1
EXHIBIT 4(j)
RESALE REGISTRATION RIGHTS AGREEMENT
between
ANADARKO PETROLEUM CORPORATION
and
XXXXXX BROTHERS INC.
DATED AS OF MARCH 13, 2001
2
2
RESALE REGISTRATION RIGHTS AGREEMENT, dated as of March 13,
2001, between Anadarko Petroleum Corporation, a Delaware corporation (together
with any successor entity, herein referred to as the "COMPANY"), and Xxxxxx
Brothers Inc., as initial purchaser (the "INITIAL PURCHASER") under the Purchase
Agreement (as defined below).
Pursuant to the Purchase Agreement, dated as of March 8, 2001,
between the Company and the Initial Purchaser (the "PURCHASE AGREEMENT"), the
Initial Purchaser has agreed to purchase from the Company $650,000,000 in
aggregate principal amount of Zero Yield Puttable Contingent Debt Securities
(ZYP-CODESSM) due 2021 (the "SECURITIES"). The Securities will be convertible
into fully paid, nonassessable shares of common stock, par value $0.10 per
share, of the Company (the "COMMON STOCK") on the terms, and subject to the
conditions, set forth in the Indenture (as defined herein). To induce the
Initial Purchaser to purchase the Securities, the Company has agreed to provide
the registration rights set forth in this Agreement pursuant to Section 3(m) of
the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following
capitalized terms shall have the following meanings:
"AGREEMENT": This Resale Registration Rights Agreement.
"BROKER-DEALER": Any broker or dealer registered under the
Exchange Act.
"BUSINESS DAY": The definition of "Business Day" in the
Indenture.
"CLOSING DATE": The date of this Agreement.
"COMMISSION": Securities and Exchange Commission.
"COMMON STOCK": As defined in the preamble hereto.
"DAMAGES PAYMENT DATE": Each March 1 and September 1.
"EFFECTIVENESS PERIOD": As defined in Section 2(a)(iii) hereof.
"EFFECTIVENESS TARGET DATE": As defined in Section 2(a)(ii)
hereof.
"EXCHANGE ACT": Securities Exchange Act of 1934, as amended.
"HOLDER": A Person who owns, beneficially or otherwise,
Transfer Restricted Securities.
"HOLDER QUESTIONNAIRE": As defined in Section 2(b) hereof.
"INDEMNIFIED HOLDER": As defined in Section 6(a) hereof.
"INDENTURE": The Indenture, dated as of March 8, 2001 (the
"BASE INDENTURE"), as supplemented by the First Supplemental Indenture,
dated as of March 13, 2001 (the "SUPPLEMENTAL INDENTURE"), in each case,
between the Company and The Bank of New York, as trustee (the "TRUSTEE"),
pursuant to which the Securities are to be issued, as such Indenture is
further amended, modified or supplemented from time to time in accordance
with the terms thereof.
"INITIAL PURCHASER": As defined in the preamble hereto.
"COMPANY": As defined in the preamble hereto.
"LIQUIDATED DAMAGES": As defined in Section 3(a) hereof.
"MAJORITY OF HOLDERS": Holders holding over 50% of the
aggregate principal amount of Securities outstanding; provided that, for
purpose of this definition, a holder of shares of Common Stock which
constitute Transfer Restricted Securities and issued upon
3
3
conversion of the Securities shall be deemed to hold an aggregate principal
amount of Securities (in addition to the principal amount of Securities
held by such holder) equal to the quotient of (x) the number of such shares
of Common Stock held by such holder and (y) the conversion rate then in
effect as determined in accordance with the Indenture.
"NASD": National Association of Securities Dealers, Inc.
"PERSON": An individual, partnership, corporation, company,
unincorporated organization, trust, joint venture or a government or agency
or political subdivision thereof.
"PURCHASE AGREEMENT": As defined in the preamble hereto.
"PROSPECTUS": The prospectus included in a Shelf Registration
Statement, as amended or supplemented by any prospectus supplement and by
all other amendments thereto, including post-effective amendments, and all
material incorporated by reference into such Prospectus.
"QUESTIONNAIRE DEADLINE": As defined in Section 2(b) hereof.
"RECORD HOLDER": With respect to any Damages Payment Date, each
Person who is a Holder on the February 15 or August 15 immediately
preceding the relevant Damages Payment Date.
"REGISTRATION DEFAULT": As defined in Section 3(a) hereof.
"SALE NOTICE": As defined in Section 4(d) hereof.
"SECURITIES": As defined in the preamble hereto.
"SECURITIES ACT": Securities Act of 1933, as amended.
"SHELF FILING DEADLINE": As defined in Section 2(a)(i) hereof.
"SHELF REGISTRATION STATEMENT": As defined in Section 2(a)(i)
hereof.
"SUSPENSION NOTICE". As defined in Section 4(c) hereof.
"SUSPENSION PERIOD". As defined in Section 4(b)(i) hereof.
"TIA": Trust Indenture Act of 1939.
"TRANSFER RESTRICTED SECURITIES": Each Security and each share
of Common Stock issued upon conversion of Securities until the earlier of:
(i) the date on which such Security or such share of
Common Stock issued upon conversion has been effectively
registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement;
4
4
(ii) the date on which such Security or such share of
Common Stock issued upon conversion is transferred in
compliance with Rule 144 under the Securities Act or may be
sold or transferred by a person who is not an affiliate of the
Company pursuant to Rule 144 under the Securities Act (or any
other similar provision then in force) without any volume or
manner of sale restrictions thereunder; or
(iii) the date on which such Security or such share
of Common Stock issued upon conversion ceases to be outstanding
(whether as a result of redemption, repurchase and
cancellation, conversion or otherwise).
"UNDERWRITTEN REGISTRATION" or "UNDERWRITTEN OFFERING": A
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
2. Shelf Registration.
(a) The Company shall:
(i) not later than 90 days after the date hereof (the
"SHELF FILING DEADLINE"), cause to be filed a registration
statement pursuant to Rule 415 under the Securities Act (the
"SHELF REGISTRATION STATEMENT"), which Shelf Registration
Statement shall provide for resales of all Transfer Restricted
Securities held by Holders that have provided the information
required pursuant to the terms of Section 2(b) hereof;
(ii) use its reasonable commercial efforts to cause
the Shelf Registration Statement to be declared effective by
the Commission not later than 180 days after the date hereof
(the "EFFECTIVENESS TARGET DATE"); and
(iii) use its reasonable commercial efforts to keep
the Shelf Registration Statement continuously effective,
supplemented and amended as required by the provisions of
Section 4(b) hereof to the extent necessary to ensure that (A)
it is available for resales by the Holders of Transfer
Restricted Securities entitled to the benefit of this Agreement
and (B) conforms with the requirements of this Agreement and
the Securities Act and the rules and regulations of the
Commission promulgated thereunder as announced from time to
time for a period (the "EFFECTIVENESS PERIOD") of:
(1) two years following the last date of
original issuance of Securities; or
(2) such shorter period that will terminate
when (x) all of the Holders of Transfer Restricted
Securities are able to sell all Transfer Restricted
Securities immediately without restriction pursuant
to the volume limitation provisions of Rule 144 under
the Securities Act or any successor rule thereto, (y)
all Transfer Restricted Securities have ceased to be
outstanding (whether as a result of redemption,
repurchase and cancellation, conversion or otherwise)
or (z) all Transfer Restricted Securities of Holders
that complete and deliver in a timely manner the
5
5
Holder Questionnaire are registered under the Shelf
Registration Statement and have been disposed of in
accordance with the Shelf Registration Statement.
(b) No Holder of Transfer Restricted Securities may include any
of its Transfer Restricted Securities in the Shelf Registration Statement
pursuant to this Agreement unless such Holder furnishes to the Company in
writing, prior to or on the 20th Business Day after a request therefor (the
"QUESTIONNAIRE DEADLINE"), such information as the Company may reasonably
request for use in connection with the Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein and in any application to
be filed with or under state securities laws (the form of which request is
attached as an Exhibit to the Supplemental Indenture and is referred to herein
as the "HOLDER QUESTIONNAIRE"). In connection with all such requests for
information from Holders of Transfer Restricted Securities, the Company shall
notify such Holders of the requirements set forth in the preceding sentence.
Holders that do not complete the Holder Questionnaire and timely deliver it to
the Company shall not be named as selling securityholders in the Prospectus or
preliminary Prospectus included in the Shelf Registration Statement and
therefore shall not be permitted to sell any Transfer Restricted Securities
pursuant to the Shelf Registration Statement. No Holder of Transfer Restricted
Securities shall be entitled to Liquidated Damages pursuant to Section 3 hereof
unless such Holder shall have provided all such reasonably requested information
prior to or on the Questionnaire Deadline. Each Holder as to which the Shelf
Registration Statement is being effected agrees to furnish promptly to the
Company all information required to be disclosed in order to make information
previously furnished to the Company by such Holder not materially misleading.
Each Holder who intends to be named as a selling Holder in the Shelf
Registration Statement shall promptly furnish to the Company in writing such
other information as the Company may from time to time reasonably request in
writing.
3. Liquidated Damages.
(a) If:
(i) the Shelf Registration Statement is not filed
with the Commission prior to or on the Shelf Filing Deadline;
(ii) the Shelf Registration Statement has not been
declared effective by the Commission prior to or on the
Effectiveness Target Date;
(iii) except as provided in Section 4(b)(i) hereof,
the Shelf Registration Statement is filed and declared
effective but, during the Effectiveness Period, shall
thereafter cease to be effective or fail to be usable for its
intended purpose without being succeeded within five Business
Days by a post-effective amendment to the Shelf Registration
Statement or a report filed with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act that
cures such failure and, in the case of a post-effective
amendment, is itself immediately declared effective; or
6
6
(iv) (A) prior to or on the 45th or 75th day, as the
case may be, of any Suspension Period, such suspension has not
been terminated or (B) Suspension Periods exceed an aggregate
of 90 days in any 360 day period,
(each such event referred to in foregoing clauses (i) through (iv), a
"REGISTRATION DEFAULT"), the Company hereby agrees to pay liquidated damages
("LIQUIDATED DAMAGES") with respect to the Transfer Restricted Securities from
and including the day following the Registration Default to but excluding the
day on which the Registration Default has been cured, accruing at a rate:
(A) in respect of the Securities, to each holder of
Securities, (x) with respect to the first 90-day period during
which a Registration Default shall have occurred and be
continuing, equal to 0.25% per annum of the principal amount of
the Securities, and (y) with respect to the period commencing
on the 91st day following the day the Registration Default
shall have occurred and be continuing, equal to 0.50% per annum
of the principal amount of the Securities; provided that in no
event shall Liquidated Damages accrue at a rate per year
exceeding 0.50% of the principal amount of the Securities; and
(B) in respect of any shares of Common Stock, to each
holder of shares of Common Stock issued upon conversion of
Securities, (x) with respect to the first 90-day period in
which a Registration Default shall have occurred and be
continuing, equal to 0.25% per annum of the principal amount of
the converted Securities, and (y) with respect to the period
commencing the 91st day following the day the Registration
Default shall have occurred and be continuing, equal to 0.50%
per annum of the principal amount of the converted Securities;
provided that in no event shall Liquidated Damages accrue at a
rate per year exceeding 0.50% of the principal amount of the
converted Securities.
(b) All accrued Liquidated Damages shall be paid in arrears to
Record Holders by the Company on each Damages Payment Date by wire transfer of
immediately available funds or by federal funds check. Upon the cure of all
Registration Defaults relating to any particular Security or share of Common
Stock, the accrual of Liquidated Damages with respect to such Security or share
of Common Stock will cease.
All obligations of the Company set forth in this Section 3 that
are outstanding with respect to any Transfer Restricted Security at the time
such security ceases to be a Transfer Restricted Security shall survive until
such time as all such obligations with respect to such Transfer Restricted
Security shall have been satisfied in full.
The Liquidated Damages set forth above shall be the exclusive
monetary remedy available to the Holders of Transfer Restricted Securities for
such Registration Default.
7
7
4. Registration Procedures.
(a) In connection with the Shelf Registration Statement, the
Company shall comply with all the provisions of Section 4(b) hereof and shall
use its reasonable commercial efforts to effect such registration to permit the
sale of the Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof, and pursuant thereto, shall
as expeditiously as possible prepare and file with the Commission a Shelf
Registration Statement relating to the registration on any appropriate form
under the Securities Act.
(b) In connection with the Shelf Registration Statement and any
Prospectus required by this Agreement to permit the sale or resale of Transfer
Restricted Securities, the Company shall:
(i) Subject to any notice by the Company in
accordance with this Section 4(b) of the existence of any fact
or event of the kind described in Section 4(b)(iii)(D), use its
reasonable commercial efforts to keep the Shelf Registration
Statement continuously effective during the Effectiveness
Period; upon the occurrence of any event that would cause the
Shelf Registration Statement or the Prospectus contained
therein (A) to contain a material misstatement or omission or
(B) not be effective and usable for resale of Transfer
Restricted Securities during the Effectiveness Period, the
Company shall file promptly an appropriate amendment to the
Shelf Registration Statement or a report filed with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act, in the case of clause (A), correcting any such
misstatement or omission, and, in the case of either clause (A)
or (B), use its reasonable commercial efforts to cause such
amendment to be declared effective and the Shelf Registration
Statement and the related Prospectus to become usable for their
intended purposes as soon as practicable thereafter.
Notwithstanding the foregoing, the Company may suspend the
effectiveness of the Shelf Registration Statement by written
notice to the Holders for a period not to exceed an aggregate
of 45 days in any 90-day period (each such period, a
"SUSPENSION PERIOD") if:
(x) an event occurs and is continuing as a
result of which the Shelf Registration Statement
would, in the Company's reasonable judgment, contain
an untrue statement of a material fact or omit to
state a material fact required to be stated therein
or necessary to make the statements therein not
misleading; and
(y) the Company reasonably determines that
the disclosure of such event at such time would have
a material adverse effect on the business of the
Company and its subsidiaries taken as a whole;
provided that, in the event the disclosure relates to a
previously undisclosed proposed or pending material business
transaction, the disclosure of which would impede the Company's
ability to consummate such transaction, the Company may extend
a Suspension Period from 45 days to 75 days; provided, however,
that Suspension Periods shall not exceed an aggregate of 90
days in any 360-day period.
8
8
(ii) Prepare and file with the Commission such
amendments and post-effective amendments to the Shelf
Registration Statement as may be necessary to keep the Shelf
Registration Statement effective during the Effectiveness
Period; cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Securities Act, and to comply
fully with the applicable provisions of Rules 424 and 430A
under the Securities Act in a timely manner; and comply with
the provisions of the Securities Act with respect to the
disposition of all securities covered by the Shelf Registration
Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers
thereof set forth in the Shelf Registration Statement or
supplement to the Prospectus; provided that, in no event will
such method(s) of distribution take the form of an Underwritten
Offering without the prior agreement of the Company, which
agreement will not be unreasonably withheld.
(iii) Advise the underwriter(s), if any, and selling
Holders promptly (but in any event within five Business Days)
and, if requested by such Persons, to confirm such advice in
writing, except as provided in clause (D) below:
(A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been
filed, and, with respect to the Shelf Registration
Statement or any post-effective amendment thereto,
when the same has become effective,
(B) of any request by the Commission for
amendments to the Shelf Registration Statement or
amendments or supplements to the Prospectus or for
additional information relating thereto,
(C) of the issuance by the Commission of any
stop order suspending the effectiveness of the Shelf
Registration Statement under the Securities Act or of
the suspension by any state securities commission of
the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction,
or the initiation of any proceeding for any of the
preceding purposes, or
(D) of the existence of any fact or the
happening of any event, during the Effectiveness
Period, that makes any statement of a material fact
made in the Shelf Registration Statement, the
Prospectus, any amendment or supplement thereto, or
any document incorporated by reference therein
untrue, or that requires the making of any additions
to or changes in the Shelf Registration Statement or
the Prospectus in order to make the statements
therein not misleading; provided that such notice
need only be provided to underwriters, if any, with
respect to an Underwritten Offering of which the
Issuer has notice and to selling Holders who have
given a Sale Notice as set forth in Section 4(d)
hereof who are then entitled to sell Transfer
Restricted Securities under the Shelf Registration
Statement pursuant to Section 4(d).
9
9
If at any time the Commission shall issue any stop order
suspending the effectiveness of the Shelf Registration
Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the
qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or Blue Sky laws,
the Company shall use its reasonable commercial efforts to
obtain the withdrawal or lifting of such order at the earliest
possible time and will provide to the Initial Purchaser and
each Holder who is named in the Shelf Registration Statement
prompt notice of the withdrawal of any such order.
(iv) Furnish to one counsel for the selling Holders
and each of the underwriter(s), if any, before filing with the
Commission, a copy of the Shelf Registration Statement and
copies of any Prospectus included therein or any amendments or
supplements to the Shelf Registration Statement or Prospectus
(other than documents incorporated by reference after the
initial filing of the Shelf Registration Statement), which
documents will be subject to the review of such holders and
underwriter(s), if any, for a period of at least five Business
Days (in the case of the Shelf Registration Statement) and two
Business Days (in the case of any amendment or supplement
thereto), and the Company will not file the Shelf Registration
Statement or Prospectus or any amendment or supplement to the
Shelf Registration Statement or Prospectus (other than
documents incorporated by reference) to which a selling Holder
of Transfer Restricted Securities covered by the Shelf
Registration Statement or the underwriter(s), if any, shall
reasonably object prior to the filing thereof. A selling Holder
or underwriter, if any, shall be deemed to have reasonably
objected to such filing if the Shelf Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed
to be filed, contains a material misstatement or omission.
(v) Make available at reasonable times for inspection
by one or more representatives of the selling Holders,
designated in writing by a Majority of Holders whose Transfer
Restricted Securities are included in the Shelf Registration
Statement, any underwriter participating in any distribution
pursuant to the Shelf Registration Statement, and any attorney
or accountant retained by such selling Holders or any of the
underwriter(s), all financial and other records, pertinent
corporate documents and properties of the Company as shall be
reasonably necessary to enable them to conduct a reasonable
investigation within the meaning of Section 11 of the
Securities Act, and cause the Company's officers, directors,
managers and employees to supply all information reasonably
requested by any such representative or representatives of the
selling Holders, underwriter, attorney or accountant in
connection therewith; provided, however, that the foregoing
inspection and information gathering shall be coordinated on
behalf of the selling Holders and any such underwriters by one
firm of counsel, which firm shall be Xxxxxxx Xxxxxxx & Xxxxxxxx
until another firm shall be designated in writing to the
Company by a Majority of Holders whose Transfer Restricted
Securities are included in the Shelf Registration Statement;
and provided further, that any information that is designated
in writing by the Company, in good faith, as confidential at
the time of delivery of such information shall be kept
confidential by the Holders or any such underwriters, attorney,
accountant or agent, unless such disclosure is made in
connection with a court proceeding or required by law, or
10
10
such information becomes available to the public generally or
through a third party without an accompanying obligation of
confidentiality.
(vi) If requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in the Shelf
Registration Statement or Prospectus, pursuant to a supplement
or post-effective amendment if necessary, such information as
such selling Holders and underwriter(s), if any, may reasonably
request to have included therein, including, without limitation
(1) information relating to the "PLAN OF DISTRIBUTION" of the
Transfer Restricted Securities, (2) information with respect to
the principal amount of Securities or number of shares of
Common Stock being sold to such underwriter(s), (3) the
purchase price being paid therefor and (4) any other terms of
the offering of the Transfer Restricted Securities to be sold
in such offering and make all required filings of such
Prospectus supplement or post-effective amendment as soon as
reasonably practicable after the Company is notified of the
matters to be incorporated in such Prospectus supplement or
post-effective amendment necessary for Holders to be named as
selling Holders in the Prospectus and to allow such Holders to
deliver the Prospectus in connection with a sale of their
Transfer Restricted Securities, subject to Section 4(b)(i).
(vii) Furnish to each selling Holder and each of the
underwriter(s), if any, upon their request, without charge, at
least one copy of the Shelf Registration Statement, as first
filed with the Commission, and of each amendment thereto (and
any documents incorporated by reference therein or exhibits
thereto (or exhibits incorporated in such exhibits by
reference) as such Person may request).
(viii) Deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may
request; subject to any notice by the Company in accordance
with this Section 4(b) of the existence of any fact or event of
the kind described in Section 4(b)(iii) (D), the Company hereby
consents to the use of the Prospectus and any amendment or
supplement thereto by each of the selling Holders and each of
the underwriter(s), if any, in connection with the offering and
the sale of the Transfer Restricted Securities covered by the
Prospectus or any amendment or supplement thereto.
(ix) The Company shall:
(A) upon request, furnish to each selling
Holder and each underwriter, if any, in such
substance and scope as they may reasonably request
and as are customarily made by issuers to
underwriters in primary underwritten offerings for
selling security holders, upon the date of closing of
any sale of Transfer Restricted Securities in an
Underwritten Registration:
(1) customary officers certificates in
connection with the closing of such
Underwritten Offering;
11
11
(2) opinions, each dated the date of
such closing, of counsel to the Company
covering such of the matters as are
customarily covered in legal opinions to
underwriters in connection with underwritten
offerings of securities; and
(3) customary comfort letters, dated
the date of such closing, from the Company's
independent accountants (and from any other
accountants whose report is contained or
incorporated by reference in the Shelf
Registration Statement) to the extent
deliverable in accordance with their
professional standards, in the customary
form and covering matters of the type
customarily covered in comfort letters to
underwriters in connection with underwritten
offerings of securities;
(B) set forth in full in the underwriting
agreement, if any, indemnification provisions and
procedures which provide rights no less protective
than those set forth in Section 7 of the Purchase
Agreement with respect to all parties to be
indemnified; and
(C) deliver such other documents and
certificates as may be reasonably requested by such
parties to evidence compliance with clause (A) above
and with any customary conditions contained in the
underwriting agreement or other agreement entered
into by the selling Holders pursuant to this clause
(ix).
(x) Before any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the
underwriter(s), if any, and their respective counsel in
connection with the registration and qualification of the
Transfer Restricted Securities under the securities or Blue Sky
laws of such jurisdictions in the United States as the selling
Holders or underwriter(s), if any, may reasonably request and
do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the Shelf Registration
Statement; provided, however, that the Company shall not be
required (A) to register or qualify as a foreign corporation or
a dealer of securities where it is not now so qualified or to
take any action that would subject it to the service of process
in any jurisdiction where it is not now so subject or (B) to
subject themselves to taxation in any such jurisdiction if they
are not now so subject.
(xi) Cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation
and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends
(unless required by applicable securities laws); and enable
such Transfer Restricted Securities to be in such denominations
and registered in such names as the Holders or the
underwriter(s), if any, may request at least two Business Days
before any sale of Transfer Restricted Securities made by such
underwriter(s).
(xii) Subject to Section 4(b)(i) hereof, if any fact
or event contemplated by Section 4(b)(iii)(D) hereof shall
exist or have occurred, use its reasonable
12
12
commercial efforts to prepare a supplement or post-effective
amendment to the Shelf Registration Statement or related
Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities,
the Prospectus will not contain an untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances in which they are made, not
misleading.
(xiii) Provide CUSIP numbers for all Transfer
Restricted Securities not later than the effective date of the
Shelf Registration Statement and provide the Trustee under the
Indenture with certificates for the Securities that are in a
form eligible for deposit with The Depository Trust Company.
(xiv) Cooperate and assist in any filings required to
be made with the NASD and in the performance of any due
diligence investigation by any underwriter that is required to
be retained in accordance with the rules and regulations of the
NASD.
(xv) Otherwise use its reasonable commercial efforts
to comply with all applicable rules and regulations of the
Commission and all reporting requirements under the rules and
regulations of the Exchange Act.
(xvi) Cause the Indenture to be qualified under the
TIA not later than the effective date of the Shelf Registration
Statement required by this Agreement, and, in connection
therewith, cooperate with the Trustee and the holders of
Securities to effect such changes to the Indenture as may be
required for such Indenture to be so qualified in accordance
with the terms of the TIA; and execute and use its reasonable
commercial efforts to cause the Trustee thereunder to execute
all documents that may be required to effect such changes and
all other forms and documents required to be filed with the
Commission to enable such Indenture to be so qualified in a
timely manner.
(xvii) Cause all Conversion Shares covered by the
Shelf Registration Statement to be listed or quoted, as the
case may be, on each securities exchange or automated quotation
system on which similar securities issued by the Company are
then listed or quoted.
(xviii) Provide to each Holder upon written request
each document filed with the Commission pursuant to the
requirements of Section 13 and Section 15 of the Exchange Act
after the effective date of the Shelf Registration Statement.
(c) Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice (a "SUSPENSION NOTICE") from the
Company of the existence of any fact of the kind described in Section
4(b)(iii)(D) hereof, such Holder will, and will use its reasonable best efforts
to cause any underwriter(s) in an Underwritten Offering to, forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the Shelf
Registration Statement until:
13
13
(i) such Holder has received copies of the
supplemented or amended Prospectus contemplated by Section
4(b)(xiii) hereof; or
(ii) such Holder is advised in writing by the Company
that the use of the Prospectus may be resumed, and has received
copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus.
If so directed by the Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice of suspension.
(d) Upon the effectiveness of the Shelf Registration Statement,
each Holder shall notify the Company at least three Business Days prior thereto
of any intended distribution of Transfer Restricted Securities pursuant to the
Shelf Registration Statement (a "SALE NOTICE"), which notice shall be effective
for five Business Days. Each Holder of Transfer Restricted Securities, by
accepting the same, agrees to hold any communication by the Company in response
to a Sale Notice in confidence. Upon receipt of a Sale Notice, the Company shall
inform each Holder in writing of the existence of a Suspension Period or
otherwise, of the kind of event described in Section 4(b)(iii)(D).
5. Registration Expenses.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement shall be borne by the Company regardless of
whether a Shelf Registration Statement becomes effective, including, without
limitation:
(i) all registration and filing fees and expenses
(including filings made by any Initial Purchaser or Holders
with the NASD);
(ii) all fees and expenses of compliance with federal
securities and state Blue Sky or securities laws;
(iii) all expenses of printing (including printing of
Prospectuses and certificates for the Common Stock to be issued
upon conversion of the Securities) and the Company's expenses
for messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel to the
Company and, subject to Section 5(b) below, the Holders of
Transfer Restricted Securities;
(v) all application and filing fees in connection
with listing (or authorizing for quotation) the Common Stock on
a national securities exchange or automated quotation system
pursuant to the requirements hereof; and
(vi) all fees and disbursements of independent
certified public accountants of the Company (including the
expenses of any special audit and comfort letters required by
or incident to such performance).
14
14
The Company shall bear its internal expenses (including,
without limitation, all salaries and expenses of their officers and employees
performing legal, accounting or other duties), the expenses of any annual audit
and the fees and expenses of any Person, including special experts, retained by
the Company.
(b) In connection with the Shelf Registration Statement
required by this Agreement, including any amendment or supplement thereto, and
any other documents delivered to any Holders, the Company shall reimburse the
Initial Purchaser and the Holders of Transfer Restricted Securities being
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, which shall be
Xxxxxxx Xxxxxxx & Xxxxxxxx, or such other counsel as may be chosen by a Majority
of Holders for whose benefit the Shelf Registration Statement is being prepared.
6. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Holder,
such Holder's officers and employees and each person, if any, who controls such
Holder within the meaning of the Securities Act (each, an "INDEMNIFIED HOLDER"),
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to resales of the Transfer Restricted
Securities), to which such Indemnified Holder may become subject, insofar as any
such loss, claim, damage, liability or action arises out of, or is based upon:
(i) any untrue statement or alleged untrue statement of a
material fact contained in the Shelf Registration Statement or
Prospectus or any amendment or supplement thereto; or
(ii) the omission or alleged omission to state therein any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading,
and shall reimburse each Indemnified Holder promptly upon demand for any legal
or other expenses reasonably incurred by such Indemnified Holder in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in the Shelf Registration Statement or Prospectus or
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Holder (or its
related Indemnified Holder) specifically for use therein. The foregoing
indemnity agreement is in addition to any liability which the Company may
otherwise have to any Indemnified Holder.
(b) Each Holder, severally and not jointly, shall indemnify and
hold harmless the Company, its officers and employees and each person, if any,
who controls the Company within the meaning of the Securities Act, from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof, to which the Company or any such officer, employee or
controlling person may become subject, insofar as any such loss, claim, damage
or liability or action arises out of, or is based upon:
15
15
(i) any untrue statement or alleged untrue statement of any
material fact contained in the Shelf Registration Statement or
Prospectus or any amendment or supplement thereto; or
(ii) the omission or the alleged omission to state therein 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,
but in each case only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Holder (or its related Indemnified Holder) specifically for use therein,
and shall reimburse the Company and any such officer, employee or controlling
person promptly upon demand for any legal or other expenses reasonably incurred
by the Company or any such officer, employee or controlling person in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any Holder may
otherwise have to the Company and any such officer, employee or controlling
person.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 6 except to the extent it has
been materially prejudiced by such failure and, provided, further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 6.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Holders shall have the right to employ one separate firm to represent
jointly the Holders and their officers, employees and controlling persons who
may be subject to liability arising out of any claim in respect of which
indemnity may be sought by the Holders against the Company under this Section 6
if the Holders seeking indemnification shall have been advised by legal counsel
that there may be one or more legal defenses available to such Holders and their
officers, employees and controlling persons that are different from or
additional to those available to the Issuer, and in that event the fees and
expenses of such separate counsel shall be paid by the Company. No indemnifying
party shall:
(i) without the prior written consent of the indemnified
parties (which consent shall not be unreasonably withheld) settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether
or not
16
16
the indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or
(ii) be liable for any settlement of any such action effected
without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying
party agrees to indemnify and hold harmless any indemnified party from
and against any loss of liability by reason of such settlement or
judgment.
(d) If the indemnification provided for in this Section 6 shall
for any reason be unavailable or insufficient to hold harmless an indemnified
party under Section 6(a) or 6(b) in respect of any loss, claim, damage or
liability (or action in respect thereof) referred to therein, each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability (or action in respect thereof):
(i) in such proportion as is appropriate to reflect the
relative benefits received by the Company from the offering and sale of
the Transfer Restricted Securities on the one hand and a Holder with
respect to the sale by such Holder of the Transfer Restricted Securities
on the other, or
(ii) if the allocation provided by clause (6)(d)(i) is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause 6(d)(i) but
also the relative fault of the Company on the one hand and the Holders
on the other in connection with the statements or omissions or alleged
statements or alleged omissions that resulted in such loss, claim,
damage or liability (or action in respect thereof), as well as any other
relevant equitable considerations.
The relative benefits received by the Company on the one hand and a Holder on
the other with respect to such offering and such sale shall be deemed to be in
the same proportion as the total net proceeds from the offering of the
Securities purchased under the Purchase Agreement (before deducting expenses)
received by the Company, on the one hand, bear to the total net gain received by
such Holder with respect to its sale of Transfer Restricted Securities on the
other. The relative fault of the parties shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Holders on the other, the intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
each Holder agree that it would not be just and equitable if the amount of
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the first sentence of this paragraph
(d). The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above in
this Section 6 shall be deemed to include, for purposes of this Section 6, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim. Notwithstanding the provisions of this Section 6, no Holder
shall be required to contribute any amount in excess of the amount by which the
total price at which the Transfer Restricted Securities purchased by it were
resold exceeds the amount of any damages which such
17
17
Holder has otherwise been required to pay by reason of any 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. The Holders' obligations to contribute as provided
in this Section 6(d) are several and not joint.
7. Rule 144A. In the event the Company is not subject to
Section 13 or 15(d) of the Exchange Act, the Company hereby agrees with each
Holder, for so long as any Transfer Restricted Securities remain outstanding, to
make available to any Holder or beneficial owner of Transfer Restricted
Securities in connection with any sale thereof and any prospective purchaser of
such Transfer Restricted Securities from such Holder or beneficial owner, the
information required by Rule 144A(d)(4) under the Securities Act in order to
permit resales of such Transfer Restricted Securities pursuant to Rule 144A.
8. Participation in Underwritten Registrations. No Holder may
participate in any Underwritten Registration hereunder unless such Holder:
(i) agrees to sell such Holder's Transfer Restricted Securities
on the basis provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements; and
(ii) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up
letters and other documents required under the terms of such
underwriting arrangements.
9. Selection of Underwriters. The Holders of Transfer
Restricted Securities covered by the Shelf Registration Statement who desire to
do so may sell such Transfer Restricted Securities in an Underwritten Offering
if approved by the Company as provided in Section 4(b)(ii). In any such
Underwritten Offering, the investment banker or investment bankers and manager
or managers that will administer the offering will be selected by a Majority of
Holders whose Transfer Restricted Securities are included in such offering;
provided, that such investment bankers and managers must be reasonably
satisfactory to the Company.
10. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any
failure by the Company to comply with its obligations under Section 2 hereof may
result in material irreparable injury to the Initial Purchaser or the Holders
for which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, the Initial Purchaser or any Holder may obtain such relief as may be
required to specifically enforce the Company's obligations under Section 2
hereof. The Company further agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(b) Actions Affecting Transfer Restricted Securities. The
Company shall not, directly or indirectly, take any action with respect to the
Transfer Restricted Securities as a class that would adversely affect the
ability of the Holders of Transfer Restricted Securities to include such
Transfer Restricted Securities in a registration undertaken pursuant to this
Agreement.
18
18
(c) No Inconsistent Agreements. The Company will not, on or
after the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise breaches or results in a default under or violation of
the provisions hereof. In addition, the Company shall not grant to any of its
security holders (other than the Holders of Transfer Restricted Securities in
such capacity) the right to include any of its securities in the Shelf
Registration Statement provided for in this Agreement other than the Transfer
Restricted Securities. The Company has not previously entered into any agreement
(which has not expired or been terminated) granting any registration rights with
respect to its securities to any Person which rights conflict with the
provisions hereof.
(d) Amendments and Waivers. This Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of a Majority of Holders.
(e) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail (registered or certified, return receipt requested), telex, facsimile
transmission, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the registrar under the Indenture or the transfer
agent of the Common Stock, as the case may be; and
(ii) if to the Company:
Anadarko Petroleum Corporation
Anadarko Tower
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Xxxxxxx & Xxxxx LLP
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X'Xxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged, if transmitted by
facsimile; and on the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.
19
19
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities; provided,
however, that (i) this Agreement shall not inure to the benefit of or be binding
upon a successor or assign of a Holder unless and to the extent such successor
or assign acquired Transfer Restricted Securities from such Holder and (ii)
nothing contained herein shall be deemed to permit any assignment, transfer or
other disposition of Transfer Restricted Securities in violation of the terms of
the Purchase Agreement or the Indenture. If any transferee of any Holder shall
acquire Transfer Restricted Securities, in any manner, whether by operation of
law or otherwise, such Transfer Restricted Securities shall be held subject to
all of the terms of this Agreement, and by taking and holding such Transfer
Restricted Securities such person shall be conclusively deemed to have agreed to
be bound by and to perform all of the terms and provisions of this Agreement.
.
(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Securities Held by the Company or Their Affiliates.
Whenever the consent or approval of Holders of a specified percentage of
Transfer Restricted Securities is required hereunder, Transfer Restricted
Securities held by the Company 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.
(i) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(k) Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(l) Entire Agreement. This Agreement is intended by the parties
as a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Company with
respect to the Transfer Restricted Securities. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
20
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
ANADARKO PETROLEUM CORPORATION
By /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Treasurer
XXXXXX BROTHERS INC.
By /s/ Xxxx Xxxxxx
---------------------------------------
Authorized Representative
