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EXHIBIT 4.5
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XXXXXX INTERNATIONAL INC.
and the
SUBSIDIARY GUARANTORS
identified herein
$275,000,000
9 1/2% Senior Notes due 2008
REGISTRATION RIGHTS AGREEMENT
February 13, 1998
Xxxxxxxxx & Company, Inc.
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TABLE OF CONTENTS
PAGE NO.
1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Exchange Offer . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3. Shelf Registration . . . . . . . . . . . . . . . . . . . . . . . . . 6
4. Additional Interest . . . . . . . . . . . . . . . . . . . . . . . . . 7
5. Registration Procedures . . . . . . . . . . . . . . . . . . . . . . . 8
6. Registration Expenses . . . . . . . . . . . . . . . . . . . . . . . . 13
7. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
8. Rules 144 and 144A . . . . . . . . . . . . . . . . . . . . . . . . . 16
9. Underwritten Registrations . . . . . . . . . . . . . . . . . . . . . 16
10. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
a. Remedies . . . . . . . . . . . . . . . . . . . . . . . 16
b. No Inconsistent Agreements . . . . . . . . . . . . . . 16
c. No Piggyback on Registrations . . . . . . . . . . . . . 16
d. Amendments and Waivers . . . . . . . . . . . . . . . . 16
e. Notices . . . . . . . . . . . . . . . . . . . . . . . . 17
f. Successors and Assigns . . . . . . . . . . . . . . . . 17
g. Counterparts . . . . . . . . . . . . . . . . . . . . . 17
h. Governing Law; Submission to Jurisdiction . . . . . . . 17
i. Severability . . . . . . . . . . . . . . . . . . . . . 18
j. Headings . . . . . . . . . . . . . . . . . . . . . . . 00
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XXXXXXXXXXXX RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into as of February 13, 1998 by and among Xxxxxx International, Inc., a
Delaware corporation (the "Company"), Xxxxxx Energy Services, Inc., Xxxxxx
International Sales Corporation, Columbia Petroleum Services Corp.,
International Petroleum Services, Inc., Xxxxxx Environmental Remediation
Technologies, Inc., Xxxxxx Worldwide Services, Corp., Air Drilling
International, Inc. and Air Drilling Services, Inc. (the "Subsidiary
Guarantors" and, together with the Company, the "Issuers") and Xxxxxxxxx &
Company, Inc. (the "Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement, dated
February 6, 1998, among the Company, the Subsidiary Guarantors and the Initial
Purchaser (the "Purchase Agreement"). In order to induce the Initial Purchaser
to enter into the Purchase Agreement, the Issuers have agreed to provide the
registration rights provided for in this Agreement to the Initial Purchaser and
its direct and indirect transferees. The execution and delivery of this
Agreement is a condition to the closing of the transactions contemplated by the
Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings:
Additional Interest: As defined in Section 4(a) hereof.
Advice: As defined in the last paragraph of Section 5 hereof.
Affiliate: With respect to any specified person, "Affiliate"
shall mean any other person directly or indirectly controlling or controlled by
or under direct or indirect common control with such specified person. For the
purposes of this definition, "control," when used with respect to any person,
means the power to direct the management and policies of such person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise and the terms "affiliated," "controlling" and "controlled" have
meanings correlative to the foregoing.
Business Day: Any day except a Saturday, a Sunday or a day on
which banking institutions in New York, New York generally are required or
authorized by law or other government action to be closed.
Company: As defined in the preamble hereof.
Consummate or consummate: When used to qualify the term
"Exchange Offer" shall mean validly and lawfully to issue and deliver the
Exchange Notes pursuant to the Exchange Offer for all Notes validly tendered
and not validly withdrawn pursuant thereto in accordance with the terms of this
Agreement.
Consummation Date: The date that is 30 Business Days immediately
following the date that the Exchange Offer Registration Statement shall have
been declared effective by the SEC.
Effectiveness Period: As defined in Section 3(a) hereof.
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Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC pursuant thereto.
Exchange Date: As defined in Section 2(d) hereof.
Exchange Notes: The 9 1/2% Senior Notes due 2008, Series B, of
the Company, unconditionally guaranteed on a joint and severed basis by each of
the Subsidiary Guarantors, issued pursuant to the Indenture, and that are
identical to the Notes in all material respects, except that the provisions
regarding restrictions on transfer shall be modified, as appropriate, and the
issuance thereof pursuant to the Exchange Offer shall have been registered
pursuant to an effective Registration Statement in compliance with the
Securities Act.
Exchange Offer: An offer to issue, in exchange for any and all
of the Notes, a like aggregate principal amount of Exchange Notes, which offer
shall be made by the Company pursuant to Section 2 hereof.
Exchange Offer Registration Statement: As defined in Section
2(a) hereof.
Indemnified Person: As defined in Section 7(a) hereof.
Indenture: The Indenture, dated as of February __, 1998, among
the Issuers and U.S. Trust Company of Texas, N.A., as trustee thereunder,
pursuant to which the Notes are issued, as amended or supplemented from time to
time in accordance with the terms thereof.
Issue Date: As defined in Section 2(a).
Issuers: As defined in the preamble hereof.
Notes: The 9 1/2% Senior Notes due 2008, Series A, of the
Company, unconditionally guaranteed on a joint and several basis by each of the
Subsidiary Guarantors and, issued pursuant to the Indenture.
Participating Broker-Dealer: As defined in Section 2(e) hereof.
Private Exchange: As defined in Section 2(c) hereof.
Private Exchange Notes: As defined in Section 2(c) hereof.
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated pursuant to the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Notes, Exchange
Notes or Private Exchange Notes covered by such Registration Statement, and all
other amendments and supplements to any such prospectus, including post-
effective amendments, and all material incorporated by reference or deemed to
be incorporated by reference, if any, in such prospectus.
Registration Default: As defined in Section 4(a) hereof.
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Registration Statement: Any registration statement of the
Company and the Subsidiary Guarantors that covers any of the Notes, Exchange
Notes or Private Exchange Notes pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
statement or Prospectus, including pre- and post-effective amendments, all
exhibits thereto and all material incorporated by reference or deemed to be
incorporated by reference, if any, in such registration statement.
Rule 144: Rule 144 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 144A: Rule 144A promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 158: Rule 158 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 174: Rule 174 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 415: Rule 415 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 424: Rule 424 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
Shelf Registration: As defined in Section 3 hereof.
Shelf Registration Statement: As defined in Section 3 hereof.
Special Counsel: Xxxxx & Xxxxx, L.L.P., special counsel to the
holders of Transfer Restricted Securities, or such other counsel as shall be
agreed upon by the Issuers and holders of a majority in aggregate principal
amount of Transfer Restricted Securities, the expenses of which holders of
Transfer Restricted Securities will be reimbursed by the Issuers pursuant to
Section 6.
TIA: The Trust Indenture Act of 1939, as amended.
Transfer Restricted Securities: The Notes, upon original
issuance thereof, and at all times subsequent thereto, each Exchange Note as to
which Section 3(a)(ii) hereof is applicable upon original issuance and at all
times subsequent thereto and each Private Exchange Note upon original issuance
thereof
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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) the date on which any such Note has been exchanged by a person
other than a Participating Broker-Dealer for an Exchange Note (other than with
respect to an Exchange Note as to which Section 3(a)(ii) hereof applies)
pursuant to the Exchange Offer, (ii) with respect to Exchange Notes received by
Participating Broker-Dealers in the Exchange Offer, the earlier of (x) the date
on which such Exchange Note has been sold by such Participating Broker-Dealer
by means of the Prospectus contained in the Exchange Offer Registration
Statement and (y) the date on which the Exchange Offer Registration Statement
has been effective under the Securities Act for a period of one year after the
Consummation Date, (iii) a Shelf Registration Statement covering such Note,
Exchange Note or Private Exchange Note 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 Shelf Registration
Statement, (iv) the date on which such Note, Exchange Note or Private Exchange
Note, as the case may be, is distributed to the public pursuant to Rule 144 (or
any similar provisions then in effect) or is saleable pursuant to Rule 144(k)
promulgated by the SEC pursuant to the Securities Act or (v) the date on which
such Note, Exchange Note or Private Exchange Note, as the case may be, ceases
to be outstanding for purposes of the Indenture or any other indenture under
which such Exchange Note or Private Exchange Note was issued.
Trustee: The trustee under the Indenture.
Underwritten Registration or Underwritten Offering: A
registration in connection with which securities are sold to an underwriter for
reoffering to the public pursuant to an effective Registration Statement.
2. EXCHANGE OFFER.
a. To the extent not prohibited by any applicable law or applicable
interpretation of the SEC or the staff of the SEC, the Issuers shall (A)
prepare and, on or prior to 60 days after the date of original issuance of the
Notes (the "Issue Date"), file with the SEC a Registration Statement under the
Securities Act with respect to an offer by the Company to the holders of the
Notes to issue and deliver to such holders, in exchange for Notes, a like
principal amount of Exchange Notes, (B) use their best efforts to cause the
Registration Statement relating to the Exchange Offer to be declared effective
by the SEC under the Securities Act on or prior to 180 days after the Issue
Date, and (C) commence the Exchange Offer and use best efforts to issue, on or
prior to the Consummation Date, the Exchange Notes. The offer and sale of the
Exchange Notes pursuant to the Exchange Offer shall be registered pursuant to
the Securities Act on the appropriate form (the "Exchange Offer Registration
Statement") and duly registered or qualified under all applicable state
securities or Blue Sky laws and will comply with all applicable tender offer
rules and regulations under the Exchange Act and state securities or Blue Sky
laws. The Exchange Offer shall not be subject to any condition, other than
that the Exchange Offer does not violate any applicable law or interpretation
of the SEC or the staff of the SEC. Upon consummation of the Exchange Offer in
accordance with this Section 2, the Issuers shall have no further registration
obligations other than with respect to (i) Private Exchange Notes, (ii)
Exchange Notes held by Participating Broker-Dealers and (iii) Notes or Exchange
Notes as to which Section 3(a)(ii) hereof applies. No securities shall be
included in the Exchange Offer Registration Statement other than the Exchange
Notes.
b. The Issuers may require each holder of Notes as a condition to
its participation in the Exchange Offer to represent to the Issuers and their
counsel in writing (which may be contained in the applicable letter of
transmittal) that at the time of the consummation of the Exchange Offer (i) any
Exchange Notes received by such holder will be acquired in the ordinary course
of its business, (ii) such holder will
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have no arrangement or understanding with any person to participate in the
distribution (within the meaning of the Securities Act) of the Exchange Notes
and (iii) such holder is not an Affiliate of an Issuer, or if it is an
Affiliate of an Issuer, it will comply with the registration and prospectus
delivery requirements of the Securities Act, to the extent applicable.
c. To the extent not prohibited by applicable law or applicable
interpretation of the SEC or the staff of the SEC, if, prior to consummation of
the Exchange Offer, the Initial Purchaser holds any Notes acquired by it and
having, or which are reasonably likely to be determined to have, the status of
an unsold allotment in the initial distribution, or any other holder of Notes
is not entitled to participate in the Exchange Offer, the Company upon the
request of the Initial Purchaser or any such holder shall, simultaneously with
the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to
the Initial Purchaser and any such holder, in exchange (the "Private Exchange")
for such Notes held by the Initial Purchaser and any such holder, a like
principal amount of debt securities of the Company, guaranteed by each of the
Subsidiary Guarantors on an unsecured senior basis, that are identical in all
material respects to the Exchange Notes (the "Private Exchange Notes") (and
which are issued pursuant to the same indenture as the Exchange Notes). The
Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
d. Unless the Exchange Offer would not be permitted by any
applicable law or interpretation of the SEC or the staff of the SEC, the
Company shall mail the Exchange Offer Prospectus and appropriate accompanying
documents, including appropriate letters of transmittal, to each holder of
Notes providing, in addition to such other disclosures as are required by
applicable law:
i. that the Exchange Offer is being made pursuant to this
Agreement and that all Notes validly tendered will be accepted for
exchange;
ii. the date of acceptance for exchange (the "Exchange Date"),
which date shall in no event be later than the Consummation Date (unless
otherwise required by applicable law);
iii. that holders of Notes electing to have a Note exchanged
pursuant to the Exchange Offer will be required to surrender such Note,
together with the enclosed letters of transmittal, to the institution
and at the address (located in the city of New York) specified in the
notice prior to the close of business on the Exchange Date; and
iv. that holders of Notes that do not tender all such
securities pursuant to the Exchange Offer may no longer have any
registration rights hereunder with respect to Notes not tendered.
Promptly after the Exchange Date, the Company shall:
(i) accept for exchange all Notes or portions thereof validly
tendered and not validly withdrawn pursuant to the Exchange Offer or the
Private Exchange; and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Notes or portions thereof so accepted for exchange by
the Company, and issue, cause the Trustee under the Indenture (or the
indenture pursuant to which the Exchange Notes are issued) to
authenticate, and mail to each holder of Notes, Exchange Notes equal in
principal amount to the principal amount of the Notes surrendered by
such holder.
e. The Issuers and the Initial Purchaser acknowledge that the staff
of the SEC has taken the position that any broker-dealer that owns Exchange
Notes that were received by such broker-dealer for its
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own account in the Exchange Offer (a "Participating Broker-Dealer") may be
deemed to be an "underwriter" within the meaning of the Securities Act and must
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Notes (other than a resale of an
unsold allotment resulting from the original offering of the Notes). The
Issuers and the Initial Purchaser also acknowledge that the staff of the SEC
has taken the position that if the Prospectus contained in the Exchange Offer
Registration Statement includes a plan of distribution containing a statement
to the above effect and the means by which Participating Broker-Dealers may
resell the Exchange Notes, without naming the Participating Broker Dealers or
specifying the amount of Exchange Notes owned by them, such Prospectus may be
delivered by Participating Broker-Dealers to satisfy their prospectus delivery
obligations under the Securities Act in connection with resales of Exchange
Notes for their own accounts, so long as the Prospectus otherwise meets the
requirements of the Securities Act. In light of the foregoing, if requested by
a Participating Broker-Dealer, the Issuers agree (x) to use their best efforts
to keep the Exchange Offer Registration Statement continuously effective for a
period of up to one year or such earlier date as each Participating Broker-
Dealer shall have notified the Company in writing that such Participating
Broker-Dealer has resold all Exchange Notes acquired in the Exchange Offer, (y)
to comply with the provisions of Section 5 of this Agreement, as they relate to
the Exchange Offer and the Exchange Offer Registration Statement and (z) to
deliver to such Participating Broker-Dealer a "cold comfort" letter of the
independent public accountants of the Issuers and a legal opinion as to matters
reasonably requested by such Participating Broker-Dealer relating to the
Exchange Offer Registration Statement and the related Prospectus and any
amendments or supplements thereto.
f. The Initial Purchaser shall have no liability to any
Participating Broker-Dealer with respect to any request made pursuant to
Section 2(e).
g. Accrued but unpaid interest on any Note that is exchanged for an
Exchange Note or a Private Exchange Note pursuant to this Agreement shall be
paid on or before the first interest payment date on the Exchange Notes and the
Private Exchange Notes, as the case may be.
h. 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 shall provide that the Exchange Notes
shall not be subject to the transfer restrictions set forth in the Indenture,
except in any case where an Exchange Note constitutes a Transfer Restricted
Security. The Indenture or such indenture shall provide that the Exchange
Notes, the Private Exchange Notes and the Notes shall vote and consent together
on all matters as one class and that neither the Exchange Notes, the Private
Exchange Notes nor the Notes will have the right to vote or consent as a
separate class on any matter.
3. SHELF REGISTRATION.
a. If (i) the Company is not permitted to file the Exchange Offer
Registration Statement or to consummate the Exchange Offer because the Exchange
Offer is not permitted by applicable law or SEC policy, (ii) any holder of a
Note notifies the Company on or prior to the Exchange Date that (A) due to a
change in law or policy it is not entitled to participate in the Exchange
Offer, (B) due to a change in law or policy it may not resell the Exchange
Notes acquired by it in the Exchange Offer to the public without delivering a
prospectus and the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such holder or
(C) it is a broker-dealer and owns Notes (including the Initial Purchaser that
holds Notes as part of an unsold allotment from the original offering of the
Notes) acquired directly from an Issuer or an Affiliate of an Issuer or (iii)
any holder of Private Exchange Notes so requests within 120 days after the
consummation of the Private Exchange (each such event referred to in clauses
(i) through (iii), a "Shelf Filing Event"), the Issuers shall cause to be filed
with the SEC pursuant to
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Rule 415 a shelf registration statement (the "Shelf Registration Statement") on
or prior to the later of (x) 90 days after the Issue Date and (y) 30 days after
the occurrence of such Shelf Filing Event, relating to all Transfer Restricted
Securities (the "Shelf Registration") the holders of which have provided the
information required pursuant to Section 3(b) hereof, and shall use their best
efforts to have the Shelf Registration Statement declared effective by the SEC
on or prior to 90 days after the occurrence of such Shelf Filing Event,
provided that if the Company has not consummated the Exchange Offer within 210
days of the Issue Date, then the Issuers shall cause the Shelf Registration
Statement to be filed with the SEC on or prior to the 211th day after the Issue
Date and shall use their best efforts to have the Shelf Registration Statement
declared effective by the SEC within 60 days of the date of filing thereof. In
such circumstances, the Issuers shall use their best efforts to keep the Shelf
Registration Statement continuously effective under the Securities Act, until
(A) the first anniversary of the Issue Date (subject to extension pursuant to
Section 5 hereof) or (B) if sooner, the date immediately following the date
that all Transfer Restricted Securities covered by the Shelf Registration
Statement have been sold pursuant thereto (the "Effectiveness Period");
provided, however, that the Effectiveness Period shall be extended to the
extent required to permit dealers to comply with the applicable prospectus
delivery requirements of Rule 174 and as otherwise provided herein.
b. No holder of Transfer Restricted Securities may include any of
its Transfer Restricted Securities in any Shelf Registration Statement pursuant
to this Agreement unless and until such holder furnishes to the Company in
writing, within 30 days after receipt of a request therefor, such information
as the Company may reasonably request for use in connection with any Shelf
Registration Statement or Prospectus or preliminary prospectus included
therein. No holder of Transfer Restricted Securities shall be entitled to
Additional Interest pursuant to Section 4 hereof unless and until such holder
shall have provided all such reasonably requested information. Each holder of
Transfer Restricted Securities as to which any Shelf Registration Statement is
being effected agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such holder not materially misleading.
4. ADDITIONAL INTEREST.
a. The parties hereto agree that the holders of Transfer Restricted
Securities will suffer damages if the Issuers fail to fulfill their obligations
pursuant to Section 2 or Section 3, as applicable, and that it would not be
feasible to ascertain the extent of such damages. Accordingly, in the event
that (i) the applicable Registration Statement is not filed with the SEC on or
prior to the date specified herein for such filing, (ii) the applicable
Registration Statement has not been declared effective by the SEC on or prior
to the date specified herein for such effectiveness after such obligation
arises, (iii) if the Exchange Offer is required to be Consummated hereunder,
the Company has not exchanged Exchange Notes for all Notes validly tendered and
not validly withdrawn in accordance with the terms of the Exchange Offer by the
Consummation Date or (iv) the applicable Registration Statement is filed and
declared effective but shall thereafter cease to be effective without being
succeeded immediately by any additional Registration Statement covering the
Notes, the Exchange Notes or the Private Exchange Notes, as the case may be,
which has been filed and declared effective (each such event referred to in
clauses (i) through (iv), a "Registration Default"), then the interest rate on
Transfer Restricted Securities will increase ("Additional Interest"), with
respect to the first 90-day period immediately following the occurrence of such
Registration Default, by 0.50% per annum and will increase by an additional
0.50% per annum with respect to each subsequent 90-day period until all
Registration Defaults have been cured, up to a maximum amount of 2% per annum
with respect to all Registration Defaults. Following the cure of a
Registration Default, the accrual of Additional Interest with respect to such
Registration Default will cease and upon the cure of all Registration Defaults
the interest rate will revert to the original rate.
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b. The Company shall notify the Trustee and paying agent under the
Indenture (or the trustee and paying agent under such other indenture under
which the Transfer Restricted Securities are issued) immediately upon the
happening of each and every Registration Default. The Company shall pay the
Additional Interest due on the Transfer Restricted Securities by depositing
with the paying agent (which shall not be the Company for these purposes) for
the Transfer Restricted Securities, in trust, for the benefit of the holders
thereof, prior to 11:00 A.M. on the next interest payment date specified by the
Indenture (or such other indenture), sums sufficient to pay the Additional
Interest then due. The Additional Interest due shall be payable on each
interest payment date specified by the Indenture (or such other indenture) to
the record holder entitled to receive the interest payment to be made on such
date. Each obligation to pay Additional Interest shall be deemed to accrue
from and including the date of the applicable Registration Default.
c. The parties hereto agree that the Additional Interest provided
for in this Section 4 constitutes a reasonable estimate of the damages that
will be suffered by holders of Transfer Restricted Securities by reason of the
happening of any Registration Default.
5. REGISTRATION PROCEDURES.
In connection with the Issuers' registration obligations
hereunder, the Issuers shall effect such registrations on the appropriate form
available for the sale of the Notes, the Exchange Notes or Private Exchange
Notes, as applicable, to (i) in the case of the Exchange Offer, permit the
exchange of Exchange Notes for Notes in the Exchange Offer and, if applicable,
resales of Exchange Notes by Participating Broker-Dealers and (ii) in the case
of a Shelf Registration, permit the sale of the applicable Transfer Restricted
Securities in accordance with the method or methods of disposition thereof
specified by the holders of such Transfer Restricted Securities, and pursuant
thereto the Issuers shall as expeditiously as possible:
a. in the case of a Shelf Registration, a reasonable period of time
prior to the initial filing of a Shelf Registration Statement or Prospectus and
a reasonable period of time prior to the filing of any amendment or supplement
thereto (including any document that would be incorporated or deemed to be
incorporated therein by reference), furnish to the holders of the Transfer
Restricted Securities included in such Shelf Registration Statement, their
Special Counsel and the managing underwriters, if any, copies of all such
documents proposed to be filed, which documents (other than those incorporated
or deemed to be incorporated by reference) will be subject to the review of
such holders, their Special Counsel and such underwriters, if any, and cause
the officers and directors of the Issuers, counsel to the Issuers and
independent certified public accountants to the Issuers to respond to such
reasonable inquiries as shall be necessary, in the opinion of respective
counsel to such holders and such underwriters, to conduct a reasonable
investigation within the meaning of the Securities Act; provided, however, that
the foregoing inspection and information gathering shall be coordinated by the
Initial Purchaser, and on behalf of any other persons by one counsel designated
by and on behalf of such other persons; and provided, further, that the Issuers
shall not be deemed to have kept a Shelf Registration Statement effective
during the applicable period if any of them voluntarily takes or fails to take
any reasonable action that results in holders of the Transfer Restricted
Securities covered thereby not being able to sell such Transfer Restricted
Securities pursuant to Federal securities laws during that period (and the time
period during which such Shelf Registration Statement is required to remain
effective hereunder shall be extended by the number of days during which such
holders of Transfer Restricted Securities are not able to sell such Transfer
Restricted Securities). The Issuers shall not file any such Shelf Registration
Statement or related Prospectus or any amendments or supplements thereto to
which the holders of a majority in aggregate principal amount of the Transfer
Restricted Securities included in such Shelf Registration Statement shall
reasonably object on a timely basis;
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b. prepare and file with the SEC such amendments, including post-
effective amendments, to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable time
period required hereunder; cause the related Prospectus to be supplemented by
any required Prospectus supplement, and as so supplemented to be filed pursuant
to Rule 424; and comply with the provisions of the Securities Act and the
Exchange Act with respect to the disposition of all securities covered by such
Registration Statement during such period in accordance with the intended
methods of disposition by the sellers thereof set forth in such Registration
Statement as so amended or in such Prospectus as so supplemented;
c. notify the holders of Transfer Restricted Securities to be sold
or, in the case of Transfer Restricted Securities tendered for in an Exchange
Offer, their Special Counsel and the managing underwriters, if any, promptly,
and (if requested by any such person), confirm such notice in writing, (i)(A)
when a Prospectus or any Prospectus supplement or post-effective amendment is
proposed to be filed and (B) with respect to a Registration Statement or any
post-effective amendment, when the same has become effective, (ii) of any
request by the SEC or any other Federal or state governmental authority for
amendments or supplements to a Registration Statement or related Prospectus or
for additional information, (iii) of the issuance by the SEC, any state
securities commission, any other governmental agency or any court of any stop
order, order or injunction suspending or enjoining the use of a Prospectus or
the effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Notes, Exchange Notes or Private Exchange
Notes for sale in any jurisdiction, or the initiation or threatening of any
proceeding for such purpose, and (v) of the happening of any event or
information becoming known that makes any statement made in a Registration
Statement or related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that
requires the making of any changes in such Registration Statement, Prospectus
or documents so that 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 a 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;
d. use their best efforts to avoid the issuance of or, if issued,
obtain the withdrawal of any order enjoining or suspending the use of a
Prospectus or the effectiveness of a Registration Statement or the lifting of
any suspension of the qualification (or exemption from qualification) of any of
the Notes, Exchange Notes or Private Exchange Notes for sale in any
jurisdiction, at the earliest practicable moment;
e. if a Shelf Registration Statement is filed pursuant to Section 3
hereof and if requested by the managing underwriters, if any, or the holders of
a majority in aggregate principal amount of the Transfer Restricted Securities
being sold pursuant to such Shelf Registration Statement, (i) promptly
incorporate in a Prospectus supplement or post-effective amendment such
information as the managing underwriters, if any, and such holders reasonably
believe should be included therein and (ii) make all required filings of such
Prospectus supplement or such post-effective amendment under the Securities Act
as soon as practicable after the Company has received notification of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment; provided, however, that the Issuers shall not be required to take
any action pursuant to this Section 5(e) that would, in the opinion of counsel
for the Issuers, violate applicable law;
f. upon written request to the Company, furnish to each holder of
Notes, Exchange Notes or Private Exchange Notes to be exchanged or sold
pursuant to a Registration Statement, their Special Counsel and each managing
underwriter, if any, without charge, at least one conformed copy of such
Registration
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Statement and each amendment thereto, including financial statements and
schedules, all documents incorporated or deemed to be incorporated therein by
reference, and all exhibits to the extent requested (including those previously
furnished or incorporated by reference) as soon as practicable after the filing
of such documents with the SEC;
g. deliver to each holder of Notes, Exchange Notes or Private
Exchange Notes to be exchanged or sold pursuant to a Registration Statement,
their Special Counsel and the underwriters, if any, without charge, as many
copies of the Prospectus (including each form of prospectus) and each amendment
or supplement thereto as such persons reasonably request; and the Issuers
hereby consent to the use of such Prospectus and each amendment or supplement
thereto by each of the selling holders of Transfer Restricted Securities and
the underwriters, if any, in connection with the offering and sale of the
Transfer Restricted Securities covered by such Prospectus and any amendment or
supplement thereto;
h. prior to any public offering of Notes, Exchange Notes or Private
Exchange Notes, use their best efforts to register or qualify or cooperate with
the holders of Notes, Exchange Notes or Private Exchange Notes to be sold or
tendered for the underwriters, if any, and their respective counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Notes, Exchange Notes or Private
Exchange Notes for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any such holder or underwriter
reasonably requests in writing; keep each such registration or qualification
(or exemption therefrom) effective during the period such Registration
Statement is required to be kept effective hereunder and do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Notes, Exchange Notes or Private Exchange Notes covered by
the applicable Registration Statement; provided, however, that the Issuers
shall not be required to (i) qualify generally to do business in any
jurisdiction where they are not then so qualified or (ii) take any action which
would subject them to general service of process or to taxation in any
jurisdiction where they are not so subject;
i. in connection with any sale or transfer of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the holders thereof and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to be sold, which
certificates shall not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Company and to enable such
Transfer Restricted Securities to be in such authorized denominations and
registered in such names as the managing underwriters, if any, or such holders
may request at least two Business Days prior to any sale of Transfer Restricted
Securities;
j. upon the occurrence of any event contemplated by Section 5(c)(v),
as promptly as practicable, prepare a supplement or amendment, including, if
appropriate, a post-effective amendment, to each Registration Statement or a
supplement to the related Prospectus or any document incorporated or deemed to
be incorporated therein by reference, and file any other required document so
that, as thereafter delivered, such 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;
k. prior to the effective date of the Exchange Offer Registration
Statement, to provide a CUSIP number for the Exchange Notes (and Private
Exchange Notes if applicable);
l. if a Shelf Registration Statement is filed pursuant to Section 3
hereof, enter into such agreements (including an underwriting agreement in
form, scope and substance as is customary in
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underwritten offerings) and take all such other reasonable actions in
connection therewith (including those reasonably requested by the managing
underwriters, if any, or the holders of a majority in aggregate principal
amount of the Transfer Restricted Securities being sold) in order to expedite
or facilitate the disposition of such Transfer Restricted Securities, and,
whether or not an underwriting agreement is entered into and whether or not the
registration is an underwritten registration, (i) make such representations and
warranties to the holders of such Transfer Restricted Securities and the
underwriters, if any, with respect to the business of the Company and its
subsidiaries (including with respect to businesses or assets acquired or to be
acquired by any of them), and the Shelf Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by reference
therein, in each case, in form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings, and confirm the same if and
when requested; (ii) obtain opinions of counsel to the Issuers and updates
thereof (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriters, if any, and Special
Counsel to the holders of the Transfer Restricted Securities being sold),
addressed to each selling holder of Transfer Restricted Securities and each of
the underwriters, if any, covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as may be reasonably
requested by such Special Counsel and underwriters; (iii) use their best
efforts to obtain customary "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if necessary, any
other independent certified public accountants of any subsidiary of the Company
or of any business acquired by the Company for which financial statements and
financial data is, or is required to be, included in the Shelf Registration
Statement), addressed (where reasonably possible) to each selling holder of
Transfer Restricted Securities and each of the underwriters, if any, such
letters to be in customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with underwritten offerings;
(iv) if an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable to the selling
holders and the underwriters, if any, than those set forth in Section 7 hereof
(or such other provisions and procedures acceptable to holders of a majority in
aggregate principal amount of Transfer Restricted Securities covered by such
Shelf Registration Statement and the managing underwriters, if any); and (v)
deliver such documents and certificates as may be reasonably requested by the
holders of a majority in aggregate principal amount of the Transfer Restricted
Securities being sold, their Special Counsel and the managing underwriters, if
any, to evidence the continued validity of the representations and warranties
made pursuant to clause (i) above and to evidence compliance with any customary
conditions contained in the underwriting agreement or other agreement entered
into by the Issuers;
m. in the case of a Shelf Registration, make available for
inspection by a representative of the holders of Transfer Restricted Securities
being sold, any underwriter participating in any such disposition of Transfer
Restricted Securities, and any attorney, consultant or accountant retained by
such selling holders or underwriter, at the offices where normally kept, during
reasonable business hours, all financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries (including with
respect to businesses and assets acquired or to be acquired to the extent that
such information is available to the Company), and cause the officers,
directors, agents and employees of the Company and its subsidiaries (including
with respect to businesses and assets acquired or to be acquired to the extent
that such information is available to the Company) to supply all information in
each case reasonably requested by any such representative, underwriter,
attorney, consultant or accountant in connection with such Shelf Registration;
provided, however, that such persons shall first agree in writing with the
Company that any information that is reasonably and in good faith designated by
the Company in writing as confidential at the time of delivery of such
information shall be kept confidential by such persons, unless (i) disclosure
of such information is required by court or administrative order or is
necessary to respond to inquiries of regulatory authorities, (ii) disclosure of
such information is required by law (including any disclosure requirements
pursuant to Federal securities laws in connection with the filing of the Shelf
Registration Statement or the use of any Prospectus),
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(iii) such information becomes generally available to the public other than as
a result of a disclosure or failure to safeguard such information by such
person or (iv) such information becomes available to such person from a source
other than the Company and its subsidiaries and such source is not bound by a
confidentiality agreement; and provided, further, that the foregoing inspection
and information gathering shall be coordinated by the Initial Purchaser and on
behalf of any other persons, by one counsel designated by and on behalf of such
other persons;
n. provide an indenture trustee for the Notes and/or the Exchange
Notes and Private Exchange Notes, as the case may be, and cause an indenture to
be qualified under the TIA not later than the effective date of the first
Registration Statement relating to the Notes and/or the Exchange Notes and
Private Exchange Notes, as the case may be; and if such indenture shall be the
Indenture, in connection therewith, cooperate with the Trustee and the holders
of the Notes and/or the Exchange Notes and Private Exchange Notes, to effect
such changes to the Indenture as may be required for the Indenture to be (or to
remain) so qualified in accordance with the terms of the TIA; and execute, and
use its best efforts to cause the Trustee to execute, all customary documents
as may be required to effect such changes, and all other forms and documents
required to be filed with the SEC to enable the Indenture to be (or to remain)
so qualified in a timely manner;
o. comply with all applicable rules and regulations of the SEC and
make generally available to their security holders earning statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule 158,
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 Transfer Restricted Securities are
sold to underwriters in a firm commitment or reasonable efforts underwritten
offering and (ii) if not sold to underwriters in such an offering, commencing
on the first day of the first fiscal quarter after the effective date of a
Registration Statement, which statement shall cover said period, consistent
with the requirements of Rule 158; and
p. cooperate with each seller of Transfer Restricted Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Transfer Restricted Securities and
their respective counsel in connection with any filings required to be made
with the National Association of Securities Dealers, Inc.
The Issuers may require a holder of Transfer Restricted
Securities to be included in a Registration Statement to furnish to the Issuers
such information regarding the distribution of such Transfer Restricted
Securities as is required by law to be disclosed in such Registration Statement
and the Issuers may exclude from such Registration Statement the Transfer
Restricted Securities of any holder who unreasonably fails to furnish such
information within a reasonable time after receiving such request.
If any such Registration Statement refers to any holder by name
or otherwise as the holder of any securities of an Issuer, then such holder
shall have the right to require (i) the insertion therein of language, in form
and substance reasonably satisfactory to such holder, to the effect that the
holding by such holder of such securities is not to be construed as a
recommendation by such holder of the investment quality of the Issuers'
securities covered thereby and that such holding does not imply that such
holder will assist in meeting any future financial requirements of the Issuers
or (ii) in the event that such reference to such holder by name or otherwise is
not required by the Securities Act, the deletion of the reference to such
holder in any amendment or supplement to the Registration Statement filed or
prepared subsequent to the time that such reference ceases to be required.
In the case of a Shelf Registration pursuant to Section 3 hereof,
each holder of Transfer Restricted Securities agrees by acquisition of such
Transfer Restricted Securities that, upon receipt of any
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notice from the Company of the happening of any event of the kind described in
Section 5(c)(ii), 5(c)(iii), 5(c)(iv) or 5(c)(v) hereof, such holder will
forthwith discontinue disposition of such Transfer Restricted Securities
covered by such Registration Statement or Prospectus until such holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 5(j) hereof, or until it is advised in writing (the "Advice") by the
Company that the use of the applicable Prospectus may be resumed, and, in
either case, has received copies of any additional or supplemental filings that
are incorporated or deemed to be incorporated by reference in such Prospectus.
If the Company shall give any such notice, the Effectiveness Period shall be
extended by the number of days during such period from and including the date
of the giving of such notice to and including the date when each holder of
Transfer Restricted Securities covered by such Registration Statement shall
have received (x) the copies of the supplemented or amended Prospectus
contemplated by Section 5(j) hereof or (y) the Advice, and, in either case, has
received copies of any additional or supplemental filings that are incorporated
or deemed to be incorporated by reference in such Prospectus.
6. REGISTRATION EXPENSES.
All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuers shall be borne by the Issuers
whether or not any Registration Statement is filed or becomes effective and
whether or not any Notes, Exchange Notes or Private Exchange Notes are issued
or sold pursuant to any Registration Statement. The fees and expenses referred
to in the foregoing sentence shall include, without limitation, (i) all
registration and filing fees (including, without limitation, fees and expenses
(A) with respect to filings required to be made with the National Association
of Securities Dealers, Inc. and (B) in compliance with securities or Blue Sky
laws), (ii) printing expenses (including, without limitation, expenses of
printing Prospectuses), (iii) reasonable fees and disbursements of counsel for
the Issuers and the Special Counsel, (iv) fees and disbursements of all
independent certified public accountants referred to in Section 2(e) and
Section 5(l)(iii) hereof (including, without limitation, the expenses of any
special audit and "cold comfort" letters required by or incident to such
performance), (v) if required by applicable law, including the rules of the
National Association of Securities Dealers, Inc., the reasonable fees and
expenses of any "qualified independent underwriter" and its counsel and (vi)
fees and expenses of all other persons retained by the Issuers. In addition,
the Issuers shall pay their internal expenses (including, without limitation,
all salaries and expenses of their respective officers and employees performing
legal or accounting duties), the expense of any annual audit and the fees and
expenses incurred in connection with the listing of the Notes, Exchange Notes
or Private Exchange Notes to be registered on any securities exchange.
Notwithstanding the foregoing or anything in this Agreement to the contrary,
each holder of Transfer Restricted Securities shall pay all underwriting
discounts and commissions of any underwriters with respect to any Notes,
Exchange Notes or Private Exchange Notes sold by it.
7. INDEMNIFICATION.
a. The Issuers agree, jointly and severally, to indemnify and hold
harmless (i) the Initial Purchaser, each holder of Notes, Exchange Notes and
Private Exchange Notes and each Participating Broker-Dealer, (ii) each person,
if any, who controls (within the meaning of Section 15 of the Act or Section 20
of the Exchange Act) any of the foregoing (any of the persons referred to in
this clause (ii) being hereinafter referred to as a ("controlling person")) and
(iii) the respective officers, directors, partners, employees, representatives
and agents of the Initial Purchaser, each holder of Notes, Exchange Notes and
Private Exchange Notes, each Participating Broker-Dealer and any controlling
person (any person referred to in clause (i), (ii) or (iii) may hereinafter be
referred to as an "Indemnified Person"), from and against any and all losses,
claims, damages, liabilities and judgments arising out of or relating to any
untrue statement or alleged untrue statement of a material fact contained in
any Registration Statement, Prospectus or
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preliminary prospectus or in any amendment or supplement thereto, or arising
out of or relating to any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein (in the case of any Prospectus or preliminary prospectus or supplement
thereto, in light of the circumstances under which they were made) not
misleading, except insofar as such losses, claims, damages, liabilities or
judgments are caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to any Indemnified Person
furnished in writing to the Issuers by or on behalf of such Indemnified Person
expressly for use therein; provided, that the indemnity agreement contained in
this Section 7(a) with respect to any preliminary prospectus or amended
preliminary prospectus shall not inure to the benefit of any Indemnified Person
from whom the person asserting any such loss, expense, liability or claim
purchased the securities which is the subject thereof, if the Prospectus
corrected any such alleged untrue statement or omission and if such Indemnified
Person failed to send or give a copy of the written Prospectus, excluding any
documents incorporated by reference, to such person at or prior to the written
confirmation of the sale of securities to such person, provided that the Issuer
has delivered the Prospectus to the Initial Purchaser in requisite quantity on
a timely basis to permit such delivery or sending.
b. In case any action shall be brought against any Indemnified
Person, based upon any Registration Statement or any such Prospectus or
preliminary prospectus or any amendment or supplement thereto and with respect
to which indemnity may be sought against the Issuers hereunder, such
Indemnified Person shall promptly notify the Issuers in writing and the Company
shall assume the defense thereof, including the employment of counsel
reasonably satisfactory to such Indemnified Person and payment of all fees and
expenses. Any Indemnified Person shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such Indemnified
Person, unless (i) the employment of such counsel shall have been specifically
authorized in writing by the Issuers, (ii) the Company shall have failed to
assume the defense and employ counsel or pay all such fees and expenses or
(iii) the named parties to any such action (including any impleaded parties)
include both such Indemnified Person and an Issuer and such Indemnified Person
shall have been advised by counsel that there may be one or more legal defenses
available to it which are different from or additional to those available to
any such Issuer (in which case the Company shall not have the right to assume
the defense of such action on behalf of such Indemnified Person, it being
understood, however, that the Issuers shall not, in connection with any one
such action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances,
be liable for the reasonable fees and expenses of more than one separate firm
of attorneys (in addition to any local counsel) for all such Indemnified
Persons, which firm shall be designated in writing by such Indemnified Persons,
and that all such reasonable fees and expenses shall be reimbursed as they are
incurred). The Issuers shall not be liable for any settlement of any such
action effected without their written consent but if settled with the written
consent of the Issuers, the Issuers agree, jointly and severally, to indemnify
and hold harmless each Indemnified Person from and against any loss or
liability by reason of such settlement. No Issuer shall, without the prior
written consent of each Indemnified Person, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Person is
a party and indemnity could have been sought hereunder by such Indemnified
Person, unless such settlement includes an unconditional release of such
Indemnified Person from all liability on claims that are the subject matter of
such proceeding.
c. In connection with any Registration Statement pursuant to which a
holder of Transfer Restricted Securities offers or sells Transfer Restricted
Securities, such holder agrees, severally and not jointly, to indemnify and
hold harmless the Issuers, their respective directors and officers and any
person controlling an 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 Issuers to each Indemnified Person but only with respect to
information relating to such holder furnished in writing by or on behalf of
such holder expressly
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for use in such Registration Statement. In any such case in which any action
shall be brought against an Issuer, any director or officer of an Issuer or any
person controlling an Issuer based on such Registration Statement and in
respect of which indemnity may be sought against a holder of Transfer
Restricted Securities, such holder shall have the rights and duties given to
the Issuers (except that if an Issuer shall have assumed the defense thereof,
such holder shall not be required to do so, but may employ separate counsel
therein and participate in the defense thereof but the fees and expenses of
such counsel shall be at the expense of such holder), and the Issuers, their
respective directors and officers and any person controlling an Issuer shall
have the rights and duties given to the Indemnified Persons by Section 7(b)
hereof.
d. If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to herein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by each indemnifying party on the one
hand and the indemnified party on the other hand from the offering of the
Notes, the Exchange Notes or the Private Exchange Notes, as the case may be (it
being expressly understood and agreed that the relative benefits received by
the Issuers from the offering of the Notes, Exchange Notes or Private Exchange
Notes, as the case may be, shall be the amount of the net proceeds received by
the Company from the sale of the Notes to the Initial Purchaser), or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of each
indemnifying party on the one hand and the indemnified party on the other hand
in connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative fault of each indemnifying party on the
one hand and the indemnified party on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates
to information supplied by an indemnifying party or such indemnified party and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Issuers and the Initial Purchaser agree that it would not be
just and equitable if contribution pursuant to this Section 7(d) were
determined by pro rata allocation (even if the Indemnified Person were treated
as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or judgments referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7, no
Indemnified Person shall be required to contribute any amount in excess of the
amount by which the net profits received by it in connection with the sale of
the Notes, Exchange Notes or Private Exchange Notes contemplated by this
Agreement exceeds the amount of any damages which such Indemnified Person 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. The Indemnified Person's obligations to
contribute pursuant to this Section 7(d) are several in proportion to the
respective amount of Notes, Exchange Notes or Private Exchange Notes included
in any such Registration Statement by each Indemnified Person and not joint.
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8. RULES 144 AND 144A.
Each of the Issuers shall use its best efforts to file the
reports required to be filed by it under the Securities Act and the Exchange
Act in a timely manner and, if at any time it is not required to file such
reports but in the past had been required to or did file such reports, it will,
upon the request of any holder of Transfer Restricted Securities, make
available other information as required by, and so long as necessary to permit,
sales of its Transfer Restricted Securities pursuant to Rule 144A.
Notwithstanding the foregoing, nothing in this Section 8 shall be deemed to
require an Issuer to register any of its securities pursuant to the Exchange
Act.
9. UNDERWRITTEN REGISTRATIONS.
If any of the Transfer Restricted Securities covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will administer the offering
will be selected by the holders of a majority in aggregate principal amount of
such Transfer Restricted Securities included in such offering, subject to the
consent of the Company (which will not be unreasonably withheld or delayed).
No person may participate in any underwritten registration hereunder unless
such person (i) agrees to sell such Transfer Restricted Securities on the basis
reasonably provided in any underwriting arrangements approved by the persons
entitled hereunder to approve such arrangements and (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents required under the terms of such underwriting arrangements.
10. MISCELLANEOUS.
a. Remedies. In the event of a breach by an Issuer or by a holder
of Notes, Exchange Notes or Private Exchange Notes of any of its obligations
under this Agreement, each holder of Notes, Exchange Notes or Private Exchange
Notes and each Issuer, in addition to being entitled to exercise all rights
granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. Subject to Section 4 hereof,
the Issuers and each holder of Notes, Exchange Notes and Private Exchange Notes
agree that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach of any of the provisions of this Agreement and
each hereby further agrees that, in the event of any action for specific
performance in respect of such breach, it shall waive the defense that a remedy
at law would be adequate.
b. No Inconsistent Agreements. The Issuers will not enter into any
agreement with respect to their securities that is inconsistent with the rights
granted to the holders of Notes, Exchange Notes and Private Exchange Notes and
Indemnified Persons in this Agreement or otherwise conflicts with the
provisions hereof. Without the written consent of the holders of a majority in
aggregate principal amount of the outstanding Transfer Restricted Securities,
the Issuers shall not grant to any person any rights which conflict with or are
inconsistent with the provisions of this Agreement.
c. No Piggyback on Registrations. The Issuers shall not grant to
any of their security holders (other than the holders of Transfer Restricted
Securities in such capacity) the right to include any of their securities in
any Registration Statement other than Transfer Restricted Securities.
d. Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, otherwise than with the prior written consent of the holders
of not less than a majority of the then outstanding aggregate principal amount
of Transfer Restricted Securities;
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provided, however, that, for the purposes of this Agreement, Transfer
Restricted Securities that are owned, directly or indirectly, by the Issuers or
any of their Affiliates are not deemed outstanding. 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
Transfer Restricted Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other holders of Transfer Restricted Securities may be given by
holders of a majority in aggregate principal amount of the Transfer Restricted
Securities being sold by such holders pursuant to such Registration Statement;
and provided, further, that the provisions of this sentence may not be amended,
modified or supplemented except in accordance with the provisions of the
immediately preceding sentence. Notwithstanding the foregoing, no amendment,
modification, supplement, waiver or consent with respect to Section 7 shall be
made or given otherwise than with the prior written consent of each Indemnified
Person affected thereby.
e. Notices. All notices and other communications provided for
herein shall be made in writing by hand-delivery, next-day air courier,
certified first-class mail, return receipt requested, telex or telecopier:
i. if to the Issuers, as provided in the Purchase Agreement,
ii. if to the Initial Purchaser, as provided in the Purchase
Agreement, or
iii. if to any other person who is then the registered holder
of Notes, Exchange Notes or Private Exchange Notes, to the address of
such holder as it appears in the register therefor of the Company.
Except as otherwise provided in this Agreement, all such communications shall
be deemed to have been duly given: when delivered by hand, if personally
delivered; one Business Day after being timely delivered to a next-day air
courier; five Business Days after being deposited in the mail, postage prepaid,
if mailed; when answered back, if telexed; and when receipt is acknowledged by
the recipient's telecopier machine, if telecopied.
f. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of each of
the parties and shall inure to the benefit of each holder of Notes, Exchange
Notes and Private Exchange Notes. The Issuers may not assign any of their
rights or obligations hereunder without the prior written consent of each
holder of Transfer Restricted Securities and each Indemnified Person.
Notwithstanding the foregoing, no successor or assignee of an Issuer shall have
any of the rights granted under this Agreement until such person shall
acknowledge its rights and obligations hereunder by a signed written statement
of such person's acceptance of such rights and obligations.
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. Governing Law; Submission to Jurisdiction. 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.
THE ISSUERS HEREBY IRREVOCABLY SUBMIT TO THE NONEXCLUSIVE JURISDICTION OF ANY
COMPETENT NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY
OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE
CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, AND EACH
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IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS.
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 reasonable 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. Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof. All
references made in this Agreement to "Section" and "paragraph" refer to such
Section or paragraph of this Agreement, unless expressly stated otherwise.
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IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first written above.
XXXXXX INTERNATIONAL INC.
By:/s/ XXXXX X. XXXX
------------------------------------
Xxxxx X. Xxxx
President and Chief Executive
Officer
XXXXXX ENERGY SERVICES, INC.
By:/s/ XXXXX X. XXXXX
------------------------------------
Xxxxx X. Xxxxx
Vice President
XXXXXX INTERNATIONAL SALES CORPORATION
By:/s/ XXXXX X. XXXXX
------------------------------------
Xxxxx X. Xxxxx
Vice President
COLUMBIA PETROLEUM SERVICES CORP.
By:/s/ XXXXX X. XXXXX
------------------------------------
Xxxxx X. Xxxxx
Vice President
INTERNATIONAL PETROLEUM SERVICES, INC.
By:/s/ XXXXX X. XXXXX
------------------------------------
Xxxxx X. Xxxxx
Vice President
22
XXXXXX ENVIRONMENTAL REMEDIATION
TECHNOLOGIES, INC.
By:/s/ XXXXX X. XXXXX
------------------------------------
Xxxxx X. Xxxxx
Treasurer
XXXXXX WORLDWIDE SERVICES, CORP.
By:/s/ XXXXX X. XXXXX
------------------------------------
Xxxxx X. Xxxxx
Treasurer
AIR DRILLING INTERNATIONAL, INC.
By:/s/ XXXXX X. XXXXX
------------------------------------
Xxxxx X. Xxxxx
Vice President
AIR DRILLING SERVICES, INC.
By:/s/ XXXXX X. XXXXX
------------------------------------
Xxxxx X. Xxxxx
Vice President
XXXXXXXXX & COMPANY, INC.
By:/s/ XXX XXXX
----------------------------
Xxx Xxxx
Vice President
