EXHIBIT 10.1
REGISTRATION RIGHTS AGREEMENT
Dated as of June 3, 1997
by and between
XXXXXX PETROLEUM CORPORATION
and
XXXXXXXXX & COMPANY, INC.
__________________________________
13.5% SENIOR SECURED NOTES DUE JUNE 1, 2004
and
70,000 COMMON STOCK PURCHASE WARRANTS
TABLE OF CONTENTS
Page
1. Definitions......................................................... 1
2. Exchange Offer...................................................... 5
3. Shelf Registration.................................................. 8
4. Additional Interest................................................. 9
5. Notes Registration Procedures....................................... 10
6. Registration Expenses............................................... 17
7. Indemnification..................................................... 18
8. Rules 144 and 144A.................................................. 20
9. Underwritten Registrations of Registrable Notes..................... 21
10. Registration of Registrable Securities.............................. 21
11. Miscellaneous....................................................... 24
(a) No Inconsistent Agreements...................................... 24
(b) Adjustments Affecting Registrable Securities or
Registrable Notes.............................................. 24
(c) Amendments and Waivers.......................................... 24
(d) Notices......................................................... 24
(e) Successors and Assigns.......................................... 25
(f) Counterparts.................................................... 26
(g) Headings........................................................ 26
(h) Governing Law................................................... 26
(i) Severability.................................................... 26
(j) Notes Held by the Issuer or Its Affiliates...................... 26
(k) Third Party Beneficiaries....................................... 26
(1) Entire Agreement................................................ 00
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XXXXXXXXXXXX RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and entered
into as of June 3, 1997, by and between Xxxxxx Petroleum Corporation, a
Louisiana corporation (the "Issuer"), and Xxxxxxxxx & Company, Inc. (the
"Initial Purchaser").
This Agreement is entered into in connection with the Purchase Agreement,
dated June 3, 1997, by and between the Issuer and the Initial Purchaser (the
"Purchase Agreement") which provides for, among other things, the issuance and
sale to the Initial Purchaser of (i) 70,000 units (the "Units"), each consisting
of $1,000 principal amount of the Issuer's 13.5% Senior Secured Notes due June
1, 2004 (the "Notes"), and one warrant (collectively, along with the Additional
Warrants, the "Warrants") to purchase 0.41524 shares of common stock, no par
value, of the Issuer (the "Common Stock"). In order to induce the Initial
Purchaser to enter into the Purchase Agreement, the Issuer has agreed to provide
the registration rights set forth in this Agreement for the benefit of the
Initial Purchaser and its direct and indirect transferees and assigns. The
execution and delivery of this Agreement is a condition to the Initial
Purchaser's obligation to purchase the Units under the Purchase Agreement. The
Issuer is to deposit $9.45 million of the proceeds of the issuance of the Units
(representing the aggregate amount of interest due on the Notes through June 1,
1998) into a custodial account to be maintained by the Trustee (as defined in
Section 1 below).
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the term "day", unless otherwise expressly
provided, shall mean a calendar day and following terms shall have the following
meanings:
Additional Interest: See Section 4(a).
Additional Warrants: The 11,666 Warrants to purchase 4,844 shares of
Common Stock granted to the Initial Purchaser.
Advice: See the last paragraph of Section 5.
Agreement: See the first introductory paragraph to this Agreement.
Applicable Period: See Section 2(b).
Business Day: A day that is not a Saturday, a Sunday, or a day on which
banking institutions in New York, New York or Houston, Texas are required to be
closed.
Common Stock: See the second introductory paragraph to this Agreement.
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Effectiveness Date: The 120th day after the Issue Date.
Effectiveness Period: See Section 3(a).
Event Date: See Section 4(b).
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Exchange Notes: See Section 2(a).
Exchange Offer: See Section 2(a).
Exchange Registration Statement: See Section 2(a).
Filing Date: The 60th day after the Issue Date.
Holder: Any registered holder of Registrable Notes or Registrable
Securities.
Indemnified Person: See Section 7(c).
Indemnifying Person: See Section 7(c).
Indenture: The Indenture, dated as of the Issue Date, by and between the
Issuer and U.S. Trust Company of Texas, N.A., as trustee, pursuant to which the
Notes are being issued, as amended or supplemented from time to time in
accordance with the terms thereof.
Initial Purchaser: See the first introductory paragraph to this Agreement.
Initial Shelf Registration: See Section 3(a).
Inspectors: See Section 5(o).
IPO Effectiveness Date: See Section 10(a).
Issue Date: The date on which the Units were sold to the Initial Purchaser
pursuant to the Purchase Agreement.
Issuer: See the first introductory paragraph to this Agreement.
NASD: National Association of Securities Dealers, Inc.
Notes: See the second introductory paragraph to this Agreement.
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Notes Prospectus: The prospectus included in any Notes Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Notes covered by such Notes Registration Statement,
and all other amendments and supplements to such prospectus, including post-
effective amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such prospectus.
Notes Registration Statement: Any registration statement of the Issuer
(and any then existing Subsidiary Guarantor) filed with the SEC under the
Securities Act, including, but not limited to, the Exchange Registration
Statement, that covers any of the Registrable Notes pursuant to the provisions
of this Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
Participant: See Section 7(a).
Participating Broker-Dealer: See Section 2(b).
Person: An individual, trustee, corporation, partnership, limited
liability company, joint stock company, trust, unincorporated association,
union, business association, firm or other legal entity.
Piggy-Back Registration: See Section 10(a).
Private Exchange: See Section 2(b).
Private Exchange Notes: See Section 2(b).
Prospectus: Any Notes Prospectus or Warrants Prospectus.
Purchase Agreement: See the second introductory paragraph to this
Agreement.
Records: See Section 5(o).
Registrable Notes: Each Note upon original issuance thereof and at all
times subsequent thereto, each Exchange Note as to which Section 2(c)(iv) hereof
is applicable upon original issuance thereof and at all times subsequent thereto
and each Private Exchange Note upon original issuance thereof and at all times
subsequent thereto, until, in the case of any such Note, Exchange Note or
Private Exchange Note, as the case may be, the earliest to occur of (i) a Notes
Registration Statement (other than, with respect to any Exchange Note as to
which Section 2(c)(iv) hereof is applicable, the Exchange Registration
Statement) covering such Note, Exchange Note
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or Private Exchange Note, as the case may be, has been declared effective by the
SEC and such Note, Exchange Note or Private Exchange Note, as the case may be,
has been disposed of in accordance with such effective Notes Registration
Statement, (ii) such Note, Exchange Note or Private Exchange Note, as the case
may be, is sold in compliance with Rule 144, (iii) in the case of any Note, such
Note has been exchanged pursuant to the Exchange Offer for an Exchange Note or
Exchange Notes which may be resold without restriction under state and federal
securities laws, or (iv) such Note, Exchange Note or Private Exchange Note, as
the case may be, ceases to be outstanding for purposes of the Indenture.
Registrable Securities: Any of (i) the Warrant Shares (whether or not the
related Warrants have been exercised) and (ii) any other securities issued or
issuable with respect to any Warrant Shares by way of stock dividends or stock
splits or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise. As to any particular
Registrable Securities, such securities shall cease to be Registrable Securities
when (i) a Warrants Registration Statement with respect to the offering of such
securities by the Holder thereof shall have been declared effective under the
Securities Act and such securities shall have been disposed of by such Holder
pursuant to such Warrants Registration Statement, (ii) such securities are
eligible for sale to the public pursuant to Rule 144(k) (or an similar provision
then in force, but not Rule 144A) or are all otherwise eligible for sale under
Rule 144 by such Holder in the current calendar quarter, (iii) such securities
shall have been otherwise transferred by such Holder and new certificates for
such securities not bearing a legend restricting further transfer shall have
been delivered by the Issuer or its transfer agent and subsequent disposition of
such securities shall not require registration or qualification under the
Securities Act or any similar state law then in force or (iv) such securities
shall have ceased to be outstanding.
Registration Expenses: All expenses incident to the Issuer's performance
of or compliance with Section 10 of this Agreement, including, without
limitation, all SEC and stock exchange or NASD registration and filing fees and
expenses, fees and expenses of compliance with securities or blue sky laws
(including, without limitation, reasonable fees and disbursements of counsel for
any underwriters in connection with blue sky qualifications of the Registrable
Securities), preparing, printing, filing, duplicating and distributing a
Warrants Registration Statement and the related Prospectus, the cost of printing
stock certificates, the cost and charges of any transfer agent, rating agency
fees, printing expenses, messenger, telephone and delivery expenses, fees and
disbursements of any counsel for the Issuer and all independent certified public
accountants, the fees and disbursements of underwriters customarily paid by
issuers or sellers or securities (but not including any underwriting discounts
or commissions or transfer taxes, if any, attributable to the sale of
Registrable Securities by Selling Holders), fees and expenses of one counsel for
the Selling Holders and other reasonable out-of-pocket expenses of the Selling
Holders.
Registration Statement: Any Notes Registration Statement or Warrants
Registration Statement.
Rule 144: Rule 144 promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by
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the SEC providing for offers and sales of securities made in compliance
therewith resulting in offers and sales by subsequent holders that are not
affiliates of an issuer of such securities being free of the registration and
prospectus delivery requirements of the Securities Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
Selling Holder: A Holder who is selling Registrable Securities in
accordance with Section 10 hereof.
Shelf Notice: See Section 2(c).
Shelf Registration: See Section 3(b).
Subsequent Shelf Registration: See Section 3(b).
Subsidiary Guarantor: Each subsidiary of the Issuer that guarantees the
obligations of the Issuer under the Notes and the Indenture.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and, if existent, the trustee
under any indenture governing the Exchange Notes and Private Exchange Notes (if
any).
Underwritten registration or underwritten offering: A registration in
which securities of one or more of the issuers are sold to an underwriter for
reoffering to the public.
Units: See the second introductory paragraph to this Agreement.
Warrants: See the second introductory paragraph to this Agreement.
Warrants Prospectus: The prospectus included in any Warrants Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or
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supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities covered by such Warrants
Registration Statement, and all other amendments and supplements to such
prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such prospectus.
Warrants Registration Statement: Any registration statement of the Issuer
that covers any Warrant Shares filed with the SEC under the Securities Act
(except for a Warrant Shares Shelf Registration Statement), including the
Prospectus, amendments and supplements to such registration statement, including
post-effective amendments, all exhibits, and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
Warrant Shares: The shares of Common Stock issuable upon exercise of the
Warrants.
Warrant Shares Shelf Registration Statement: See Section 10(a).
2. Exchange Offer
(a) The Issuer agrees to use its best efforts to file (and to cause any
then existing Subsidiary Guarantor to file) with the SEC no later than the
Filing Date, an offer to exchange (the "Exchange Offer") any and all of the
Registrable Notes (other than the Private Exchange Notes, if any) for a like
aggregate principal amount of debt securities of the Issuer, guaranteed by each
such Subsidiary Guarantor and secured by the same collateral as the Notes, which
are identical in all material respects to the Notes (the "Exchange Notes") (and
which are entitled to the benefits of the Indenture or a trust indenture which
is identical in all material respects to the Indenture (other than such changes
to the Indenture or any such identical trust indenture as are necessary to
comply with any requirements of the SEC to effect or maintain the qualification
thereof under the TIA) and which, in either case, has been qualified under the
TIA), except that the Exchange Notes shall have been registered pursuant to an
effective Registration Statement under the Securities Act, shall not provide for
Additional Interest and shall contain no restrictive legend thereon. The
Exchange Offer shall be registered under the Securities Act on the appropriate
form (the "Exchange Registration Statement") and shall comply with all
applicable tender offer rules and regulations under the Exchange Act. The
Issuer agrees to use its best efforts to (x) cause the Exchange Registration
Statement to be declared effective under the Securities Act on or before the
Effectiveness Date; (y) keep the Exchange Offer open for at least 30 calendar
days (or longer if required by applicable law) after the date that notice of the
Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or
prior to the 45th day following the date on which the Exchange Registration
Statement is declared effective. If after such Exchange Registration Statement
is initially declared effective by the SEC, the Exchange Offer or the issuance
of the Exchange Notes thereunder is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other governmental
agency or court, such Exchange Registration Statement shall be deemed not to
have become effective for purposes of this Agreement. Each Holder who
participates in the Exchange Offer will be required to represent (i) that any
Exchange
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Notes received by it will be acquired in the ordinary course of its business,
(ii) that at the time of the commencement of the Exchange Offer such Holder has
not entered into any arrangement or understanding with any Person to participate
in the distribution (within the meaning of the Securities Act) of the Exchange
Notes in violation of the provisions of the Securities Act, (iii) that such
Holder is not an affiliate of any of the Issuers within the meaning of the
Securities Act, (iv) if such Holder is not a broker-dealer, that it is not
engaged in, and does not intend to engage in, the distribution of the Notes and
(v) if such Holder is a Participating Broker-Dealer (as hereinafter defined),
that it will receive Exchange Notes for its own account in exchange for Notes
that were acquired as a result of market-making or other trading activity, and
that it will deliver a prospectus in connection with any resale of the Exchange
Notes. Upon consummation of the Exchange Offer in accordance with this Section
2, the provisions of this Agreement shall continue to apply, mutatis mutandis,
solely with respect to Registrable Notes that are Private Exchange Notes and
Exchange Notes held by Participating Broker-Dealers, and the Issuers shall have
no further obligation to register Registrable Notes (other than Private Exchange
Notes and other than in respect of any Exchange Notes as to which clause
2(c)(iv) hereof applies) pursuant to Section 3 of this Agreement.
(b) The Issuer shall include within the Notes Prospectus contained in the
Exchange Registration Statement a section entitled "Plan of Distribution",
reasonably acceptable to the Initial Purchaser, which shall contain a summary
statement of the positions taken or policies made by the staff of the SEC with
respect to the potential "underwriter" status of any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange
Notes received by such broker-dealer in the Exchange Offer for its own account
in exchange for Notes that were acquired by it as a result of market-making or
other trading activity (a "Participating Broker-Dealer"), whether such positions
or policies have been publicly disseminated by the staff of the SEC or such
positions or policies, in the judgment of the Initial Purchaser, represent the
prevailing views of the staff of the SEC. Such "Plan of Distribution" section
shall also allow, to the extent permitted by applicable policies and regulations
of the SEC, the use of the Notes Prospectus by all Persons subject to the
prospectus delivery requirements of the Securities Act, including, to the extent
so permitted, all Participating Broker-Dealers, and include a statement
describing the manner in which Participating Broker-Dealers may resell the
Exchange Notes.
The Issuer shall use its best efforts to keep the Exchange Registration
Statement effective and to amend and supplement the Notes Prospectus contained
therein, in order to permit such Notes Prospectus to be lawfully delivered by
all Persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as such Persons must comply with such requirements
in order to resell the Exchange Notes (the "Applicable Period").
If, upon consummation of the Exchange Offer, the Initial Purchaser holds
any Notes acquired by it and having the status of an unsold allotment in the
initial distribution, the Issuer (upon the request of such Initial Purchaser)
shall, simultaneously with the delivery of the Exchange Notes in the Exchange
Offer, issue and deliver to the Initial Purchaser, in exchange (the "Private
Exchange") for the Notes held by the Initial Purchaser, a like principal amount
of debt securities of the Issuer, guaranteed by any then existing Subsidiary
Guarantor and secured by the same
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collateral as the Exchange Notes, that are identical in all material respects to
the Exchange Notes except for the existence of restrictions on transfer thereof
under the Securities Act and securities laws of the several states of the U.S.
(the "Private Exchange Notes") (and which are issued pursuant to the same
indenture as the Exchange Notes); provided, however, the Issuer shall not be
required to effect such exchange if, in the written opinion of counsel for the
Issuer (a copy of which shall be delivered to the Initial Purchaser and any
Holder affected thereby), such exchange cannot be effected without registration
under the Securities Act. The Private Exchange Notes shall bear the same CUSIP
number as the Exchange Notes, if permissible.
Interest on the Exchange Notes and the Private Exchange Notes will accrue
from (A) the later of (i) the last interest payment date on which interest was
paid on the Notes surrendered in exchange therefor or (ii) if the Notes are
surrendered for exchange on a date in a period which includes the record date
for an interest payment date to occur on or after the date of such exchange and
as to which interest will be paid, the date of such interest payment date or (B)
if no interest has been paid on the Notes, from the Issue Date.
In connection with the Exchange Offer, the Issuer shall:
(1) mail to each Holder a copy of the Notes Prospectus forming part of
the Exchange Registration Statement, together with an appropriate letter of
transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer, which
may be the Trustee or an affiliate thereof;
(3) permit Holders to withdraw tendered Registrable Notes at any time
prior to the close of business on the last business day on which the
Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable
laws.
As soon as practicable after the close of the Exchange Offer or the Private
Exchange, as the case may be, the Issuer shall:
(1) accept for exchange all Registrable Notes validly tendered and not
validly withdrawn pursuant to the Exchange Offer or the Private Exchange,
as the case may be;
(2) deliver to the Trustee for cancellation all Registrable Notes so
accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each
Holder tendering such Registrable Notes, Exchange Notes or Private Exchange
Notes, as the case may be, equal in principal amount to the Notes of such
Holder so accepted for exchange.
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The Exchange Offer and the Private Exchange shall be subject to only the
following conditions: (i) the Exchange Offer or the Private Exchange, as the
case may be, does not violate applicable law or any applicable interpretation of
the staff of the SEC, (ii) no action or proceeding is instituted or threatened
in any court or by any governmental agency which might materially impair the
ability of the Issuer to proceed with the Exchange Offer or the Private Exchange
and (iii) all governmental approvals have been obtained, which approvals the
Issuer deem necessary for the consummation of the Exchange Offer or Private
Exchange.
The Exchange Notes and the Private Exchange Notes may be issued under (i)
the Indenture or (ii) an indenture identical in all material respects to the
Indenture, which in either event will provide that the Exchange Notes will not
be subject to the transfer restrictions set forth in the Indenture and that the
Exchange Notes, the Private Exchange Notes and the Notes, if any, will be deemed
one class of security (subject to the provisions of the Indenture) and entitled
to participate in all the security granted by the Issuer pursuant to the
Security Documents and in any Subsidiary Guarantee (as such terms are defined in
the Indenture) on an equal and ratable basis.
(c) If, (i) because of any change in law or in currently prevailing
interpretations of the staff of the SEC, the Issuer (and any then existing
Subsidiary Guarantor) are not permitted to effect an Exchange Offer, (ii) the
Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any
holder of Private Exchange Notes so requests in writing to the Issuer or (iv) in
the case of any Holder that participates in the Exchange Offer, such Holder does
not receive Exchange Notes on the date of the exchange that may be sold without
restriction under state and federal securities laws (other than due solely to
the status of such Holder as an affiliate of the Issuer within the meaning of
the Securities Act) and so notifies the Issuer within 60 days after such Holder
first becomes aware of such restrictions and providing a reasonable basis for
its conclusions, in the case of each of clauses (i)-(iv), then the Issuer (and
any then existing Subsidiary Guarantor) shall promptly deliver to the Holders
and the Trustee written notice thereof (the "Shelf Notice") and shall file a
Shelf Registration pursuant to Section 3.
3. Shelf Registration
If a Shelf Notice is delivered as contemplated by Section 2(c), then:
(a) Shelf Registration. The Issuer shall as promptly as reasonably
practicable use its best efforts to file (and shall cause any then existing
Subsidiary Guarantor to file) with the SEC a Notes Registration Statement for an
offering to be made on a continuous basis pursuant to Rule 415 covering all of
the Registrable Notes (the "Initial Shelf Registration"). If the Issuer (and
any then existing Subsidiary Guarantor) shall have not yet filed the Exchange
Registration Statement, the Issuer shall use its best efforts to file (and shall
cause any then existing Subsidiary Guarantor to file) with the SEC the Initial
Shelf Registration as promptly as practicable and shall use its best efforts to
cause such Initial Shelf Registration to be declared effective under the
Securities Act. Otherwise, the Issuer shall use its best efforts to file (and
shall cause any then existing Subsidiary Guarantor to file) with the SEC the
Initial Shelf Registration as promptly as practicable after delivery of the
Shelf Notice and shall use its best efforts to cause such Shelf
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Registration to be declared effective under the Securities Act as promptly as
practicable thereafter. The Initial Shelf Registration shall be on Form S-1 or
another appropriate form permitting registration of such Registrable Notes for
resale by Holders in the manner or manners designated by them (including,
without limitation, one or more underwritten offerings). The Issuer shall not
permit any securities other than the Registrable Notes to be included in any
Shelf Registration (as defined below). The Issuer shall use its best efforts to
keep the Initial Shelf Registration continuously effective under the Securities
Act until the second anniversary of the Issue Date (subject to extension
pursuant to the last paragraph of Section 5 hereof) or such earlier date as may
be then authorized under Rule 144(k) under the Securities Act (the
"Effectiveness Period"), or such shorter period ending when (i) all Registrable
Notes covered by the Initial Shelf Registration have been sold in the manner set
forth and as contemplated in the Initial Shelf Registration or are otherwise
eligible for sale under Rule 144 by the Holders without restriction by virtue of
the operation of the volume limitations set forth in such Rule or (ii) a
Subsequent Shelf Registration (as defined below) covering all of the Registrable
Notes has been declared effective under the Securities Act.
(b) Subsequent Shelf Registrations. If the Initial Shelf Registration or
any Subsequent Shelf Registration ceases to be effective for any reason at any
time during the Effectiveness Period (other than because of the sale of all of
the securities registered thereunder), the Issuer shall use its best efforts to
obtain the prompt withdrawal of any order suspending the effectiveness thereof,
and in any event shall within 45 days of such cessation of effectiveness amend
such Shelf Registration in a manner to obtain the withdrawal of the order
suspending the effectiveness thereof, or file (and cause any then existing
Subsidiary Guarantor to file) an additional "shelf" Notes Registration Statement
pursuant to Rule 415 covering all of the Registrable Notes (a "Subsequent Shelf
Registration"). If a Subsequent Shelf Registration is filed, the Issuer shall
use its best efforts to cause the Subsequent Shelf Registration to be declared
effective as soon as practicable after such filing and to keep such Subsequent
Shelf Registration continuously effective for a period equal to the number of
days in the Effectiveness Period less the aggregate number of days during which
the Initial Shelf Registration or any Subsequent Shelf Registrations was
previously continuously effective. As used herein the term "Shelf Registration"
means the Initial Shelf Registration and any Subsequent Shelf Registration.
(c) Supplements and Amendments. The Issuer shall promptly supplement and
amend any Shelf Registration if required by the rules, regulations or
instructions applicable to the registration form used for such Shelf
Registration, if required by the Securities Act, or if reasonably requested by
the Holders of a majority in aggregate principal amount of the Registrable Notes
covered by such Shelf Registration or by any underwriter of such Registrable
Notes.
4. Additional Interest
(a) The Issuer and the Initial Purchaser agree that the Holders of
Registrable Notes will suffer damages if the Issuer fails to fulfill its
obligations under Section 2 or Section 3 hereof and that it would not be
feasible to ascertain the extent of such damages with precision. Accordingly,
the Issuer agrees to pay, as liquidated damages, additional interest on the
Notes ("Additional
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Interest") under the circumstances and to the extent set forth below (each of
which shall be given independent effect):
(i) if the Exchange Registration Statement has not been filed on or
prior to the Filing Date, then commencing on the day after the Filing Date,
Additional Interest shall accrue on the Notes over and above any stated
interest at a rate of 0.50% per annum of the principal amount of such Notes
for the first 90 days immediately following the Filing Date, such
Additional Interest rate increasing by an additional 0.50% per annum at the
beginning of each subsequent 90-day period;
(ii) if the Exchange Registration Statement is not declared effective
on or prior to the Effectiveness Date, then commencing on the day after the
Effectiveness Date, Additional Interest shall accrue on the Notes over and
above any stated interest at a rate of 0.50% per annum of the principal
amount of such Notes for the first 90 days immediately following the day
after the Effectiveness Date, such Additional Interest rate increasing by
an additional 0.50% per annum at the beginning of each subsequent 90-day
period; and
(iii) if (A) the Issuer (and any then existing Subsidiary Guarantor)
has not exchanged Exchange Notes for all Notes validly tendered in
accordance with the terms of the Exchange Offer on or prior to the 45th day
after the date on which the Exchange Registration Statement is declared
effective or (B) the Initial Shelf Registration, if required to be filed
hereunder, is not declared effective on or prior to the Effectiveness Date
or (C) if applicable, a Shelf Registration has been declared effective and
such Shelf Registration ceases to be effective at any time during the
Effectiveness Period, then Additional Interest shall accrue on the Notes
over and above any stated interest at a rate of 0.50% per annum of the
principal amount of such Notes for the first 90 days commencing on the (x)
60th day after the date on which the Exchange Registration Statement is
declared effective, in the case of (A) or (B) above, or (y) the day such
Shelf Registration ceases to be effective in the case of (C) above, such
Additional Interest rate increasing by an additional 0.50% per annum at the
beginning of each such subsequent 90-day period;
provided, however, that the Additional Interest rate on the Notes may not exceed
at any one time in the aggregate 2.0% per annum; and provided further, that (1)
upon the filing of the Exchange Registration Statement (in the case of (i)
above), (2) upon the effectiveness of the Exchange Registration Statement (in
the case of (ii) above), or (3) upon the exchange of Exchange Notes for all
Notes tendered (in the case of (iii)(A) above), upon the effectiveness of the
Initial Shelf Registration (in the case of (iii)(B) above) or upon the
effectiveness of a Shelf Registration which had ceased to remain effective (in
the case of (iii)(C) above), Additional Interest on the Notes as a result of
such clause (or the relevant subclause thereof), as the case may be, shall cease
to accrue.
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(b) The Issuer shall notify the Trustee within one business day after each
and every date on which an event occurs in respect of which Additional Interest
is required to be paid (an "Event Date"). Any amounts of Additional Interest
due pursuant to (a)(i), (a)(ii) or (a)(iii) of this Section 4 will be payable
semi-annually, on the dates and in the manner provided in the Indenture and
whether or not any cash interest would then be payable on such date, commencing
with the first such semi-annual date occurring after any such Additional
Interest commences to accrue. The amount of Additional Interest will be
determined by multiplying the applicable Additional Interest rate by the
principal amount of the Notes, multiplied by a fraction, the numerator of which
is the number of days such Additional Interest rate was applicable during such
semi-annual period (determined on the basis of a 360-day year comprised of
twelve 30-day months and, in the case of a partial month, the actual number of
days elapsed), and the denominator of which is 360.
5. Notes Registration Procedures
In connection with the filing of any Notes Registration Statement pursuant
to Section 2 or 3 hereof, the Issuer shall effect such registrations to permit
the sale of such securities covered thereby in accordance with the intended
method or methods of disposition thereof, and pursuant thereto and in connection
with any Notes Registration Statement filed by the Issuer hereunder, the Issuer
shall:
(a) Prepare and file with the SEC prior to the Filing Date, the
Exchange Registration Statement or if the Exchange Registration Statement
is not filed because of the circumstances contemplated by Section 2(c)(i),
a Shelf Registration as prescribed by Section 2 or 3, and use its best
efforts to cause each such Notes Registration Statement to become effective
and remain effective as provided herein; provided that, if (1) a Shelf
Registration is filed pursuant to Section 3, or (2) a Notes Prospectus
contained in an Exchange Registration Statement filed pursuant to Section 2
is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, before filing any Notes Registration Statement or Notes Prospectus
or any amendments or supplements thereto, the Issuer shall, if requested,
furnish to and afford the Holders of the Registrable Notes to be registered
pursuant to such Shelf Registration or each such Participating Broker-
Dealer, as the case may be, covered by such Notes Registration Statement,
their counsel and the managing underwriters, if any, a reasonable
opportunity to review copies of all such documents (including copies of any
documents to be incorporated by reference therein and all exhibits thereto)
proposed to be filed (in each case at least five business days prior to
such filing). The Issuer shall not file any such Notes Registration
Statement or Notes Prospectus or any amendments or supplements thereto if
the Holders of a majority in aggregate principal amount of the Registrable
Notes covered by such Notes Registration Statement, or any such
Participating Broker-Dealer, as the case may be, their counsel, or the
managing underwriters, if any, shall reasonably object.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration or Exchange Registration Statement,
as the case
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may be, as may be necessary to keep such Notes Registration Statement
continuously effective for the Effectiveness Period or the Applicable
Period, as the case may be; cause the related Notes Prospectus to be
supplemented by any Prospectus supplement required by applicable law, and
as so supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force) promulgated under the Securities Act; and comply
with the provisions of the Securities Act and the Exchange Act applicable
to it with respect to the disposition of all securities covered by such
Notes Registration Statement as so amended or in such Notes Prospectus as
so supplemented and with respect to the subsequent resale of any securities
being sold by a Participating Broker-Dealer covered by any such Prospectus.
The Issuer shall be deemed not to have used its best efforts to keep a
Notes Registration Statement effective during the Applicable Period if it
voluntarily takes any action that would result in selling Holders of the
Registrable Notes covered thereby or Participating Broker-Dealers seeking
to sell Exchange Notes not being able to sell such Registrable Notes or
such Exchange Notes during that period unless such action is required by
applicable law or unless the Issuer complies with this Agreement,
including, without limitation, the provisions of paragraph 5(k) hereof and
the last paragraph of this Section 5.
(c) If (1) a Shelf Registration is filed pursuant to Section 3, or (2)
a Notes Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period from whom the Issuer has received written notice that
it will be a Participating Broker-Dealer in the Exchange Offer, notify the
selling Holders of Registrable Notes, or each such Participating Broker-
Dealer, as the case may be, their counsel and the managing underwriters, if
any, promptly (but in any event within two business days), (i) when a Notes
Prospectus or any Notes Prospectus supplement or post-effective amendment
has been filed, and, with respect to a Notes Registration Statement or any
post-effective amendment, when the same has become effective (including in
such notice a written statement that any Holder may, upon request, obtain,
without charge, one conformed copy of such Notes Registration Statement or
post-effective amendment including financial statements and schedules,
documents incorporated or deemed to be incorporated by reference and
exhibits), (ii) of the issuance by the SEC of any stop order suspending the
effectiveness of a Notes Registration Statement or of any order preventing
or suspending the use of any Notes Prospectus or the initiation of any
proceedings for that purpose, (iii) if at any time when a prospectus is
required by the Securities Act to be delivered in connection with sales of
the Registrable Notes the representations and warranties of the Issuer
contained in any agreement (including any underwriting agreement)
contemplated by Section 5(n) hereof cease to be true and correct, (iv) of
the receipt by the Issuer of any notification with respect to the
suspension of the qualification or exemption from qualification of a Notes
Registration Statement or any of the Registrable Notes or the Exchange
Notes to be sold by any Participating Broker-Dealer for offer or sale in
any jurisdiction, or the initiation or threatening of any proceeding for
such purpose, (v) of the happening of any event, the existence of any
condition or any information becoming known that makes any statement made
in such Notes Registration Statement or related Notes Prospectus or any
document
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incorporated or deemed to be incorporated therein by reference untrue in
any material respect or that requires the making of any changes in, or
amendments or supplements to, such Notes Registration Statement, Notes
Prospectus or documents so that, in the case of the Notes Registration
Statement, 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 not misleading, and that in the case of the
Notes 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 light of the circumstances
under which they were made, not misleading, and (vi) of any of the Issuer's
reasonable determination that a post-effective amendment to a Notes
Registration Statement would be appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section 3, or (2)
a Notes Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, use its best efforts to prevent the issuance of any
order suspending the effectiveness of a Notes Registration Statement or of
any order preventing or suspending the use of a Notes Prospectus or
suspending the qualification (or exemption from qualification) of any of
the Registrable Notes or the Exchange Notes to be sold by any Participating
Broker-Dealer, for sale in any jurisdiction, and, if any such order is
issued, to use its best efforts to obtain the withdrawal of any such order
at the earliest possible date.
(e) If a Shelf Registration is filed pursuant to Section 3 and if
requested by the managing underwriters, if any, or the Holders of a
majority in aggregate principal amount of the Registrable Notes being sold
in connection with an underwritten offering, (i) as promptly as practicable
incorporate in a prospectus supplement or post-effective amendment such
information or revisions to information therein relating to such
underwriters or selling Holders as the managing underwriters, if any, or
such Holders or their counsel reasonably request to be included or made
therein and (ii) make all required filings of such prospectus supplement or
such post-effective amendment as soon as practicable after the Issuer has
received notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment.
(f) If (1) a Shelf Registration is filed pursuant to Section 3, or (2)
a Notes Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, furnish to each selling Holder of Registrable Notes
and to each such Participating Broker-Dealer who so requests and to counsel
and each managing underwriter, if any, without charge, one conformed copy
of the Notes Registration Statement or Notes Registration Statements and
each post-effective amendment thereto, including financial statements and
schedules, and, if requested, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits.
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(g) If (1) a Shelf Registration is filed pursuant to Section 3, or (2)
a Notes Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, deliver to each selling Holder of Registrable Notes
or each such Participating Broker-Dealer, as the case may be, their
respective counsel, and the underwriters, if any, without charge, as many
copies of the Notes Prospectus and each amendment or supplement thereto and
any documents incorporated by reference therein as such Persons may
reasonably request; and, subject to the last paragraph of this Section 5,
the Issuer hereby consents to the use of such Notes Prospectus and each
amendment or supplement thereto by each of the selling Holders of
Registrable Notes or each such Participating Broker-Dealer, as the case may
be, and the underwriters or agents, if any, and dealers (if any), in
connection with the offering and sale of the Registrable Notes covered by,
or the sale by Participating Broker-Dealers of the Exchange Notes pursuant
to, such Notes Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or any delivery
of a Notes Prospectus contained in the Exchange Registration Statement by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, use its best efforts to register or qualify, and to
cooperate with the selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, the underwriters, if any,
and their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of
such Registrable Notes or Exchange Notes, as the case may be, for offer and
sale under the securities or Blue Sky laws of such jurisdictions within the
United States as any selling Holder, Participating Broker-Dealer, or the
managing underwriter or underwriters, if any, reasonably request in
writing; provided that where Exchange Notes held by Participating Broker-
Dealers or Registrable Notes are offered other than through an underwritten
offering, the Issuer agrees to cause its counsel to perform Blue Sky
investigations and file any registrations and qualifications required to be
filed pursuant to this Section 5(h); keep each such registration or
qualification (or exemption therefrom) effective during the period such
Notes Registration Statement is required to be kept effective and do any
and all other acts or things reasonably necessary or advisable to enable
the disposition in such jurisdictions of the Exchange Notes held by
Participating Broker-Dealers or the Registrable Notes covered by the
applicable Registration Statement; provided that neither the Issuer nor any
Subsidiary Guarantor shall be required to (A) qualify generally to do
business in any jurisdiction where it is not then so qualified, (B) take
any action that would subject it to general service of process in any such
jurisdiction where it is not then so subject or (C) subject itself to
taxation in excess of a nominal dollar amount in any such jurisdiction
where it is not then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3, cooperate
with the selling Holders of Registrable Notes and the managing underwriter
or underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Notes to be sold, which
certificates shall not bear any restrictive legends and shall be in
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a form eligible for deposit with The Depository Trust Company; and enable
such Registrable Notes to be in such denominations and registered in such
names as the managing underwriter or underwriters, if any, or Holders may
reasonably request.
(j) Use its best efforts to cause the Registrable Notes covered by any
Notes Registration Statement to be registered with or approved by such
governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof or the underwriters, if any, to consummate the
disposition of such Registrable Notes, except as may be required solely as
a consequence of the nature of such selling Holder's business, in which
case the Issuer will cooperate in all reasonable respects with the filing
of such Notes Registration Statement and the granting of such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3, or (2)
a Notes Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, upon the occurrence of any event contemplated by
paragraph 5(c)(v) or 5(c)(vi) hereof, as promptly as practicable prepare
and (subject to Section 5(a) hereof) file with the SEC, at the expense of
the Issuer, a supplement or post-effective amendment to the Notes
Registration Statement or a supplement to the related Notes Prospectus or
any document incorporated or deemed to be incorporated therein by
reference, or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Notes being sold thereunder
or to the purchasers of the Exchange Notes to whom such Notes Prospectus
will be delivered by a Participating Broker-Dealer, any such Notes
Prospectus will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
(l) Use its best efforts to cause the Registrable Notes covered by a
Notes Registration Statement to be rated with the appropriate rating
agencies, if so requested by the Holders of a majority in aggregate
principal amount of Registrable Notes covered by such Notes Registration
Statement or the managing underwriter or underwriters, if any.
(m) Prior to the initial issuance of the Exchange Notes, (i) provide
the Trustee with one or more certificates for the Registrable Notes in a
form eligible for deposit with The Depository Trust Company and (ii)
provide a CUSIP number for the Exchange Notes.
(n) In connection with an underwritten offering of Registrable Notes
pursuant to a Shelf Registration, enter into an underwriting agreement as
is customary in underwritten offerings of debt securities similar to the
Notes and take all such other actions as are reasonably requested by the
managing underwriter or underwriters in order to expedite or facilitate the
registration or the disposition of such Registrable Notes and, in such
connection, (i) make such representations, warranties to, and covenants
with, the underwriters, with respect to the business of the Issuer and its
subsidiaries and the Notes
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Registration Statement, Notes Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein, in each
case, as are customarily made by issuers to underwriters in underwritten
offerings of debt securities similar to the Notes, and confirm the same in
writing if and when requested; (ii) obtain the opinion of counsel to the
Issuer and updates thereof in form and substance reasonably satisfactory to
the managing underwriter or underwriters, addressed to the underwriters
covering the matters customarily covered in opinions requested in
underwritten offerings of debt securities similar to the Notes and such
other matters as may be reasonably requested by underwriters; (iii) obtain
copies of "cold comfort" letters and updates thereof in form and substance
reasonably satisfactory to the managing underwriter or underwriters from
the independent certified public accountants of the Issuer (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Issuer or of any business acquired by the Issuer for
which financial statements and financial data are, or are required to be,
included in the Notes Registration Statement), addressed to each of the
underwriters, such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection with
underwritten offerings of debt securities similar to the Notes and such
other matters as reasonably requested by the managing underwriter or
underwriters; and (iv) if an underwriting agreement is entered into, the
same shall contain indemnification provisions and procedures no less
favorable than those set forth in Section 7 hereof (or such other
provisions and procedures acceptable to Holders of a majority in aggregate
principal amount of Registrable Notes covered by such Notes Registration
Statement and the managing underwriter or underwriters or agents) with
respect to all parties to be indemnified pursuant to said Section. The
above shall be done at each closing under such underwriting agreement, or
as and to the extent required thereunder.
(o) If (1) a Shelf Registration is filed pursuant to Section 3, or (2)
a Notes Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, make available for inspection by any selling Holder
of such Registrable Notes being sold, or each such Participating Broker-
Dealer, as the case may be, any underwriter participating in any such
disposition of Registrable Notes, if any, and any attorney, accountant or
other agent retained by any such selling Holder or each such Participating
Broker-Dealer, as the case may be, or underwriter (collectively, the
"Inspectors"), at the offices where normally kept, during reasonable
business hours, all financial and other records and pertinent corporate
documents of the Issuers and their respective subsidiaries (collectively,
the "Records") as shall be reasonably necessary to enable them to exercise
any applicable due diligence responsibilities, and cause the officers,
directors and employees of the Issuer and its subsidiaries to supply all
information reasonably requested by any such Inspector in connection with
such Notes Registration Statement. Such Records shall be kept confidential
by each Inspector and shall not be disclosed by the Inspectors unless (i)
the disclosure of such Records is necessary to avoid or correct a
misstatement or omission in such Notes Registration Statement, (ii) the
release of such Records is ordered pursuant to
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a subpoena or other order from a court of competent jurisdiction, (iii) the
information in such Records is public or has been made generally available
to the public other than as a result of a disclosure or failure to
safeguard by such Inspector or (iv) disclosure of such information is, in
the opinion of counsel for any Inspector, necessary or advisable in
connection with any action, claim, suit or proceeding, directly or
indirectly, involving or potentially involving such Inspector and arising
out of, based upon, related to, or involving this Agreement, or any
transactions contemplated hereby or arising hereunder. Each selling Holder
of such Registrable Notes and each such Participating Broker-Dealer will be
required to agree that information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it as the
basis for any market transactions in the securities of the Issuer unless
and until such is made generally available to the public. Each selling
Holder of such Registrable Notes and each such Participating Broker-Dealer
will be required to further agree that it will, upon learning that
disclosure of such Records is sought in a court of competent jurisdiction,
give notice to the Issuer and allow the Issuer to undertake appropriate
action to prevent disclosure of the Records deemed confidential at their
expense.
(p) Provide an indenture trustee for the Registrable Notes or the
Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(a), as the case may be, to be qualified
under the TIA not later than the effective date of the Exchange Offer or
the first Notes Registration Statement relating to the Registrable Notes;
and in connection therewith, cooperate with the trustee under any such
indenture and the Holders of the Registrable Notes, to effect such changes
to such indenture as may be required for such indenture to be so qualified
in accordance with the terms of the TIA; and execute, and use its best
efforts to cause such trustee to execute, all documents as may be required
to effect such changes, and all other forms and documents required to be
filed with the SEC to enable such indenture to be so qualified in a timely
manner.
(q) Comply with all applicable rules and regulations of the SEC and
make generally available to the securityholders of the Issuer earnings
statements satisfying the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month period
(or 90 days after the end of any 12-month period if such period is a fiscal
year) (i) commencing at the end of any fiscal quarter in which Registrable
Notes are sold to underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter of the
Issuer after the effective date of a Notes Registration Statement, which
statements shall cover said 12-month periods.
(r) Upon consummation of the Exchange Offer or a Private Exchange,
obtain an opinion of counsel to the Issuer, in a form customary for
underwritten transactions, addressed to the Trustee for the benefit of all
Holders of Registrable Notes participating in the Exchange Offer or the
Private Exchange, as the case may be, that the Exchange
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Notes or the Private Exchange Notes, as the case may be, and the related
indenture constitute legally valid and binding obligations of the Issuer,
enforceable against the Issuer in accordance with their respective terms
subject to customary exceptions and qualifications; provided that the
Issuer need not comply with this Section 5(r) if all Exchange Notes and
Private Notes are issued pursuant to the Indenture.
(s) If the Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Registrable Notes by Holders to the Issuer (or to such
other Person as directed by the Issuer) in exchange for the Exchange Notes
or the Private Exchange Notes, as the case may be, the Issuer shall xxxx,
or caused to be marked, on such Registrable Notes that such Registrable
Notes are being canceled in exchange for the Exchange Notes or the Private
Exchange Notes, as the case may be; in no event shall such Registrable
Notes be marked as paid or otherwise satisfied.
(t) Cooperate with each seller of Registrable Notes covered by any
Notes Registration Statement and each underwriter, if any, participating in
the disposition of such Registrable Notes and their respective counsel in
connection with any filings required to be made with the NASD.
(u) Use its best efforts to take all other steps reasonably necessary
to effect the registration of the Registrable Notes covered by a Notes
Registration Statement contemplated hereby.
The Issuer may require each seller of Registrable Notes as to which any
registration is being effected to furnish to the Issuer such information
regarding such seller and the distribution of such Registrable Notes as the
Issuer may, from time to time, reasonably request. The Issuer may exclude from
such registration the Registrable Notes of any seller who fails to furnish such
information within a reasonable time (which time in no event shall exceed 30
days) after receiving such request. Each seller as to which any Shelf
Registration is being effected agrees to furnish promptly to the Issuer all
information required to be disclosed in order to make the information previously
furnished to the Issuer by such seller not materially misleading.
Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by acquisition of such Registrable Notes or Exchange Notes to be sold by
such Participating Broker-Dealer, as the case may be, that, upon receipt of any
notice from the Issuer of the happening of any event of the kind described in
Section 5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi), such Holder will forthwith
discontinue disposition of such Registrable Notes covered by a Notes
Registration Statement and such Participating Broker-Dealer will forthwith
discontinue disposition of such Exchange Notes pursuant to any Notes Prospectus
and, in each case, forthwith discontinue dissemination of such Prospectus until
such Holder's or Participating Broker-Dealer's receipt of the copies of the
supplemented or amended Notes Prospectus contemplated by Section 5(k), or until
it is advised in writing (the "Advice") by the Issuer that the use of the
applicable Prospectus may be resumed, and has received copies of any amendments
or supplements thereto and, if so directed by the Issuer, such Holder or
Participating Broker-Dealer, as the case may be, will
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deliver to the Issuer all copies, other than permanent file copies, then in such
Holder's or Participating Broker-Dealer's possession, of the Notes Prospectus
covering such Registrable Securities current at the time of the receipt of such
notice. In the event the Issuer shall give any such notice, the Applicable
Period shall be extended by the number of days during such periods from and
including the date of the giving of such notice to and including the date when
each Participating Broker-Dealer shall have received (x) the copies of the
supplemented or amended Notes Prospectus contemplated by Section 5(k) or (y) the
Advice.
6. Registration Expenses
(a) All fees and expenses incident to the performance of or compliance with
this Agreement by the Issuer (other than Registration Expenses, which are dealt
with exclusively in Section 10 hereof) shall be borne by the Issuer, whether or
not the Exchange Offer or a Shelf Registration is filed or becomes effective,
including, without limitation, (i) all registration and filing fees (including,
without limitation, (A) fees with respect to filings required to be made with
the NASD in connection with an underwritten offering and (B) fees and expenses
of compliance with state securities or Blue Sky laws as provided in Section 5(h)
hereof, (ii) printing expenses, including, without limitation, expenses of
printing prospectuses if the printing of prospectuses is requested by the
managing underwriter or underwriters, if any, or by the Holders of a majority in
aggregate principal amount of the Registrable Notes included in any Notes
Registration Statement or by any Participating Broker-Dealer during the
Applicable Period, as the case may be, (iii) reasonable messenger, telephone and
delivery expenses incurred in connection with the Exchange Registration
Statement and any Shelf Registration, (iv) fees and disbursements of counsel for
the Issuer and reasonable fees and disbursements of special counsel for the
sellers of Registrable Notes (subject to the provisions of Section 6(b)), (v)
fees and disbursements of all independent certified public accountants referred
to in Section 5(n)(iii) (including, without limitation, the expenses of any
special audit and "cold comfort" letters required by or incident to such
performance), (vi) rating agency fees, (vii) Securities Act liability insurance,
if the Issuer desires such insurance, (viii) fees and expenses of all other
Persons retained by the Issuer, (ix) internal expenses of the Issuer (including,
without limitation, all salaries and expenses of officers and employees of the
Issuer performing legal or accounting duties), (x) the expense of any annual
audit, (xi) the fees and expenses incurred in connection with the listing of the
securities to be registered on any securities exchange and (xii) the expenses
relating to printing, word processing and distributing all Registration
Statements, underwriting agreements, securities sales agreements, indentures and
any other documents necessary in order to comply with this Agreement.
(b) In connection with any Shelf Registration hereunder, the Issuer shall
reimburse the Holders of the Registrable Notes being registered in such
registration for the fees and disbursements, not to exceed $25,000, of not more
than one counsel (in addition to appropriate local counsel) chosen by the
Holders of a majority in aggregate principal amount of the Registrable Notes to
be included in such Shelf Registration and other out-of-pocket expenses of
Holders of Registrable Notes incurred in connection with the registration and
sale of Registrable Notes.
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7. Indemnification
(a) The Issuer agrees to indemnify and hold harmless each Holder of
Registrable Notes, each Holder of Registrable Securities and each Participating
Broker-Dealer selling Exchange Notes during the Applicable Period, the officers
and directors of each such Person, and each Person, if any, who controls any
such Person within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act (each, a "Participant"), from and against any and
all losses, claims, damages and liabilities (including, without limitation, the
reasonable legal fees and other reasonable expenses actually incurred in
connection with any suit, action or proceeding or any claim asserted) caused by,
arising out of or based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement (as amended
or supplemented if the Issuer shall have furnished any amendments or supplements
thereto) or caused by, arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
Prospectus (as amended or supplemented if the Issuer shall have furnished any
amendments or supplements thereto) or caused by, arising out of or based upon
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to any Participant furnished to the Issuer
in writing by or on behalf of such Participant expressly for use therein;
provided, however, that the Issuer will not be liable if such untrue statement
or omission or alleged untrue statement or omission was contained or made in any
preliminary prospectus and corrected in the Prospectus or any amendment or
supplement thereto and the Prospectus does not contain any other untrue
statement or omission or alleged untrue statement or omission of a material fact
that was the subject matter of the related proceeding and any such loss,
liability, claim, damage or expense suffered or incurred by the Participants
resulted from any action, claim or suit by any Person who purchased Registrable
Securities, Registrable Notes or Exchange Notes which are the subject thereof
from such Participant and it is established in the related proceeding that such
Participant failed to deliver or provide a copy of the Prospectus (as amended or
supplemented) to such Person with or prior to the confirmation of the sale of
such Registrable Securities, Registrable Notes or Exchange Notes sold to such
Person if required by applicable law, unless such failure to deliver or provide
a copy of the Prospectus (as amended or supplemented) was a result of
noncompliance by the Issuer with Section 5 of this Agreement.
(b) Each Participant agrees, severally and not jointly, to indemnify and
hold harmless the Issuer, its directors and officers and each Person who
controls the Issuer 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 Issuer to each Participant, but only with reference to information
relating to such Participant furnished to the Issuer in writing by such
Participant expressly for use in any Registration Statement or Prospectus, any
amendment or supplement thereto, or any preliminary prospectus. The liability
of any Participant under this paragraph shall in no event
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exceed the proceeds received by such Participant from sales of Registrable
Securities, Registrable Notes or Exchange Notes giving rise to such obligations.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such Person (the "Indemnified Person") shall promptly
notify the Person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may reasonably designate in such proceeding and shall pay
the reasonable fees and expenses actually incurred by such counsel related to
such proceeding; provided, however, that the failure to so notify the
Indemnifying Person shall not relieve it of any obligation or liability which it
may have hereunder or otherwise (unless and only to the extent that such failure
directly results in the loss or compromise of any material rights or defenses by
the Indemnifying Person and the Indemnifying Person was not otherwise aware of
such action or claim). In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed in
writing to the contrary, (ii) the Indemnifying Person has failed within a
reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that, unless there is a conflict among Indemnified Persons, the
Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed promptly after
receipt of the invoice therefor as they are incurred. Any such separate firm for
the Participants and such control Persons of Participants shall be designated in
writing by Participants who sold a majority in interest of the securities sold
by all such Participants and any such separate firm for the Issuer, its
directors, its officers and such control Persons of the Issuer shall be
designated in writing by the Issuer. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its prior written
consent, but if settled with such consent or if there is a final non-appealable
judgment for the plaintiff for which the Indemnified Person is entitled to
indemnification pursuant to this Agreement, the Indemnifying Person agrees to
indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Person shall have requested an Indemnifying Person
to reimburse the Indemnified Person for reasonable fees and expenses actually
incurred by counsel as contemplated by the third sentence of this paragraph, the
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its prior written consent if (i) such settlement is
entered into more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement; provided, however,
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that the Indemnifying Person shall not be liable for any settlement effected
without its consent pursuant to this sentence if the Indemnifying Person is
contesting, in good faith, the request for reimbursement. No Indemnifying Person
shall, without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement (A) includes
an unconditional release of such indemnified Person, in form and substance
satisfactory to such Indemnified Person, from all liability on claims that are
the subject matter of such proceeding and (B) does not include any statement as
to an admission of fault, culpability or failure to act by or on behalf of an
Indemnified Person.
(d) If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable (other than by reason of the exceptions
specifically provided therein) to, or insufficient to hold harmless, an
Indemnified Person in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such paragraphs, in
lieu of indemnifying such Indemnified Person thereunder and in order to provide
for just and equitable contribution, shall contribute to the amount paid or
payable by such Indemnified Person as a result of such losses, claims, damages
or liabilities in such proportion as is appropriate to reflect (i) the relative
benefits received by the Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons on the other from the offering of the Registrable
Securities, Registrable Notes or Exchange Notes, as the case may be, or (ii) if
the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the Indemnifying Person or Persons on the one hand and the Indemnified Person or
Persons on the other in connection with the statements or omissions (or alleged
statements or omissions) that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties 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 on the one hand or
by the Participants or such other Indemnified Person, as the case may be, on the
other, such Persons' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission and any other
equitable considerations appropriate under the circumstances.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
(even if the Participants were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any reasonable
legal or other expenses actually incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Registrable
Securities, Registrable Notes or Exchange Notes, as the case may be, exceeds the
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amount of any damages that such Participant has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in this Section 7
will be in addition to any liability which the Indemnifying Persons may
otherwise have to the Indemnified Persons referred to above.
8. Rules 144 and 144A
The Issuer covenants that it will file the reports required to be filed by
it under the Securities Act and the Exchange Act and the rules and regulations
adopted by the SEC thereunder in a timely manner and, if at any time it is not
required to file such reports, it will, upon the request of any Holder of
Registrable Securities or Registrable Notes, make publicly available other
information so long as necessary to permit sales pursuant to Rule 144 and Rule
144A. The Issuer further covenants, for so long as any Registrable Securities
or Registrable Notes remain outstanding, to make available to any Holder or
beneficial owner thereof in connection with any sale thereof and any prospective
purchaser of such Registrable Securities or Registrable Notes from such Holder
or beneficial owner, the information required by Rule 144A(d)(4) under the
Securities Act in order to permit resales of such Registrable Securities or
Registrable Notes pursuant to Rule 144A.
9. Underwritten Registrations of Registrable Notes
If any of the Registrable Notes covered by any Shelf Registration is to be
sold in an underwritten offering, the investment banker or investment bankers
and manager or managers that will manage the offering will be selected by the
Holders of a majority in aggregate principal amount of such Registrable Notes
included in such offering and reasonably acceptable to the Issuer.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
10. Registration of Registrable Securities
(a) Shelf Registration of Registrable Securities. The Company shall,
within 90 days after the effectiveness date (the "IPO Effectiveness Date") of a
registration statement filed with the Commission in connection with an initial
public offering of the Common Stock, use its best efforts to (a) file a shelf
registration statement covering resales of the Warrant Shares (the
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"Warrant Shares Shelf Registration Statement"), (b) cause the Warrant Shares
Shelf Registration Statement to be declared effective under Securities Act and
(c) keep effective the Warrant Shares Shelf Registration Statement until the
earlier of one year after the IPO Effectiveness Date (or such earlier date as
may be authorized under Rule 144(k), as it may be amended from time to time) or
such time as all of the applicable Warrant Shares have been sold thereunder or
are otherwise eligible for sale under Rule 144 under the Securities Act. The
Company shall, in the event that a Warrant Shares Shelf Registration Statement
is filed, provide to each Holder copies of the prospectus that is a part of the
Warrant Shares Shelf Registration Statement, notify each such Holder when the
Warrant Shares Shelf Registration Statement for the Warrant Shares has become
effective and take certain other actions as are required to permit unrestricted
resales of the Warrant Shares. The Company shall require a Holder that sells
Warrant Shares pursuant to the Warrant Shares Shelf Registration Statement to be
named as a selling security holder in the related prospectus and to deliver a
prospectus to purchasers, and any such Holder shall be bound by the provisions
of this Agreement that are applicable to such a Holder (including certain
indemnification rights and obligations). Each holder of the Warrant Shares shall
deliver information to be used in connection with the Warrant Shares Shelf
Registration Statement and provide comments on the Warrant Shares Shelf
Registration Statement within the time periods set forth in this Agreement in
order to have its Warrant Shares included in the Warrant Shares Shelf
Registration Statement.
(b) Piggy-Back Registration of Registrable Securities. If at any time
after the Issue Date the Issuer proposes to file a registration statement under
the Securities Act with respect to an offering by the Issuer for its own account
or for the account of any holders of its Common Stock (other than (i) a
registration statement on Form S-4 or S-8 (or any substitute form that may be
adopted by the SEC), (ii) a registration statement filed in connection with an
exchange offer or offering of securities solely to the Issuer's existing
securityholders or (iii) any Notes Registration Statement), then the Issuer
shall give written notice of such proposed filing to the Holders of Registrable
Securities as soon as practicable (but in no event fewer than 20 days before the
anticipated filing date), and such notice shall offer such Holders the
opportunity to register such number of Registrable Securities as each Holder may
request in writing within 20 days after receipt of such written notice from the
Issuer (which request shall specify the Registrable Securities intended to be
disposed of by such Selling Holder and the intended method of distribution
thereof) (a "Piggy-Back Registration"). The Issuer shall use its best efforts
to keep such Piggy-Back Registration continuously effective under the Securities
Act until at least the earlier of (A) an aggregate of 180 days after the
effective date thereof or (B) the consummation of the distribution by the
Holders of all of the Registrable Securities covered thereby. The Issuer shall
use its best efforts to cause the managing underwriter or underwriters, if any,
of such proposed offering to permit the Registrable Securities requested to be
included in a Piggy-Back Registration to be included on the same terms and
conditions as any similar securities of the Issuer or any other security holder
included therein and to permit the sale or other disposition of such Registrable
Securities in accordance with the intended method of distribution thereof. Any
Selling Holder shall have the right to withdraw its request for inclusion of its
Registrable Securities in any Registration Statement pursuant to this Section 10
by giving written notice to the Issuer of its request to withdraw at any time
prior to the filing of such Registration Statement with the SEC.
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The Issuer will pay all Registration Expenses in connection with each
registration of Registrable Securities requested pursuant to this Section 10,
and each Holder of Registrable Securities shall pay all underwriting discounts
and commissions and transfer taxes, if any, relating to the sale or disposition
of such Holder's Registrable Securities pursuant to a Piggy-Back Registration
effected pursuant to this Section 10.
No registration effected under this Section 10, and no failure to
effect a registration under this Section 10, shall relieve the Issuer of its
obligation to effect a registration upon the request of Holders of Registrable
Notes pursuant to Section 2 or 3 hereof, and no failure to effect a registration
under this Section 10 and to complete the sale of securities registered
thereunder in connection therewith shall relieve the Issuer of any other
obligation under this Agreement.
(c) Priority in Piggy-Back Registration. In a registration pursuant to
this Section 10 involving an underwritten offering, if the managing underwriter
or underwriters of such underwritten offering have informed, in writing, the
Issuer and the Selling Holders requesting inclusion in such offering that in
such underwriter's or underwriters' opinion the total number of securities which
the Issuer, the Selling Holders and any other Persons desiring to participate in
such registration intend to include in such offering is such as to adversely
affect the success of such offering, including the price at which such
securities can be sold, then the Issuer will be required to include in such
registration only the amount of securities which it is so advised should be
included in such registration. In such event: (x) in cases initially involving
the registration for sale of securities for the Issuer's own account, securities
shall be registered in such offering in the following order of priority: (i)
first, the securities which the Issuer proposes to register, (ii) second,
provided that no securities proposed to be registered by the Issuer have been
excluded from such registration, the securities which have been requested to be
included in such registration by the Selling Holders and by Persons entitled to
exercise "piggy-back" registration rights pursuant to contractual commitments to
"piggy-back" registration rights of the Issuer entered into prior to, and in
existence on, the date hereof (pro rata based on the amount of securities sought
to be registered by such Persons), and (iii) third, provided that no securities
sought to be included by the Selling Holders or such Persons have been excluded
from such registration, the securities of other Persons entitled to exercise
"piggy-back" registration rights pursuant to contractual commitments of the
Issuer entered into subsequent to the date hereof (pro rata based on the amount
of securities sought to be registered by such Persons); and (y) in cases not
initially involving the registration for sale of securities for the Issuer's own
account, securities shall be registered in such offering in the following order
of priority: (i) first, the securities of any Person whose exercise of a
"demand" registration right pursuant to a contractual commitment of the Issuer
is the basis for the registration, (ii) second, provided that no securities of
any Person whose exercise of a "demand" registration right pursuant to a
contractual commitment of the Issuer is the basis for such registration have
been excluded from such registration, the securities requested to be included in
such registration by the Selling Holders pursuant to this Agreement and by
Persons entitled to exercise "piggy-back" registration rights pursuant to
contractual commitments to "piggy-back" registration rights of the Issuer
entered into prior to, and in existence on, the date hereof (pro rata based on
the total amount of securities sought to be included by such Persons), (iii)
third, provided that no securities sought to be included by the Selling Holders
or such Persons have been excluded
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from such registration, securities of other Persons entitled to exercise "piggy-
back" registration rights pursuant to contractual commitments entered into
subsequent to the date hereof (pro rata based on the amount of securities sought
to be registered by such Persons) and (iv) fourth, provided that no securities
sought to be included by other Persons entitled to exercise "piggy-back"
registration rights pursuant to such contractual commitments have been excluded
from such registration, any securities which the Issuer proposes to register.
(d) Suspension of Sales, etc. Subject to the next sentence of this
paragraph, the Issuer shall be entitled to postpone, for a reasonable period of
time, the effectiveness of, or suspend the rights of any Holders to make sales
pursuant to any Warrants Registration Statement otherwise required to be
prepared, filed and made and kept effective by it under this Section 10;
provided, however, that the duration of such postponement or suspension may not
exceed the earlier to occur of (A) 15 days after the cessation of the
circumstances described in the next sentence of this paragraph on which such
postponement or suspension is based or (B) 120 days after the date of the
determination of the Board of Directors referred to in the next sentence. Such
postponement or suspension may only be effected if the Board of Directors of the
Issuer determines in good faith that the effectiveness of, or sales pursuant to,
such Warrants Registration Statement would materially impede, delay or interfere
with any financing, offer or sale of securities, acquisition, corporate
reorganization or other significant transaction involving the Issuer or any of
its affiliates or require disclosure of material information which the Issuer
has a bona fide business purpose for preserving as confidential. If the Issuer
shall so postpone the effectiveness of, or suspend the rights of any Holders to
make sales pursuant to, a Warrants Registration Statement, it shall, as promptly
as possible, notify any Selling Holders of such determination, and the Selling
Holders shall (y) have the right, in the case of a postponement of the
effectiveness of a Warrants Registration Statement, upon the affirmative vote of
Selling Holders of not less than a majority of the Registerable Securities to be
included in such Warrants Registration Statement, to withdraw the request for
registration by giving written notice to the Issuer within 10 days after receipt
of such notice or (z) in the case of a suspension of the right to make sales,
receive an extension of the registration period referred to in Section 10(a)
hereof equal to the number of days of the suspension.
(e) Exclusion of Registrable Securities. The Issuer shall not be required
by this Section 10 to include Registrable Securities in a Piggy-Back
Registration if (i) in the written opinion of counsel to the Issuer, addressed
to the Holders of Registrable Securities and delivered to them, the Holders of
such Registrable Securities seeking registration would be free to sell all such
Registrable Securities within the current calendar quarter without registration
under Rule 144, which opinion may be based in part upon the representation by
the Holders of such Registrable Securities seeking registration, which
representation shall not be unreasonably withheld, that each such Holder is not
an affiliate of the Issuer within the meaning of the Securities Act, and (ii)
all requirements under the Securities Act for effecting such sales are satisfied
at such time.
(f) Obligations of Selling Holders. The Issuer's obligations under this
Section 10 shall be subject to the obligations of the Selling Holders, which the
Selling Holders acknowledge, to
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furnish all information and materials and to take any and all actions as may be
required under applicable federal and state securities laws and regulations to
permit the Issuer to comply with all applicable requirements of the SEC and to
obtain any acceleration of the effective date of a Warrants Registration
Statement.
(g) No Special Audit. The Issuer shall not be obligated to cause any
special audit to be undertaken in connection with any Piggy-Back Registration
unless such audit is requested by the underwriters with respect to such Piggy-
Back Registration.
11. Miscellaneous
(a) No Inconsistent Agreements. The Issuer has not entered, as of the
date hereof, and the Issuer shall not enter, after the date of this Agreement,
into any agreement with respect to any of its securities that is inconsistent
with the rights granted to the Holders of Registrable Securities or Registrable
Notes in this Agreement or otherwise conflicts with the provisions hereof. The
Issuer has not entered and will not enter into any agreement with respect to any
of its securities which will grant to any Person piggy-back rights with respect
to a Notes Registration Statement.
(b) Adjustments Affecting Registrable Securities or Registrable Notes.
The Issuer shall not, directly or indirectly, take any action with respect to
the Registrable Securities or Registrable Notes as a class that would adversely
affect the ability of the Holders to include such Registrable Securities or
Registrable Notes in a registration undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, otherwise than with the prior written
consent of (A) in circumstances that would adversely affect any Holders of
Registrable Securities or Registrable Notes, the Holders of a majority of the
Registrable Securities or the Holders of not less than a majority in aggregate
principal amount of the then outstanding Registrable Notes, as the case may be,
and (B) in circumstances that would adversely affect Participating Broker-
Dealers, the Participating Broker-Dealers holding not less than a majority in
aggregate principal amount of the Exchange Notes held by all Participating
Broker-Dealers; provided, however, that Section 7 and this Section 11(c) may not
be amended, modified or supplemented without the prior written consent of each
Holder and each Participating Broker-Dealer (including any Person who was a
Holder or Participating Broker-Dealer of Registrable Securities or Registrable
Notes or Exchange Notes, as the case may be, disposed of pursuant to any
Registration Statement). Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders of Registrable Notes whose securities are
being tendered pursuant to the Exchange Offer or sold pursuant to a Notes
Registration Statement and that does not directly or indirectly affect, impair,
limit or compromise the rights of other Holders of Registrable Notes may be
given by Holders of at least a majority in aggregate principal amount of the
Registrable Notes being tendered or being sold by such Holders pursuant to such
Notes Registration Statement.
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(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, next-day air courier or telecopier:
1. if to a Holder of Registrable Securities or Registrable Notes or
to any Participating Broker-Dealer, at the most current address of such
Holder or Participating Broker-Dealer, as the case may be, set forth on the
records of the registrar of the Warrants or the Notes, with a copy in like
manner to the Initial Purchaser as follows:
XXXXXXXXX & COMPANY, INC.
Two Houston Center
000 Xxxxxx Xx., Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx
with a copy to:
Fulbright & Xxxxxxxx L.L.P.
0000 XxXxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
2. if to the Initial Purchaser, at the address specified in Section
11(d)(1);
3. if to the Issuer, as follows:
Xxxxxx Petroleum Corporation
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Attention: President
with copies to:
Xxxxxx & Xxxxxx L.L.P.
2300 First City Tower
0000 Xxxxxx
Xxxxxxx, Xxxxx 00000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxx X. Xxxxx
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All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days
after being deposited in the United States mail, postage prepaid, if mailed, one
business day after being timely delivered to a next-day air courier guaranteeing
overnight delivery; and when receipt is acknowledged by the addressee, if
telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties hereto and
the Holders; provided, however, that the provisions of this Agreement relating
to registration rights shall not inure to the benefit of or be binding upon a
successor or assign of a Holder unless such successor or assign holds
Registrable Securities or Registrable Notes.
(f) 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.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE NON-
EXCLUSIVE JURISDICTION OF THE COMPETENT COURTS OF THE STATE OF NEW YORK SITTING
IN THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT.
(i) Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their best efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(j) Notes Held by the Issuer or Its Affiliates. Whenever the consent or
approval of Holders of a specified percentage of Registrable Securities or
Registrable Notes is required
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hereunder, Registrable Securities or Registrable Notes, as the case may be, held
by the Issuer or its affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(k) Third Party Beneficiaries. Holders and Participating Broker-Dealers
are intended third party beneficiaries of this Agreement and this Agreement may
be enforced by such Persons.
(1) Entire Agreement. This Agreement, together with the Purchase
Agreement, the Indenture and the Security Documents, is intended by the parties
as a final and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein and therein and
any and all prior oral or written agreements, representations, or warranties,
contracts, understandings, correspondence, conversations and memoranda between
the Initial Purchaser on the one hand and the Issuer on the other, or between or
among any agents, representatives, parents, subsidiaries, affiliates,
predecessors in interest or successors in interest with respect to the subject
matter hereof and thereof are merged herein and replaced hereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
XXXXXX PETROLEUM CORPORATION
By: /s/ XxXxxx X. Xxxxxx
________________________________
XxXxxx X. Xxxxxx
Chairman of the Board,
Chief Executive Officer and President
XXXXXXXXX & COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
________________________________
Xxxxxx X. Xxxxxxxxx
Senior Vice President
VEHOU05:54283.1
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