EXHIBIT 4.3
FRONTIER OIL CORPORATION
$220,000,000
8.000% Series A Senior Notes due 2013
REGISTRATION RIGHTS AGREEMENT
Dated as of April 17, 2003
BEAR, XXXXXXX & CO. INC.
XXXXXX BROTHERS INC.
BNP PARIBAS SECURITIES CORP.
This Registration Rights Agreement (this "Agreement") is made and
entered into as of April 17, 2003 by and between Frontier Oil Corporation, a
Wyoming corporation (the "Company"), Front Range Himalaya Corporation, a Wyoming
Corporation ("Parent") and Bear, Xxxxxxx & Co. Inc., Xxxxxx Brothers Inc., and
BNP Paribas Securities Corp. (collectively, the "Initial Purchasers"), who have
agreed to purchase $220,000,000 aggregate principal amount of the Company's
8.000% Senior Notes due 2013 (the "Initial Notes") pursuant to the Purchase
Agreement (as defined below). Parent is a party to this Agreement for the sole
purpose of agreeing to be bound by the terms of this Agreement upon consummation
of the Mergers (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated April
4, 2003 (the "Purchase Agreement"), by and between the Company, Frontier Escrow
Corporation and the Initial Purchasers. In order to induce the Initial
Purchasers to purchase the Initial Notes, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the obligations of the Initial Purchasers set
forth in Section 8(n) of the Purchase Agreement.
Upon consummation of the Mergers (as defined below), the Company will,
pursuant to Section 13 hereto, cause all of its Domestic Subsidiaries (including
after giving effect to the Mergers) (collectively, "the Guarantors"), to be
bound by the terms of this Agreement as if they were parties hereto.
Frontier Escrow Corporation, a Delaware corporation and a wholly-owned
Subsidiary of the Company, is expected to merge with and into the Company with
the Company as the surviving entity (the "Escrow Corp. Merger") immediately
prior to the mergers contemplated by the Agreement and Plan of Merger, dated as
of March 30, 2003, among the Company, Xxxxx Corporation, Parent, Front Range
Merger Corporation and Himalaya Merger Corporation (the "Merger Agreement"),
pursuant to which
(i) Front Range Merger Corporation will merge with and into the Company,
with the Company as the surviving corporation (the "Frontier Merger"),
(ii) Himalaya Merger Corporation will merge with and into Xxxxx
Corporation, with Xxxxx Corporation as the surviving corporation (the "Xxxxx
Merger"), and
(iii) upon consummation of the Frontier Merger and the Xxxxx Merger,
each of the Company and Xxxxx Corporation will become a wholly-owned subsidiary
of Parent, Parent will be renamed Frontier Oil Corporation, and the Company
shall be renamed Frontier Oil Holdings, Inc.
Immediately after the Frontier Merger and the Xxxxx Merger, Xxxxx
Corporation and its subsidiaries will become wholly-owned subsidiaries of the
Company (collectively with the Xxxxx Merger, the Frontier Merger and the Escrow
Corp. Merger, the "Mergers").
Capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the Indenture, dated April 17, 2003, between
Frontier Escrow Corporation and Xxxxx Fargo Bank, N.A., as Trustee, relating to
the Series A Notes, including the annexes thereto (the "Indenture").
The parties 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.
Affiliate: As defined in Rule 144 of the Act.
Broker-Dealer: Any broker or dealer registered under the
Exchange Act.
Closing Date: The date on which the Initial Notes are originally
issued under the Indenture.
Commission: The Securities and Exchange Commission.
Consummate: The 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 Exchange 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) hereof, and (iii)
the delivery by the Company to the Registrar under the Indenture of
Exchange Notes in the same aggregate principal amount as the aggregate
principal amount of Initial Notes that were tendered by Holders thereof
pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Initial Notes, each
Interest Payment Date.
Effectiveness Deadline: As defined in Section 3(a) hereto.
Effectiveness Target Date: As defined in Section 5 hereof.
Escrow Corp. Merger: As defined in the preamble hereto.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Notes: The Company's 8.000% Senior Notes due 2013
registered under the Act with terms substantially identical to the
Initial Notes, to be issued pursuant to the Indenture and the Exchange
Offer.
Exchange Offer: The registration by the Company under the Act of
the Exchange Notes pursuant to a Registration Statement pursuant to
which the Company offers the Holders of all outstanding Transfer
Restricted Securities the opportunity to exchange all such outstanding
Transfer Restricted Securities held by such Holders for Exchange Notes
2
in an aggregate principal amount equal to the aggregate principal amount
of the 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 Initial Purchasers
propose to sell the Initial Notes (i) to certain "qualified
institutional buyers," as such term is defined in Rule 144A under the
Act and (ii) outside the United States to certain non-U.S. Persons
meeting the requirements of Rule 904 under the Act.
Filing Deadline: As defined in Section 3(a) hereto.
Guarantors: As defined in the Preamble hereto.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of April 17, 2003, among the
Company and Xxxxx Fargo Bank, N.A., 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 the terms thereof.
Initial Notes: As defined in the preamble hereto.
Initial Purchasers: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture and the
Notes.
Mergers: As defined in the Preamble hereto.
NASD: National Association of Securities Dealers, Inc.
Notes: The Initial Notes and the Exchange Notes.
Person: An individual, partnership, corporation, trust, limited
liability company or unincorporated organization, or a government or
agency or political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement
at the time such Registration Statement is declared effective, as
amended or supplemented by any prospectus supplement and by all other
amendments thereto, including post-effective amendments, and all
material incorporated by reference into such Prospectus.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the
Company relating to (a) an offering of Exchange Notes pursuant to an
Exchange Offer or (b) the registration for
3
resale of Transfer Restricted Securities pursuant to the Shelf
Registration Statement, which is filed pursuant to the provisions of
this Agreement, in each case, including the Prospectus included therein,
all amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference
therein.
Rule 144: Rule 144 promulgated under the Act.
Shelf Effectiveness Deadline: As defined in Section 4(a) hereof.
Shelf Filing Deadline: As defined in Section 4(a) hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Initial Note until (i) the
date on which such Initial Note has been exchanged by a Person other
than a Broker-Dealer for an Exchange Note in the Exchange Offer, (ii)
following the exchange by a Broker-Dealer in the Exchange Offer of an
Initial Note for an Exchange Note, the date on which such Exchange 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
Initial 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 Initial Note is distributed to the public pursuant to Rule
144 under the Act or may be distributed to the public pursuant to Rule
144(k) under the Act.
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
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 of record.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible under
applicable law or Commission policy (after the procedures set forth in Section
6(a) below have been complied with), the Company and Parent shall, and the
Company shall cause the Guarantors to, (i) cause to be filed with the Commission
on or prior to the later of (A) 90 days after the Closing Date, or (B) 45 days
after the consummation of the Escrow Corp. Merger, a Registration Statement
under the Act relating to the Exchange Notes and the Exchange Offer (such later
date being the "Filing
4
Deadline"), (ii) use their reasonable best efforts to cause such Registration
Statement to become effective on or prior to the later of (A) 180 days after the
Closing Date, or (B) 180 days after the consummation of the Escrow Corp. Merger
(such later date being the "Effectiveness Deadline"), (iii) in connection with
the foregoing, (A) file all pre-effective amendments to such Registration
Statement as may be necessary in order to cause such Registration Statement to
become effective, (B) file, if applicable, a post-effective amendment to such
Registration Statement pursuant to Rule 430A under the Act and (C) cause all
necessary filings in connection with the registration and qualification of the
Exchange Notes to be made under the Blue Sky laws of such jurisdictions as are
necessary to permit Consummation of the Exchange Offer, and (iv) upon the
effectiveness of such Registration Statement, commence and subsequently
Consummate the Exchange Offer. The Exchange Offer Registration Statement shall
be on the appropriate form under the Act permitting registration of the Exchange
Notes to be offered in exchange for the Transfer Restricted Securities and to
permit resales of the Exchange Notes held by Broker-Dealers as contemplated by
Section 3(c) below.
(b) The Company and Parent shall, and the Company shall cause the
Guarantors to, use their respective reasonable best efforts to 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 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. The Company and Parent shall, and the Company shall cause
the Guarantors to, cause the Exchange Offer to comply with all applicable
federal and state securities laws. No securities other than the Exchange Notes
shall be included in the Exchange Offer Registration Statement. The Company and
Parent shall use their reasonable best efforts, and the Company shall cause the
Guarantors to use their reasonable best efforts, to cause the Exchange Offer to
be Consummated on or prior to 30 Business Days after the Exchange Offer
Registration Statement has become effective, or longer, if required by the
federal securities laws.
(c) The Company shall indicate in a "Plan of Distribution" section
contained in the Prospectus contained in the Exchange Offer Registration
Statement that any Broker-Dealer who holds Initial 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 Company, or any Affiliate of
the Company) may exchange such Initial Notes pursuant to the Exchange Offer;
however, 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 Exchange Notes
received by such Broker-Dealer in the Exchange Offer, which prospectus delivery
requirement may be satisfied by the delivery by such Broker-Dealer of the
Prospectus contained in the Exchange Offer Registration Statement. Such "Plan of
Distribution" section shall also contain all other information with respect to
such resales by Broker-Dealers that the Commission may require in order 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, rules or regulations after the date of this Agreement.
The Company and Parent shall, and the Company shall cause the Guarantors
to, permit the use of the Prospectus contained in the Exchange Offer
Registration Statement by Broker-
5
Dealers in the Exchange Offer for resales of Notes acquired by Broker-Dealers
for their own accounts as a result of market-making activities or other trading
activities and use their respective reasonable best efforts to keep the Exchange
Offer Registration Statement continuously effective, supplemented and amended as
required by and subject to the provisions of Section 6(a) and (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 one year from the
date on which the Exchange Offer Registration Statement is declared effective.
The Company and Parent shall, and the Company shall cause the Guarantors
to, provide sufficient copies of the latest version of such Prospectus to such
Broker-Dealers promptly upon request at any time during such one-year period in
order to facilitate such resales.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company is not required to file
an Exchange Offer Registration Statement or permitted to consummate the Exchange
Offer because the Exchange Offer is not permitted by applicable law or
Commission policy (after the procedures set forth in Section 6(a) below have
been complied with) or (ii) any Holder of Transfer Restricted Securities
notifies the Company prior to the 20th day following the Consummation of the
Exchange Offer (A) that such Holder is prohibited by applicable law or
Commission policy from participating in the Exchange Offer, or (B) that such
Holder may not resell the Exchange Notes acquired by it in the Exchange Offer to
the public without delivering a prospectus and that the Prospectus contained in
the Exchange Offer Registration Statement is not appropriate or available for
such resales, or (C) that such holder is a Broker-Dealer and owns Initial Notes
acquired directly from the Company or an Affiliate of the Company, then the
Company and Parent shall, and the Company shall cause the Guarantors to, use
their reasonable best efforts to:
(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 30 days after the earlier of (i) the date on
which the Company determines that the Exchange Offer Registration
Statement cannot be filed as a result of clause a(i) above and (ii) the
date on which the Company receives the notice specified in clause
(a)(ii) above (such earlier date, 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) hereof; and
(y) cause such Shelf Registration Statement to be declared
effective by the Commission on or prior to 90 days after the Shelf
Filing Deadline (such 90th day, the Shelf Effectiveness Deadline").
The Company and Parent shall use their respective reasonable best efforts, and
the Company shall cause the Guarantors to use their reasonable best efforts, to
keep such Shelf Registration Statement continuously effective, supplemented and
amended as required by and subject to the
6
provisions of Sections 6(b) and (c) hereof to the extent necessary to ensure
that it is available for resales of Transfer Restricted Securities by the
Holders thereof entitled to the benefit of this Section 4(a) and the other
securities required to be registered therein pursuant to Section 6(c)(xiii)
hereof, 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 at least two years (as extended pursuant to
Section 6(c) following the Closing Date or, if earlier, until the Shelf
Registration Statement terminates when all Transfer Restricted Securities
covered by such Shelf Registration Statement have been sold pursuant thereto.
(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 Company in writing, within 20 Business Days after receipt of a request
therefor, such information as the Company may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein, including but not limited to the information
specified in Item 507 or 508 of Regulation S-K, as applicable, of the Act. No
Holder of Transfer Restricted Securities shall be entitled to liquidated damages
pursuant to Section 5 hereof unless and until such Holder shall have used its
reasonable 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 Company all information required to be
disclosed in order to make the information previously furnished to the Company
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 Filing Deadline or Shelf Filing
Deadline, as applicable, (ii) any of such Registration Statements has not been
declared effective by the Commission on or prior to the Effectiveness Deadline
or Shelf Effectiveness Deadline, as applicable (the "Effectiveness Target
Date"), whether or not the Company has breached any obligation to use its
reasonable best efforts, to cause any such Registration Statement to be declared
effective, (iii) the Exchange Offer has not been Consummated within 30 Business
Days of the Effectiveness Deadline or (iv) any Registration Statement required
by this Agreement is filed and declared effective but shall thereafter cease to
be effective or fail to be usable for its intended purpose without being
succeeded within two days by a post-effective amendment to such Registration
Statement that cures such failure and that is itself declared effective on or
prior to the Effectiveness Target Date (each such event referred to in clauses
(i) through (iv), a "Registration Default"), the Company and Parent hereby agree
to pay, and the Company agrees to cause the Guarantors to jointly and severally
pay, liquidated damages to each Holder of Transfer Restricted Securities with
respect to the first 90-day period immediately following the occurrence of the
first Registration Default in an amount equal to $.05 per week per $1,000
principal amount of 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 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 for all Registration Defaults of $.50 per
week per $1,000 principal amount of Transfer Restricted Securities. All accrued
liquidated damages shall be paid to the Holders
7
entitled thereto, in the manner provided for the payment of Interest in the
Indenture on each Interest Payment Date as more fully set forth in the Indenture
and the Notes. 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 Company 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 security shall have been
satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company and Parent shall, and the Company shall cause the
Guarantors to, comply with all of the provisions of Section 6(c) below, shall
use their respective reasonable 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:
(i) If, following the date hereof there has been announced a
change in Commission policy with respect to exchange offers such as the
Exchange Offer, that in the reasonable opinion of counsel to the
Company, Parent and the Guarantors, there is a question as to whether
the Exchange Offer is permitted by applicable law, the Company and
Parent hereby agree to, and the Company shall cause the Guarantors to,
seek a no-action letter or other favorable decision from the Commission
allowing the Company, Parent and the Guarantors to Consummate an
Exchange Offer for such Initial Notes. The Company and Parent hereby
agree to, and the Company shall cause the Guarantors 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. However, the Company and Parent hereby agree to,
and the Company shall cause the Guarantors to, take all such other
actions as may be requested by the Commission or otherwise required in
connection with the issuance of such decision, including without
limitation (A) participate in telephonic conferences with the
Commission, (B) deliver to the Commission staff an analysis prepared by
counsel to the Company 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 staff 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 Company,
prior to the Consummation thereof, a written representation to the
Company (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 the Company, (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
Exchange Notes to be issued in the Exchange Offer, (C) it is acquiring
the Exchange Notes in its ordinary course of business and (D) if such
Holder is a Broker-Dealer, that it
8
will receive Exchange Notes for its own account in exchange for
Securities that were acquired as a result of market-making activities or
other trading activities and that it will deliver a prospectus in
connection with any resale of such Exchange Notes. Each Holder shall be
required to make such other representations as may be reasonably
necessary under applicable Commission rules, regulations or
interpretations to render the use of Form S-4 or another appropriate
form under the Securities Act available and will be required to agree to
comply with their agreements and covenants set forth in this Agreement.
In addition, the Initial Purchasers, for themselves and on behalf of the
Holders, hereby acknowledge and agree, and each Holder by its purchase
of Transfer Restricted Securities shall be deemed to have acknowledged
and agreed, that any Broker-Dealer and any such Holder using the
Exchange Offer to participate in a distribution of the securities to be
acquired in the Exchange Offer (1) could not under Commission policy as
in effect on the date of this Agreement rely on the position of the
Commission enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available June 5,
1991) and Exxon Capital Holdings Corporation (available May 13, 1988),
as interpreted in the Commission's letter to Shearman & Sterling dated
July 2, 1993, and similar no-action letters (including any no-action
letter obtained pursuant to clause (i) above), and (2) must comply with
the registration and prospectus delivery requirements of the Act in
connection with a secondary resale transaction and that such a secondary
resale transaction should be covered by an effective registration
statement containing the selling security holder information required by
Item 507 or 508, as applicable, of Regulation S-K if the resales are of
Exchange Notes obtained by such Holder in exchange for Initial Notes
acquired by such Holder directly from the Company or any of its
Affiliates.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company and Parent shall, and the Company
shall cause the Guarantors to, provide a supplemental letter to the
Commission (A) stating that the Company, Parent and the Guarantors are
registering the Exchange Offer in reliance on the position of the
Commission enunciated in Exxon Capital Holdings Corporation (available
May 13, 1988), Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991)
and, if applicable, any no-action letter obtained pursuant to clause (i)
above and (B) including a representation that the Company, Parent and
the Guarantors have not entered into any arrangement or understanding
with any Person to distribute the Exchange Notes to be received in the
Exchange Offer and that, to the best of the Company's, Parent's and the
Guarantors' information and belief, each Holder participating in the
Exchange Offer is acquiring the Exchange Notes in its ordinary course of
business and has no arrangement or understanding with any Person to
participate in the distribution of the Exchange Notes received in the
Exchange Offer and (C) any other undertaking or representation
reasonably required by the Commission as set forth in any no-action
letter obtained pursuant to clause (i) above, if applicable.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, if required, the Company and Parent shall, and the
Company shall cause the Guarantors to, comply with all the provisions of Section
6(c) below and shall use their respective reasonable best efforts, and shall
cause the Guarantors to use their respective reasonable 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 thereof
and, pursuant
9
thereto, the Company and Parent will, and the Company will cause the Guarantors
to, prepare and file with the Commission in accordance with Section 4(a) hereof
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 thereof within the time periods and otherwise in accordance with
the provisions hereof.
(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 required to permit resales of
Notes by Broker-Dealers), the Company and Parent shall, and the Company shall
cause the Guarantors to:
(i) use their respective reasonable best efforts to keep
such Registration Statement continuously effective and provide all
requisite financial statements for the period specified in Section 3(b)
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 an untrue statement of material fact or
omit to state any material fact necessary to make the statements therein
not misleading or (B) not to be effective and usable for the resale of
Transfer Restricted Securities during the period required by this
Agreement, file promptly an appropriate amendment to such Registration
Statement curing such defect, and, if Commission review is required in
the case of either clause (A) or (B), use their respective reasonable
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) use their respective reasonable best efforts to prepare
and file with the Commission such amendments and post-effective
amendments to the Registration Statement as may be necessary to keep the
Registration Statement effective for the applicable period set forth in
Section 3(b) or 4 hereof, as applicable, 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, and to
comply fully with the applicable provisions of Rules 424, 430A and 462
under the Act in a timely manner; and comply with the provisions of the
Act with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the sellers thereof
set forth in such Registration Statement or supplement to the
Prospectus;
(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
10
information relating thereto, (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 of any event that makes any statement of a
material fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto, or any document incorporated by
reference therein untrue, or that requires the making of any additions
to or changes in the Registration Statement in order to make the
statements therein not misleading, or that requires the making of any
additions to or changes in the Prospectus in order 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 Company and Parent shall use their
respective reasonable best efforts, and the Company shall cause the
Guarantors to use their respective reasonable best efforts, to obtain
the withdrawal or lifting of such order at the earliest possible time;
(iv) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or have occurred,
prepare a supplement or post effective amendment to the Registration
Statement or related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the
Prospectus will not contain an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(v) 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 therein or any
amendments or supplements to any such Registration Statement or
Prospectus (but excluding any documents incorporated by reference as a
result of the Company's and the Guarantors' periodic reporting
requirements under the Exchange Act), and shall not file any such
Registration Statement or Prospectus or any amendment or supplement to
any such Registration Statement or Prospectus (excluding all such
documents incorporated by reference as a result of the Company's and the
Guarantors' periodic reporting requirements under the Exchange Act) to
which a selling Holder of Transfer Restricted Securities covered by such
Registration Statement or the underwriter(s), if any, shall reasonably
object within three Business Days after the receipt thereof. A selling
Holder or underwriter, if any, shall be deemed to have reasonably
objected to such filing if such Registration Statement, amendment,
Prospectus or supplement, as applicable, as proposed to be filed,
contains an untrue statement of fact or omits to state any material fact
necessary to make the statements therein not misleading or fails to
comply with the applicable requirements of the Act;
11
(vi) prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document to the selling Holders and to the
underwriter(s), if any, make the Company's, Parent's and the Guarantors'
representatives available for discussion of such document and other
customary due diligence matters, and include such information in such
document prior to the filing thereof as such selling Holders or
underwriter(s), if any, reasonably may request;
(vii) 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), relevant
financial and other records, pertinent corporate documents and
properties of the Company, Parent and the Guarantors and cause the
Company's, Parent's and the Guarantors' officers, directors and
employees to supply all information reasonably requested by any such
Holder, underwriter, attorney or accountant in connection with such
Registration Statement or any post effective amendment thereto
subsequent to the filing thereof and prior to its effectiveness;
provided, however, that the foregoing inspection and information
gathering (i) shall be coordinated on behalf of the selling Holders,
underwriters, or any representative thereof, by one counsel, who shall
be Xxxxxx & Xxxxxxx L.L.P. or such other counsel as may be chosen by the
Holders of a majority in principal amount of Transfer Restricted
Securities, and (ii) shall not be available for any such Holder who does
not agree in writing to hold such information in confidence.
(viii) if requested by any selling Holders or any managing
underwriter in connection with such exchange or sale, 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 therefor 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 Company, Parent and the
Guarantors are notified of the matters to be incorporated in such
Prospectus supplement or post-effective amendment;
(ix) furnish to each underwriter, if any, and, upon written
request, each selling Holder, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of each
amendment thereto, and upon request, all documents incorporated by
reference therein and all exhibits (including exhibits incorporated
therein by reference);
(x) 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 reasonably may request; the Company and Parent
hereby consent, and the Company shall cause the Guarantors to
12
consent, to the use of the Prospectus and any amendment or supplement
thereto 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 covered by the Prospectus or any amendment or
supplement thereto; provided that such use of the Prospectus and any
amendment or supplement thereto and such offering and sale conforms to
the Plan of Distribution set forth in the Prospectus and complies with
the terms of this Agreement and all applicable laws and regulations
thereunder;
(xi) in the event of an Underwritten Registration, enter into
such customary agreements (including an underwriting agreement), and
make such customary representations and warranties, and take all such
other customary actions in connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted Securities
pursuant to any Shelf Registration Statement contemplated by this
Agreement, all to such extent as may be requested by the Holders of
Transfer Restricted Securities or a managing underwriter in connection
with any sale or resale pursuant to any Shelf Registration Statement
contemplated by this Agreement; provided, however, that the Company,
Parent and the Guarantors shall have no obligation to enter into an
underwriting agreement or permit an Underwritten Offering unless a
request therefor shall have been received from Holders of not less than
33% of the aggregate principal amount of Transfer Restricted Securities
then outstanding; and whether or not an underwriting agreement is
entered into and whether or not the registration is an Underwritten
Registration, the Company and Parent shall, and the Company shall cause
the Guarantors to:
(A) Except in the case of an Underwritten
Registration, furnish (or in the case of paragraphs (2) and (3),
cause to be furnished) to each selling Holder, upon the
effectiveness of the Shelf Registration Statement:
(1) a certificate, dated the date of
effectiveness of the Shelf Registration Statement,
signed on behalf of each of the Company, Parent and the
Guarantors by two senior officers, one of whom must be
its Chief Financial Officer, confirming, as of such
date, the matters set forth in paragraphs (a), (b), (c)
and (d) of Section 8 of the Purchase Agreement and such
other similar matters as such Holders may reasonably
request with respect to the transactions contemplated by
the Shelf Registration Statement;
(2) an opinion, dated the date of
effectiveness of the Shelf Registration Statement, of
counsel for the Company, Parent and the Guarantors,
covering the matters set forth in Exhibit C of the
Purchase Agreement and such other matter as such Holder
may reasonably request with respect to the transactions
contemplated by the Shelf Registration Statement, and in
any event including a statement to the effect that such
counsel has participated in conferences with officers
and other representatives of the Company, Parent and the
Guarantors, representatives of the independent
accountants of the Company, Parent and the Guarantors
(including, but not limited to, Xxxxx Corporation) and
13
representatives of the Initial Purchasers at which the
contents of the Shelf Registration Statement and related
matters were discussed and, although it does not assume
any responsibility for the accuracy, completeness or
fairness of the statements contained in the Shelf
Registration Statement, during the course of such
participation, no facts came to its attention that
caused such counsel to believe that the Shelf
Registration Statement, at the time such Registration
Statement or any post-effective amendment thereto became
effective, contained an untrue statement of a material
fact or omitted to state any fact required to be stated
therein or necessary to make the statements therein not
misleading, or that the Prospectus contained in such
Registration Statement as of its date contained an
untrue statement of a material fact or omitted 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 (except as to
financial statements and related notes, the financial
statement schedules, statistical data related to or
derived from the financial statements and other
financial data included therein); and
(3) a customary comfort letter, dated as of
the date of effectiveness of the Shelf Registration
Statement, from the Company's, Parent's and the
Guarantors' independent accountants if such comfort
letter shall be issuable to the selling Holders in
accordance with the relevant accounting industry
pronouncements, in the customary form and covering
matters of the type customarily covered in the comfort
letter by underwriters in connection with primary
underwritten offerings, and affirming the matters set
forth in the comfort letters delivered pursuant to
Section 8(h) of the Purchase Agreement, without
exception; and
(4) a customary comfort letter, dated as of
the date of effectiveness of the Shelf Registration
Statement, from Xxxxx Corporation's independent
accountants if such comfort letter shall be issuable to
the selling Holders in accordance with the relevant
accounting industry pronouncements, in the customary
form and covering matters of the type customarily
covered in comfort letters by underwriters in connection
with primary underwritten offerings, and affirming the
matters set forth in the comfort letter delivered
pursuant to Section 8(i) of the Purchase Agreement,
without exception; and
(B) deliver such other documents and certificates as
may be reasonably requested by such parties to evidence
compliance with clause (A) above and with any customary
conditions contained in the underwriting agreement or other
agreement entered into by the Company, Parent and the Guarantors
pursuant to this clause (xi), if any.
If at any time the representations and warranties of the Company, Parent
and the Guarantors contemplated in clause (A)(1) above cease to be true
and correct, the Company and Parent shall, and shall cause the
Guarantors to, so advise the Initial
14
Purchasers and the underwriter(s), if any, and each selling Holder
promptly and, if requested by such Persons, shall confirm such advice in
writing;
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriter(s), if
any, and their respective counsel in connection with the registration
and qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions as the selling Holders
or underwriter(s) may request and do any and all other acts or things
reasonably necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the Shelf
Registration Statement; provided, however, that the Company, Parent and
the Guarantors shall not be required to register or qualify as a foreign
corporation where they are not now so qualified or to take any action
that would subject them to the service of process in any jurisdiction
where they are not now so subject;
(xiii) issue, upon the request of any Holder of Initial Notes
covered by the Shelf Registration Statement, Exchange Notes, having an
aggregate principal amount equal to the aggregate principal amount of
Initial Notes being sold by such Holder; such Exchange Notes to be
registered in the name of the purchaser(s) of such Notes, as the case
may be; in return, the Initial Notes held by such Holder shall be
surrendered to the Company, Parent and the Guarantors for cancellation;
(xiv) use their respective reasonable best efforts to cause
the disposition of 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 thereof to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in clause (xii)
above;
(xv) 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 reasonably request at least two Business Days prior to any sale of
Transfer Restricted Securities made by such underwriter(s);
(xvi) if any fact or event contemplated by clause 6(c)(iii)(D)
above shall exist or have occurred, prepare a supplement or
post-effective amendment to the Registration Statement or related
Prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading;
(xvii) 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 Restricted Securities which are in a form
eligible for deposit with The Depository Trust Company;
15
(xviii) 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;
(xix) otherwise use their respective reasonable best efforts
to comply with all applicable rules and regulations of the Commission,
and make generally available to its security holders, as soon as
practicable, a consolidated earnings statement 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 or best efforts
Underwritten Offering or (B) if not sold to underwriters in such an
offering, beginning with the first month of the Company's, Parent's and
the Guarantors' first fiscal quarter commencing after the effective date
of the Registration Statement (as such term is defined in paragraph (c)
of Rule 158 under the Act);
(xx) 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 of Notes to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute and use their
respective reasonable best efforts to cause the Trustee to execute, all
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;
(xxi) cause all Transfer Restricted Securities covered by the
Registration Statement to be listed on each securities exchange on which
the Notes are then listed if requested by the Holders of a majority in
aggregate principal amount of Initial Notes or the managing
underwriter(s), if any; and
(xxii) provide promptly to each Holder upon written request
each document filed with the Commission pursuant to the requirements of
Section 13 and Section 15 of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Company of the existence of any fact
of the kind described in Section 6(c)(iii)(D) hereof, such Holder will keep such
notice confidential and 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) hereof, or until it is advised in writing (the "Advice") by
the Company 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 Company, each Holder will
deliver to the Company (at the Company's 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 the Company and Parent shall, and the
Company shall cause the Guarantors to, give any such notice, the time period
regarding the effectiveness of such Registration Statement set
16
forth in Section 3(b) or 4 hereof, 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) hereof 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) hereof or shall have received the Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's, Parent's or any
Guarantor's performance of or compliance with this Agreement will be borne by
the Company, regardless of whether a Registration Statement becomes effective,
including without limitation: (i) all registration and filing fees and expenses
(including filings made by the Initial Purchasers or Holder 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 Exchange Notes to be issued in the Exchange Offer and
printing of Prospectuses), messenger and delivery services and telephone; (iv)
all fees and disbursements of counsel for the Company, Parent, the Guarantors
and, subject to Section 7(b) below, the Holders of Transfer Restricted
Securities; (v) all application and filing fees in connection with listing Notes
on a national securities exchange or automated quotation system, if any; and
(vi) all fees and disbursements of independent public accountants of the
Company, Parent and the Guarantors (including the expenses of any special audit
and comfort letters required by or incident to such performance).
The Company will, in any event, bear its, Parent's and the Guarantors'
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 the Company, Parent or any Guarantor. The Company, Parent
and the Guarantors shall not be responsible for any other expenses or costs,
including but not limited to commissions, fees and discounts of underwriters,
brokers, dealers and agents.
(b) In connection with any Registration Statement required by this
Agreement (excluding the Exchange Offer Registration Statement), the Company
will reimburse the Initial Purchasers 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 & Xxxxxxx LLP 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 Company and Parent agree, jointly and severally, to
indemnify and hold harmless, and the Company shall cause each of the Guarantors
to agree to jointly and severally indemnify and hold harmless, (i) each Holder,
(ii)each Initial Purchaser, (iii) each person, if any,
17
who controls any Holder or any Initial Purchaser within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act and (iii) the respective
officers, directors, partners, employees, representatives and agents of any
Holder or any Initial Purchaser or any controlling person (any person referred
to in clauses (i), (ii) or (iii) may hereinafter be referred to as an
"Indemnified Holder"), to the fullest extent lawful, from and against any and
all losses, liabilities, claims, damages and 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
investigation or litigation, commenced or threatened, or any claim whatsoever,
and any and all amounts paid in settlement of any claim or litigation), joint or
several, 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 any
Registration Statement 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 none of the Company, Parent or the
Guarantors, or any of their respective directors, officers or any Person who
controls the Company, Parent or such Guarantor, as applicable, will 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
relating to the Holders furnished to the Company by or on behalf of the any of
the Holders expressly for use therein. This indemnity agreement will be in
addition to any liability which the Company, Parent and the Guarantors may
otherwise have, including under this Agreement.
(b) Each Holder of Transfer Restricted Securities agrees, severally
and not jointly, to indemnify and hold harmless the Company, Parent and the
Guarantors, and each person, if any, who controls the Company, Parent or the
Guarantors within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act and each of their respective officers, directors, employers,
partners, representatives and agents to the same extent as the foregoing
indemnity from the Company, Parent and the Guarantors to each of the Indemnified
Holders, 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
or in conformity with information relating to such Holder furnished in writing
by such Holder expressly for use in any Registration Statement, or in any
amendment thereof or supplement thereto; provided, however, that in no case
shall any selling Holder, its directors, officers or any Person who controls
such Holder be liable or responsible for any amount in excess of proceeds
received by such Holder upon the sale of the Transfer Restricted Securities
giving rise to such indemnification obligation. This indemnity will be in
addition to any liability which the Holders may otherwise have, including under
this Agreement.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any
liability which it may have
18
under this Section 8 or otherwise except to the extent that it has been
prejudiced in any material respect by such failure). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, 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 and control the defense thereof 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 case, but the fees and expenses of such counsel
shall be 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 be advised by such
counsel that there may be defenses available to it or them which are different
from or additional to those available to one or all of the indemnifying parties
(in which case the indemnifying party or 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; provided, however, that the indemnifying
party under subsection (a) or (b) above shall only be liable for the legal
expenses of one counsel (in addition to any local counsel) for all indemnified
parties in each jurisdiction in which any claim or action is brought . 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
prior written consent; provided that such consent was not unreasonably withheld.
SECTION 9. CONTRIBUTION
In order to provide for contribution in circumstances in which the
indemnification provided for in Section 8 is for any reason held to be
unavailable from an indemnifying party or is insufficient to hold harmless a
party indemnified thereunder, the Company, Parent and the Guarantors, on the one
hand, and the Holders, on the other hand, shall contribute to the aggregate
losses, claims, damages, liabilities and expenses of the nature contemplated by
such indemnification provision (including any investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claims asserted, but after deducting in the
case of losses, claims, damages, liabilities and expenses suffered by the
Company, Parent and the Guarantors, any contribution received by the Company,
Parent and the Guarantors from persons, other than a Holder, who may also be
liable for contribution, including persons who control the Company, Parent or
any Guarantor within the meaning of Section 15 of the Act or Section 20(a) of
the Exchange Act) to which the Company, Parent, the Guarantors and any Holder
may be subject, (i) in such proportion as is appropriate to reflect the relative
fault of the Company, on one hand, and each Holder, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative fault referred to in clause (i)
above but also other relevant equitable considerations. The relative fault of
the Company, Parent and the Guarantors, on the one hand, and of each Holder, 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
19
information supplied by the Company, Parent or such Holder and the party's
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, Parent and each Holder of
Transfer Restricted Securities agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation
or by any other method of allocation which does not take into account the
equitable considerations referred to above, and the Company shall cause the
Guarantors to agree to the same. Notwithstanding the provisions of this Section
9, (i) in no case shall any Holder be required to contribute any amount in
excess of (a) the amount paid by such Holder for such Transfer Restricted
Securities and (b) the amount of any damages that such Holder, its directors,
officers or any Person who controls such Holder 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
this Section 9, (A) each person, if any, who controls any of the Holders within
the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act and
(B) the respective officers and directors of such Holder or any controlling
person shall have the same rights to contribution as any Holder, and (A) each
person, if any, who controls the Company, Parent or the Guarantors within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act and (B)
the respective officers, directors and each Person, if any, who controls the
Company, Parent or such Guarantor, shall have the same rights to contribution as
the Company, Parent and the Guarantors, subject in each case to clauses (i) and
(ii) of this Section 9. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties under this Section 9, notify such party or parties from whom
contribution may be sought, but the failure 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 this Section 9 or otherwise. No party
shall be liable for contribution with respect to any action or claim settled
without its prior written consent; provided that such written consent was not
unreasonably withheld.
SECTION 10. RULE 144A AND RULE 144
The Company and Parent hereby agree, and the Company shall cause the
Guarantors to agree, with each Holder, for so long as any Transfer Restricted
Securities remain outstanding and during any period in which the Company, Parent
or any Guarantor (i) is not subject to Section 13 or 15(d) of the Exchange Act,
to make available to any Holder or beneficial owner of Transfer Restricted
Securities in connection with any sale thereof 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, and (ii) is
subject to Section 13 or 15(d) of the Exchange Act, to use its reasonable best
efforts to make all filings required thereby, if any, in a timely manner in
order to permit resales of such Transfer Restricted Securities pursuant to Rule
144.
SECTION 11. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in
20
any underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements and (b) completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting agreements,
lock-up letters and other documents required under the terms of such
underwriting arrangements.
SECTION 12. 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 included in
such offering; provided that such investment bankers and managers must be
reasonably satisfactory to the Company.
SECTION 13. GUARANTORS
The Company agrees to, upon consummation of the Mergers, cause all the
Guarantors to be bound by the terms of this Agreement as if they were original
parties hereto. Parent is a party to this Agreement for the sole purpose of
agreeing to be bound by the terms of this Agreement upon consummation of the
Mergers.
SECTION 14. MISCELLANEOUS
(a) Remedies. The Company and Parent agree, and the Company shall
cause the Guarantors to agree, that monetary damages (including the liquidated
damages contemplated hereby) would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Agreement and the
Company and Parent hereby agree, and the Company will cause the Guarantors to
agree, to waive the defense in any action for specific performance that a remedy
at law would be adequate; provided that the liquidated damages contemplated
hereby shall be the exclusive remedy for any such breach of Section 3 or 4 of
this Agreement.
(b) No Inconsistent Agreements. The Company and Parent agree, and
the Company shall cause the Guarantors to agree, on or after the date of this
Agreement, to refrain from entering 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 hereof. Since the date of
the Registration Rights Agreement, dated February 9, 1998, among the Company and
the initial purchasers named therein, and other than such agreement and the
Registration Rights Agreement, dated March 30, 2003, among Parent and the
holders identified therein, entered into in connection with the Xxxxx Merger and
the Frontier Merger, none of the Company, Parent or the Guarantors has entered
into any agreement granting registration rights with regard to its securities to
any Person. 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, Parent's and the Guarantors' securities under any agreement in
effect on the date hereof.
(c) Adjustments Affecting the Notes. None of the Company, Parent or
any Guarantor shall take any action with respect to the Notes that would
materially and adversely affect the ability of the Holders to Consummate any
Exchange Offer.
21
(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 hereof may not be given unless (i) in the case of Section 5
hereof and this Section 14(d)(i), the Company has obtained the written consent
of Holders of all outstanding Transfer Restricted Securities and (ii) in the
case of all other provisions hereof, the Company has obtained the written
consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities (excluding Transfer Restricted Securities held by the
Company, or its Affiliates). Notwithstanding the foregoing, a waiver or consent
to departure from the provisions hereof that relates exclusively to the rights
of Holders whose Transfer Restricted Securities are being tendered pursuant to
the Exchange Offer and that does not affect directly or indirectly the rights of
other Holders whose Transfer Restricted Securities are not being tendered
pursuant to such Exchange Offer may be given by the Holders of a majority of the
outstanding principal amount of Transfer Restricted Securities subject to such
Exchange Offer.
(e) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on one hand,
and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent they may deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder.
(f) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, 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 Company or any Guarantor:
Frontier Oil Corporation
00000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: Corporate Secretary
with a copy to:
Xxxxxxx & Xxxxx L.L.P.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
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 acknowledged, if telecopied; and on the
next Business Day, if timely delivered to an air courier guaranteeing
22
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.
(g) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities; provided,
however, that nothing herein shall be deemed to permit any assignment, transfer
or other disposition of Transfer Restricted Securities in violation of the terms
hereof or of the Purchase Agreement or the Indenture. If any transferee of any
Holder shall acquire Transfer Restricted Securities in any manner, whether by
operation of law or otherwise, such Transfer Restricted Securities shall be held
subject to all of the terms of this Agreement, and by owning and holding such
Transfer Restricted 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.
(h) 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.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) 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.
(k) 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.
(l) 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 their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Company with
respect to the Transfer Restricted Securities. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
23
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FRONTIER OIL CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President-Finance
and Administration
24
Parent agrees to be bound by the terms and conditions of this Agreement upon
consummation of the Mergers as if it were an original party hereto.
FRONT RANGE HIMALAYA CORPORATION
By: /s/ Xxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxx
Title: President and Chief Executive Officer
25
Accepted and agreed to as of the date first above written:
BEAR, XXXXXXX & CO. INC.
By: /s/ Xxxx Xxxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxxx
Title: Senior Managing Director
XXXXXX BROTHERS INC.
By: /s/ J. Xxxxx Xxxxxxxxx
----------------------------
Name: J. Xxxxx Xxxxxxxxx
Title: Senior Vice President
BNP PARIBAS SECURITIES CORP.
By: /s/ Xxxxxxx Xxxx
----------------------------
Name: Xxxxxxx Xxxx
Title: Managing Director
26
