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EXHIBIT 4.9
COMMON STOCK
REGISTRATION RIGHTS AGREEMENT
Dated as of September 1, 2000
by and among
CHESAPEAKE ENERGY CORPORATION
AND
XXXXXX BROTHERS INC.
AND
PERSONS EXECUTING THE ADDENDUM
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This Common Stock Registration Rights Agreement (the "AGREEMENT") is made and
entered into as of September 1, 2000, among Chesapeake Energy Corporation, an
Oklahoma corporation (the "COMPANY"), Xxxxxx Brothers Inc. ("Xxxxxx") and such
other Persons executing an addendum (the "ADDENDUM") to this Agreement in the
form set forth in Exhibit AA@ (each a "NOTEHOLDER" and, collectively, the
"NOTEHOLDERS").
Xxxxxx has agreed to sell Gothic Production Corporation 11 1/8% Senior
Secured Notes Due 2005 and the beneficial interests in the related indenture and
pledge agreement (collectively, the "NOTES") pursuant to that certain Senior
Secured Notes Purchase Agreements, dated September 1, 2000, between the Company
and Xxxxxx (the "PURCHASE AGREEMENT"). In order to induce Xxxxxx to sell the
Notes, the Company has agreed to provide the registration rights set forth in
this Agreement. The execution and delivery of this Agreement is a condition to
the obligations of Xxxxxx set forth in Section 9 of the Purchase Agreement. The
Company will offer to provide the registration rights contained in this
Agreement to other holders of Notes that (i) agree to sell such Notes in whole
or in part for shares of Common Stock pursuant to a Purchase Agreement with the
Company and (ii) execute the Addendum. For purposes of this Agreement, any such
purchase agreement will be a "Purchase Agreement," and such notes and the
holders' beneficial interests in related note documentation will be "Notes."
Capitalized terms used herein but not defined have the respective meanings set
forth in the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms will have the
following meanings:
ACT: The Securities Act of 1933, as amended.
AFFILIATE: As defined in Rule 144 of the Act.
BUSINESS DAY: Any day on which the New York Stock Exchange is open for
trading and which is not a legal United States holiday.
CLOSING DATE: September 1, 2000.
COMMON STOCK: Common Stock, $.01 par value per share, of the Company.
COMMISSION: The Securities and Exchange Commission.
EFFECTIVE DATE: The date the Shelf Registration Statement is declared
effective by the Commission.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
HOLDERS: As defined in Section 2 hereof.
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PERSON: Any individual, corporation, partnership, joint venture, trust,
estate, unincorporated organization or government or any agency or
political subdivision thereof.
PROSPECTUS: The prospectus included in the Shelf Registration Statement at
the time such Shelf Registration Statement is declared effective, as
amended or supplemented by any prospectus supplement and by all other
amendments thereto, including post-effective amendments, all material
incorporated by reference into such Prospectus and any information
previously omitted in reliance upon Rule 430A of the Act.
PURCHASE PRICE: The Shares and any cash to be exchanged as payment for the
Notes pursuant to the Purchase Agreements.
RECOMMENCEMENT DATE: As defined in Section 5(b) hereof.
RULE 144: Rule 144 promulgated under the Act.
SHARES: The shares of Common Stock constituting all or part of the Purchase
Price transferred to the Noteholders pursuant to the Purchase Agreements.
SHELF REGISTRATION STATEMENT: As defined in Section 3 hereof.
SUSPENSION NOTICE: As defined in Section 5(b) hereof.
TRANSFER RESTRICTED SECURITIES: The Shares, upon delivery thereof to the
Noteholders pursuant to the respective Purchase Agreements and at all times
subsequent thereto, until (a) the date on which the Shares have been
disposed of in accordance with the Shelf Registration Statement, (b) the
date on which the Shares are distributed to the public pursuant to Rule 144
or are saleable pursuant to Rule 144(k) (or similar provisions then in
effect) under the Act or (c) the date on which the Shares cease to be
outstanding. A Share will cease being a Transfer Restricted Security at
such time that the foregoing clauses (a), (b) or (c) apply to such Share.
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities (each,
a "HOLDER") whenever such Person owns Transfer Restricted Securities.
SECTION 3. SHELF REGISTRATION
As soon as practicable after the Closing Date but in no event later than 45
days after the Closing Date, the Company will file with the Commission a shelf
registration statement pursuant to Rule 415 under the Act (the "SHELF
REGISTRATION STATEMENT"), relating to all Transfer Restricted Securities, and
will use its best efforts to cause such Shelf Registration Statement to become
effective on or prior to 105 days after the Closing Date.
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The Company will use its best efforts to keep the Shelf Registration
Statement required by this Section 3 continuously effective, supplemented and
amended as required by and subject to the provisions of Section 5(a) hereof 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 3, and to ensure that the Shelf
Registration Statement conforms with the requirements of this Agreement, the Act
and the policies, rules and regulations of the Commission as announced from time
to time, for the shorter of (i) two years following the Closing Date or (ii) the
date on which all Transfer Restricted Securities covered by the Shelf
Registration Statement have been sold pursuant thereto.
SECTION 4. PROVISION BY HOLDERS OF CERTAIN INFORMATION
No Holder of Transfer Restricted Securities may include any of its Transfer
Restricted Securities in the Shelf Registration Statement pursuant to this
Agreement unless such Holder furnishes to the Company in writing the information
specified in Item 507 or 508 of Regulation S-K, as applicable, of the Act for
use in connection with the Shelf Registration Statement or Prospectus or
preliminary Prospectus included therein. Such information will be provided
promptly on the Company's request and 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. SHELF REGISTRATION PROCEDURES
(a) Procedures. In connection with the Shelf Registration Statement, the
Company will:
(i) use its 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 hereof), and pursuant thereto the Company will prepare and
file with the Commission a Shelf Registration Statement relating to
the registration on any appropriate form under the Act, which form
will 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. Except for the Common Stock covered by that certain
Registration Rights Agreement dated effective June 27, 2000, among the
Company, Appaloosa Investment Limited Partnership I, Palomino Fund,
Ltd., Tersk L.L.C., Xxxxxxxxxxx Strategic Income Fund, Xxxxxxxxxxx
Champion Income Fund, Xxxxxxxxxxx High Yield Fund, Xxxxxxxxxxx
Strategic Bond Fund/VA, Atlas Strategic Income Fund and that certain
Registration Rights Agreement dated effective August 29, 2000 between
the Company and Paribas North America, Inc. (collectively, the
"Discount Noteholder Rights Agreement"), the Company will not be
permitted to include in the Shelf Registration Statement any
securities other than the Transfer Restricted Securities. If the
registration of the sale of the Transfer Restricted Securities is an
underwritten offering and other holders of unregistered Common Stock
exercise piggy-back registration rights with respect to such
underwritten offering, in the event the managing underwriter
determines in its sole
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discretion that including all of the Common Stock requested to be
included in such underwritten offering will jeopardize the success of
the offering, unless the Company is legally obligated to cut back pro
rata, the Common Stock requested to be included by the holders of such
piggy-back registration rights will be excluded from such underwritten
offering prior to any exclusion therefrom of any of the Transfer
Restricted Securities.
(ii) use its best efforts to keep such Shelf Registration
Statement continuously effective and provide all requisite financial
statements and any other information for the period specified in
Section 3 of this Agreement. Upon the occurrence of any event that
would cause any such Shelf Registration Statement or the Prospectus
contained therein (i) to contain an untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein not misleading or (ii) not to be effective and
usable for resale of Transfer Restricted Securities during the period
required by this Agreement, the Company will subject to this Section 5
file promptly (A) an appropriate amendment to such Shelf Registration
Statement curing such defect, and, if Commission review is required,
use its best efforts to cause such amendment to be declared effective
as soon as practicable, (B) a supplement pursuant to Rule 424 under
the Act curing such defect or (C) an Exchange Act report incorporated
by reference curing such defect.
(iii) prepare and file with the Commission such amendments and
post-effective amendments to the Shelf Registration Statement as may
be necessary to keep such Shelf Registration Statement effective for
the applicable period set forth in Section 3 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, and such other Rules
as are applicable to the Prospectus, under the Act in a timely manner;
and comply with the provisions of the Act with respect to the
disposition of all Transfer Restricted Securities covered by such
Shelf Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the
sellers thereof set forth in such Shelf Registration Statement or
supplement to the Prospectus.
(iv) advise the Holders and underwriters, if any, promptly and,
if requested by such Persons, confirm such advice in writing, (A) when
the Shelf Registration Statement or any Prospectus supplement or post-
effective amendment has been filed, and, with respect to the Shelf
Registration Statement or any post-effective amendment thereto, when
the same has become effective, (B) of any request by the Commission
for amendments to the Shelf Registration Statement or amendments or
supplements to the Prospectus or for additional information relating
thereto, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement under
the 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
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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 Shelf Registration Statement, the Prospectus, any
amendment or supplement thereto made, misleading.
(v) subject to Section 5(a)(ii), if any fact or event
contemplated by Section 5(iv)(D) above will exist or have occurred,
prepare a post-effective amendment or supplement to the Shelf
Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. (vi) deliver
to each Holder and underwriter, if any, without charge, a reasonable
number of copies of the Prospectus (including each preliminary
prospectus) and any amendment or supplement thereto as such Holder or
underwriter reasonably may request; the Company hereby consents to the
use (in accordance with law) of the Prospectus and any amendment or
supplement thereto by each Holder and each underwriter, if any, in
connection with the offering and the sale of the Transfer Restricted
Securities covered by the Prospectus or any amendment or supplement
thereto.
(vii) prior to any offering of Transfer Restricted Securities,
cooperate with the Holders in connection with the registration and
qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions as reasonably
requested and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the
Transfer Restricted Securities covered by the Shelf Registration
Statement; provided, however, that the Company will not 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 Shelf Registration Statement, in any
jurisdiction where it is not now so subject.
(viii) 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.
(ix) list all shares of Common Stock covered by the Shelf
Registration Statement on the principal U.S. securities exchange on
which the Common Stock is then listed.
(x) use its best efforts to cause the disposition of the Transfer
Restricted Securities covered by the Shelf Registration Statement to
be registered with or
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approved by such other governmental agencies or authorities as may be
required to enable the seller or sellers thereof to consummate the
disposition of such Transfer Restricted Securities.
(xi) use its best efforts to comply with all applicable rules and
regulations of the Commission, and make generally available to its
security holders with regard to the Shelf 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 (as such term
is defined in paragraph (c) of Rule 158 under the Act).
(xvii) provide the Holders with a reasonable opportunity to
review and comment on any registration statement to be filed pursuant
to this Agreement prior to the filing thereof with the Commission, and
will make all changes thereto as any Holder may request in writing to
the extent such changes are required, in the judgment of the Company,
by the Act.
(xviii) use best efforts to obtain the withdrawal of any order
suspending the effectiveness of such registration statement, or the
lifting of any suspension of the qualification (or exemption from
qualification) of any of the Transfer Restricted Securities for sale
in any jurisdiction, at the earliest possible moment.
(xix) use its best efforts to furnish to each Holder and to each
managing underwriter, if any, a signed counterpart, addressed to such
Holder or such underwriter, if any, of (i) an opinion or opinions of
counsel to the Company and (ii) a comfort letter or comfort letters
from the Company=s independent public accountants pursuant to SAS 72,
each in customary form and covering such matters of the type
customarily covered by opinions or comfort letters, as the case may
be, as such Holder or the managing underwriter reasonably requests.
(xx) enter into customary agreements (including underwriting
agreements in customary form, which will include "lock-up" obligations
as may be requested by the managing underwriters, not to exceed 90
days in duration, but excluding shares that may be issued pursuant to
benefit plans or in connection with mergers or acquisitions) and take
such other actions (including using its reasonable efforts to make
such domestic road show presentations and otherwise engaging in such
reasonable marketing support in connection with any underwritten
offering, including without limitation the obligation to make its
executive officers available for such purpose of so requested by the
selling Holder (a "Road Show")) as are reasonably requested by any
selling Holder in order to expedite or facilitate the sale of any
Transfer Restricted Securities covered by a registration statement
pursuant to an underwritten offering in accordance herewith.
(xxi) offer Xxxxxx the opportunity to manage any underwritten
offering under this Agreement, subject to the reasonable consent of
the Holders of a majority of the Transfer Restricted Securities to be
included in such registration.
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(b) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Security that, upon receipt of (i) the notice referred to in
Section 5(a)(iv)(C), (ii) any notice from the Company of the existence of any
fact of the kind described in Section 5(a)(iv)(D) hereof or (iii) any notice
from the Company that (a) sales under the Shelf Registration Statement would
require the disclosure of material information which the Company has a bona fide
business purpose for preserving as confidential, or (b) such disclosure would
substantially impede the Company's ability to consummate a material transaction
(in each case, a "SUSPENSION NOTICE"), such Holder will forthwith discontinue
disposition of Transfer Restricted Securities pursuant to the Shelf Registration
Statement until (A) such Holder has received copies of the supplemented or
amended Prospectus contemplated by Section 5(a)(v) hereof, or (B) such Holder is
advised in writing by the Company that the use of the Prospectus may be resumed,
and has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus (in each case, the "RECOMMENCEMENT
DATE"). The aggregate suspension pursuant to clause (iii) above will not exceed
60 days in any twelve-month period. Each Holder receiving a Suspension Notice
hereby agrees that it will either (x) destroy any Prospectuses, other than
permanent file copies, then in such Holder's possession which have been replaced
by the Company with more recently dated Prospectuses or (y) 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.
(c) Restrictions on the Company. During the period specified in Section 3
of this Agreement, the Company will not effect any public sale or distribution
of any securities the same as or similar to the Transfer Restricted Securities,
or any securities convertible into or exchangeable or exercisable for any
Company securities the same as or similar to the Transfer Restricted Securities
(except pursuant to registration on Form S-4 or any successor form, or otherwise
in connection with the acquisition of a business or assets of a business, a
merger, or an exchange offer for the securities of the issuer of another entity,
or registrations on Form S-8 or any successor form relating solely to securities
offered pursuant to any benefit plan), during the 14-day period prior to and
through the period (i) beginning on the commencement of the public distribution
of Transfer Restricted Securities pursuant to the Shelf Registration Statement
in an underwritten offering by or on behalf of any Holder to the extent timely
notified in writing by the selling Holders or the underwriters managing such
distribution and (ii) ending on the first to occur of (A) the 90 th day after
such commencement and (B) the end of such distribution (the "Company Standstill
Period"), including that portion of such period following an underwritten
distribution commenced during the Company Standstill Period that does not
coincide with the Company Standstill Period.
SECTION 6. PIGGYBACK REGISTRATIONS
(a) In addition to the agreements relating to the Shelf Registration
Statement the Company agrees as follows:
(i) If at any time the Company proposes to file an additional
registration statement under the Act with respect to an offering of
Common Stock (x) for the Company=s own account (except pursuant to
registrations on Form S-4 or any
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successor form, or Form S-8 or any successor form relating solely to
securities issued pursuant to any benefit plan) or (y) for the account
of any holders of Common Stock (other than the Noteholders or other
holders of Notes or for the owners of Common Stock covered by Discount
Noteholders Rights Agreement), then (A) the Company will give written
notice of such proposed filing to the Noteholders as soon as
practicable (but in no event less than 30 days before the anticipated
filing date), (B) such notice will offer each Noteholder, subject to
the terms and conditions hereof, the opportunity to request that such
actions be taken under Rule 429 under the Act ("Rule 429") as will
cause the prospectus contained in such additional registration
statement (a "Noteholder Piggyback Registration Statement") to be
available to permit the offer and sale, at such Noteholder's election,
of some or all of the Transfer Restricted Securities owned by such
Noteholder on the same terms and conditions as the Company's or such
other holder's Common Stock (a "Noteholder Piggyback Sale"), and (C)
the Company will otherwise take such reasonable actions as will enable
such Noteholder to effect a Noteholder Piggyback Sale on such terms
and conditions.
(ii) Subject to Section 6(b), the Company will take such actions
as will be required under Rule 429 to cause the combined prospectus
contained in such Noteholder Piggyback Registration Statement to
permit the offer and sale of all Transfer Restricted Securities
requested by such Noteholder within 20 days after the receipt of any
notice given by the Company pursuant to Section 6(a)(i), clause (A),
to be covered by such combined prospectus; provided, however, that if,
at any time after giving written notice of its intention to register
any securities and prior to the effective date of such Noteholder
Piggyback Registration Statement, the Company will determine for any
reason not to register or to delay registration of such securities,
the Company may, at its election, give written notice of such
determination to each Noteholder and, thereupon, (i) in the case of a
determination not to register, will be relieved of any obligation to
cause any Transfer Restricted Securities to be covered by such
combined prospectus, without prejudice, however, to the rights of any
Noteholder to have its Transfer Restricted Securities continue to be
included in the Shelf Registration Statement and (ii) in the case of a
determination to delay registering, will be permitted to delay causing
any Transfer Restricted Securities to be covered by the combined
prospectus for the same period as the delay in registering such other
securities.
(iii) If the offering pursuant to such Noteholder Piggyback
Registration Statement is to be underwritten, then each Noteholder
making a request for a Noteholder Piggyback Sale pursuant to this
Section 6(a) must participate in such underwritten offering and will
not be permitted to make any other offering in connection with such
registration. If the offering pursuant to such Noteholder Piggyback
Registration Statement is to be on any other terms, then each
Noteholder making a request for a Noteholder Piggyback Sale pursuant
to this Section 6(a) must participate in such offering on such basis
and will not be permitted to make an underwritten offering in
connection with such registration. Each Noteholder will be permitted
to withdraw all or part of such Noteholder=s Transfer Restricted
Securities
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from coverage by a Noteholder Piggyback Registration Statement at any
time prior to (but only prior to) the effective date thereof without
prejudice to the rights of such Noteholder to have its Transfer
Restricted Securities continue to be included in the Shelf
Registration Statement.
(b) Notwithstanding anything contained herein, if the managing underwriter
or underwriters of a sale or offering described in Section 6(a) pursuant to
which a Noteholder has requested a Noteholder Piggyback Sale will advise the
Company in writing that (x) the size of the offering that the Noteholders, the
Company and any other holders intend to make or (y) the kind of securities that
one or more Noteholders, the Company and such other holders intend to include in
such offering are such that the success of the offering would be materially and
adversely affected, then (A) if the size of the offering is the basis of such
underwriter's advice, the amount of Transfer Restricted Securities to be offered
for the account of any Noteholder will be reduced to the extent necessary to
reduce the total amount of securities to be included in such offering to the
amount recommended by such managing underwriter or underwriters; provided,
however, that, if securities are being offered for the account of Persons other
than the Company or such Noteholder, the proportion by which the amount of such
Transfer Restricted Securities intended to be offered for the account of any
Noteholder is reduced will not exceed the proportion by which the amount of such
securities intended to be offered for the account of such Persons is reduced;
and (B) if the combination of securities to be offered is the basis of such
underwriter's advice (1) the Transfer Restricted Securities to be included in
such offering will be reduced as described in clause (A) above (subject to the
provision in clause (A)) or (2) if the actions described in sub-clause (1) of
this clause (B) would, in the judgment of the managing underwriter, be
insufficient to eliminate the adverse effect that inclusion of the Transfer
Restricted Securities requested to be included would have on such offering, such
Transfer Restricted Securities will be excluded from such offering, but only if
all shares of Common Stock are also excluded. Any reduction in Transfer
Restricted Securities to be included in an underwritten offering as contemplated
by this Section 6(b) will be without prejudice to the Noteholders' rights to
have their Transfer Restricted Securities continue to be included in the Shelf
Registration Agreement.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or compliance
with this Agreement will be borne by the Company, regardless of whether a Shelf
Registration Statement required by this Agreement 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, messenger and delivery services
and telephone; (iv) all fees and disbursements of counsel for the Company and
not more than one counsel for the Holders of Transfer Restricted Securities as
described in Section 7(b) below; (v) all application and filing fees in
connection with listing the Common Stock on a national securities exchange
pursuant to the requirements hereof; (vi) all fees and disbursements of
independent certified public accountants of the Company (including the expenses
of any special audit and comfort letters required by or incident to such
performance); ; and (vii) fees and expenses in connection with any review of
underwriting arrangements by the National Association of Securities Dealers,
Inc. including fees and expenses of any "qualified independent underwriter" in
connection with an underwritten offering.
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. The Company will, in any event, bear its 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. The Noteholders will bear the expense of any underwriting commissions
in connection with an underwritten offering.
(b) The Company will reimburse the Holders selling Transfer Restricted
Securities pursuant to the "Plan of Distribution" contained in the Shelf
Registration Statement for the reasonable fees and disbursements of not more
than one counsel selected by the Holders of a majority of the Transfer
Restricted Securities.
SECTION 8. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless each Holder, its
directors, its officers, its employees, its agents and underwriters and each
Person, if any, who controls such Holder (within the meaning of Section 15 of
the Act and 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 the Shelf
Registration Statement, preliminary prospectus or Prospectus (or any amendment
or supplement thereto) provided by the Company to any Holder or any prospective
purchaser of Shares pursuant to the Shelf Registration Statement 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 expressly for use in the Shelf
Registration Statement or Noteholder Piggyback Registration Statement.
(b) Each Holder of Transfer Restricted Securities agrees, severally and not
jointly, to indemnify and hold harmless the Company and its 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, to the same extent
as the foregoing indemnity from the Company set forth in section (a) above, but
only with reference to information relating to such Holder furnished in writing
to the Company by such Holder expressly for use in the Shelf Registration
Statement.
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(c) In case any action will be commenced involving any Person in respect of
which indemnity may be sought pursuant to Section 7(a) or 7(b) (the "indemnified
party"), the indemnified party will promptly notify the Person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party will assume the defense of such action, including the
employment of counsel reasonably satisfactory to the indemnified party and the
payment of all 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 7(a) and 7(b), a Holder will not be required to assume the defense
of such action pursuant to this Section 7(c), but may employ separate counsel
and participate in the defense thereof, but the fees and expenses of such
counsel, except as provided below, will be at the expense of the Holder). Any
indemnified party will 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 will be at the expense of the indemnified party unless (i) the
employment of such counsel will have been specifically authorized in writing by
the indemnifying party, (ii) the indemnifying party will 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) include both the indemnified party and the indemnifying
party, and the indemnified party will 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 will not have the right to assume the defense of such action
on behalf of the indemnified party). In any such case, the indemnifying party
will 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 (in addition to any local counsel) for
all indemnified parties and all such fees and expenses will be reimbursed as
they are incurred. Such firm will be designated in writing by the Holders of a
majority of the Transfer Restricted Securities, in the case of the parties
indemnified pursuant to Section 7(a), and by the Company, in the case of parties
indemnified pursuant to Section 7(b). The indemnifying party will 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) twenty Business Days after the
indemnifying party will 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 will have failed to comply with
such reimbursement request. No indemnifying party will, 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 7
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, will
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contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or judgments in such proportion as
is appropriate to reflect the relative fault of the Company 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, on the one hand, and of the Holders, on the other hand,
will 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, 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 a party as a result of
the losses, claims, damages, liabilities and judgments referred to above will be
deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with investigating or defending any action or claim.
The Company 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 immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities or judgments referred to in the immediately preceding
paragraph will be deemed to include 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 will be required to contribute any amount in excess of
the amount by which the net proceeds of the offering (before deducting expenses)
received by such Holder exceeds the amount of damages that 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) will 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(d) are several in proportion to the respective Transfer Restricted
Securities held by each of the Holders hereunder and not joint.
SECTION 9. RULE 144A AND RULE 144
The Company agrees with each Holder, for so long as any Transfer Restricted
Securities remain outstanding and during any period in which the Company (i) is
not subject to Section 13 or 15(d) of the Exchange Act, to make available, upon
request of any Holder of Transfer Restricted Securities, to any Holder or
beneficial owner of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of 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 resale 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 (if available).
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SECTION 10. MISCELLANEOUS
(a) Remedies. The Company acknowledges and agrees that any failure by the
Company to comply with its obligations under Section 3 hereof may result in
material irreparable injury to the Noteholders 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
Noteholders or any Holder may obtain such relief as may be required to
specifically enforce the Company's obligations under Section 3 hereof. The
Company further agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not, on or after the date
of this Agreement, enter into any agreement with respect to its securities that
is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's securities under any
agreement in effect on the date hereof. The Company and each of the Holders
hereby agree that: (a) the terms of this Agreement and the registration rights
granted hereunder are subject to the terms and conditions of the Discount
Noteholder Rights Agreement; and (b) the registration rights granted under the
Discount Noteholders Rights Agreement are prior to the rights granted under this
Agreement.
(c) No Piggybacks on Shelf Registration Statement. After the date of this
Agreement the Company will not grant to any of its security holders (other than
the holders of Transfer Restricted Securities in such capacity) the right to
include any of their securities in the Shelf Registration Statement other than
the Transfer Restricted Securities and the Common Stock covered by the Discount
Noteholders Rights Agreement.
(d) 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 3
hereof and this Section 10(d)(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 Shares representing a majority of the outstanding Transfer
Restricted Securities (excluding Transfer Restricted Securities held by the
Company or its Affiliates).
(e) Third Party Beneficiary. The parties agree that: (a) each
representation, warranty, covenant and agreement under this Agreement is between
the Company, on the one hand, and each Holder, on the other hand; and (b) no
Holder will be deemed a direct or indirect beneficiary of any representation,
warranty, covenant or agreement by or between the Company and any other Holder.
(f) Notices. All notices and other communications provided for or permitted
hereunder will 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, to the address set forth on the records of
either the Registrar with respect to the Shares or The Depository
Trust Company, as the case may be;
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(ii) if to the Company: to Chesapeake Energy Corporation, 0000
Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000, Attention:
Corporate Secretary, with a copy to Self, Xxxxxxx & Xxxx, Inc., 000
Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxxx Xxxx, Xxxxxxxx 00000, Attention:
Xxxxxxx Self; and
(iii) if to the Noteholders: to Xxxxxx Brothers Inc., 000 Xxxxx
Xxxxxx, 00 xx Floor New York, New York 10285, Attention: Xxx Xxxxx; to
any other Noteholder at the address set forth in the Addendum executed
by the Noteholder; or in any case to such other address as the Person
to be notified may have requested in writing.
All such notices and communications will be deemed to have been duly given:
at the time delivered by hand, if personally delivered; five (5) Business Days
after being deposited in the mail, postage prepaid, if mailed; when receipt is
acknowledged, if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
(g) Successors and Assigns. This Agreement will inure to the benefit of and
be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders of Transfer Restricted Securities; provided, that nothing herein will be
deemed to permit any assignment, transfer or other disposition of Transfer
Restricted Securities in violation of the terms hereof or of the Purchase
Agreements. If any transferee of any Holder will acquire Transfer Restricted
Securities in any manner, whether by operation of law or otherwise, such
Transfer Restricted Securities will be held subject to all of the terms of this
Agreement, and by taking and holding such Transfer Restricted Securities such
Person will 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 the applicable Purchase Agreement, and
such Person will be entitled to receive the benefits hereof.
(h) 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 will be deemed to be an original and all of which taken
together will constitute one and the same agreement.
(i) Headings. The headings in this Agreement are for convenience of
reference only and will not limit or otherwise affect the meaning hereof.
(j) Governing Law. THIS AGREEMENT WILL 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.
(k) 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 will not be affected or impaired thereby.
(l) Entire Agreement. This Agreement, together with the Purchase
Agreements, is intended by the parties as a final expression of their agreement
and intended to be a complete and
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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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
CHESAPEAKE ENERGY CORPORATION
By: /s/ XXXXXX X. XXXXXXX
---------------------------------------------
Xxxxxx X. Xxxxxxx, Executive Vice-President
XXXXXX BROTHERS INC.
By: /s/ J. XXXXXX XXXXXXXX
----------------------------------------------
Name: /s/ J. Xxxxxx Xxxxxxxx
--------------------------------------------
Title: /s/ Managing Director
-------------------------------------------
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EXHIBIT "A"
CHESAPEAKE ENERGY CORPORATION
ADDENDUM
TO COMMON STOCK
REGISTRATION RIGHTS AGREEMENT
We, the undersigned, execute this Addendum, effective as of the date below,
as a condition precedent to our acquisition of Common Stock of Chesapeake Energy
Corporation, an Oklahoma corporation (the "Company"), and hereby agree to become
a party to, and be bound by, that certain Common Stock Registration Rights
Agreement (the "Agreement") dated as of September 1, 2000, by and among the
Company, Xxxxxx Brothers Inc., and other persons executing this Addendum from
time to time, in all manner and respects as set forth in the Agreement.
Executed as of this _______ day of ______________, _________.
By:
-----------------------------------
By:
-----------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address:
---------------------------------------
Number of shares of Chesapeake Common Stock owned on this date which were
acquired in exchange for Gothic Production Corporation 11 1/8% Senior Secured
Notes Due 2005: _________
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