foregoing indemnity from the Issuers and the Subsidiary Guarantors
to each Indemnified Person but only with respect to information relating to such
Holder furnished in writing by or on behalf of such Holder expressly for use in
such Registration Statement. In any such case in which any action shall be
brought against an Issuer or a Subsidiary Guarantor, any director or officer of
an Issuer or a Subsidiary Guarantor or any person controlling an Issuer or a
Subsidiary Guarantor based on such Registration Statement and in respect of
which indemnity may be sought against a Holder of Transfer Restricted
Securities, such Holder shall have the rights and duties given to the Issuers
and the Subsidiary Guarantors (except that if an Issuer or a Subsidiary
Guarantor shall have assumed the defense thereof, such Holder shall not be
required to do so, but may employ separate counsel therein and participate in
the defense thereof but the fees and expenses of such counsel shall be at the
expense of such Holder), and the Issuers and the Subsidiary Guarantors, their
respective directors and officers and any person controlling an Issuer or a
Subsidiary Guarantor shall have the rights and duties given to the Indemnified
Persons by Section 7(a) hereof.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, suit or proceeding
(collectively, an "Action"), such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such subsection,
promptly notify each party against whom indemnification is to be sought in
writing of the commencement of such Action (but the failure so to notify an
indemnifying party shall not relieve such indemnifying party from any liability
that it may have under this Section 8 except to the extent that it has been
prejudiced in any material respect by such failure or from any liability which
it may otherwise have). In case any such Action is brought against any
indemnified party, and it notifies an indemnifying party of the commencement of
such Action, the indemnifying party will be entitled to participate in such
Action, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense of such Action with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such Action, but the fees and expenses of such counsel shall be
-25-
at the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by the indemnifying parties
in connection with the defense of such Action, (ii) the indemnifying parties
shall not have employed counsel to take charge of the defense of such Action
within a reasonable time after notice of commencement of the Action, or (iii)
such indemnified party or parties shall have reasonably concluded that there may
be defenses available to it or them that are different from or additional to
those available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
Action on behalf of the indemnified party or parties), in any of which events
such fees and expenses of counsel shall be borne by the indemnifying parties. In
no event shall the indemnifying party be liable for the fees and expenses of
more than one counsel (together with appropriate local counsel) at any time for
all indemnified parties in connection with any one Action or separate but
substantially similar or related Actions in the same jurisdiction arising out of
the same general allegations or circumstances. Anything in this subsection to
the contrary notwithstanding, an indemnifying party shall not be liable for any
settlement of any claim or Action effected without its written consent;
provided, however, that such consent was not unreasonably withheld.
(d) In order to provide for contribution in circumstances in which
the indemnification provided for in paragraphs (a) and (b) of this Section 8 is
for any reason held to be unavailable from the indemnifying party, or is
insufficient to hold harmless a party indemnified under this Section 8, the
Issuers, the Subsidiary Guarantors and the Indemnified Parties shall contribute
to the aggregate losses, claims, damages, liabilities and expenses of the nature
contemplated by such indemnification provision (including any reasonable
investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any Action or any claims asserted, but after
deducting in the case of losses, claims, damages, liabilities and expenses
suffered by the indemnifying party, any contribution received by the
indemnifying party, from persons other than the indemnified party who may also
be liable for contribution, including persons who control the indemnified party
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange
Act) to which the Issuers, the Subsidiary Guarantors and the Indemnified Parties
may be subject, in such proportion as is appropriate to reflect the relative
benefits received by the Issuers and the Subsidiary Guarantors, on the one hand,
and the Indemnified Parties, on the other hand, from the offering of the Old
Notes or, if such allocation is not
-26-
permitted by applicable law or indemnification is not available as a result of
the indemnifying party not having received notice as provided in paragraph (c)
of this Section 8, in such proportion as is appropriate to reflect not only the
relative benefits referred to above but also the relative fault of the Issuers
and the Subsidiary Guarantors, on the one hand, and the Indemnified Parties, on
the other hand, in connection with the statements or omissions that resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the Issuers
and the Subsidiary Guarantors shall be deemed to be in the same proportion as
the total proceeds from the offering of Old Notes (net of discounts but before
deducting expenses) received by the Issuers as set forth in the table on the
cover page of the Prospectus. The relative fault of the Issuers and the
Subsidiary Guarantors, on the one hand, and the Indemnified Parties, on the
other hand, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Issuers, the Subsidiary Guarantors or the Indemnified Parties and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) The Issuers, the Subsidiary Guarantors and the Purchaser agree
that it would not be just and equitable if contribution pursuant to paragraph
(d) of this Section 8 were determined by pro rata allocation or by any other
method of allocation that does not take into account the equitable
considerations referred to above. Notwithstanding the provisions of paragraph
(d) of this Section 8, (i) in no case shall an Indemnified Party be required to
contribute any amount in excess of the amount by which the total received by
such Indemnified Party with respect to its sale of its Transfer any damages that
such Indemnified Party has otherwise been required to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission and (ii) no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of paragraphs (d) and
(e) of this Section 8, each person, if any, who controls an Indemnified Party
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act
shall have the same rights to contribution as such Indemnified Party, and each
person, if any, who controls the Issuers or the Subsidiary Guarantors within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act shall have
the same rights to contribution as the Issuers or the Subsidiary Guarantors,
subject
-27-
in each case to clauses (i) and (ii) of this Section 8(e). Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
Action against such party in respect of which a claim for contribution may be
made against another party or parties under paragraphs 8(d) or (e) of this
Section 8, notify such party or parties from whom contribution may be sought,
but the omission to so notify such party or parties shall not relieve the party
or parties from whom contribution may be sought from any obligation it or they
may have under paragraphs (d) or (e) of this Section 8 or otherwise. No party
shall be liable for contribution with respect to any Action or claim settled
without its written consent; provided, however, that such written consent was
not unreasonably withheld.
SECTION 9. RULE 144A
The Issuers shall use their best efforts, for so long as any
Transfer Restricted Securities remain outstanding, to make available to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale of such securities and any prospective purchaser of such Transfer
Restricted Securities from such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration under
this Agreement unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled under this Agreement to approve such
arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorneys, indemnities, underwriting agreements, lock-up letters and
other documents required under the terms of such underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities
-28-
included in such offering; provided, that such investment bankers and managers
must be reasonably satisfactory to the Issuers.
SECTION 12. MISCELLANEOUS
(a) Remedies. Each Holder, in addition to being entitled to exercise
all rights provided in this Agreement, in the Indenture, the Purchase Agreement
or granted by law, including recovery of liquidated or other damages, will be
entitled to specific performance of its rights under this Agreement. The Issuers
and the Subsidiary Guarantors agree that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agree to waive the defense in any Action for
specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Issuers will not on or after the
date of this Agreement enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions of this Agreement. The Issuers have not
previously entered into any agreement granting any registration rights with
respect to its securities to any Person. The rights granted to the Holders under
this Agreement do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Issuers' securities under any agreement in
effect on the date of this Agreement.
(c) Adjustments Affecting the Notes. Without the written consent of
the Holders of a majority in aggregate principal amount of outstanding Transfer
Restricted Notes, the Issuers and the Subsidiary Guarantors will not take any
action, or permit any change to occur, with respect to the Notes that would
materially and adversely affect the ability of the Holders to Consummate any
Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions of this Agreement may not be given unless the Issuers have
obtained the written consent of Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities. Notwithstanding the
foregoing, a waiver or consent to departure from the provisions of this
Agreement that relates exclusively to the rights of Holders whose securities are
being sold or tendered pursuant to a Registration Statement and that does not
affect directly or indirectly the rights of other Holders whose securities are
not being sold or tendered pursuant to such
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Registration Statement may be given by the Holders of a majority of the
outstanding principal amount of Transfer Restricted Securities being so sold or
tendered.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivering, first-class
mail (registered or certified, return receipt requested), telex, telecopier or
air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to the Issuers or the Subsidiary Guarantors, at:
Statia Terminals, Inc.
000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxx
with a copy to:
White and Case
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (212)
Attention: Xxxx Xxxxxxxx
All such notices and communications shall be deemed to have been
duly given: (i) at the time delivered by hand, if personally delivered; (ii)
five business days after being deposited in the mail, postage prepaid, if
mailed; (iii) when answered back, if telexed; (iv) when receipt acknowledged, if
telecopied; and (v) on the next business day, if timely delivered to an air
courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of each of
the parties, including without
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limitation and without the need for an express assignment, subsequent Holders of
Transfer Restricted Securities.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties to this Agreement 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 of this
Agreement.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF. Each of the parties hereto agrees to submit to
the jurisdiction of the courts of the State of New York and the U.S. Federal
Courts sitting in the City of New York for the purposes of any suit, action or
proceeding arising out of or relating to this Indenture. The Issuers hereby
designate and appoint CT Corporation System, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, as its agent to receive on its behalf service of all process in any
proceedings in any court sitting in New York, New York, such service being
hereby acknowledged by the Issuers to be effective and binding service in every
respect. A copy of any such process so served shall be mailed by registered mail
to the Issuers at the address specified in Section 12(e) hereof, except that
unless otherwise provided by applicable law, any failure to mail such copy shall
not affect the validity of service of process. If any agent appointed by the
Issuers refuses to accept service, the Issuers hereby agree that service upon
them by mail shall constitute sufficient notice. Nothing herein shall affect the
right to serve process in any other manner permitted by law or shall limit the
right of the Holders to bring proceedings against the Issuers in the courts of
any other jurisdiction.
(j) Severability. In the event that any one or more of the
provisions contained in this Agreement, or the application of any such provision
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 in this Agreement shall not be affected or
impaired thereby.
(k) Entire Agreement. This Agreement together with the other
Operative Documents (as defined in the Purchase Agreement) is intended by the
parties as a final expression of
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their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties to this Agreement in respect of the
subject matter contained in this Agreement. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to in this
Agreement with respect to the registration rights granted by the Issuers with
respect to the Transfer Restricted Securities. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
[Signatures on Next Page]
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[Registration Rights Agreement - Issuers' Signature Page]
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
STATIA TERMINALS INTERNATIONAL
N.V.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director and Secretary
STATIA TERMINALS CANADA,
INCORPORATED
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
STATIA TERMINALS CORPORATION N.V.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director and Secretary
STATIA TERMINALS DELAWARE, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
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STATIA TERMINALS, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President and Chairman of
of the Board
STATIA TERMINALS N.V.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
STATIA DELAWARE HOLD CO II, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
SABA TRUST COMPANY N.V.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
BICEN DEVELOPMENT CORPORATION
N.V.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
STATIA TERMINALS SOUTHWEST, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
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W.P. COMPANY, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
SEVEN SEAS STEAMSHIP COMPANY
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
SEVEN SEAS STEAMSHIP COMPANY
(SINT EUSTATIUS) N.V.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Attorney-in-Fact
POINT XXXXXX MARINE SERVICES
LIMITED
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President Finance and
Treasurer
STATIA LABORATORY SERVICES, N.V.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
STATIA TUGS N.V.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
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[Registration Rights Agreement - Purchaser's Signature Page]
Accepted and agreed as of the
date first above written:
/s/ Xxx Xxxxxxx
_________________________________________
XXXXXX, READ & CO. INC.
By:
-------------------------------------
Name: Xxx Xxxxxxx
Title: Senior Vice President
