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EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
Dated as of December 12, 1996
by and among
HUNTWAY PARTNERS, L.P.
and
BANKERS TRUST COMPANY,
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY,
MELLON BANK, N.A., as trustee for First Plaza Group Trust,
XXXXXXXXXXX & COMPANY, INC., for itself and
as agent for certain affiliates,
XXXXXXX GROWTH FUND
AND
FIRST CHICAGO EQUITY CORPORATION and
MADISON DEARBORN PARTNERS, III
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TABLE OF CONTENTS
Pages
1. CERTAIN DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. REQUIRED REGISTRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3. DEMAND REGISTRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(a) Right to Demand Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
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(b) Conditions of Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
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(c) Company's Rights of Postponement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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4. "PIGGYBACK" REGISTRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(a) Right to Request Piggyback Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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(b) Piggyback Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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(c) Agreement to Sell on Same Basis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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(d) Priority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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(e) Right of Company to Withdraw . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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5. SHELF REGISTRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(a) Initial Shelf Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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(b) Subsequent Shelf Registrations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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(c) Supplements and Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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(d) Information Regarding Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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6. HOLD-BACK AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(a) Restrictions on Public Sale by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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(b) Restrictions on Public Sale by Holders of Restricted Securities . . . . . . . . . . . . . . . . . 9
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7. REGISTRATION PROCEDURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(a) Filing of Registration Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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(b) Filing of Amendments, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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(c) Required Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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(d) Prevention of Orders and Correction of Disclosure . . . . . . . . . . . . . . . . . . . . . . . . 11
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(e) Incorporation of Information; Required Filings . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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(f) Delivery of Copy of Registration Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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(g) Delivery of Copies of Prospectus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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(h) Blue Sky Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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(i) Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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(j) Other Registrations or Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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(k) Supplements and Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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(l) Listing on Exchanges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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(m) Underwritten Offerings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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(n) Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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(o) Earnings Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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(p) Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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(q) Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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8. REGISTRATION EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
9. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(a) Indemnification by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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(b) Indemnification by Holder of Registrable Securities . . . . . . . . . . . . . . . . . . . . . . . 16
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(c) Conduct of Indemnification Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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(d) Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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(e) Limit on Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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(f) Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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(g) Underwriting Agreement Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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10. SELECTION OF UNDERWRITERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(a) Selection by Majority Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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(b) Selection by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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(c) Agreement to Comply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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11. INCORPORATION, MERGER, ETC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
12. OTHER REGISTRATION RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
13. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(a) Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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(b) Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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(c) No Inconsistent Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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(d) Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
----------------------
(e) Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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(f) Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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(g) Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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(h) Entire Agreement; No Third Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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(i) Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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(j) Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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(k) Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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(l) Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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(m) Securities Held by the Company or Its Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . 22
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(n) Use of Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is dated
as of December 12, 1996 and is entered into by and among HUNTWAY PARTNERS,
L.P., a Delaware limited partnership (the "Company"), BANKERS TRUST COMPANY
("Bankers"), MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, MELLON BANK, N.A., as
trustee for First Plaza Group Trust, XXXXXXXXXXX & COMPANY, INC., for itself
and as agent for certain affiliates, XXXXXXX GROWTH FUND, FIRST CHICAGO EQUITY
CORPORATION, and MADISON DEARBORN PARTNERS, III (individually, a "Holder" and
collectively, the "Holders").
RECITALS
This Agreement is entered into pursuant to the Prepackaged
Plan of the Company in order to provide, among other things, for the agreement
by the Company to register in accordance with the requirements of the
Securities Act (a) the resale of the Common Units issued to the Holders in
connection with the Prepackaged Plan and the Unitholders Agreement and (b) the
resale of any Other Securities that are issued to the Holders in exchange for
or in respect of the Common Units in connection with the conversion of the
Company to corporate form or otherwise.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties hereto mutually agree as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms will have the
following meanings:
"AGREEMENT" means this Registration Rights Agreement as it may
be amended, supplemented or otherwise modified from time to time.
"COMMON UNITS" means the common units representing limited
partnership interests in the Company as defined in the Partnership Agreement,
including the 25,342,654 common units representing limited partnership
interests in the Company that will be issued on the Plan Effective Date.
"COMPANY" is defined in the introductory paragraph hereof.
"DEMAND NOTICE" is defined in Section 3(a).
"DEMAND REGISTRATION STATEMENT" is defined in Section 3(a).
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"EFFECTIVENESS PERIOD" is defined in Section 5(a).
"EQUIVALENT UNITS" means Common Units and units of any new
class ("NEW CLASS") of the Company's securities without fixed maximum
distributions or which share with the Common Units in the residual value of the
Company on liquidation or which are convertible into or exchangeable for such
securities. Units of any New Class shall be deemed to be a number of Common
Units which (a) would have the same share of non-fixed distributions or
liquidation value, whichever is higher, as a unit of New Class or (b) would be
exchangeable for such units or into which such units would convert.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"HOLDER" or "HOLDERS" is defined in the introductory paragraph
hereof.
"INDEMNIFIED PERSON" is defined in Section 9(a).
"INITIAL SHELF REGISTRATION" is defined in Section 5(a).
"INSPECTORS" is defined in Section 7(n).
"LOSSES" is defined in Section 9(a).
"MAJORITY HOLDERS" means, at any time, the Holders of at least
66 2/3% of the total number of Registrable Securities held by all the Holders
that were received pursuant to the Prepackaged Plan.
"NOTEHOLDERS" means Massachusetts Mutual Life Insurance
Company, Mellon Bank, N.A., as trustee for First Plaza Group Trust, Xxxxxxxxxxx
& Company, Inc. for itself and as agent for certain affiliates, Xxxxxxx Growth
Fund, First Chicago Equity Corporation, Madison Dearborn Partners, III, and
their respective assigns permitted hereunder.
"NOTEHOLDERS GROUP" means Noteholders holding in excess of 66
2/3% of the total number of Registrable Securities held by all Holders that
were received pursuant to the Prepackaged Plan.
"NASD" is defined in Section 7(p).
"NASDAQ" is defined in Section 7(l).
"OFFERING" with respect to any of the Company's securities
means the registration of such securities, whether underwritten or not, for
sale to the public.
"OTHER SECURITIES" is defined in the definition of Registrable
Securities.
"PARTICIPATING HOLDER" is defined in Section 3(c).
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"PARTNERSHIP AGREEMENT" means the Amended and Restated
Agreement of Limited Partnership of Huntway Partners, L.P., dated as of
November 9, 1988, among Huntway Managing Partner, L.P., a Delaware limited
partnership, and the other partners named therein, as amended or modified to
the date hereof.
"PERSON" means an individual, trustee, corporation,
partnership, limited liability company, joint stock company, trust,
unincorporated association, union, business association, firm or other entity.
"PIGGYBACK NOTICE" is defined in Section 4(a).
"PIGGYBACK REGISTRATION STATEMENT" is defined in introductory
paragraph of Section 4.
"PLAN EFFECTIVE DATE" means the Effective Date (as such term
is defined in the Prepackaged Plan).
"PRELIMINARY PROSPECTUS" means any preliminary prospectus that
may be included in any Registration Statement.
"PREPACKAGED PLAN" means the Prepackaged Plan of
Reorganization of Huntway Partners, L.P., under Chapter 11 of the United States
Bankruptcy Code.
"PROCEEDING" or "PROCEEDINGS" is defined in Section 9(c).
"PROSPECTUS" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that includes any
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
"RECORDS" is defined in Section 7(n).
"REGISTRABLE SECURITIES" means the Common Units issued to any
of the Holders pursuant to the terms of the Prepackaged Plan, including,
without limitation, any Common Units issued to any of the Holders from time to
time pursuant to the Unitholders Agreement, until (x) a Registration Statement
covering such Common Units has been declared effective by the SEC and such
Common Units have been disposed of by each Holder in accordance with such
effective Registration Statement, (y) such Common Units are sold in compliance
with Rule 144, or (z) all such Common Units cease to be issued or outstanding.
If, as a result of any incorporation of the Company or other change of business
entity, reclassification, split of equity securities of the Company,
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distribution, business combination, exchange offer or any other similar
transaction or event, any capital stock, evidences of indebtedness, warrants,
options, rights or other securities (collectively "OTHER SECURITIES") are
issued or transferred to any Holder of Registrable Securities in respect of
Registrable Securities held by such Holder, references in the preceding
sentence to Common Units shall be deemed to include appropriate references to
such Other Securities.
"REGISTRATION STATEMENT" means any registration statement of
the Company prepared in accordance with the requirements of the Securities Act
and the Regulations that covers any of the Registrable Securities, including
the Prospectus, amendments and supplements to such registration statement,
post-effective amendments, all exhibits, and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement at the time such registration statement became effective.
"REGULATIONS" means the General Rules and Regulations of the
SEC under the Securities Act.
"RULE 144" means Rule 144 of the Regulations, as such Rule may
be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders of such securities being free of the registration and
prospectus delivery requirements of the Securities Act.
"SEC" means the Securities and Exchange Commission or any
other similar or successor agency of the United States government administering
the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SUBSEQUENT SHELF REGISTRATION" is defined in Section 5(b).
"UNITHOLDERS AGREEMENT" means the Unitholders Agreement by and
among the Company, and the Holders, dated as of December 12, 1996, executed and
delivered pursuant to the Prepackaged Plan, as such agreement may be amended,
supplemented or otherwise modified from time to time.
2. REQUIRED REGISTRATION.
The Company will register the Registrable Securities upon the
terms, and subject to the limitations, hereinafter set forth.
3. DEMAND REGISTRATION.
(a) Right to Demand Registration. Each of Bankers, the
Noteholders Group and Majority Holders shall have the right, exercisable at any
time by written notice (the "DEMAND NOTICE") to the Company and any Holders who
did not send the
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Demand Notice, to demand that the Company file, and the Company shall (subject
to Section 3(c)) file, a Registration Statement, as soon as reasonably
practicable but in no event later than 60 days after such Demand Notice (but
not earlier than 180 days after the Plan Effective Date), on such form as shall
be appropriate under the Securities Act covering the resale of Registrable
Securities by such Holders (a "DEMAND REGISTRATION STATEMENT"); provided,
however, that the Holders' rights to require the Company to file a Demand
Registration Statement shall be suspended during such period or periods that an
Initial Shelf Registration or a Subsequent Shelf Registration covering all of
the Registrable Securities and otherwise complying with Section 5 hereof shall
be effective. The Demand Registration Statement shall cover Registrable
Securities as provided herein. The Company shall use its reasonable best
efforts to cause such Demand Registration Statement to be declared effective on
the date requested by the managing underwriter for the Offering, or, if such
Offering is not underwritten, as soon as practicable after the filing thereof
with the SEC, and shall keep such Demand Registration Statement effective for
so long as the Offering has not been completed (but in no event longer than 180
days from the effective date of such Demand Registration Statement).
Except as provided in the immediately following sentence, only
Bankers shall have the right to participate in a Demand Registration Statement
demanded by Bankers; only Noteholders shall have the right to participate in a
Demand Registration Statement demanded by the Noteholders Group; and all
Holders shall have the right to participate pro rata in a Demand Registration
Statement demanded by Majority Holders. The Holders not entitled to
participate in any Demand Registration Statement shall have "piggyback rights"
under Section 4 and other persons may have Registration Rights as contemplated
by Section 12.
(b) Conditions of Participation. Any Holder that elects
to participate in the Demand Registration Statement (a "PARTICIPATING HOLDER")
shall be permitted to register securities of the Company in such Demand
Registration Statement on the following terms and conditions:
(i) Each Participating Holder who did not join in
the Demand Notice must give written notice of such election to the
Participating Holders who did join in the Demand Notice and to the
Company within 15 days of the date the Demand Notice was given, such
notice to specify the number of securities proposed to be sold by each
such Holder in the Offering;
(ii) Each Participating Holder must agree to sell
securities on the same basis provided in the underwriting arrangements
approved by the Participating Holders who did join in the Demand
Notice and to timely complete and execute all questionnaires, powers
of attorney, indemnities, hold-back agreements, underwriting
agreements and other documents required under the terms of such
underwriting arrangements or by the SEC or by any state securities
regulatory body and must promptly notify the Company of all sales made
pursuant
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to the Demand Registration Statement and the number of unsold
Registrable Securities, if any, covered thereby 180 days after the
effective date thereof;
(iii) If the managing underwriter of the Offering
determines that inclusion of all of the Registrable Securities and
other securities in the Offering requested to be included by the
Participating Holders would adversely affect the marketability of the
securities to be sold in the Offering, the number of Registrable
Securities that may be sold by Participating Holders shall be
allocated pro rata among them based upon the respective number of
Registrable Securities sought by each to be included in the Offering;
and
(iv) If any Participating Holding desires to
withdraw from the Demand Registration Statement, they may do so only
during the time period and on the terms to be determined by the other
Participating Holders who wish to continue to register their
Registrable Securities on such Demand Registration Statement.
(c) Company's Rights of Postponement. The Company may
delay the registration of the Registrable Securities to which a Demand Notice
relates if upon receipt of such Demand Notice (i) the Company notifies the
Participating Holders that it is contemplating filing a Registration Statement
within 90 days of the date of such Demand Notice (which shall not affect the
Holders' other rights hereunder, including, without limitation, the Holders'
rights under Section 4 below) or (ii) the Company notifies the Participating
Holders that a material event has occurred that has not been publicly disclosed
and disclosure at such time would not be in the Company's interest. In the
case of clause (i) of this Section 3(c), the Company shall use its reasonable
best efforts, as soon as practicable, upon the first to occur of the
abandonment of such contemplated Registration Statement or the completion of
the offering made pursuant to such Registration Statement, to register the
Registrable Securities to which such Demand Notice relates, unless such Demand
Notice is withdrawn or such Registrable Securities are included in a Piggyback
Registration Statement under Section 4 below. In the case of clause (ii) of
this Section 3(c), the Company may not delay the filing of the Demand
Registration Statement for more than 60 days from the date of such Demand
Notice unless such Demand Notice is withdrawn. The Company cannot exercise the
rights of postponement set forth above more than once in any 12- month period.
If there is a postponement under either clause (i) or (ii) above, the Demand
Notice shall be deemed to have been withdrawn. In such case, no demand shall
have been made for the purposes of this Section 3.
4. "PIGGYBACK" REGISTRATION.
If at any time, or from time to time, the Company shall
determine or be required pursuant to Section 3 or otherwise to file a
Registration Statement with regard to Common Units or other equity securities
of the Company for its own account or for the account of any partner of the
Company or other holder of registration rights with respect to the Company's
securities (other than a Registration Statement on (a) Form S-
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8, (b) Form S-4 covering solely securities issued in connection with a business
combination or other transaction specified in Rule 145(a) under the Securities
Act, or (c) Form S-3 covering solely securities issued under a dividend
reinvestment program), the Holders of Registrable Securities shall be entitled
to include Registrable Securities in such Registration Statement (a "PIGGYBACK
REGISTRATION STATEMENT") and related Offering, if any, on the following terms
and conditions:
(a) Right to Request Piggyback Registration. The Company
shall promptly give written notice (a "PIGGYBACK NOTICE") of such determination
to the Holders other than Holders who are Participating Holders in connection
with a Demand Registration Statement under Section 3. Each Holder shall have
the right to request, by written notice given to the Company within 15 days of
the date the Piggyback Notice was received by such Holder, that a specific
number of Registrable Securities held by such Holder be included in the
Piggyback Registration Statement and related Offering, if any;
(b) Piggyback Notice. If the Piggyback Registration
Statement relates to an underwritten Offering, the Piggyback Notice shall
specify the name of the managing underwriter for such Offering. The Piggyback
Notice shall also specify the number of securities to be registered for the
account of the Company, for the account of Participating Holders under Section
3 and for the account of any other partner of the Company or other holder of
registration rights;
(c) Agreement to Sell on Same Basis. If the Piggyback
Registration Statement relates to an underwritten Offering, each Holder who has
given notice to the Company under Section 4(a) must agree to sell such Holder's
Registrable Securities on the same basis provided in the underwriting
arrangements approved by the Company and to timely complete and execute all
questionnaires, powers of attorney, indemnities, hold-back agreements,
underwriting agreements and other documents required under the terms of such
underwriting arrangements or by the SEC;
(d) Priority. If the managing underwriter for any
underwritten Offering under the Piggyback Registration Statement determines
that inclusion of all or any portion of the Registrable Securities in such
Offering would adversely affect the ability of the underwriter for such
Offering to sell all of the securities requested to be included for sale in
such Offering, the number of securities that may be sold in such Offering shall
be allocated first to the Company (or, if the Offering is being made pursuant
to a Demand Registration Statement under Section 3, to the Participating
Holders as provided therein) and thereafter pro rata among the Holders who have
given notice to the Company under Section 4(a); provided, however, that if the
Piggyback Registration Statement results from the Company's exercise of its
rights pursuant to clause (i) of Section 3(c), the number of securities that
may be sold in such Offering shall be allocated first pro rata to the Company
and the Holders who have given notice under Section 4(a) based upon the
respective number of securities sought by each to be included in the Offering;
and
(e) Right of Company to Withdraw. Notwithstanding the
foregoing, the Company shall, on five Business Days notice to the Holders who
have given notice under
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Section 4(a), have the right to withdraw any Piggyback Registration Statement
filed pursuant to this Section 4 at any time prior to the effective date
thereof.
5. SHELF REGISTRATION.
(a) Initial Shelf Registration. Upon request by either
Bankers, the Noteholders Group or Majority Holders, the Company shall promptly
prepare and file with the SEC a Registration Statement for an Offering to be
made by the Holders on a continuous basis under the Regulations covering all of
the Registrable Securities (the "INITIAL SHELF REGISTRATION"). The Initial
Shelf Registration shall be on Form S-3 or another appropriate form permitting
registration of such Registrable Securities for resale by the Holders in the
manner or manners designated in writing to the Company by them (including,
without limitation, one or more underwritten Offerings). The Company shall use
its reasonable best efforts to (i) cause the Initial Shelf Registration to be
declared effective under the Securities Act on or prior to a date not more than
60 days after the date on which the Majority Holders initially requested the
filing of such Initial Shelf Registration (but not earlier than 180 days after
the Plan Effective Date) and (ii) keep the Initial Shelf Registration
continuously effective under the Securities Act during the period (the
"EFFECTIVENESS PERIOD") beginning on the date the Initial Shelf Registration is
declared effective and ending on the earliest to occur of (A) the date when all
Registrable Securities have been sold by the Holders (and the Holders have no
reasonable expectation of receiving any additional Registrable Securities) in
the manner set forth and as contemplated in the Initial Shelf Registration, any
Demand Registration Statement or any Piggyback Registration Statement, or (B)
the date when counsel to the Company shall render an opinion addressed to the
Holders, which opinion shall be satisfactory in form, scope and substance to
each Holder affected thereby, to the effect that all remaining Registrable
Securities are freely transferable in the open market without limitations as to
volume and without being required to file any forms or reports with the SEC
under the Securities Act or the Regulations.
(b) Subsequent Shelf Registrations. If the Initial Shelf
Registration or any Subsequent Shelf Registration ceases to be effective for
any reason at any time during the Effectiveness Period, the Company shall use
reasonable best efforts to obtain the prompt withdrawal of any order suspending
the effectiveness thereof, and in any event shall within 45 days of such
cessation of effectiveness amend such Initial Shelf Registration or any
Subsequent Shelf Registration in a manner reasonably expected to obtain the
withdrawal of the order suspending the effectiveness thereof, or file an
additional Registration Statement covering all of the Registrable Securities (a
"SUBSEQUENT SHELF REGISTRATION") for an Offering to be made by the Holders on a
delayed or continuous basis under the Regulations. If a Subsequent Shelf
Registration is filed, the Company shall use its reasonable best efforts to
cause the Subsequent Shelf Registration to be declared effective as soon as
practicable after such filing and to keep such Subsequent Shelf Registration
Statement continuously effective for the remainder of the Effectiveness Period.
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(c) Supplements and Amendments. The Company shall
supplement and amend the Initial Shelf Registration or any Subsequent Shelf
Registration if required by the Securities Act or Regulations applicable to the
registration form used for such Initial Shelf Registration or Subsequent Shelf
Registration, or if reasonably requested by the Majority Holders of the
Registrable Securities covered by such Registration Statement or by any
underwriter of such Registrable Securities.
(d) Information Regarding Sales. Each Holder must
promptly notify the Company of all sales made pursuant to the Initial Shelf
Registration or any Subsequent Shelf Registration.
6. HOLD-BACK AGREEMENTS.
(a) Restrictions on Public Sale by the Company. The
Company agrees not to effect any public or private sale or distribution of
securities of the same class as the Registrable Securities, or convertible into
or exchangeable or exercisable for securities of the same class as the
Registrable Securities, including a sale pursuant to Regulation D under the
Securities Act, during the 10-day period prior to, and during the 180-day
period following the commencement of any offering made pursuant to Section 3
hereof; provided, however, that the Company may issue securities pursuant to a
Registration Statement on Form S-8 or pursuant to a dividend reinvestment plan
registered on Form S-3 if such registration statements have become effective
not less than 30 days before the commencement of the offering made pursuant to
Section 3.
(b) Restrictions on Public Sale by Holders of Restricted
Securities.
(i) Each Holder of Registrable Securities, whose
Registrable Securities are covered by a Registration Statement filed
pursuant to this Agreement for sale in an underwritten Offering,
agrees, if requested by the managing underwriter of such Offering, not
to effect any public sale or distribution of securities of the same
class (or securities exchangeable or exercisable for or convertible
into securities of the same class) as the Registrable Securities
included in such Registration Statement, including a sale pursuant to
Rule 144 or Rule 144A of the Securities Act (except as part of such
underwritten Offering), during the 10-day period prior to, and during
the 180-day period (or shorter period requested by the underwriter)
following the commencement of, such Offering, to the extent timely
notified in writing by the Company or the managing underwriter.
(ii) In the event that (x) the Company files a
registration statement prepared in accordance with the requirements of
the Securities Act and the Regulations for an underwritten Offering of
Common Units or other equity securities of the Company (y) each Holder
of Registrable Securities is able to include all of such Holder's
Registrable Securities in such registration statement and such
Offering pursuant to Section 4 hereof and (z) any Holder elects not to
include all or any portion of such Holder's Registrable Securities in
such registration statement and such Offering pursuant to Section 4
hereof (a
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"NONPARTICIPATING HOLDER"), then if requested by the managing
underwriter of such Offering, each Nonparticipating Holding shall
agree not to effect any public sale or distribution of Registrable
Securities of the same class (or Registrable Securities exchangeable
or exercisable for or convertible into securities of the same class)
as the securities included in such registration statement, including a
sale pursuant to Rule 144 or Rule 144A of the Securities Act (except
as part of such underwritten Offering), during the 10-day period prior
to, and during the 180-day period (or shorter period requested by the
underwriter) following the commencement of, such Offering, to the
extent timely notified in writing by the Company or the managing
underwriter.
7. REGISTRATION PROCEDURES.
In connection with the registration of any Registrable
Securities and any Registration Statement prepared pursuant to the provisions
of this Agreement, the Company shall effect such registrations to permit the
sale of such Registrable Securities in accordance with the intended method or
methods of disposition by the Holders thereof, and pursuant thereto the Company
shall:
(a) Filing of Registration Statement. Prepare and file
with the SEC all such Registration Statements and use its best efforts to cause
such Registration Statements to become effective and remain effective as
provided herein; provided, that before filing any Registration Statement or
Prospectus or any amendments or supplements thereto, the Company shall furnish
to and afford the Holders of the Registrable Securities covered by such
Registration Statement, and the managing underwriters, if any, a reasonable
opportunity to review and comment on copies of all such documents (including
copies of any documents to be incorporated by reference therein and all
exhibits thereto) proposed to be filed.
(b) Filing of Amendments, etc. Subject to Section 7(a)
hereof, prepare and file with the SEC such amendments and post-effective
amendments to the Registration Statement as may be necessary to keep such
Registration Statement effective for any applicable time period required
herein; cause the related Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
(or any similar provisions then in force) of the Regulations; and comply with
the provisions of the Securities Act, the Exchange Act and the rules and
regulations of the SEC promulgated thereunder applicable to it with respect to
the disposition of all securities covered by such Registration Statement as so
amended or by such Prospectus as so supplemented.
(c) Required Notices. Notify the selling Holders of
Registrable Securities, and the managing underwriters, if any, promptly, and
confirm such notice in writing, (i) when a Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same has
become effective (including in such notice a written statement that any Holder
may, upon request, obtain, without charge, one
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conformed copy of such Registration Statement or post-effective amendment,
including financial statements and schedules, documents incorporated or deemed
to be incorporated by reference and exhibits), (ii) of the issuance by the SEC
of any stop order suspending the effectiveness of a Registration Statement or
of any order preventing or suspending the use of any Preliminary Prospectus or
the initiation of any proceedings for that purpose, (iii) if, at any time when
a Prospectus is required by the Securities Act to be delivered in connection
with sales of the Registrable Securities, the representations and warranties of
the Company contained in any agreement (including any underwriting agreement)
contemplated by Section 7(m) below cease to be true and correct, (iv) of the
receipt by the Company of any notification with respect to the suspension of
the qualification or exemption from qualification of a Registration Statement
or any of the Registrable Securities for offer or sale in any jurisdiction, or
the initiation or threatening of any proceeding for such purpose, (v) of the
happening of any event or any information becoming known that makes any
statement made in such 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, in the case of the
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and, in the case of
the Prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading, and (vi) of the Company's reasonable determination
that a post-effective amendment to a Registration Statement would be
appropriate.
(d) Prevention of Orders and Correction of Disclosure.
Use its best efforts to prevent the issuance of any order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of a Prospectus or suspending the qualification (or
exemption from qualification) of any of the Registrable Securities for sales in
any jurisdiction, and, if any such order is issued, to use its reasonable best
efforts to obtain the withdrawal of any such order at the earliest possible
moment. Upon the happening of any of the events contemplated by Section
7(c)(v) hereof, promptly prepare an amended or supplemented Prospectus, or file
an appropriate document to be incorporated by reference in the Prospectus,
which will correct such statement or omission.
(e) Incorporation of Information; Required Filings. If
the Registrable Securities are to be sold in an underwritten offering, (i) as
soon as is reasonably practicable, incorporate in a Prospectus supplement or
post-effective amendment to the Registration Statement such information as is
required by the Securities Act, Regulation S-K of the Regulations and the
rules, regulations and instructions applicable to the registration form used
for such Registration Statement to be disclosed concerning, among other things,
the terms of the underwritten offering, the underwriters and the plan of
distribution, and (ii) make all required filings of such Prospectus supplement
or such post-effective amendment as soon as practicable.
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(f) Delivery of Copy of Registration Statement. Furnish
to each selling Holder of Registrable Securities who so requests and each
managing underwriter, if any, without charge, one conformed copy of the
Registration Statement and each post-effective amendment thereto, including
financial statements and schedules, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits.
(g) Delivery of Copies of Prospectus. Deliver to each
selling Holder of Registrable Securities, and the underwriters, if any, without
charge, as many copies of the Prospectus or Prospectuses (including each form
of Preliminary Prospectus) and each amendment or supplement thereto and any
documents incorporated or deemed to be incorporated by reference therein as
such Holder may reasonably request; and, subject to the last paragraph of this
Section 7, the Company hereby consents to the use of such Prospectus and each
amendment or supplement thereto by each of the selling holders of Registrable
Securities and the underwriters or agents, if any, and dealers, if any, in
connection with the offering and sale of the Registrable Securities covered by
such Prospectus and any amendment or supplement thereto.
(h) Blue Sky Laws. Use its reasonable best efforts to
register or qualify, and to cooperate with the selling Holders of Registrable
Securities, the underwriters, if any, and their respective counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities for offer and
sale under the securities or blue sky laws of such jurisdictions within the
United States as any selling Holder, or the managing underwriters, if any,
reasonably request in writing; keep each such registration or qualification (or
exemption therefrom) effective during the period such Registration Statement is
required to be kept effective and do any and all other acts or things
reasonably necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the applicable
Registration Statement; provided, that the Company shall not be required to (i)
qualify generally to do business in any jurisdiction where it is not then so
qualified or (ii) take any action that would subject it to general service of
process or the payment of taxes in any such jurisdiction where it is not then
so subject.
(i) Certificates. Cooperate with the selling Holders of
Registrable Securities and the managing underwriters, if any, to facilitate the
timely preparation and delivery of certificates representing Registrable
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 enable such Registrable Securities to be in such denominations and
registered in such names as the managing underwriters, if any, or holders may
reasonably request.
(j) Other Registrations or Approvals. Use its reasonable
best efforts to cause the Registrable 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 selling Holders thereof or the
underwriters, if any, to consummate the disposition of such Registrable
Securities, except as may be required solely as a
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consequence of the nature of such selling Holder's business, in which case the
Company will cooperate in all reasonable respects with the filing of such
Registration Statement and the granting of such approvals.
(k) Supplements and Amendments. Upon the occurrence of
any event contemplated by Sections 7(c)(v) or (c)(vi) above, as promptly as
practicable prepare and (subject to Section 7(a) above) file with the SEC a
supplement or post-effective amendment to the Registration Statement or a
supplement to the related Prospectus or any document incorporated or deemed to
be incorporated therein by reference, or file any other required document so
that, as thereafter delivered to the purchasers of the Registrable Securities
being sold thereunder, 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.
(l) Listing on Exchanges. Use its reasonable best
efforts to cause all Registrable Securities covered by such Registration
Statement to be (i) listed on each securities exchange, if any, on which
similar securities issued by the Company are then listed, or (ii) authorized to
be quoted on the National Association of Securities Dealers Automated Quotation
System ("NASDAQ") or the NASDAQ National Market if similar securities of the
Company are so authorized.
(m) Underwritten Offerings. In connection with an
underwritten offering of Registrable Securities, enter into an underwriting
agreement as is customary in underwritten offerings made by selling security
holders and take all such other actions as are reasonably requested by the
managing underwriters in order to expedite or facilitate the registration or
the disposition of such Registrable Securities, and in such connection, (i)
make such representations and warranties to the underwriters with respect to
the business of the Company and its subsidiaries, and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, as are customarily made by
issuers to underwriters in underwritten offerings made by selling security
holders, and confirm the same if and when requested; (ii) obtain opinions of
counsel to the Company and updates thereof (which counsel and opinions shall be
reasonably satisfactory to the managing underwriters), addressed to the
underwriters covering the matters customarily covered in opinions requested in
underwritten offerings by selling security holders; (iii) obtain "cold comfort"
letters and updates thereof (which letters and updates shall be reasonably
satisfactory to the managing underwriters) 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 are, or are required to be, included in the Registration Statement),
addressed to each of the underwriters and the holders of Registrable Securities
included in such underwritten offering (if such accountants are permitted under
applicable law and accounting literature to so address "cold comfort" letters),
such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with underwritten
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offerings by selling security holders; and (iv) if an underwriting agreement is
entered into, the same shall contain indemnification provisions and procedures
no less favorable than those set forth in Section 9 hereof (or such other
provisions and procedures acceptable to the Majority Holders of Registrable
Securities covered by such Registration Statement and the managing underwriters
or agents) with respect to all parties to be indemnified pursuant to Section 9.
The above shall be done at each closing under each such underwriting agreement,
or as and to the extent required thereunder.
(n) Inspection. Make available for inspection by any
selling Holder of such Registrable Securities being sold, any underwriter
participating in any such disposition of Registrable Securities, if any, and
any attorney, accountant or other agent retained by any such selling Holder or
underwriter (collectively, the "INSPECTORS"), 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 (collectively, the "RECORDS") as shall be reasonably necessary to
enable them to exercise their due diligence responsibility, and cause the
officers, directors and employees of the Company and its subsidiaries to supply
all information in each case reasonably requested by any such Inspectors in
connection with such Registration Statement. Records which the Company
determines, in good faith, to be confidential and any Records which it notifies
the Inspectors are confidential shall not be disclosed by the Inspectors unless
(i) the disclosure of such Records is necessary to avoid or correct a
misstatement or omission in such Registration Statement, (ii) the release of
such Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction or (iii) the information in such Records has been made
generally available to the public. Each selling holder of such Registrable
Securities agrees that information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it as the
basis for any market transactions in the securities of the Company or its
affiliates unless and until such is made generally available to the public.
Each selling Holder of such Registrable Securities further agrees that it will,
upon learning that disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company at its expense
to undertake appropriate action to prevent disclosure of the Records deemed
confidential.
(o) Earnings Statements. Comply with all applicable
rules and regulations of the SEC and make generally available to security
holders of the Company earnings statements satisfying the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 30 days after the end of
any 12-month period (or 60 days after the end of any 12-month period if such
period is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Securities are sold to underwriters in a firm commitment or
best efforts underwritten Offering and (ii) if not sold to underwriters in such
an Offering, commencing on the first day of the first fiscal quarter of the
Company after the effective date of a Registration Statement, which statements
shall cover such 12-month periods.
(p) Cooperation. Cooperate with each Holder selling
Registrable Securities covered by any Registration Statement and each
underwriter, if any,
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participating in the disposition of such Registrable Securities and their
respective counsel in connection with any filings required to be made with the
National Association of Securities Dealers, Inc. (the "NASD").
(q) Other. Use its reasonable best efforts to take all
other steps reasonably necessary to effect the registration of the Registrable
Securities covered by a Registration Statement contemplated hereby.
Each Holder of Registrable Securities agrees by acquisition of
such Registrable Securities that, upon receipt of any notice from the Company
of the happening of any event of the kind described in clauses (ii), (iv), (v),
or (vi) of Section 7(c), such Holder will forthwith discontinue disposition of
such Registrable 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 7(k), or until it is advised in
writing by the Company that the use of the applicable Prospectus may be
resumed, and has received copies of any amendments or supplements thereto.
8. REGISTRATION EXPENSES.
All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by the Company
whether or not any Registration Statement is filed or becomes effective,
including, without limitation, (a) all registration and filing fees, including,
without limitation, (i) fees with respect to filings required to be made with
the NASD in connection with an underwritten offering and (ii) fees and expenses
of compliance with state securities or blue sky laws, including, without
limitation, reasonable fees and disbursements of counsel for the Company or the
underwriters, or both, in connection with blue sky qualifications of the
Registrable Securities, (b) printing expenses, including, without limitation,
expenses of printing certificates for Registrable Securities in a form eligible
for deposit with The Depository Trust Company, printing prospectuses, and
printing or preparing any underwriting agreement, agreement among underwriters
and related syndicate or selling group agreements, pricing agreements and blue
sky memoranda, (c) fees and disbursements of counsel for the Company, (d) fees
and disbursements of all independent certified public accountants for the
Company, including, without limitation, the expenses of any "cold comfort"
letters required by or incident to such performance, (e) fees and expenses of
any "qualified independent underwriter" or other independent appraiser
participating in an offering pursuant to Rule 2720 of the Rules of the NASD if,
and only if, such expense will be incurred because of the Company's selection
of a managing underwriter, (f) the cost of Securities Act liability insurance,
if the Company so desires such insurance, (g) internal expenses of the Company,
including, without limitation, all salaries and expenses of officers and
employees of the Company performing legal or accounting duties, (h) fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange, and (i) fees and expenses of any Person,
including special experts, retained by the Company in its sole discretion.
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9. INDEMNIFICATION.
(a) Indemnification by the Company. The Company shall,
without limitation as to time, indemnify and hold harmless, to the fullest
extent permitted by law, each Holder of Registrable Securities, and any
underwriter participating in the distribution, each of their respective
officers, directors and agents and employees, each Person who controls each
such Holder or any such underwriter (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) and the officers, directors,
agents and employees of each such controlling person (individually, an
"INDEMNIFIED PERSON") from and against any and all losses, claims, damages,
liabilities, costs (including, without limitation, costs of investigating,
preparing to defend, defending and appearing as a third-party witness and
attorneys' fees and disbursements) and expenses, including any amounts paid in
respect of any settlements (collectively, "LOSSES"), joint or several, without
duplication, as incurred, arising out of or based upon any untrue or alleged
untrue statement of a material fact contained in any Registration Statement,
Prospectus or form of prospectus, or in any amendment or supplements thereto or
in any Preliminary Prospectus, or arising out of or based upon, in the case of
the Registration Statement or any amendments thereto, any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading, and, in the case of any Prospectus or
form of prospectus, or in any amendments or supplements thereto, or in any
preliminary prospectus, any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading
except, in either case, to the extent, but only to the extent, that such untrue
or alleged untrue statement or omission or alleged omission has been made
therein in reliance upon and in conformity with information furnished in
writing to the Company by such Indemnified Person expressly for use therein.
(b) Indemnification by Holder of Registrable Securities.
In connection with any Registration Statement in which a Holder of Registrable
Securities is participating, such Holder of Registrable Securities shall
furnish to the Company in writing such information as the Company reasonably
requests for use in connection with any Registration Statement or Prospectus,
and shall, without limitation as to time, indemnify and hold harmless, to the
fullest extent permitted by law, the Company, any underwriter participating in
the distribution and their respective directors, officers, agents and
employees, each Person who controls the Company or any such underwriter (within
the meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act), and the directors, officers, agents or employees of such controlling
person, from and against any and all Losses, joint or several, without
duplication, as incurred, arising out of or based upon any untrue or alleged
untrue statement of a material fact contained in any Registration Statement,
Prospectus, or form of prospectus, or in any amendment or supplement thereto or
in any Preliminary Prospectus, or arising out of or based upon, in the case of
the Registration Statement or any amendments thereto, any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading, and, in the case of the Prospectus or
form of Prospectus, or in any amendments or supplements thereto, or in any
Preliminary
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Prospectus, any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in either case, to
the extent, but only to the extent, that such untrue or alleged untrue
statement or omission or alleged omission has been made therein in reliance
upon and in conformity with information furnished in writing to the Company by
such Holder expressly for use therein. In no event shall the liability of any
selling Holder of Registrable Securities hereunder be, or be claimed by the
Company to be, greater in amount than the dollar amount of the proceeds
actually received by such Holder upon the sale of the Registrable Securities
giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any
Person shall be entitled to indemnity hereunder (an "indemnified party), such
indemnified party shall give prompt notice to the party or parties from which
such indemnity is sought (the "indemnifying parties") of the commencement of
any action or proceeding (including any governmental investigation)
(collectively, "PROCEEDINGS" and individually, a "PROCEEDING") with respect to
which such indemnified party seeks indemnification or contribution pursuant
hereto; provided, that the failure to so notify the indemnifying parties shall
not relieve the indemnifying parties from any obligation or liability except to
the extent that an indemnifying party was not otherwise aware of such
Proceeding and the indemnifying parties have been materially prejudiced by such
failure. The indemnifying parties shall have the right, exercisable by giving
written notice to an indemnified party promptly after the receipt of written
notice from such indemnified party of such Proceeding, to assume, at the
indemnifying parties' expense, the defense of any such Proceeding, with counsel
reasonably satisfactory to such indemnified party and shall pay as incurred the
fees and disbursements of such counsel related to such Proceeding; provided
further, that an indemnified party or parties (if more than one such
indemnified party is named in any Proceeding) shall have the right to employ
separate counsel in any such Proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such indemnified party or parties unless: (i) the indemnifying party or parties
agree to pay such fees and expenses; or (ii) the indemnifying parties fail
promptly to assume the defense of such Proceeding or fail to employ counsel
reasonably satisfactory to such indemnified party or parties; or (iii) in the
reasonable judgment of the indemnified party or parties, a conflict of interest
may exist between the positions of the indemnifying party or an affiliate of
the indemnifying party and such indemnified party or parties in conducting the
defense of such action or proceeding or that there may be legal defenses
available to such indemnified party or parties different from or in addition to
those available to the indemnifying party or such affiliate, in which case, if
such indemnified party or parties notifies the indemnifying parties in writing
that it elects to employ separate counsel at the expense of the indemnifying
parties, the indemnifying parties shall not have the right to assume the
defense thereof and such counsel shall be at the expense of the indemnifying
parties, it being understood, however, that the indemnifying parties shall not,
in connection with any one such Proceeding or separate but substantially
similar or related Proceedings 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 (together with
appropriate local counsel) at
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any time for such indemnified party or parties. Whether or not such defense is
assumed by the indemnifying parties, such indemnifying parties or indemnified
party or parties will not be subject to any liability for any settlement made
without its or their consent (but such consent will not be unreasonably
withheld). No indemnifying party shall be liable for any settlement of any
such action or proceeding effected without its written consent, but if settled
with its written consent each indemnifying party jointly and severally agrees,
subject to the exception and limitations set forth above, to indemnify and hold
harmless each indemnified party from and against any loss or liability by
reason of such settlement.
(d) Contribution. If the indemnification provided for in
this Section 9 is unavailable to an indemnified party or is insufficient to
hold such indemnified party harmless for any Losses in respect to which this
Section 9 would otherwise apply by its terms, then each applicable indemnifying
party, in lieu of indemnifying such indemnified party, shall have an obligation
to contribute to the amount paid or payable by such indemnified party as a
result of such Losses, in such proportion as is appropriate to reflect the
relative fault of the indemnifying party, on the one hand, and such indemnified
party, on the other hand, in connection with the actions, statements or
omissions that resulted in such Losses as well as any other relevant equitable
considerations. Where the indemnified party is an underwriter participating in
the distribution of Registrable Securities, however, each indemnifying party,
and, in addition, if the indemnifying party is a Holder, the Company, shall
have an obligation to contribute to the amount paid or payable by such
indemnified party as the result of such Losses in such proportion as is
appropriate to reflect not only (i) the relative fault of the Company, the
Holders and the underwriters in connection with the actions, statements or
omissions that resulted in such Losses, as well as any other relevant equitable
considerations, but also (ii) the relative benefits received by the Holders on
the one hand and the underwriters on the other hand from the distribution of
the Registrable Securities. The relative benefits received by the Holders, on
the one hand, and the underwriters, on the other hand, shall be deemed to be in
the same proportion as the total net proceeds from any such offering (before
deducting expenses) received by the Holders bear to the total underwriting
discounts or commissions received by the underwriters. The relative fault of
such indemnifying party, on the one hand, and indemnified party, on the other
hand, shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, has
been taken by, or relates to information supplied by, such indemnifying party
or indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent any such action, statement or
omission. The amount paid or payable by a party as a result of any Losses
shall be deemed to include any legal or other fees or expenses incurred by such
party in connection with any Proceeding, to the extent such party would have
been indemnified for such expenses if the indemnification provided for in
Sections 9(a) or 9(b) were available to such party.
(e) Limit on Contribution. The parties hereto agree that
it would not be just and equitable if contribution pursuant to Section 9(d)
were determined by pro
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rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of Section 9(d), an indemnifying
party that is a selling Holder of Registrable Securities shall not be required
to contribute any amount in excess of the amount by which the total price at
which the Registrable Securities sold by such indemnifying party and
distributed to the public were offered to the public (net of any underwriting
discounts and commissions and expenses) exceeds the amount of any damages that
such indemnifying party has otherwise been required to pay or has paid by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
(f) Remedies Cumulative. The indemnity, contribution and
expense reimbursement obligations under this Section 9 shall be in addition to
any liability each indemnifying person may otherwise have and shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of any indemnified party.
(g) Underwriting Agreement Controls. In the event of any
conflict between the indemnification and contribution terms as herein set forth
and as set forth in any underwriting agreement entered pursuant hereto, the
underwriting agreement shall control.
10. SELECTION OF UNDERWRITERS.
(a) Selection by Majority Holders. If any of the
Registrable Securities covered by any Registration Statement (other than a
Piggyback Registration Statement) are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
manage the offering will be selected by the Majority Holders.
(b) Selection by the Company. If any of the Registrable
Securities covered by a Piggyback Registration Statement are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will manage the offering will be selected by the Company.
(c) Agreement to Comply. No Holder of Registrable
Securities may participate in any underwritten registration hereunder unless
such Holder (i) agrees to sell such Holder's Registrable Securities on the
basis provided in any underwriting arrangements approved by the Majority
Holders, and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements, custodial or escrow agreements
and other documents required under the terms of such underwriting arrangements.
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11. INCORPORATION, MERGER, ETC.
In the event that the Company (a) incorporates, becomes a
limited liability company or otherwise changes its form of business entity, (b)
consolidates with or merges with any other Person, (c) sells, conveys,
transfers, leases or otherwise disposes of all or substantially all of its
assets (whether now owned or hereafter acquired) in a single transaction or
series of transactions to any Person, the Company shall cause any such Person
or other successor to the Company to agree in writing to be bound by all the
provisions of this Agreement.
12. OTHER REGISTRATION RIGHTS.
The Company represents that it has not granted registration
rights other than as set forth in this Agreement and covenants that it will not
grant any other registration rights for so long as any Registrable Securities
are outstanding, except that the Company may grant (a) "piggyback" registration
rights that entitle the holder to include Common Units in an Offering only
after all the Holders have included in such Offering all Registrable Securities
they elect to include under Sections 3 and 4 hereof and (b) "demand"
registration rights to Persons who hereinafter purchase Equivalent Units
provided such rights may not be exercised if any Holder elects to exercise its
rights under Section 3 hereof (provided such election is made within 15 days
after notice is given to all the Holders that another holder of "demand"
registration rights desires to exercise them).
13. MISCELLANEOUS.
(a) Damages. Without limiting in any way any of the
rights the Holders of the Restricted Securities may otherwise have at law or in
equity, for damages or otherwise, the Company hereby agrees to indemnify and
hold harmless each Holder of Restricted Securities from and against any loss or
expense that may be incurred or suffered by such Holder which arises from any
of the following: (i) any Demand Registration Statement that is not filed with
the Commission on or before the time required in Section 3, or (ii) the Company
is not able for any reason within its control to cause the Demand Registration
Statement to be declared effective by the SEC at the time reasonably requested
by the underwriters in the Offering and to remain effective until completion of
the Offering, or to cause the Registrable Securities to be qualified or
registered for sale in all appropriate jurisdictions as provided in Section
7(h) and to remain so qualified or registered thereafter during the applicable
period under applicable law.
(b) Specific Performance. In the event of a breach by
the Company of any of its obligations under this Agreement, each Holder of
Registrable Securities, in addition to being entitled to exercise all rights
provided herein or granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. The
Company and each Holder agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by the
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Company or such Holder, as the case may be, of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, the Company or such Holder, as
the case may be, shall waive the defense that a remedy at law would be
adequate. No failure or delay on the part of the Company or any Holder of
Registrable Securities in exercising any right, power or remedy hereunder shall
operate as a waiver thereof nor shall any single or partial exercise of any
such right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy.
(c) No Inconsistent Agreements. The Company has not
previously entered into, and will not on or after the date of this Agreement
enter into, any agreement with respect to its Securities that is inconsistent
with the terms of this Agreement, including any agreement which impairs or
limits the registration rights granted to the Holders or which otherwise
conflicts with the provisions hereof or would preclude the Company from
discharging its obligations hereunder.
(d) Amendments and Waivers. The provisions of Section 6,
Section 8, Section 9 hereof and this sentence may not be amended, modified or
supplemented without the express written consent of each party hereto. The
other 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, unless the Company has
obtained the written consent of the Majority Holders of the then outstanding
Registrable Securities. Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders of Registrable Securities whose securities
are being sold pursuant to a Registration Statement and that does not directly
or indirectly affect, impair, limit or compromise the rights of other Holders
of Registrable Securities may be given by Holders of at least a majority of the
Registrable Securities being sold by Holders pursuant to such Registration
Statement; provided, that the provisions of this sentence may not be amended,
modified or supplemented except in accordance with the provisions of the
immediately preceding sentence.
(e) Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered
personally, telecopied (which is confirmed) or mailed by registered or
certified mail (return receipt requested) to the parties at the addresses set
forth below the name of each party hereto on the signature pages hereof (or at
such other address for a party as shall be specified by like notice).
(f) Interpretation. When a reference is made in this
Agreement to a Section, such reference shall be to a Section of this Agreement
unless otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation." For purposes of this Agreement, "best efforts"
shall mean the lawful efforts that a prudent business person
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desirous of achieving a result would use under similar circumstances to attempt
to achieve such result as expeditiously as is reasonably practicable.
(g) Counterparts. This Agreement may be executed in two
or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when two or more counterparts have been
signed by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
(h) Entire Agreement; No Third Party Beneficiaries. This
Agreement (including the documents and the instruments referred to herein) (i)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof, and (ii) except as contemplated by Section 9 hereof, is
not intended to confer upon any Person other than the parties hereto any rights
or remedies hereunder.
(i) Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of California, without
regard to principles of conflicts of law.
(j) Severability. Wherever possible, each provision
hereof shall be interpreted in such a manner as to be valid, legal and
enforceable under applicable law, but in case any one or more of the provisions
contained herein shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such provision shall be ineffective to the
extent, but only to the extent, of such invalidity, illegality or
unenforceability without invalidating or rendering unenforceable the remainder
of this Agreement, unless such a construction would be unreasonable or
materially impair the rights of any party hereto.
(k) Assignment. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by the Company
(whether by operation of law or otherwise) except in accordance with Section 11
hereof or with the prior written consent of the other parties hereto. Subject
to the preceding sentence, this Agreement will be binding upon, inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and assigns.
(l) Attorneys' Fees. As between the parties to this
Agreement, in any action or proceeding brought to enforce any provision of this
Agreement, or where any provision hereof is validly asserted as a defense, the
successful party shall be entitled to recover reasonable attorneys' fees in
addition to its costs and expenses and any other available remedy.
(m) Securities Held by the Company or Its Affiliates.
Whenever the percentage of Registrable Securities held by Holders is required
to be determined hereunder for purposes of determining the authority of such
Holders to take actions hereunder, Registrable Securities held by the Company
or its affiliates (as such term is
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defined in Rule 405 under the Regulations) (other than the Holders of
Registrable Securities if such Holders are deemed to be such affiliates solely
by reason of their holdings of such Registrable Securities) shall not be
counted in determining the percentage of Registrable Securities held by such
Holders.
(n) Use of Terms. This Agreement contemplates the filing
of registration statements under the Securities Act on numerous occasions
involving various offers of securities. In connection with such registration
statements, there may be identified therein one or more underwriters through
which securities are to be offered on behalf of the Company or one or more of
the Holders, or both, pursuant to either a "firm-commitment" or "best-efforts"
arrangement, and, in the case where there is more than one underwriter, one or
more of the underwriters may be designated as the "manager" or "representative"
or the "co-managers" or "representatives" of the several underwriters.
Accordingly, all references herein to an "underwriter" or the "underwriters"
are intended to refer to a "principal underwriter" (as defined in Rule 405 of
the Regulations) and to provide for those transactions in which securities may
be offered by or through one or more underwriters, and not to imply that any of
the transactions contemplated hereby is conditioned in any manner whatsoever on
the participation therein by one or more underwriters on behalf of any party.
Nothing contained herein relating to the Company's obligation to enter into an
underwriting agreement at any time or from time to time in the future shall
impair, alter, restrict or otherwise affect in any manner whatsoever the duties
of the Board of Directors of the managing general partner Company under
applicable law in approving the form, terms and provisions thereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
HUNTWAY PARTNERS, L.P.
By: ________________________
Name: ________________________
Title:________________________
Notice Address:
Xxxxxx Xxxxxx
Huntway Partners, L.P.
00000 Xxx Xxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
BANKERS TRUST COMPANY
By: ________________________
Name: ________________________
Title:________________________
Notice Address:
Xxxx Xxxxx
Bankers Trust Company
One Bankers Trust Plaza
Mail Stop 2283
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10066
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By: ________________________
Name: ________________________
Title:________________________
S-1
28
Notice Address:
Xxxx Xxxxxx
Mass Mutual Life Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
MELLON BANK, N.A., as trustee for First Plaza
Group Trust
By: ________________________
Name: ________________________
Title:________________________
Notice Address:
c/o Xxxx X. Xxxxx
Managing Partner
Contrarian Capital Management, L.L.C.
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxx 00000
XXXXXXXXXXX & COMPANY, INC., for itself and
as agent for certain affiliates
By: ________________________
Name: ________________________
Title:________________________
Notice Address:
c/o Xxxx X. Xxxxx
Managing Partner
Contrarian Capital Management, L.L.C.
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxx 00000
X-0
00
XXXXXXX XXXXXX FUND
By: XXXXXX MANAGEMENT CORPORATION
By: ________________________
Name: ________________________
Title:________________________
Notice Address:
c/o Xxxxx Xxxxxxxx
Xxxxxx Management Corporation
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxx 00000
FIRST CHICAGO EQUITY CORPORATION
By: ______________________
Name: ______________________
Title:______________________
Notice Address:
Xxx Xxxxxxx
First Chicago Equity Corporation
Three First National Plaza, suite 1300
Chicago, Illinois, 606021
MADISON DEARBORN PARTNERS III
By: ______________________
Name: ______________________
Title: ______________________
Notice Address:
Xxx Xxxxxxx
Madison Dearborn Partners III
Three First National Plaza, suite 1300
Chicago, Illinois, 606021
S-3
