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EXHIBIT 4.2
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REGISTRATION RIGHTS AGREEMENT
DATED AS OF JULY 2, 1997
AMONG
OCEAN ENERGY, INC.,
ISSUER,
OCEAN ENERGY, INC., LOUISIANA,
SUBSIDIARY GUARANTOR,
AND
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.,
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED,
BEAR, ▇▇▇▇▇▇▇ & CO. INC.,
CHASE SECURITIES INC.,
▇▇▇▇▇▇ BROTHERS INC.,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into this 2nd day of July, 1997, among OCEAN ENERGY, INC., a Delaware
corporation (the "Company"), and OCEAN ENERGY, INC., a Louisiana corporation
and a direct wholly-owned subsidiary of the Company (the "Subsidiary
Guarantor"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED, BEAR, ▇▇▇▇▇▇▇ & CO. INC., CHASE SECURITIES INC., ▇▇▇▇▇▇ BROTHERS
INC. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED (collectively, the "Initial
Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated
June 25, 1997, among the Company and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial
Purchasers of an aggregate of $200 million principal amount of the Company's 8
7/8% Senior Subordinated Notes due 2007 (the "Securities"). In order to induce
the Initial Purchasers to enter into the Purchase Agreement, the Company and
the Subsidiary Guarantor have agreed to provide to the Initial Purchasers and
their direct and indirect transferees the registration rights set forth in this
Agreement. The execution of this Agreement is a condition to the closing under
the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions.
As used in this Agreement, the following capitalized defined
terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from
time to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Closing Date" shall mean the Closing Time as defined in the
Purchase Agreement.
"Company" shall have the meaning set forth in the preamble and
shall also include the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any
other depositary appointed by the Company, provided, however, that such
depositary must have an address in the Borough of Manhattan, in the City
of New York.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Securities for Registrable Securities pursuant to Section 2.1
hereof.
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"Exchange Offer Registration" shall mean a registration under
the 1933 Act effected pursuant to Section 2.1 hereof.
"Exchange Offer Registration Statement" shall mean an exchange
offer registration statement on Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such
registration statement, including the Prospectus contained therein, all
exhibits thereto and all documents incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2.1
hereof.
"Exchange Securities" shall mean the 8 7/8% Senior Subordinated
Notes due 2007, issued by the Company under the Indenture containing
terms identical to the Securities in all material respects (except for
references to certain interest rate provisions, restrictions on
transfers and restrictive legends) and the related guarantee of the
Securities by the Subsidiary Guarantor, to be offered to Holders of
Securities in exchange for Registrable Securities pursuant to the
Exchange Offer.
"Holder" shall mean an Initial Purchaser, for so long as it owns
any Registrable Securities, and each of its successors, assigns and
direct and indirect transferees who become registered owners of
Registrable Securities under the Indenture.
"Indenture" shall mean the Indenture relating to the Securities,
dated as of July 2, 1997, between the Company, the Subsidiary Guarantor
and State Street Bank and Trust Company as trustee, as the same may be
amended, supplemented, waived or otherwise modified from time to time in
accordance with the terms thereof.
"Initial Purchaser" or "Initial Purchasers" shall have the
meaning set forth in the preamble.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Outstanding (as defined in the Indenture)
Registrable Securities; provided, however, that whenever the consent or
approval of Holders of a specified percentage of Registrable Securities
is required hereunder, Registrable Securities held by the Company and
other obligors on the Securities or any Affiliate (as defined in the
Indenture) of the Company shall be disregarded in determining whether
such consent or approval was given by the Holders of such required
percentage amount.
"Participating Broker-Dealer" shall mean any of ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, Bear, ▇▇▇▇▇▇▇ &
Co. Inc., Chase Securities Inc., ▇▇▇▇▇▇ Brothers Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated and any other broker-dealer which makes a market in
the Securities and exchanges Registrable Securities in the Exchange
Offer for Exchange Securities.
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"Person" shall mean an individual, partnership (general or
limited), corporation, limited liability company, trust or
unincorporated organization, or a government or agency or political
subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus
as amended or supplemented by any prospectus supplement, including any
such prospectus supplement with respect to the terms of the offering of
any portion of the Registrable Securities covered by a Shelf
Registration Statement, and by all other amendments and supplements to a
prospectus, including post-effective amendments, and in each case
including all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble.
"Registrable Securities" shall mean the Securities; provided,
however, that Securities shall cease to be Registrable Securities when
(i) a Registration Statement with respect to such Securities shall have
been declared effective under the 1933 Act and such Securities shall
have been disposed of pursuant to such Registration Statement, (ii) such
Securities have been sold to the public pursuant to Rule 144 (or any
similar provision then in force, but not Rule 144A) under the 1933 Act,
(iii) such Securities shall have ceased to be outstanding or (iv) the
Exchange Offer is consummated (except in the case of Securities
purchased from the Company and continued to be held by the Initial
Purchaser).
"Registration Expenses" shall mean any and all expenses incident
to performance of or compliance by the Company and the Subsidiary
Guarantor with this Agreement, including without limitation: (i) all
SEC, stock exchange or National Association of Securities Dealers, Inc.
(the "NASD") registration and filing fees, including, if applicable, the
fees and expenses of any "qualified independent underwriter" (and its
counsel) that is required to be retained by any holder of Registrable
Securities in accordance with the rules and regulations of the NASD,
(ii) all fees and expenses incurred in connection with compliance with
state securities or blue sky laws and compliance with the rules of the
NASD (including reasonable fees and disbursements of one firm of legal
counsel for any underwriters or Holders in connection with blue sky
qualification of any of the Exchange Securities or Registrable
Securities and any filings with the NASD), (iii) all expenses of any
Persons in preparing or assisting in preparing, word processing,
printing and distributing any Registration Statement, any Prospectus,
any amendments or supplements thereto relating to the performance of and
compliance with this Agreement, (iv) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable
Securities or the Exchange Securities, as the case may be, on any
securities exchange or exchanges, (v) all rating agency fees, (vi) the
fees and disbursements of counsel for the Company and the Subsidiary
Guarantor and of the independent public accountants of the Company,
including the expenses of any special audits or "cold comfort" letters
required by or incident to such performance and compliance, (vii) the
fees and expenses of the Trustee, and any escrow agent or custodian,
(viii) the reasonable fees and out-of-pocket expenses of
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the Initial Purchasers in connection with the Exchange Offer, including
the reasonable fees and expenses of counsel to the Initial Purchasers in
connection therewith, (ix) the reasonable fees and disbursements of one
firm of legal counsel selected by the Majority Holders to represent the
Holders of Registrable Securities and (x) any fees and disbursements of
the underwriters customarily required to be paid by issuers or sellers
of securities and the fees and expenses of any special experts retained
by the Company or the Subsidiary Guarantor in connection with any
Registration Statement, but excluding underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by a Holder.
"Registration Statement" shall mean any registration statement of
the Company which covers any of the Exchange Securities or Registrable
Securities pursuant to the provisions of this Agreement, and all
amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated or
deemed to be incorporated by reference therein.
"Securities" shall have the meaning set forth in the preamble.
"SEC" shall mean the Securities and Exchange Commission or any
successor agency or government body performing the functions currently
performed by the United States Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected pursuant
to Section 2.2 hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company and the Subsidiary Guarantor pursuant to the
provisions of Section 2.2 of this Agreement which covers all of the
Registrable Securities on an appropriate form under Rule 415 under the
1933 Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Subsidiary Guarantor" shall have the meaning set forth in the
preamble and also includes and subsidiary of the Company that becomes a
guarantor of the Securities pursuant to the terms and provisions of the
Indenture.
"Trustee" shall mean the trustee with respect to the Securities
under the Indenture.
2. Registration Under the ▇▇▇▇ ▇▇▇.
2.1 Exchange Offer. The Company and the Subsidiary Guarantor
shall (A) prepare and, as soon as practicable but not later than 60 days
following the Closing Date, file with the SEC
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an Exchange Offer Registration Statement on an appropriate form under the 1933
Act with respect to a proposed Exchange Offer and the issuance and delivery to
the Holders, in exchange for the Registrable Securities, a like principal
amount of Exchange Securities, (B) use its best efforts to cause the Exchange
Offer Registration Statement to be declared effective under the 1933 Act within
120 days of the Closing Date, (C) use its best efforts to keep the Exchange
Offer Registration Statement effective until the closing of the Exchange Offer
and (D) use its best efforts to cause the Exchange Offer to be consummated not
later than 180 days following the Closing Date. The Exchange Securities will
be issued under the Indenture. Upon the effectiveness of the Exchange Offer
Registration Statement, the Company and the Subsidiary Guarantor shall promptly
commence the Exchange Offer, it being the objective of such Exchange Offer to
enable each Holder eligible and electing to exchange Registrable Securities for
Exchange Securities (assuming that such Holder (a) is not an affiliate of the
Company or the Subsidiary Guarantor within the meaning of Rule 405 under the
1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired
directly from the Company for its own account, (c) acquired the Exchange
Securities in the ordinary course of such Holder's business and (d) has no
arrangements or understandings with any person to participate in the Exchange
Offer for the purpose of distributing the Exchange Securities) to transfer such
Exchange Securities from and after their receipt without any limitations or
restrictions under the registration requirements of the 1933 Act and without
material restrictions under the securities laws of a substantial proportion of
the several states of the United States.
In connection with the Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(b) keep the Exchange Offer open for acceptance for a period
of not less than 30 calendar days after the date notice thereof is
mailed to the Holders (or longer if required by applicable law) (such
period referred to herein as the "Exchange Period");
(c) utilize the services of the Depositary for the Exchange
Offer;
(d) permit Holders to withdraw tendered Registrable Securities
at any time prior to 5:00 p.m. (Eastern Standard Time), on the last
business day of the Exchange Period, by sending to the institution
specified in the notice, a telegram, telex, facsimile transmission or
letter setting forth the name of such Holder, the principal amount of
Registrable Securities delivered for exchange, and a statement that such
Holder is withdrawing his election to have such Securities exchanged;
(e) notify each Holder that any Registrable Security not
tendered will remain outstanding and continue to accrue interest, but
will not retain any rights under this Agreement (except in the case of
certain rights retained by the Initial Purchasers and Participating
Broker-Dealers as provided herein); and
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(f) otherwise comply in all material respects with all
applicable laws relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the
Company and the Subsidiary Guarantor shall:
(i) accept for exchange all Registrable Securities duly
tendered and not validly withdrawn pursuant to the Exchange Offer in
accordance with the terms of the Exchange Offer Registration Statement
and the letter of transmittal which shall be an exhibit thereto;
(ii) deliver or cause to be delivered all Registrable
Securities so accepted for exchange to the Trustee for cancellation; and
(iii) cause the Trustee promptly to authenticate and deliver
Exchange Securities to each Holder of Registrable Securities so accepted
for exchange in a principal amount equal to the principal amount of the
Registrable Securities of such Holder so accepted for exchange.
Interest on each Exchange Security will accrue from the last date
on which interest was paid on the Registrable Securities surrendered in
exchange therefor or, if no interest has been paid on the Registrable
Securities, from the date of original issuance. The Exchange Offer shall not
be subject to any conditions, other than (i) that the Exchange Offer, or the
making of any exchange by a Holder, does not violate applicable law or any
applicable interpretation of the staff of the SEC, (ii) the due tendering of
Registrable Securities in accordance with the Exchange Offer, (iii) that each
Holder of Registrable Securities exchanged in the Exchange Offer shall have
represented that all Exchange Securities to be received by it shall be acquired
in the ordinary course of its business and that at the time of the consummation
of the Exchange Offer it shall have no arrangement or understanding with any
person to participate in the distribution (within the meaning of the ▇▇▇▇ ▇▇▇)
of the Exchange Securities and shall have made such other representations as
may be reasonably necessary under applicable SEC rules, regulations or
interpretations to render the use of Form S-4 or other appropriate form under
the 1933 Act available, (iv) that no action or proceeding shall have been
instituted or threatened in any court or by or before any governmental agency
with respect to the Exchange Offer and (v) that there shall not have been
adopted or enacted any law, statute, rule or regulation, (vi) that there shall
not have been declared by United States federal or New York state authorities a
banking moratorium, (vii) that trading on the New York Stock Exchange or
generally in the United States over-the-counter market shall not have been
suspended by order of the SEC or any other governmental authority and (viii)
such other conditions as may be reasonably acceptable to ▇▇▇▇▇▇▇ ▇▇▇▇▇, in each
of clauses (iv) through (viii), which, in the Company's judgment, would
reasonably be expected to impair the ability of the Company to proceed with the
Exchange Offer. The Company shall inform the Initial Purchasers of the names
and addresses of the Holders to whom the Exchange Offer is made, and the
Initial Purchasers shall have the right to contact such Holders and otherwise
facilitate the tender of Registrable Securities in the Exchange Offer.
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2.2 Shelf Registration. (i) If, because of any changes in
law, SEC rules or regulations or applicable interpretations thereof by the
staff of the SEC, the Company is not permitted to effect the Exchange Offer as
contemplated by Section 2.1 hereof, (ii) if for any other reason the Exchange
Offer Registration Statement is not declared effective within 120 days
following the Closing Date or the Exchange Offer is not consummated within 180
days after the Closing Date, (iii) upon the request of ▇▇▇▇▇▇▇ ▇▇▇▇▇ (but only
with respect to any Registrable Securities which the Initial Purchasers
acquired directly from the Company) or (iv) if a Holder advised by counsel that
it is not permitted by Federal securities laws or SEC policy to participate in
the Exchange Offer or does not receive fully tradable Exchange Securities
pursuant to the Exchange Offer, then in case of each of clauses (i) through
(iv) the Company and the Subsidiary Guarantor shall, at their cost:
(a) As promptly as practicable, file with the SEC, and
thereafter shall use its best efforts to cause to be declared effective
as promptly as practicable but no later than 180 days after the Closing
Date, a Shelf Registration Statement relating to the offer and sale of
the Registrable Securities by the Holders from time to time in
accordance with the methods of distribution elected by the Majority
Holders participating in the Shelf Registration and set forth in such
Shelf Registration Statement.
(b) Use their best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the Prospectus
forming part thereof to be usable by Holders for a period of two years
from the date the Shelf Registration Statement is declared effective by
the SEC, or for such shorter period that will terminate when all
Registrable Securities covered by the Shelf Registration Statement (i)
have been sold pursuant thereto, or (ii) are distributed to the public
pursuant to Rule 144 of the Securities Act or are saleable pursuant to
Rule 144(k) under the Securities Act and can be sold pursuant to Rule
144 without any limitations under clauses (c), (e), (f) and (h) of Rule
144 (or any successor rule thereof); provided, however, that the Company
shall not be obligated to keep the Shelf Registration Statement
effective if (A) the Company determines, in its reasonable judgment,
upon advice of counsel, as authorized by a resolution of its Board of
Directors, that the continued effectiveness and usability of the Shelf
Registration Statement would (x) require the disclosure of material
information, which the Company has a bona fide business reason for
preserving as confidential, or (y) interfere with any financing,
acquisition, corporate reorganization or other material transaction
involving the Company or any of its subsidiaries, and provided further,
that the failure to keep the Shelf Registration Statement effective and
usable for offers and sales of Registrable Securities for such reasons
shall last no longer than 45 days in any 12-month period (whereafter a
Registration Default, as hereinafter defined), and (B) the Company
promptly thereafter complies with the requirements of Section 3(k)
hereof, if applicable. Any such period during which the Company is
excused from keeping the Shelf Registration Statement effective and
usable for offers and sales of Registrable Securities is referred to
herein as a "Suspension Period"; a Suspension Period shall commence on
and include the date that the Company gives notice to the Holders that
the Shelf Registration Statement is no longer effective or the
prospectus included therein is no longer usable for offers and sales of
Registrable Securities as a result of the application of the proviso of
the
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foregoing sentence and shall end on the earlier to occur of (1) the date
on which each seller of Registrable Securities covered by the Shelf
Registration Statement either receives the copies of the supplemented or
amended prospectus contemplated by Section 3(k) hereof or is advised in
writing by the Company that use of the prospectus may be resumed and (2)
the expiration of 45 days in any 12-month period during which one or
more Suspension Periods has been in effect.
(c) Notwithstanding any other provisions hereof, use their
best efforts to ensure that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any
supplement thereto complies in all material respects with the 1933 Act
and the rules and regulations thereunder, (ii) any Shelf Registration
Statement and any amendment thereto does not, when it becomes effective,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading and (iii) any Prospectus forming part
of any Shelf Registration Statement, and any supplement to such
Prospectus (as amended or supplemented from time to time), does not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements, in light of the
circumstances under which they were made, not misleading.
The Company and the Subsidiary Guarantor further agree, if
necessary, to supplement or amend the Shelf Registration Statement, as required
by Section 3(b) below, and to furnish to the Holders of Registrable Securities
copies of any such supplement or amendment promptly after its being used or
filed with the SEC.
2.3 Expenses. The Company and the Subsidiary Guarantor shall
pay all Registration Expenses in connection with the registration pursuant to
Section 2.1 or 2.2. Each Holder shall pay all underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
such Holder's Registrable Securities pursuant to the Shelf Registration
Statement.
2.4 Effectiveness. (a) The Company and the Subsidiary
Guarantor will be deemed not have used their best efforts to cause the Exchange
Offer Registration Statement or the Shelf Registration Statement, as the case
may be, to become, or to remain, effective during the requisite period if the
Company and the Subsidiary Guarantor voluntarily take any action that would, or
omits to take any action which omission would, result in any such Registration
Statement not being declared effective or in the holders of Registrable
Securities covered thereby not being able to exchange or offer and sell such
Registrable Securities during that period as and to the extent contemplated
hereby, unless such action is required by applicable law.
(b) An Exchange Offer Registration Statement pursuant to
Section 2.1 hereof or a Shelf Registration Statement pursuant to Section 2.2
hereof will not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that if, after it has been declared
effective, the offering of Registrable Securities pursuant to a Shelf
Registration Statement
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is interfered with by any stop order, injunction or other order or requirement
of the SEC or any other governmental agency or court, such Registration
Statement will be deemed not to have become effective during the period of such
interference, until the offering of Registrable Securities pursuant to such
Registration Statement may legally resume.
2.5 Interest. The Indenture executed in connection with the
Securities will provide that in the event that either (a) the Exchange Offer
Registration Statement is not filed with the Commission on or prior to the 60th
calendar day following the Closing Date of the Securities, (b) the Exchange
Offer Registration Statement has not been declared effective on or prior to the
120th calendar day following the Closing Date of the Securities or (c) the
Exchange Offer is not consummated or a required Shelf Registration Statement is
not declared effective, in either case, on or prior to the 180th calendar day
following the date of original issue of the Securities (each such event
referred to in clauses (a) through (c) above, a "Registration Default"), the
interest rate borne by the Securities shall be increased by one-half of one
percent per annum upon the occurrence of each Registration Default, with an
aggregate maximum increase in the interest rate equal to one-half percent
(0.50%) per annum; provided, however, that if the Exchange Offer Registration
Statement is not declared effective on or prior to the 120th calendar day
following the Closing Date and the Company and the Subsidiary Guarantor shall
request holders of Securities to provide information for inclusion in the Shelf
Registration Statement, then Securities owned by Holders who do not deliver
such information to the Company and the Subsidiary Guarantor or who do not
provide comments on the Shelf Registration Statement when requested by the
Company and the Subsidiary Guarantor will not be entitled to any such increase
in the interest rate for any day after the 180th day following the Closing
Date. Following the cure of all Registration Defaults, the accrual of
additional interest will cease and the interest rate will revert to the
original rate.
2.6 Specific Enforcement. Without limiting the remedies
available to the Initial Purchasers and the Holders, the Company and the
Subsidiary Guarantor acknowledge that any failure by the Company and the
Subsidiary Guarantor to comply with their obligations under Section 2.1 and
Section 2.2 hereof may result in material irreparable injury to the Initial
Purchasers or the Holders for which there is no adequate remedy at law, that it
will not be possible to measure damages for such injuries precisely and that,
in the event of any such failure, the Initial Purchasers or any Holder may, to
the extent permitted by law, obtain such relief as may be required to
specifically enforce the Company's and the Subsidiary Guarantor's obligations
under Section 2.1 and Section 2.2 hereof.
3. Registration Procedures.
In connection with the obligations of the Company and the
Subsidiary Guarantor with respect to Registration Statements pursuant to
Sections 2.1 and 2.2 hereof, the Company and the Subsidiary Guarantor shall:
(a) prepare and file with the SEC a Registration Statement,
within the relevant time period specified in Section 2, on the
appropriate form under the 1933 Act, which form (i) shall be selected by
the Company, (ii) shall, in the case of a Shelf Registration, be
available
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for the sale of the Registrable Securities by the selling Holders
thereof, (iii) shall comply as to form in all material respects with the
requirements of the applicable form and include or incorporate by
reference all financial statements required by the SEC to be filed
therewith or incorporated by reference therein, and (iv) shall comply in
all respects with the requirements of Regulation S-T under the
Securities Act, and use their best efforts to cause such Registration
Statement to become effective and remain effective in accordance with
Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-
effective amendments to each Registration Statement as may be necessary
under applicable law to keep such Registration Statement effective for
the applicable period; and cause each Prospectus to be supplemented by
any required prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the 1933 Act and comply with the provisions
of the 1933 Act applicable to them with respect to the disposition of
all securities covered by each Registration Statement during the
applicable period in accordance to the extent allowed by law and
reasonably practicable to the Company with the intended method or
methods of distribution by the selling Holders thereof;
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Securities, at least five business days prior to
filing, that a Shelf Registration Statement with respect to the
Registrable Securities is being filed and advising such Holders that the
distribution of Registrable Securities will be made in accordance with
the method selected by the Majority Holders participating in the Shelf
Registration; (ii) furnish to each Holder of Registrable Securities and
to each underwriter of an underwritten offering of Registrable
Securities, if any, without charge, as many copies of each Prospectus,
including each preliminary Prospectus, and any amendment or supplement
thereto and such other documents as such Holder or underwriter may
reasonably request, including financial statements and schedules and, if
the Holder so requests, all exhibits in order to facilitate the public
sale or other disposition of the Registrable Securities; and (iii)
hereby consent to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of Registrable
Securities in connection with the offering and sale of the Registrable
Securities covered by the Prospectus or any amendment or supplement
thereto;
(d) use its best efforts to register or qualify the
Registrable Securities under all applicable state securities or "blue
sky" laws of such jurisdictions as any Holder of Registrable Securities
covered by a Registration Statement and the managing underwriter of an
underwritten offering of Registrable Securities shall reasonably request
by the time the applicable Registration Statement is declared effective
by the SEC, and do any and all other acts and things which may be
reasonably necessary or advisable to enable each such Holder and
underwriter to consummate the disposition in each such jurisdiction of
such Registrable Securities owned by such Holder, provided, however,
that the Company and the Subsidiary Guarantor shall not be required to
(i) qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but for
this
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Section 3(d), or (ii) take any action which would subject it to general
service of process or taxation in any such jurisdiction where it is not
then so subject;
(e) notify promptly each Holder of Registrable Securities
under a Shelf Registration or any Participating Broker-Dealer who has
notified the Company that it is utilizing the Exchange Offer
Registration Statement as provided in paragraph (f) below and, if
requested by such Holder or Participating Broker-Dealer, confirm such
advice in writing promptly (i) when a Registration Statement has become
effective and when any post-effective amendments and supplements thereto
become effective, (ii) of any request by the SEC or any state securities
authority for post-effective amendments and supplements to a
Registration Statement and Prospectus or for additional information
after the Registration Statement has become effective, (iii) of the
issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose, (iv) in the case of a
Shelf Registration, if, between the effective date of a Registration
Statement and the closing of any sale of Registrable Securities covered
thereby, the representations and warranties of the Company contained in
any underwriting agreement, securities sales agreement or other similar
agreement, if any, relating to such sale cease to be true and correct in
all material respects, (v) of the happening of any event or the
discovery of any facts during the period a Shelf Registration Statement
is effective which makes any statement made in such Registration
Statement or the related Prospectus untrue in any material respect or
which requires the making of any changes in such Registration Statement
or Prospectus in order to make the statements therein not misleading and
(vi) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Registrable Securities or the
Exchange Securities, as the case may be, for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose;
(f) (A) in the case of the Exchange Offer Registration
Statement (i) include in the Exchange Offer Registration Statement a
section entitled "Plan of Distribution" which section shall be
reasonably acceptable to the Initial Purchasers, and which shall contain
a summary statement of the positions taken or policies made by the staff
of the SEC with respect to the potential "underwriter" status of any
broker-dealer that holds Registrable Securities acquired for its own
account as a result of market-making activities or other trading
activities and that will be the beneficial owner (as defined in Rule
13d-3 under the Exchange Act) of Exchange Securities to be received by
such broker-dealer in the Exchange Offer, whether such positions or
policies have been publicly disseminated by the staff of the SEC or such
positions or policies, in the reasonable judgment of the Initial
Purchasers and its counsel, represent the prevailing views of the staff
of the SEC, including a statement that any such broker-dealer who
receives Exchange Securities for Registrable Securities pursuant to the
Exchange Offer may be deemed a statutory underwriter and must deliver a
prospectus meeting the requirements of the 1933 Act in connection with
any resale of such Exchange Securities, (ii) furnish to each
Participating Broker-Dealer who has delivered to the Company the notice
referred to in Section 3(e), without charge, as many copies of each
Prospectus included in the Exchange Offer Registration Statement,
including any preliminary prospectus,
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and any amendment or supplement thereto, as such Participating Broker-
Dealer may reasonably request, (iii) hereby consent to the use of the
Prospectus forming part of the Exchange Offer Registration Statement or
any amendment or supplement thereto, by any person subject to the
prospectus delivery requirements of the SEC, including all Participating
Broker-Dealers, in connection with the sale or transfer of the Exchange
Securities covered by the prospectus or any amendment or supplement
thereto, and (iv) include in the transmittal letter or similar
documentation to be executed by an exchange offeree in order to
participate in the Exchange Offer (x) the following provision:
"If the exchange offeree is a broker-dealer holding Registrable
Securities acquired for its own account as a result of market-
making activities or other trading activities, it will deliver a
prospectus meeting the requirements of the 1933 Act in connection
with any resale of Exchange Securities received in respect of
such Registrable Securities pursuant to the Exchange Offer;" and
(y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus in
connection with the exchange of Registrable Securities, the broker-
dealer will not be deemed to admit that it is an underwriter within the
meaning of the 1933 Act; and
(B) to the extent any Participating Broker-Dealer
participates in the Exchange Offer, the Company and the Subsidiary
Guarantor shall use their best efforts to cause to be delivered at the
request of an entity representing the Participating Broker-Dealers
(which entity shall be ▇▇▇▇▇▇▇ ▇▇▇▇▇ or another Initial Purchaser) (A) a
"cold comfort" letter addressed to the Participating Broker-Dealers from
the Company's and the Subsidiary Guarantor's independent certified
public accountants with respect to the Prospectus in the Exchange Offer
Registration Statement in the form existing on the last date for which
exchanges are accepted pursuant to the Exchange Offer and (B) an opinion
of counsel to the Company and the Subsidiary Guarantor addressed to the
Participating Broker-Dealers in substantially the form attached hereto
as Exhibit A relating to the Exchange Securities; and
(g) (i) in the case of an Exchange Offer, furnish to one firm
of legal counsel for the Initial Purchasers and (ii) in the case of a
Shelf Registration, furnish to one firm of legal counsel for the Holders
of Registrable Securities copies of any comment letters received from
the SEC or any other request by the SEC or any state securities
authority for amendments or supplements to a Registration Statement and
Prospectus or for additional information;
(h) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement as
soon as practicable and provide prompt notice to one firm of legal
counsel for the Holders of the withdrawal of any such order;
(i) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities, and each underwriter, if any, without
charge, at least one conformed copy of each
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Registration Statement and any post-effective amendment thereto,
including financial statements and schedules (without documents
incorporated therein by reference or any exhibits thereto, unless
requested);
(j) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends; and
enable such Registrable Securities to be in such denominations
(consistent with the provisions of the Indenture) and registered in such
names as the selling Holders or the underwriters, if any, may reasonably
request at least three business days prior to the closing of any sale of
Registrable Securities;
(k) in the case of a Shelf Registration, upon the Company or
any Subsidiary Guarantor becoming aware of the occurrence of any event
or the discovery of any facts, each as contemplated by Section 3(e)(v)
hereof, use their best efforts to prepare a supplement or post-effective
amendment to the Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the
Registrable Securities or Participating Broker-Dealers, such Prospectus
will not contain at the time of such delivery any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading;
(l) obtain a CUSIP number for all Exchange Securities or
Registrable Securities, as the case may be, not later than the effective
date of a Registration Statement, and provide the Trustee with a printed
certificate or certificates for the Exchange Securities or the
Registrable Securities, as the case may be, in a form eligible for
deposit with the Depositary and consistent with the procedures to be
used by the Depositary;
(m) unless the Indenture, as it relates to the Exchange
Securities or the Registrable Securities, as the case may be, has
already been so qualified, use its best efforts to (i) cause the
Indenture to be qualified under the Trust Indenture Act of 1939 (the
"TIA") in connection with the registration of the Exchange Securities or
Registrable Securities, as the case may be, (ii) cooperate with the
Trustee and the Holders to effect such changes to the Indenture as may
be required for the Indenture to be so qualified in accordance with the
terms of the TIA and (iii) execute, and use its best efforts to cause
the Trustee to execute, all documents as may be required to effect such
changes, and all other forms and documents required to be filed with the
SEC to enable the Indenture to be so qualified in a timely manner;
(n) in the case of a Shelf Registration, take all customary
and appropriate actions reasonably required (including those reasonably
requested by the Majority Holders) in order to expedite or facilitate
the disposition of the Registrable Securities registered thereby. If
requested as set forth below, the Company and the Subsidiary Guarantor
agree that they will in good faith negotiate the terms of an
underwriting agreement, which shall be in form and
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scope as is customary for similar offerings of debt securities with
similar credit ratings (including, without limitation, representations
and warranties to the underwriters) and shall otherwise be reasonably
satisfactory to the Company and the managing underwriters; and:
(i) if requested by the managing underwriters, obtain
opinions of counsel to the Company and the Subsidiary Guarantor
(which counsel shall be reasonably satisfactory to the managing
underwriters) addressed to such underwriters, covering the
matters customarily covered in opinions requested in underwritten
sales of securities in substantially the forms specified in the
underwriting agreement;
(ii) if requested by the managing underwriters, obtain a
"cold comfort" letter and an update thereto not later than two
weeks after the date of the original letter (or if not available
under applicable accounting pronouncements or standards, a single
"procedures" letter and a single update thereto) from the
Company's independent certified public accountants addressed to
the underwriters named in the underwriting agreement and use its
best efforts to have such letter addressed to the selling Holders
of Registrable Securities (provided, however, that such letter
need not be addressed to any Holders to whom, in the reasonable
opinion of the Company's independent certified public
accountants, addressing such letter is not permissible under
applicable accounting standards), such letters to be in customary
form and covering matters of the type customarily covered in
"cold comfort" (or "procedures") letters to underwriters in
connection with similar underwritten offerings; and
(iii) deliver such documents and certificates as may be
reasonably requested and as are customarily delivered in similar
underwritten offerings.
Notwithstanding anything herein to the contrary, the Company
shall have no obligation to enter into any underwriting agreement or
permit an underwritten offering of Registrable Securities unless a
request therefor shall have been received from the Holders of at least
20% of the Registrable Securities then outstanding within ten business
days of the date of the notice from the Company as required by Section
3(c). In the case of such a request for an underwritten offering, the
Company shall provide reasonable advance written notice to the Holders
of all Registrable Securities of such proposed underwritten offering.
Such notice shall (A) offer each such Holder the right to participate in
such underwritten offering (but may indicate that whether or not all
Registrable Securities are included will be at the discretion of the
underwriters), (B) specify a date, which shall be no earlier than ten
business days following the date of such notice, by which such Holder
must inform the Company of its intent to participate in such
underwritten offering and (C) include the instructions such Holder must
follow in order to participate in such underwritten offering;
(o) in the case of a Shelf Registration, and to the extent
customary in connection with a "due diligence" investigation for an
offering of debt securities with a similar credit rating to that of the
Registrable Securities, make available for inspection by representatives
-14-
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appointed by the Majority Holders and any underwriters participating in
any disposition pursuant to a Shelf Registration Statement and one firm
of legal counsel retained for all Holders participating in such Shelf
Registration, and one firm of legal counsel to the underwriters, if any,
all financial and other records, pertinent corporate documents and
properties of the company reasonably requested by any such persons, and
cause the respective officers, directors, employees, and any other
agents of the company to supply all information reasonably requested by
any such representative, underwriter or counsel in connection with a
Registration Statement, and make such representatives of the company
available for discussion of such documents as shall be reasonably
requested by the Initial Purchasers provided, however, that, if any such
records, documents or other information relates to pending or proposed
acquisitions or dispositions, or otherwise relates to matters reasonably
considered by the Company and the Subsidiary Guarantor to constitute
sensitive or proprietary information, the Company and the Subsidiary
Guarantor need not provide such records, documents or information unless
the foregoing parties enter into a confidentiality agreement in
customary form and reasonably acceptable to such parties and the
Company;
(p) (i) in the case of an Exchange Offer Registration
Statement, a reasonable time prior to the filing of any Exchange Offer
Registration Statement, any Prospectus forming a part thereof, any
amendment to an Exchange Offer Registration Statement or amendment or
supplement to such Prospectus, provide copies of such document to
▇▇▇▇▇▇▇ ▇▇▇▇▇ and make such changes in any such document prior to the
filing thereof as ▇▇▇▇▇▇▇ ▇▇▇▇▇ may reasonably request and, except as
otherwise required by applicable law, not file any such document in a
form to which ▇▇▇▇▇▇▇ ▇▇▇▇▇ on behalf of the Holders of Registrable
Securities shall reasonably object, and make the representatives of the
Company and the Subsidiary Guarantor available for discussion of such
documents as shall be reasonably requested by ▇▇▇▇▇▇▇ ▇▇▇▇▇; and
(ii) in the case of a Shelf Registration, a reasonable
time prior to filing any Shelf Registration Statement, any Prospectus
forming a part thereof, any amendment to such Shelf Registration
Statement or amendment or supplement to such Prospectus, provide copies
of such document to ▇▇▇▇▇▇▇ ▇▇▇▇▇, one firm of legal counsel appointed
by the Majority Holders to represent the Holders participating in such
Shelf Registration, the managing underwriters of an underwritten
offering of Registrable Securities, if any, and make such changes in any
such document prior to the filing thereof as ▇▇▇▇▇▇▇ ▇▇▇▇▇, such one
firm of legal counsel for the Holders, such managing underwriters or
their counsel may reasonably request and not file any such document in a
form to which ▇▇▇▇▇▇▇ ▇▇▇▇▇, such one firm of legal counsel for the
Holders, such managing underwriters or their counsel may reasonably
object and make the representatives of the Company and the Subsidiary
Guarantor available for discussion of such document as shall be
reasonably requested by ▇▇▇▇▇▇▇ ▇▇▇▇▇, such one firm of legal counsel
for the Holders, such managing underwriters or their counsel.
(q) in the case of a Shelf Registration, use its best efforts
to cause the Registrable Securities to be rated by the appropriate
rating agencies, if so requested by the Majority
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Holders, or if requested by the managing underwriters of an underwritten
offering of Registrable Securities, if any, unless the Exchange
Securities or the Registrable Securities, as the case may be, are
already so rated or unless the Company has obtained such ratings for its
long-term debt securities generally;
(r) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC and make available to its
security holders, as soon as reasonably practicable, an earnings
statement covering at least 12 months which shall satisfy the provisions
of Section 11(a) of the 1933 Act and Rule 158 thereunder;
(s) cooperate and assist in any filings required to be made
with the NASD and, in the case of a Shelf Registration, in the
performance of any due diligence investigation by any managing
underwriter and its counsel (including any "qualified independent
underwriter" that is required to be retained in accordance with the
rules and regulations of the NASD); and
(t) upon consummation of an Exchange Offer, obtain a customary
opinion of counsel to the Company and the Subsidiary Guarantor addressed
to the Trustee for the benefit of all Holders of Registrable Securities
participating in the Exchange Offer, and which includes an opinion that
(i) the Company has duly authorized, executed and delivered the Exchange
Securities and the related indenture, and (ii) each of the Exchange
Securities and related indenture constitute a legal, valid and binding
obligation of the Company, enforceable against the Company and the
Subsidiary Guarantor in accordance with its respective terms (with
customary exceptions).
In the case of a Shelf Registration Statement, the Company and
the Subsidiary Guarantor may (as a condition to such Holder's participation in
the Shelf Registration) require each Holder of Registrable Securities to
furnish to the Company and the Subsidiary Guarantor such information regarding
the Holder and the proposed distribution by such Holder of such Registrable
Securities as the Company and the Subsidiary Guarantor may from time to time
reasonably request in writing.
In the case of a Shelf Registration Statement, each Holder agrees
and in the case of the Exchange Offer Registration Statement, each
Participating Broker-Dealer agrees that, upon receipt of any notice from the
Company and the Subsidiary Guarantor of the happening of any event or the
discovery of any facts, each of the kind described in Section 3(e)(v) hereof,
such Holder or Participating Broker-Dealer, as the case may be, will forthwith
discontinue disposition of Registrable Securities pursuant to such Registration
Statement until the receipt by such Holder or Participating Broker-Dealer, as
the case may be, of the copies of the supplemented or amended Prospectus
contemplated by Section 3(k) hereof, and, if so directed by the Company and the
Subsidiary Guarantor, such Holder will deliver to the Company (at its expense)
all copies in its possession of the Prospectus covering such Registrable
Securities current at the time of receipt of such notice. If the Company and
the Subsidiary Guarantor shall give any such notice to suspend the disposition
of Registrable Securities pursuant to a Registration Statement as a result of
the happening of any event
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or the discovery of any facts, each of the kind described in Section 3(e)(v)
hereof, the Company and the Subsidiary Guarantor shall be deemed to have used
its best efforts to keep such Registration Statement effective during such
period of suspension provided that the Company and the Subsidiary Guarantor
shall use its best efforts to file and have declared effective (if an
amendment) as soon as practicable an amendment or supplement to such
Registration Statement and shall extend the period during which such
Registration Statement shall be maintained effective pursuant to this Agreement
by the number of days during the period from and including the date of the
giving of such notice to and including the date when the Holders shall have
received copies of the supplemented or amended Prospectus necessary to resume
such dispositions.
If any of the Registrable Securities covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
underwriter or underwriters and manager or managers that will manage such
offering will be selected by the Company and the Subsidiary Guarantor and shall
be acceptable to the Majority Holders. No Holder of Registrable Securities may
participate in any underwritten offering hereunder unless such Holder (a)
agrees to sell such Holder's Registrable Securities on the basis provided in
any underwriting arrangements approved by the persons entitled hereunder to
approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements.
4. Indemnification; Contribution.
(a) The Company and the Subsidiary Guarantor shall jointly and
severally indemnify and hold harmless the Initial Purchasers, each Holder, each
Participating Broker-Dealer, each Person who participates as an underwriter
(any such Person being an "Underwriter") and each Person, if any, who controls
any Holder or Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment or supplement thereto) pursuant
to which Exchange Securities or Registrable Securities were registered
under the 1933 Act, including all documents incorporated therein by
reference, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading, or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any Prospectus
(or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body,
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commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 4(d) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇
▇▇▇▇▇, or in the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇ is not an indemnified party,
by a majority of the indemnified parties), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) above; provided, however, that this indemnity
agreement shall not apply to any loss, liability, claim, damage or
expense to the extent arising out of any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by the
Initial Purchasers, such Holder or Underwriter expressly for use in a
Registration Statement (or any amendment thereto) or any Prospectus (or
any amendment or supplement thereto).
(b) Each Holder severally, but not jointly, agrees to
indemnify and hold harmless the Company, the Subsidiary Guarantor, the Initial
Purchasers, each Underwriter and the other selling Holders, and each of their
respective directors and officers, and each Person, if any, who controls the
Company, the Subsidiary Guarantor, the Initial Purchasers, any Underwriter or
any other selling Holder within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, against any and all loss, liability, claim, damage
and expense described in the indemnity contained in Section 4(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Shelf Registration Statement (or
any amendment thereto) or any Prospectus included therein (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company expressly for use in the Shelf Registration Statement
(or any amendment thereto) or such Prospectus (or any amendment or supplement
thereto); provided, however, that no such Holder shall be liable for any claims
hereunder in excess of the amount of net proceeds received by such Holder from
the sale of Registrable Securities pursuant to such Shelf Registration
Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action or proceeding
commenced against it in respect of which indemnity may be sought hereunder, but
failure so to notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not materially
prejudiced as a result thereof and in any event shall not relieve it from any
liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in the
defense of such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying party or
parties be liable for the fees and expenses of more than one
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counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 4 (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim 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
any indemnified party.
(d) If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 4(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement
at least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 4 is
for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Subsidiary Guarantor on the one hand, the Holders on another hand, and the
Initial Purchasers on another hand, from the offering of the Securities, the
Exchange Securities and the Registrable Securities (taken together) included in
such offering or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of the Company and the Subsidiary Guarantor on the one hand, the Holders on
another hand and the Initial Purchasers on another hand with respect to the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Subsidiary
Guarantor from the offering of the Securities, the Exchange Securities and the
Registrable Securities (taken together) included in such offering shall in each
case be deemed to include the proceeds received by the Company and the
Subsidiary Guarantor in connection with the offering of the Securities pursuant
to the Purchase Agreement. The parties hereto agree that any underwriting
discount or commission or reimbursement of fees paid to the Initial Purchasers
pursuant to the Purchase Agreement shall not be deemed to be
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a benefit received by the Initial Purchasers in connection with the offering of
the Exchange Securities or Registrable Securities included in such offering.
The relative fault of the Company and the Subsidiary Guarantor on the
one hand, the Holders on another hand, and the Initial Purchasers on another
hand shall be determined by reference to, among other things, whether any such
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Company, the Subsidiary Guarantor, the Holders or the Initial Purchasers and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company, the Subsidiary Guarantor, the Holders and the Initial
Purchasers agree that it would not be just and equitable if contribution
pursuant to this Section 4 were determined by pro rata allocation (even if the
Initial Purchasers 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 above in this Section 4. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 4 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 4, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities sold by it were offered exceeds the amount
of any damages which such Initial Purchaser 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4, each person, if any, who controls an
Initial Purchaser or Holder within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Initial Purchaser or Holder, and each director of the Company, and each person,
if any, who controls the Company or the Subsidiary Guarantor within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Company. The Initial Purchasers' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the principal amount of Securities set forth opposite their respective names
in Schedule A to the Purchase Agreement and not joint.
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5. Miscellaneous.
5.1 Rule 144 and Rule 144A. For so long as the Company or the
Subsidiary Guarantor is subject to the reporting requirements of Section 13 or
15 of the 1934 Act, the Company and the Subsidiary Guarantor covenant that they
will file the reports required to be filed by them under the 1933 Act and
Section 13(a) or 15(d) of the 1934 Act and the rules and regulations adopted by
the SEC thereunder. If the Company or the Subsidiary Guarantor ceases to be so
required to file such reports, the Company and the Subsidiary Guarantor
covenant that they will upon the request of any Holder of Registrable
Securities (a) make publicly available such information as is necessary to
permit sales pursuant to Rule 144 under the 1933 Act, (b) deliver such
information to a prospective purchaser as is necessary to permit sales pursuant
to Rule 144A under the 1933 Act and it will take such further action as any
Holder of Registrable Securities may reasonably request, and (c) take such
further action that is reasonable in the circumstances, in each case, to the
extent required from time to time to enable such Holder to sell its Registrable
Securities without registration under the 1933 Act within the limitation of the
exemptions provided by (i) Rule 144 under the 1933 Act, as such Rule may be
amended from time to time, (ii) Rule 144A under the 1933 Act, as such Rule may
be amended from time to time, or (iii) any similar rules or regulations
hereafter adopted by the SEC. Upon the request of any Holder of Registrable
Securities, the Company and the Subsidiary Guarantor will deliver to such
Holder a written statement as to whether they have complied with such
requirements.
5.2 No Inconsistent Agreements. Neither the Company nor the
Subsidiary Guarantor has entered into and neither the Company nor the
Subsidiary Guarantor will after the date of this Agreement enter into any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any
way conflict with the rights granted to the holders of the Company's nor the
Subsidiary Guarantor's other issued and outstanding securities under any such
agreements.
5.3 Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company and the Subsidiary Guarantor have obtained
the written consent of Holders of at least a majority in aggregate principal
amount of the outstanding Registrable Securities affected by such amendment,
modification, supplement, waiver or departure. Notwithstanding anything in
this Agreement to the contrary, this Agreement may be amended, modified or
supplemented, and waivers and consents to departures from the provisions hereof
may be given, by written agreement signed by the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇ to
the extent that any such amendment, modification, supplement, waiver or consent
is, in their reasonable judgment, necessary or appropriate to comply with
applicable law (including any interpretation of the staff of the SEC) or any
change therein.
5.4 Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (a) if to a Holder, at the most current address given by such Holder
to the Company or the Subsidiary Guarantor by means of a notice given in
accordance with the provisions of this Section 5.4, which address initially is
the address set forth in the Purchase
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Agreement with respect to the Initial Purchasers; and (b) if to the Company or
the Subsidiary Guarantor, initially at the Company's address set forth in the
Purchase Agreement, and thereafter at such other address of which notice is
given in accordance with the provisions of this Section 5.4.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; four business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the person giving the same to the Trustee under the
Indenture, at the address specified in such Indenture.
5.5 Successor and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Purchase Agreement and provided, further, that
Holders of Registrable Securities may not assign their rights under this
Agreement except in connection with the permitted transfer of Registrable
Securities and then only insofar as relates to such Registrable Securities. If
any transferee of any Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities such person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement, including the restrictions on resale set forth in this
Agreement and, if applicable, the Purchase Agreement, and such person shall be
entitled to receive the benefits hereof.
5.6 Third Party Beneficiaries. The Initial Purchasers (even if the
Initial Purchasers are not Holders of Registrable Securities) shall be third
party beneficiaries to the agreements made hereunder between the Company and
the Subsidiary Guarantor, on the one hand, and the Holders, on the other hand,
and shall have the right to enforce such agreements directly to the extent they
deem such enforcement necessary or advisable to protect their rights or the
rights of Holders hereunder. Each Holder of Registrable Securities shall be a
third party beneficiary to the agreements made hereunder between the Company
and the Subsidiary Guarantor, on the one hand, and the Initial Purchasers, on
the other hand, and shall have the right to enforce such agreements directly to
the extent it deems such enforcement necessary or advisable to protect its
rights hereunder.
5.7 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and a of which taken
together shall constitute one and the same agreement.
5.8 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
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5.9 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS THEREOF.
5.10 Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances,
is held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
OCEAN ENERGY, INC.
By:
-------------------------
Name:
Title:
OCEAN ENERGY, INC. (Louisiana)
By:
-------------------------
Name:
Title:
Confirmed and accepted as
of the date first above
written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
BEAR, ▇▇▇▇▇▇▇ & CO, INC.
CHASE SECURITIES INC.
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INC.
BY: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:
-----------------------
Name:
Title
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