EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
DATED AS OF MARCH 6, 2001
BY AND AMONG
KEY ENERGY SERVICES, INC.,
Yale E. Key, Inc.; Key Energy Drilling, Inc.; WellTech
Eastern, Inc.; Odessa Exploration Incorporated; Kalkaska
Oilfield Services, Inc.; Well-Co Oil Service, Inc.;
Xxxxxxx Well Service, Inc.; Ram Oil Well Service, Inc.;
Xxxxxxx Trucking Co., Inc.; Landmark Fishing & Rental,
Inc.; Xxxxxx Well Service, Inc.; Frontier Well Service,
Inc.; Key Rocky Mountain, Inc.; Key Four Corners, Inc.;
Xxxxx Service Co.; Xxxxx Well Service, Inc.; Xxxxx
Transportation, Inc.; Industrial Oilfield Supply, Inc.;
Xxxxxx Well Servicing, Inc.; Xxxxxx Brothers, Inc.; X.X.
Xxxxxx Well Service Company; Key Energy Services -- South
Texas, Inc.; Key Energy Services -- California, Inc.;
Xxxxxx Oilfield Service & Supply, Inc.; WellTech
Mid-Continent, Inc.; Xxxxxx Production Management, Inc.;
Xxxxxx Production Xxxxxx, Inc.; Xxxxxx Production
Acquisition Corp.; and Xxxxxx Production Partners, L.P.
AND
XXXXXX BROTHERS INC.
BEAR, XXXXXXX & CO. INC.
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This Registration Rights Agreement (this "AGREEMENT") is made and entered
into as of March 6, 2001, by and among Key Energy Services, Inc., a Maryland
corporation (the "COMPANY"), Yale E. Key, Inc., a Texas corporation; Key Energy
Drilling, Inc., a Delaware corporation; WellTech Eastern, Inc., a Delaware
corporation; Odessa Exploration Incorporated, a Delaware corporation; Kalkaska
Oilfield Services, Inc., a Michigan corporation; Well-Co Oil Service, Inc., a
Nevada corporation; Xxxxxxx Well Service, Inc., a Kansas corporation; Ram Oil
Well Service, Inc., a New Mexico corporation; Xxxxxxx Trucking Co., Inc., a New
Mexico corporation; Landmark Fishing & Rental, Inc., an Oklahoma corporation;
Xxxxxx Well Service, Inc., a Colorado corporation; Frontier Well Service, Inc.,
a Wyoming corporation; Key Rocky Mountain, Inc., a Delaware corporation; Key
Four Corners, Inc., a Delaware corporation; Xxxxx Service Co., an Oklahoma
corporation; Xxxxx Well Service, Inc., an Oklahoma corporation; Xxxxx
Transportation, Inc., an Oklahoma corporation; Industrial Oilfield Supply, Inc.,
an Oklahoma corporation; Xxxxxx Well Servicing, Inc., a Delaware corporation;
Xxxxxx Brothers, Inc., a Wyoming corporation; X.X. Xxxxxx Well Service Company,
a Delaware corporation; Key Energy Services -- South Texas, Inc., a Delaware
corporation; Key Energy Services -- California, Inc., a Delaware corporation;
Xxxxxx Oilfield Service & Supply, Inc., a Delaware corporation; WellTech
Mid-Continent, Inc., a Delaware corporation; Xxxxxx Production Management, Inc.,
a Delaware corporation; Xxxxxx Production Xxxxxx, Inc., a Delaware corporation;
Xxxxxx Production Acquisition Corp., a Delaware corporation; and Xxxxxx
Production Partners, L.P., a Delaware limited partnership (collectively, the
"GUARANTORS") and Xxxxxx Brothers Inc. and Bear, Xxxxxxx & Co. Inc. (together,
the "INITIAL PURCHASERS") who have agreed pursuant to the Purchase Agreement (as
defined below) to purchase severally and not jointly $175,000,000 in aggregate
principal amount of the Company's 8 3/8% Senior Notes due 2008 (the "NOTES").
This Agreement is made pursuant to the Purchase Agreement, dated March
1, 2001 (the "PURCHASE AGREEMENT"), by and among the Company, the Guarantors and
the Initial Purchasers relating to the purchase by the Initial Purchasers of the
Notes.
In order to induce the Initial Purchasers to purchase the Notes, the
Company has agreed to provide the registration rights for the Notes set forth in
this Agreement. Capitalized terms used herein and not otherwise defined shall
have the meaning assigned to them in the Indenture, dated March 6, 2001,
relating to the Notes and the New Notes (the "INDENTURE") between the Company,
the Guarantors and The Chase Manhattan Bank, a New York banking corporation, as
trustee (the "TRUSTEE").
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
ACT: The Securities Act of 1933, as amended.
AFFILIATE: As defined in Rule 144 of the Act.
BROKER-DEALER: Any broker or dealer registered under the Exchange Act.
BUSINESS DAY: As defined in the Exchange Act.
CERTIFICATED SECURITIES: Definitive Notes as defined in the Indenture.
CLOSING DATE: The date hereof.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of the delivery by the Company to
the Registrar under the Indenture of New Notes in the same aggregate principal
amount as the aggregate principal amount of Notes tendered by Holders thereof
pursuant to the Exchange Offer in accordance with the terms of this Agreement.
CONSUMMATION DEADLINE: As defined in Section 3(a) hereof.
EFFECTIVENESS DEADLINE: As defined in Section 3(a) and 4(a) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE OFFER: The offer by the Company to exchange and issue a
principal amount of New Notes (which issuance shall be registered pursuant to
the Exchange Offer Registration Statement) equal to the outstanding principal
amount of the Notes that are tendered by such Holders in connection with such
offer to exchange and issue in accordance with the terms and conditions of this
Agreement.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement relating
to the Exchange Offer, including the related Prospectus.
EXEMPT RESALES: The transactions in which the Initial Purchasers
propose to sell the Notes to certain "qualified institutional buyers," as such
term is defined in Rule 144A under the Act and pursuant to Regulation S under
the Act.
FILING DEADLINE: As defined in Sections 3(a) and 4(a) hereof.
HOLDERS: As defined in Section 2 hereof.
NEW NOTES: The Company's 8 3/8% Senior Notes due 2008, identical in all
material respects to the Notes, to be issued pursuant to the Indenture (i) in
the Exchange Offer or (ii) as contemplated by Section 4 hereof.
PROSPECTUS: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
RECOMMENCEMENT DATE: As defined in Section 6(d) hereof.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the Company and
the Guarantors relating to (a) an offering of New Notes pursuant to the Exchange
Offer or (b) the registration for resale of Transfer Restricted Securities
pursuant to the Shelf Registration Statement, in each case, (i) that is or has
been filed pursuant to the provisions of this Agreement and (ii) including the
Prospectus included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by
reference therein.
REGULATION S: Regulation S promulgated under the Act.
RULE 144: Rule 144 promulgated under the Act.
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SHELF REGISTRATION EFFECTIVENESS DEADLINE. As defined in Section 4
hereof.
SHELF REGISTRATION FILING DEADLINE. As defined in Section 4 hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 4 hereof.
SUSPENSION NOTICE: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture.
TRANSFER RESTRICTED SECURITIES: (a) Each Note, until the earliest to
occur of (i) the date on which such Note is exchanged in the Exchange Offer for
a New Note that is entitled to be resold to the public by the Holder thereof
without complying with the prospectus delivery requirements of the Act, (ii) the
date on which such Note has been disposed of pursuant to a Shelf Registration
Statement, or (iii) the date on which such Note is distributed to the public
pursuant to Rule 144 under the Act and (b) each New Note held by a Broker-Dealer
until the date on which such New Note is disposed of by a Broker-Dealer pursuant
to the "Plan of Distribution" contemplated by the Exchange Offer Registration
Statement (including the delivery of the Prospectus contained therein).
UNIVERSAL SHELF REGISTRATION STATEMENT. As defined in Section 10(l)
hereof.
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities
(each, a "HOLDER") whenever such Person is the holder of record of Transfer
Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable
federal law (after the procedures set forth in Section 6(a)(i) below have
been complied with), the Company and the Guarantors (i) will use their
reasonable best efforts to (A) cause the Exchange Offer Registration
Statement to be filed with the Commission no later than 60 days after the
Closing Date (such 60th day being the "FILING DEADLINE"), (B) to cause such
Exchange Offer Registration Statement to become effective no later than 150
days after the Closing Date (such 150th day being the "EFFECTIVENESS
DEADLINE"), (C) in connection with the foregoing, (1) file all pre-effective
amendments to such Exchange Offer Registration Statement as may be necessary
in order to cause it to become effective, (2) file, if applicable, a
post-effective amendment to such Exchange Offer Registration Statement
pursuant to Rule 430A under the Act and (3) cause all necessary filings, if
any, in connection with the registration and qualification of the New Notes
to be made under the Blue Sky laws of such jurisdictions as are necessary to
permit Consummation of the Exchange Offer, and (D) subject to Section 6(d)
hereof, following the effectiveness of such Exchange Offer Registration
Statement, commence and Consummate the Exchange Offer within 180 days after
the Closing Date (such 180th day being the "CONSUMMATION DEADLINE"), or (ii)
on or prior to the Filing Deadline referred to in clause (i) above, give
written notice to the Initial Purchasers, in the form provided for in
Exhibits B1 and B2 hereto, of the Company's election to effect the Exchange
Offer by means of the Universal Shelf Registration Statement, in which case
the requirements set forth in clauses 3(a)(i)(A), 3(a)(i)(B) and
3(a)(i)(C)(1) above shall not apply and the term "Exchange Offer Registration
Statement" as used in this Agreement shall mean, where applicable, the
Universal Shelf Registration Statement. The Exchange Offer Registration
Statement shall be on the appropriate form permitting (i) registration of the
issuance of New Notes to be offered in exchange for the Notes that are
Transfer Restricted Securities and (ii) resales of New Notes by any
Broker-Dealer that tendered into the Exchange Offer Notes that such
Broker-Dealer acquired for its own account as
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a result of market making activities or other trading activities (other than
Notes acquired directly from the Company or any of its Affiliates) as
contemplated by Section 3(c) below.
(b) Subject to Section 6(d) hereof, the Company and the Guarantors
shall use their respective reasonable best efforts to cause the Exchange
Offer Registration Statement to be effective continuously, and shall keep the
Exchange Offer open for a period of not less than the minimum period required
under applicable federal and state securities laws to Consummate the Exchange
Offer; PROVIDED, HOWEVER, that in no event shall such period be less than 20
Business Days. The Company and the Guarantors shall cause the Exchange Offer
to comply with all applicable federal and state securities laws. Subject to
Section 6(d) hereof, the Company and the Guarantors shall use their
respective reasonable best efforts to cause the Exchange Offer to be
Consummated by the Consummation Deadline.
(c) The Company shall include a "Plan of Distribution" section in
the Prospectus contained in the Exchange Offer Registration Statement and
indicate therein that any Broker-Dealer who holds Transfer Restricted
Securities that were acquired for the account of such Broker-Dealer as a
result of market-making activities or other trading activities (other than
Notes acquired directly from the Company or any Affiliate of the Company),
may exchange such Transfer Restricted Securities pursuant to the Exchange
Offer. Such "Plan of Distribution" section shall also contain all other
information with respect to such sales by such Broker-Dealers that the
Commission may require in order to permit such sales pursuant thereto, but
such "Plan of Distribution" shall not name any such Broker-Dealer or disclose
the amount of Transfer Restricted Securities held by any such Broker-Dealer,
except to the extent required by the Commission as a result of a change in
policy, rules or regulations after the date of this Agreement. See the
SHEARMAN & STERLING no-action letter (available July 2, 1993).
Because such Broker-Dealer may be deemed to be an "underwriter" within
the meaning of the Act and must, therefore, deliver a prospectus meeting the
requirements of the Act in connection with its initial sale of any New Notes
received by such Broker-Dealer in the Exchange Offer, the Company and the
Guarantors shall, subject to Section 6(d) hereof, permit the use of the
Prospectus contained in the Exchange Offer Registration Statement by such
Broker-Dealer to satisfy such prospectus delivery requirement. To the extent
necessary to ensure that the prospectus contained in the Exchange Offer
Registration Statement is available for sales of New Notes by Broker-Dealers,
the Company and the Guarantors agree, subject to Section 6(d) hereof, to use
their respective reasonable best efforts to keep the Exchange Offer Registration
Statement continuously effective, supplemented, amended and current as required
by and subject to the provisions of Section 6(a) and (c) hereof and in
conformity with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of one year from the Consummation Deadline or such shorter period as will
terminate when all Transfer Restricted Securities covered by such Registration
Statement have been sold pursuant thereto. The Company and the Guarantors shall
provide sufficient copies of the latest version of such Prospectus to such
Broker-Dealers, promptly upon request, and in no event later than one day after
such request, at any time during such period.
SECTION 4. SHELF REGISTRATION
(a) SHELF REGISTRATION. If (i) the Exchange Offer is not permitted
by applicable law or Commission policy (after the Company and the Guarantors
have complied with the procedures set forth in Section 6(a)(i) hereof and, if
applicable, this Section 4(a) hereof) or (ii) if any Holder of Transfer
Restricted Securities shall notify the Company within 20 Business Days
following the Consummation Deadline (and the Company does not reasonably
object based on advice of counsel with respect to applicable law) that (A)
such Holder was prohibited by law or Commission policy from participating in
the Exchange Offer or (B) such Holder may not resell the New Notes acquired
by it in the Exchange Offer to the public without
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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) such Holder is a Broker-Dealer and holds Notes acquired
directly from the Company or any of its Affiliates, then the Company and the
Guarantors shall:
(x) subject to Section 6(d) hereof, cause to be filed, on or
before 90 days after the earlier of (i) the date on which the Company
determines that the Exchange Offer Registration Statement cannot be
filed or used as a result of clause (a)(i) above and (ii) the date on
which the Company receives the notice specified in clause (a)(ii)
above (such earlier date, the "SHELF REGISTRATION FILING DEADLINE"),
a shelf registration statement pursuant to Rule 415 under the Act
(which may be an amendment to the Exchange Offer Registration
Statement (the "SHELF REGISTRATION STATEMENT")), relating to all
Transfer Restricted Securities, and
(y) subject to Section 6(d) hereof, shall use its reasonable best
efforts to cause such Shelf Registration Statement to become
effective on or before 150 days after the Shelf Registration Filing
Deadline (such 150th day the "SHELF REGISTRATION EFFECTIVENESS
DEADLINE").
If, after the Company has filed an Exchange Offer Registration
Statement that satisfies the requirements of Section 3(a) above or elected to
use the Universal Shelf Registration Statement in accordance with the terms of
Section 3(a) above, the Company is required to file and make effective a Shelf
Registration Statement solely because the Exchange Offer is not permitted under
applicable federal law (i.e., clause (a)(i) above), then the filing of the
Exchange Offer Registration Statement or the election to use the Universal Shelf
Registration Statement shall be deemed to satisfy the requirements of clause (x)
above; PROVIDED that, in such event, the Company shall remain obligated to meet
the Shelf Registration Effectiveness Deadline.
To the extent necessary to ensure that the Shelf Registration Statement
is available for sales of Transfer Restricted Securities by the Holders thereof
entitled to the benefit of this Section 4(a) and the other securities required
to be registered therein pursuant to Section 6(b)(ii) hereof, the Company and
the Guarantors shall use their respective reasonable best efforts to keep any
Shelf Registration Statement required by this Section 4(a) continuously
effective, supplemented, amended and current as required by and subject to the
provisions of Sections 6(b) and (c) hereof and in conformity with the
requirements of this Agreement, the Act and the policies, rules and regulations
of the Commission as announced from time to time, for a period of at least two
years following the Closing Date, or such shorter period as will terminate when
all Transfer Restricted Securities covered by such Shelf Registration Statement
have been sold pursuant thereto.
(b) PROVISION BY HOLDERS OF CERTAIN INFORMATION IN CONNECTION WITH
THE SHELF REGISTRATION STATEMENT. No Holder of Transfer Restricted Securities
may include any of its Transfer Restricted Securities in any Shelf
Registration Statement pursuant to this Agreement unless and until such
Holder furnishes to the Company in writing, within 20 days after receipt of a
request therefor, the information specified in Item 507 or 508 of Regulation
S-K, as applicable, of the Act 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
liquidated damages pursuant to Section 5 hereof unless such Holder shall have
provided all such information in writing within the 20-day period referred to
above. Each selling Holder agrees to promptly furnish additional information
required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
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If (i)(A) the Exchange Offer Registration Statement required by this
Agreement is not filed with the Commission on or before the applicable Filing
Deadline and (B) the Company has not given notice of its election to effect the
Exchange Offer by means of the Universal Shelf Registration Statement, as
provided for in Section 3(a)(ii) hereof, (ii) the Company has not made the
election described in Section (3)(a)(ii) hereof and the Exchange Offer
Registration Statement has not been declared effective by the Commission on or
before the applicable Effectiveness Deadline, (iii) the Exchange Offer has not
been Consummated on or before the Consummation Deadline, (iv) subject to Section
6(d) hereof, the Shelf Registration Statement has not been filed with the
Commission on or before the Shelf Registration Effectiveness Deadline or if the
Shelf Registration Statement has not been declared effective by the Commission,
or (v) subject to Section 6(d) hereof, any Registration Statement required by
this Agreement is filed and declared effective but shall thereafter cease to be
effective or fail to be usable for its intended purpose without being succeeded
immediately by a post-effective amendment to such Registration Statement that
cures such failure and that is itself declared effective immediately (each such
event referred to in clauses (i) through (iv), a "REGISTRATION DEFAULT"), then
the Company and the Guarantors hereby jointly and severally agree to pay to each
Holder of Transfer Restricted Securities affected thereby liquidated damages in
an amount equal to $.05 per week per $1,000 principal amount of Transfer
Restricted Securities held by such Holder for each week or portion thereof that
the Registration Default continues for the first 90-day period immediately
following the occurrence of such Registration Default. The amount of the
liquidated damages shall increase by an additional $.05 per week per $1,000
principal amount of Transfer Restricted Securities with respect to each
subsequent 90-day period until all Registration Defaults have been cured, up to
a maximum amount of liquidated damages of $.20 per week per $1,000 principal
amount of Transfer Restricted Securities; PROVIDED that the Company and the
Guarantors shall in no event be required to pay liquidated damages for more than
one Registration Default at any given time. Notwithstanding anything to the
contrary set forth herein, upon fulfilling the obligation that gave rise to the
obligation of the Company to pay liquidated damages as provided above, the
accrual of liquidated damages shall cease.
All accrued liquidated damages shall be paid to the Holders entitled
thereto, in the manner provided for the payment of interest in the Indenture, on
each Interest Payment Date, as more fully set forth in the Indenture and the
Notes. Notwithstanding the fact that any securities for which liquidated damages
are due cease to be Transfer Restricted Securities, all obligations of the
Company and the Guarantors to pay liquidated damages with respect to securities
shall survive until such time as such obligations with respect to such
securities shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) EXCHANGE OFFER REGISTRATION STATEMENT. In connection with the
Exchange Offer, the Company and the Guarantors shall, subject to Section 6(d)
hereof, (x) comply, in all material respects, with all applicable provisions
of Section 6(c) below, (y) use their respective reasonable best efforts to
effect such exchange and to permit the resale of the New Notes by
Broker-Dealers that tendered in the Exchange Offer and (z) comply with all of
the following provisions:
(i) If, following the date hereof there has been announced a
change in Commission policy with respect to exchange offers such as
the Exchange Offer, that in the reasonable opinion of counsel to the
Company raises a substantial question as to whether the Exchange
Offer is permitted by applicable federal law, the Company and the
Guarantors hereby agree to either (i) seek a no-action letter or
other favorable decision from the Commission allowing the Company
and the Guarantors to Consummate an Exchange Offer for such Transfer
Restricted Securities or (ii) make available a Shelf Registration
Statement pursuant to and within the time periods prescribed in
Section 4(a) hereof. If the Company and the Guarantors elect to
proceed under clause (i) above, the Company and the
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Guarantors hereby agree to pursue the issuance of such a decision
to the Commission staff level, and the Company and the Guarantors
hereby further agree to take all such other actions as may be
requested by the Commission or otherwise required in connection with
the issuance of such decision, including without limitation (A)
participating in telephonic conferences with the Commission, (B)
delivering to the Commission staff an analysis prepared by counsel
to the Company setting forth the legal bases, if any, upon which
such counsel has concluded that such an Exchange Offer should be
permitted and (C) diligently pursuing a resolution (which need not
be favorable) by the Commission staff.
(ii) As a condition to its participation in the Exchange Offer,
each Holder of Transfer Restricted Securities (including, without
limitation, any Holder who is a Broker-Dealer) shall furnish, upon
the request of the Company, before the Consummation of the Exchange
Offer, a written representation to the Company and the Guarantors
(which may be contained in the letter of transmittal contemplated by
the Exchange Offer Registration Statement) to the effect that (A) it
is not an Affiliate of the Company, (B) it is not engaged in, and
does not intend to engage in, and has no arrangement or understanding
with any person to participate in, a distribution of the New Notes
to be issued in the Exchange Offer and (C) it is acquiring the New
Notes in its ordinary course of business. As a condition to its
participation in the Exchange Offer, each Holder using the Exchange
Offer to participate in a distribution of the New Notes shall
acknowledge and agree that, if the resales are of New Notes obtained
by such Holder in exchange for Notes acquired directly from the
Company or an Affiliate thereof, it (1) could not, under Commission
policy as in effect on the date of this Agreement, rely on the
position of the Commission enunciated in XXXXXX XXXXXXX AND CO.,
INC. (available June 5, 1991) and EXXON CAPITAL HOLDINGS CORPORATION
(available May 13, 1988), as interpreted in the Commission's letter
to SHEARMAN & STERLING dated July 2, 1993, and similar no-action
letters (including, if applicable, any no-action letter obtained
pursuant to clause (i) above), and (2) must comply with the
registration and prospectus delivery requirements of the Act in
connection with a secondary resale transaction and that such a
secondary resale transaction must be covered by an effective
registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of
Regulation S-K.
(iii) Unless the Company has elected to effect the Exchange Offer
by means of the Universal Shelf Registration Statement as provided
for in Section 3(a)(ii) of this Agreement, before effectiveness of
the Exchange Offer Registration Statement, the Company and the
Guarantors shall, upon request by the Commission, provide a
supplemental letter to the Commission (A) stating that the Company
and the Guarantors are registering the Exchange Offer in reliance on
the position of the Commission enunciated in EXXON CAPITAL HOLDINGS
CORPORATION (available May 13, 1988), XXXXXX XXXXXXX AND CO., INC.
(available June 5, 1991) as interpreted in the Commission's letter
to SHEARMAN & STERLING dated July 2, 1993, and, if applicable, any
no-action letter obtained pursuant to clause (i) above, (B)
including a representation that neither the Company nor any
Guarantor has entered into any arrangement or understanding with any
Person to distribute the New Notes to be received in the Exchange
Offer and that, to the best of the Company's and each Guarantor's
information and belief, each Holder participating in the Exchange
Offer is acquiring the New Notes in its ordinary course of business
and has no arrangement or understanding with any Person to
participate in the distribution of the New Notes received in the
Exchange Offer and (C) any other undertaking or representation
required by the Commission as set forth in any no-action letter
obtained pursuant to clause (i) above, if applicable.
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(b) SHELF REGISTRATION STATEMENT. In connection with the Shelf
Registration Statement, the Company and the Guarantors shall:
(i) subject to Section 6(d) hereof, comply, in all material
respects, with all the provisions of Section 6(c) below and use
their respective reasonable best efforts to effect such registration
to permit the sale of the Transfer Restricted Securities being sold
in accordance with the intended method or methods of distribution
thereof (as indicated in the information furnished to the Company
pursuant to Section 4(b) hereof), and pursuant thereto the Company
and the Guarantors will prepare and file with the Commission a
Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available for
the sale of the Transfer Restricted Securities in accordance with
the intended method or methods of distribution thereof within the
time periods and otherwise in accordance with the provisions hereof,
and
(ii) upon the request of any Holder or purchaser of Notes covered
by any Shelf Registration Statement contemplated by this Agreement,
cause to be issued New Notes having an aggregate principal amount
equal to the aggregate principal amount of Notes sold pursuant to
the Shelf Registration Statement and surrendered to the Company for
cancellation; the Company shall register the resale of the Notes on
the Shelf Registration Statement for this purpose and cause the New
Notes that have been registered under the Shelf Registration
Statement to be issued to the purchaser(s) of securities subject to
the Shelf Registration Statement in the names as such purchaser(s)
shall designate.
(c) GENERAL PROVISIONS. In connection with any Registration Statement
and any related Prospectus required by this Agreement, the Company and the
Guarantors shall:
(i) subject to Section 6(d) hereof, use their respective
reasonable best efforts to keep such Registration Statement
continuously effective and provide all requisite financial
statements for the period specified in Section 3 or 4 of this
Agreement, as applicable. Upon the occurrence of any event that
would cause any such Registration Statement or the Prospectus
contained therein (A) to contain an untrue statement of material
fact or omit to state any material fact necessary to make the
statements therein not misleading or (B) not to be effective and
usable for resale of Transfer Restricted Securities during the
period required by this Agreement, the Company and the Guarantors
shall subject to Section 6(d) hereof, file promptly an appropriate
amendment to such Registration Statement curing such defect, and, if
Commission review is required, use their respective reasonable best
efforts to cause such amendment to be declared effective as soon as
practicable.
(ii) subject to Section 6(d) hereof, prepare and file with the
Commission such amendments and post-effective amendments to the
applicable Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period set forth
in Section 3 or 4 hereof, as the case may be; subject to Section
6(d) hereof, cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant
to Rule 424 under the Act, and to comply fully with Rules 424, 430A
and 462, as applicable, under the Act in a timely manner; and comply
with the provisions of the Act with respect to the disposition of
all securities covered by such Registration Statement during the
applicable period in accordance with the intended method or methods
of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
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(iii) advise each Holder promptly and, if requested by such
Holder, confirm such advice in writing, (A) when the Prospectus or
any Prospectus supplement (other than a Prospectus Supplement
relating solely to the resale of Transfer Restricted Securities
under a Registration Statement) or post-effective amendment has been
filed, and, with respect to any applicable Registration Statement or
any post-effective amendment thereto, when the same has become
effective (other than the Universal Shelf Registration Statement
itself, but including any post-effective amendment thereto), (B) of
any request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for
additional information relating thereto, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement under the Act or of the suspension by any
state securities commission of the qualification of the Transfer
Restricted Securities for offering or sale in any jurisdiction, or
the initiation of any proceeding for any of the preceding purposes,
(D) of the existence of any fact or the happening of any event that
makes any statement of a material fact made in the Registration
Statement, the Prospectus, any amendment or supplement thereto or
any document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the
Registration Statement in order to make the statements therein not
misleading, or that requires the making of any additions to or
changes in the Prospectus in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, or any
state securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state
securities or Blue Sky laws, the Company and the Guarantors shall
use their respective reasonable best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time;
(iv) subject to Section 6(c)(i) and Section 6(d) hereof, if any
fact or event contemplated by Section 6(c)(iii)(D) above shall exist
or have occurred, prepare a supplement or post-effective amendment
to the Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of
Transfer Restricted Securities, the Prospectus will not contain an
untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(v) furnish to each Holder promptly after the time of filing
with the Commission, copies of any Registration Statement or any
Prospectus included therein or any amendments or supplements
(excluding the filing of the Universal Shelf Registration Statement,
which occurred before the date of this Agreement, and excluding
Prospectus supplements relating solely to the resale of Transfer
Restricted Securities under a Registration Statement) to any such
Registration Statement or Prospectus (excluding all documents
incorporated by reference).
(vi) make available, at reasonable times, for inspection by each
Holder and any attorney or accountant retained by such Holders, all
financial and other records, pertinent corporate documents of the
Company and the Guarantors and cause the Company's and the
Guarantors' officers, directors and employees to supply all
information reasonably requested by any such Holders, attorney or
accountant in connection with such Registration Statement or any
post-effective amendment thereto after the filing thereof and before
its effectiveness (or, in the case of the Universal Shelf
Registration Statement, after the
9
election pursuant Section 3(a)(ii) hereof and before the commencement
of the Exchange Offer);
(vii) subject to Section 6(d) hereof, if requested by any
Holders, promptly include in any Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such Holders may reasonably request
to have included therein, including, without limitation, information
relating to the "Plan of Distribution" of the Transfer Restricted
Securities and the use of the Registration Statement or Prospectus
for market making activities; and subject to Section 6(d) hereof,
make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the Company is
notified of the matters to be included in such Prospectus supplement
or post-effective amendment;
(viii) furnish to each Holder upon request, without charge, at
least one copy of the Registration Statement, as first filed with
the Commission, and of each amendment thereto, including all
documents incorporated by reference therein and all exhibits
(including exhibits incorporated therein by reference);
(ix) deliver to each Holder without charge, as many copies of
the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may
request; the Company and the Guarantors hereby consent to the use
(in accordance with law and subject to Section 6(d) hereof) of the
Prospectus and any amendment or supplement thereto by each selling
Holder in connection with the offering and the sale of the Transfer
Restricted Securities covered by the Prospectus or any amendment or
supplement thereto;
(x) upon the reasonable request of any Holder, enter into
such agreements (including underwriting agreements) and make such
representations and warranties and take all such other actions in
connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant to any
Registration Statement contemplated by this Agreement as may be
reasonably requested by any Holder in connection with any sale or
resale pursuant to any Registration Statement but, in the case of a
Shelf Registration Statement, only in connection with an underwritten
public offering for a minimum of $50,000,000 principal amount of
Notes. In such connection, the Company and the Guarantors shall:
(A) upon request of any Holder, furnish (or in the case of
paragraphs (2) and (3), use their respective reasonable best efforts
to cause to be furnished) to each Holder, upon Consummation of the
Exchange Offer or upon the effectiveness of the Shelf Registration
Statement:
(1) a certificate, dated such date, signed on behalf of
the Company and each Guarantor by (x) the President or any Vice
President and (y) a principal financial or accounting officer
of the Company and such Guarantor, confirming, as of the date
thereof, the matters set forth in Sections 1, 7(h), 7(i) and
7(j) of the Purchase Agreement and such other similar matters
as such Holder may reasonably request;
(2) an opinion, dated the date of Consummation of the
Exchange Offer or date of effectiveness of the Shelf Registration
Statement, as the case may be, of
10
counsel for the Company and the Guarantors covering matters
similar to those set forth in paragraph (d) of Section 7 of the
Purchase Agreement and such other matters as such Person may
reasonably request, and in any event including a statement to
the effect that such counsel has participated in conferences
with officers and other representatives of the Company and the
Guarantors, representatives of the independent public
accountants for the Company and the Guarantors and has
considered the matters required to be stated therein and the
statements contained therein, such counsel has not
independently verified the accuracy, completeness or fairness
of such statements; and that such counsel advises that, on the
basis of the foregoing, no facts came to such counsel's
attention that caused such counsel to believe that the
applicable Registration Statement, at the time such Registration
Statement or any post-effective amendment thereto became
effective and in the case of the Exchange Offer Registration
Statement, as of the date of Consummation of the Exchange
Offer, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or
that the Prospectus contained in such Registration Statement as
of its date and, in the case of the opinion dated the date of
Consummation of the Exchange Offer, as of the date of
Consummation, contained an untrue statement of a material fact
or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading. Without limiting the
foregoing, such counsel may state further that such counsel
assumes no responsibility for, and has not independently
verified, the accuracy, completeness or fairness of the
financial statements, notes and schedules and other financial
data included in any Registration Statement contemplated by
this Agreement or the related Prospectus; and
(3) a customary comfort letter, dated the date of
Consummation of the Exchange Offer, or as of the date of
effectiveness of the Shelf Registration Statement, as the case
may be, from the Company's independent accountants, in the
customary form and covering matters of the type customarily
covered in comfort letters to underwriters in connection with
underwritten offerings, and affirming the matters set forth in
the comfort letters delivered pursuant to Section 7(f) of the
Purchase Agreement; and
(B) deliver such other documents and certificates as may be
reasonably requested by the selling Holders to evidence compliance
with the matters covered in clause (A) above and with any customary
conditions contained in the any agreement entered into by the
Company and the Guarantors pursuant to this clause (x);
(xi) before any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their counsel in
connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders 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 applicable Registration Statement;
PROVIDED, HOWEVER, that neither the Company nor any Guarantor shall
be required to register or qualify as a foreign corporation where it
is not now so qualified or to take any action that would subject it
to the service of process in suits or to taxation, other than as to
matters and transactions relating to the Registration Statement, in
any jurisdiction where it is not now so subject;
11
(xii) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being
Transfer Restricted Securities, cooperate with the Holders to
facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not
bearing any restrictive legends; and to register such Transfer
Restricted Securities in such denominations and such names as the
selling Holders may request at least two Business Days before such
sale of Transfer Restricted Securities;
(xiii) use their respective reasonable best efforts to cause the
disposition of the Transfer Restricted Securities covered by the
Registration Statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof to consummate the disposition
of such Transfer Restricted Securities, subject to the proviso
contained in clause (xi) above;
(xiv) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of a Registration
Statement covering such Transfer Restricted Securities (unless the
Company has elected to use the Universal Shelf Registration
Statement in accordance with the terms of this Agreement, in which
case not later than the commencement of the Exchange Offer) and
provide the Trustee under the Indenture with printed certificates
for the Transfer Restricted Securities in a form eligible for
deposit with The Depository Trust Company;
(xv) otherwise use their respective reasonable best efforts to
comply with all applicable rules and regulations of the Commission,
and make generally available to its security holders with regard to
any applicable Registration Statement, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) covering a twelve-month period beginning
after the effective date of the Registration Statement (as such term
is defined in paragraph (c) of Rule 158 under the Act);
(xvi) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
required by this Agreement (unless the Company has elected to use
the Universal Shelf Registration Statement in accordance with the
terms of this Agreement, in which case not later than the
commencement of the Exchange Offer) and, in connection therewith,
cooperate with the Trustee and the Holders 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 best efforts to cause the Trustee to execute, all
documents that may be required to effect such changes and all other
forms and documents required to be filed with the Commission to
enable such Indenture to be so qualified in a timely manner; and
(xvii) provide promptly to each Holder and affiliated market
maker, upon request, each document filed with the Commission pursuant
to the requirements of Section 13 or Section 15(d) of the Exchange Act.
(d) RESTRICTIONS ON HOLDERS. Each Holder agrees by acquisition of a
Transfer Restricted Security that, upon receipt of the notice referred to in
Section 6(c)(iii)(C) or any notice from the Company of the existence of any
fact of the kind described in Section 6(c)(iii)(D) hereof (in each case, a
"SUSPENSION NOTICE"), such Holder will forthwith discontinue disposition of
Transfer Restricted Securities pursuant to the applicable Registration
Statement until (i) such Holder has received copies of the supplemented or
amended Prospectus contemplated by Section 6(c)(iv) hereof, or (ii) such
Holder is advised in writing by the
12
Company that the use of the Prospectus may be resumed (in each case, the
"RECOMMENCEMENT DATE", with each such period of time from the Suspension
Notice until the Recommencement Date being referred to herein as a "Black Out
Period"). Each Holder receiving a Suspension Notice hereby agrees that it will
either (i) destroy any Prospectuses, other than permanent file copies, then in
such Holder's possession that have been replaced by the Company with more
recently dated Prospectuses or (ii) 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 the Suspension Notice. If the Company
issues a Suspension Notice after commencement but before completion of the
Exchange Offer, then the Exchange Offer will be suspended immediately until
the Recommencement Date. On the Recommencement Date, the Exchange Offer will
recommence and will remain effective for the periods set forth in Section 3(b)
as if the Exchange Offer had commenced on the Recommencement Date.
Notwithstanding the provisions of Section 5 hereof, no liquidated damages
shall accrue pursuant to clauses (iv) and (v) of Section 5 hereof during any
Black Out Period or during the period the Company is seeking a no-action
letter or other favorable decision pursuant to Section 6(a)(i) hereof.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and the Guarantors'
performance of or compliance with this Agreement will be borne by the
Company, regardless of whether a Registration Statement becomes effective,
including without limitation: (i) all registration and filing fees and
expenses; (ii) all fees and expenses of compliance with federal securities
and state Blue Sky or securities laws; (iii) all expenses of printing
(including printing certificates for the New Notes to be issued in the
Exchange Offer and printing of Prospectuses whether for exchanges, sales,
market making or otherwise), messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel for the Company and the
Guarantors; (v) all application and filing fees in connection with listing
the New Notes 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 and the Guarantors
(including the expenses of any special audit and comfort letters required by
or incident to such performance).
The Company will, in any event, bear its and the Guarantors' internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expenses of
any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company or the Guarantors.
(b) In connection with any Registration Statement required by this
Agreement, the Holders of Transfer Restricted Securities who are tendering
Notes into the Exchange Offer and/or selling or reselling Notes or New Notes
pursuant to the "Plan of Distribution" contained in the Exchange Offer
Registration Statement or the Shelf Registration Statement, as applicable,
shall be responsible for all of their expenses incurred including the fees
and disbursements of its counsel.
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors agree, jointly and severally, to
indemnify and hold harmless each Holder, its directors, officers and each
person, if any, who controls such Holder (within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act), from and against any and all
losses, claims, damages, liabilities, judgments, (including without
limitation, any legal or other expenses incurred in connection with
investigating or defending any matter, including any action that could give
rise to any such losses, claims, damages, liabilities or judgments) caused by
any untrue statement or alleged untrue statement of a material fact contained
in any Registration Statement, preliminary prospectus or Prospectus (or any
amendment or supplement thereto) provided by the Company to any Holder or any
purchaser of the New
13
Notes or of the registered Notes, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, liabilities or judgments are caused by an
untrue statement or omission or alleged untrue statement or omission that is
based upon information relating to any of the Holders furnished in writing to
the Company by any of the Holders.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company and the Guarantors, and their directors and
officers, and each Person, if any, who controls (within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act) the Company or the
Guarantors to the same extent as the foregoing indemnity from the Company and
the Guarantors set forth in section (a) above, but only with reference to
information relating to such Holders furnished in writing to the Company by
such Holders expressly for use in any Registration Statement. In no event
shall any Holder, its directors, officers or any Person who controls such
Holder be liable or responsible for any amount in excess of the amount by
which the total amount received by such Holder with respect to its sale of
Transfer Restricted Securities pursuant to a Registration Statement exceeds
(i) the amount paid by such Holder for such Transfer Restricted Securities
and (ii) the amount of any damages that such Holder, its directors, officers
or any Person who controls such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b)
(the "INDEMNIFIED PARTY"), the indemnified party shall promptly notify the
person against whom such indemnity may be sought (the "INDEMNIFYING PARTY")
in writing and the indemnifying party shall assume the defense of such
action, including the employment of counsel reasonably satisfactory to the
indemnified party and the payment of all reasonable fees and expenses of such
counsel, as incurred (except that in the case of any action in respect of
which indemnity may be sought pursuant to both Sections 8(a) and 8(b), a
Holder shall not be required to assume the defense of such action pursuant to
this Section 8(c), but may employ separate counsel and participate in the
defense thereof, but the fees and expenses of such counsel, except as
provided below, shall be at the expense of the Holder). Any indemnified party
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 the indemnified party unless (i) the employment of
such counsel shall have been specifically authorized in writing by the
indemnifying party, (ii) the indemnifying party shall have failed to assume
the defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including
any impleaded parties) failed to include both the indemnified party and the
indemnifying party, and the indemnified party shall have been advised by such
counsel that there may be one or more legal defenses available to it which
are different from or additional to those available to the indemnifying party
(in which case the indemnifying party shall not have the right to assume the
defense of such action on behalf of the indemnified party). In any such case,
the indemnifying party shall not, in connection with any one action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for
the fees and expenses of more than one separate firm of attorneys for all
indemnified parties and all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by a majority of
the Holders, in the case of the parties indemnified pursuant to Section 8(a),
and by the Company and the Guarantors, in the case of parties indemnified
pursuant to Section 8(b). The indemnifying party shall indemnify and hold
harmless the indemnified party from and against any and all losses, claims,
damages, liabilities and judgments by reason of any settlement of any action
(i) effected with its written consent or (ii) effected without its written
consent if the settlement is entered into more than 20 Business Days after
the indemnifying party shall have received a request from the indemnified
party for reimbursement for the fees and expenses of counsel (in any case
where such fees and expenses are at the expense of the indemnifying party)
and, prior to the date of such settlement, the indemnifying party shall have
failed to comply with such reimbursement request. No indemnifying party
14
shall, without the prior written consent of the indemnified party, effect any
settlement or compromise of, or consent to the entry of judgment with respect
to, any pending or threatened action in respect of which the indemnified
party is or could have been a party and indemnity or contribution may be or
could have been sought hereunder by the indemnified party, unless such
settlement, compromise or judgment (i) includes an unconditional release of
the indemnified party from all liability on claims that are or could have
been the subject matter of such action and (ii) does not include a statement
as to or an admission of fault, culpability or a failure to act, by or on
behalf of the indemnified party.
(d) To the extent that the indemnification provided for in this
Section 8 is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or judgments referred to therein, 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 or judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantors, on the one hand, and the Holders, on the other
hand, from their sale of Transfer Restricted Securities or (ii) if the
allocation provided by clause 8(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 8(d)(i) hereof but also the relative fault of the
Company and the Guarantors, on the one hand, and of the Holders, 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 the Company and the
Guarantors, on the one hand, and of the Holders, on the other hand, shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or such
Guarantor, on the one hand, or by the Holders, on the other hand, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable by
an indemnified party as a result of the losses, claims, damages, liabilities
and judgments referred to above shall be deemed to include, subject to the
limitations set forth in the second paragraph of this Section 8(d), any legal
or other fees or expenses reasonably incurred by such indemnified party in
connection with investigating or defending any matter, including any action
that could have given use to such losses, claims, damages, liabilities or
judgments.
The Company, the Guarantors and each Holder agree that it would not be
just and equitable if contribution pursuant to this Section 8(d) were determined
by pro rata allocation (even if the Holders 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 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 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 matter, including any action that could have
given rise to such losses, claims, damages, liabilities or judgments.
Notwithstanding the provisions of this Section 8, no Holder, its directors, its
officers or any Person, if any, who controls such Holder shall be required to
contribute, in the aggregate, any amount in excess of the amount by which the
total received by such Holder with respect to the sale of Transfer Restricted
Securities pursuant to a Registration Statement exceeds (i) the amount paid by
such Holder for such Transfer Restricted Securities and (ii) the amount of any
damages which such Holder 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 Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Holders' obligations to contribute
pursuant to this Section 8(c) are several in proportion to the respective
principal amounts of Transfer Restricted Securities held by each Holder.
SECTION 9. RULE 144A AND RULE 144
15
The Company and the Guarantors agree with each Holder, for so long as
any Transfer Restricted Securities remain outstanding and during any period in
which the Company or such Guarantor (i) is not subject to Section 13 or 15(d) of
the Exchange Act, to make available, upon request of any Holder, to such Holder
or beneficial owner of Transfer Restricted Securities in connection with any
sale thereof and any prospective purchaser of such Transfer Restricted
Securities designated by such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A, and (ii) is subject to
Section 13 or 15 (d) of the Exchange Act, to make all filings required thereby
in a timely manner in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144.
SECTION 10. MISCELLANEOUS
(a) REMEDIES. The Company and the Guarantors acknowledge and agree
that any failure by the Company and/or the Guarantors to comply with their
respective obligations under Sections 3 and 4 hereof may result in material
irreparable injury to the Initial Purchasers 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 Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Company's and the Guarantors' obligations under
Sections 3 and 4 hereof. The Company and the Guarantors further agree to
waive the defense in any action for specific performance that a remedy at law
would be adequate. Damages resulting from a Registration Default shall be
limited to the liquidated damages provided for in Section 5 of this Agreement.
(b) NO INCONSISTENT AGREEMENTS. Neither the Company nor any
Guarantor will, 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 materially conflicts
with the provisions hereof. The rights granted to the Holders hereunder do
not conflict with and are not materially inconsistent with the rights granted
to the holders of the Company's and the Guarantors' securities under any
agreement in effect on the date hereof.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless (i) in the case
of Section 5 hereof and this Section 10(c)(i), the Company has obtained the
written consent of Holders of all outstanding Transfer Restricted Securities
and (ii) in the case of all other provisions hereof, the Company has obtained
the written consent of Holders of a majority of the outstanding principal
amount of Transfer Restricted Securities (excluding Transfer Restricted
Securities held by the Company or its Affiliates). Notwithstanding the
foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of Holders whose Transfer Restricted
Securities are being tendered pursuant to the Exchange Offer or that are
being resold pursuant to the Exchange Offer Registration Statement or the
Shelf Registration Statement, and that does not affect directly or indirectly
the rights of other Holders whose Transfer Restricted Securities are not
being tendered pursuant to such Exchange Offer or that are not being resold
pursuant to the Exchange Offer Registration Statement or the Shelf
Registration Statement, may be given by the Holders of a majority of the
outstanding principal amount of Transfer Restricted Securities subject to
such Exchange Offer.
(d) THIRD PARTY BENEFICIARY. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand,
and shall have the right to enforce such agreements directly to the extent
they may deem such enforcement necessary or advisable to protect their rights
or the rights of Holders hereunder.
16
(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, telecopier,
or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the Registrar under the Indenture, with a copy to the Registrar under
the Indenture; and
(ii) if to the Company or the Guarantors:
Key Energy Services, Inc.
Xxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxx Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: General Counsel
With a copy to:
Xxxxxx & Xxxxxx, L.L.P.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
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 receipt
acknowledged, if telecopied; and on the next Business Day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders; PROVIDED, that nothing herein shall be deemed
to permit any assignment, transfer or other disposition of Transfer
Restricted Securities in violation of the terms hereof or of the Purchase
Agreement or the Indenture. If any transferee of any Holder shall acquire
Transfer Restricted Securities in any manner, whether by operation of law or
otherwise, such Transfer Restricted Securities shall be held subject to all
of the terms of this Agreement, and by 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, including the restrictions on resale set forth in this Agreement
and, if applicable, the Purchase Agreement, and such Person shall be entitled
to receive the benefits hereof.
(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) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
17
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance,
is held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
(k) 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 with respect to the
Transfer Restricted Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such
subject matter.
(l) UNIVERSAL SHELF REGISTRATION STATEMENT. The Initial Purchasers
acknowledge that the Company currently has on file with the Commission a
shelf registration statement on Form S-4 covering a specific dollar amount of
unspecified securities (the "UNIVERSAL SHELF REGISTRATION STATEMENT"). The
Initial Purchasers agree that the Company may use the Universal Shelf
Registration Statement to satisfy the requirements to file an Exchange Offer
Registration Statement within the applicable Filing Deadline and to cause the
Registration Statement to be declared effective by the Effectiveness
Deadline; PROVIDED that the Universal Shelf Registration Statement cover the
type of transactions required to be registered herein in accordance with
applicable law and the rules and regulations of the Commission; and PROVIDED,
FURTHER, that any such use of the Universal Shelf Registration Statement does
not affect the exemption from registration under the Act of the issuance and
sale of the Notes to the Initial Purchasers.
(SIGNATURE PAGES FOLLOW)
18
S-2
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
KEY ENERGY SERVICES, INC.
By /s/ Xxxx X. Xxxxxx, Xx.
-----------------------------------------
Name: Xxxx X. Xxxxxx, Xx.
Title: Senior Vice President, General Counsel and Secretary
YALE E. KEY, INC., KEY ENERGY DRILLING, INC., WELLTECH EASTERN, INC.,
ODESSA EXPLORATION INCORPORATED, KALKASKA OILFIELD SERVICES, INC.,
WELL-CO OIL SERVICE, INC., XXXXXXX WELL SERVICE, INC., RAM OIL WELL
SERVICE, INC., XXXXXXX TRUCKING CO., INC., LANDMARK FISHING & RENTAL,
INC., XXXXXX WELL SERVICE, INC., FRONTIER WELL SERVICE, INC., KEY
ROCKY MOUNTAIN, INC., KEY FOUR CORNERS, INC., XXXXX SERVICE CO., XXXXX
WELL SERVICE, INC., XXXXX TRANSPORTATION, INC., INDUSTRIAL OILFIELD
SUPPLY, INC., XXXXXX WELL SERVICING, INC., XXXXXX BROTHERS, INC., X.X.
XXXXXX WELL SERVICE COMPANY, KEY ENERGY SERVICES--SOUTH TEXAS, INC.,
KEY ENERGY SERVICES--CALIFORNIA, INC., XXXXXX OILFIELD SERVICE &
SUPPLY, INC., WELLTECH MID-CONTINENT, INC., XXXXXX PRODUCTION
MANAGEMENT, INC., XXXXXX PRODUCTION XXXXXX, INC., XXXXXX PRODUCTION
ACQUISITION CORP.,
By /s/ Xxxx X. Xxxxxx, Xx.
-----------------------------------------
Name: Xxxx X. Xxxxxx, Xx.
Title: Vice President
XXXXXX PRODUCTION PARTNERS, L.P.
BY XXXXXX PRODUCTION MANAGEMENT INC., ITS SOLE GENERAL PARTNER.
By /s/ Xxxx X. Xxxxxx, Xx.
-----------------------------------------
Name: Xxxx X. Xxxxxx, Xx.
Title: Vice President
REGISTRATION RIGHTS AGREEMENT
S-1
Accepted:
XXXXXX BROTHERS INC.
BEAR, XXXXXXX & CO. INC.
By: XXXXXX BROTHERS INC.
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
By: BEAR, XXXXXXX & CO. INC.
By /s/ Xxxx Xxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Managing Director
REGISTRATION RIGHTS AGREEMENT
S-2
EXHIBIT A1
NOTICE OF FILING OF
A/B EXCHANGE OFFER REGISTRATION STATEMENT
To: Xxxxxx Brothers Inc.
3 World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Syndicate Department
Fax: (000) 000-0000
From: Key Energy Services, Inc.
$175,000,000 8 3/8% Senior Notes due 2008
Date: ___, 200_
For your information only (NO ACTION REQUIRED):
Today, ______, 200_, we filed [an A/B Exchange Registration Statement/a
Shelf Registration Statement] with the Securities and Exchange Commission. We
currently expect this registration statement to be declared effective within __
Business Days of the date hereof.
A1-1
EXHIBIT A2
NOTICE OF FILING OF
A/B EXCHANGE OFFER REGISTRATION STATEMENT
To: Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: [Syndicate Department]
Fax: (212) ___________
From: Key Energy Services, Inc.
$175,000,000 8 3/8% Senior Notes due 2008
Date: ___, 200_
For your information only (NO ACTION REQUIRED):
Today, ______, 200_, we filed [an A/B Exchange Registration Statement/a
Shelf Registration Statement] with the Securities and Exchange Commission. We
currently expect this registration statement to be declared effective within __
Business Days of the date hereof.
A2-1
EXHIBIT B1
NOTICE OF ELECTION TO USE
UNIVERSAL SHELF REGISTRATION STATEMENT
TO EFFECT THE A/B EXCHANGE OFFER
To: Xxxxxx Brothers Inc.
3 World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Syndicate Department
Fax: (000) 000-0000
From: Key Energy Services, Inc.
$175,000,000 8 3/8% Senior Notes due 2008
Date: ___, 200_
For your information only (NO ACTION REQUIRED):
Today, ______, 200_, we elected pursuant to Section 3(a)(ii) of the
Registration Rights Agreement to effect the Exchange Offer by means of the
Universal Shelf Registration Statement. Pursuant to the terms of the
Registration Rights Agreement, we are obligated to Consummate the Exchange Offer
by ______ __, 200_ (the date that is 180 days after the Closing Date).
A3-1
EXHIBIT B2
NOTICE OF ELECTION TO USE
UNIVERSAL SHELF REGISTRATION STATEMENT
TO EFFECT THE A/B EXCHANGE OFFER
To: Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: [Syndicate Department]
Fax: (212) ___________
From: Key Energy Services, Inc.
$175,000,000 8 3/8% Senior Notes due 2008
Date: ___, 200_
For your information only (NO ACTION REQUIRED):
Today, ______, 200_, we elected pursuant to Section 3(a)(ii) of the
Registration Rights Agreement to effect the Exchange Offer by means of the
Universal Shelf Registration Statement. Pursuant to the terms of the
Registration Rights Agreement, we are obligated to Consummate the Exchange Offer
by ______ __, 200_ (the date that is 180 days after the Closing Date).
A4-1
