EXHIBIT 10.19
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of October 15, 1997, by and between Khanty Mansiysk Oil Corporation, a
Delaware corporation (the "Company"), and Khanty Holdings LLC, a Delaware
limited liability company ("Holdings").
This Agreement is made in connection with the Note and Warrant Purchase
Agreement (the "Note and Warrant Purchase Agreement"), dated as of October 10,
1997, between the Company and Holdings for the purchase by Holdings from the
Company of one or more notes in the aggregate principal amount of $30 million
and warrants (the "Warrants") to acquire 66.667 shares of Common Stock (as
defined below) at an exercise price of $450 per share. In connection with the
Note and Warrant Purchase Agreement, the Company has agreed to provide Holdings
with the registration rights set forth in this Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
SECTION 1. Certain Definitions:
"Affiliate" means, with respect to any Person, any Person that, directly
or indirectly, controls, is controlled by or is under common control with such
Person. For the purposes of this definition, "control" (including, with its
correlative meanings, the terms "controlled by" and "under common control
with"), as used with respect to any Person, means the possession, either
directly or indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of voting
securities, by contract or otherwise.
"Common Stock" shall mean the common stock of the Company, no par value
per share.
"Demand" shall have the meaning set forth in Section 3(a)(ii).
"Eligible Common Stock" shall mean (i) shares of Common Stock acquired by
Holdings pursuant to the Note and Warrant Purchase Agreement or pursuant to
Holdings' exercise of its preemptive rights under the Shareholder Agreement and
held by either Holdings or a transferee or assignee of Holdings pursuant to
Section 10(d) hereof on the date of determination and (ii) shares of Common
Stock underlying the warrants acquired by Holdings pursuant to the Note and
Warrant Purchase Agreement, and held by either Holdings or a transferee or
assignee of Holdings pursuant to Section 10(d) hereof on the date of
determination, to the extent such warrants are exercised in connection with the
Demand Registration Rights or Piggyback Registration Rights hereunder.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder.
"Initial Public Offering" shall mean the initial underwritten offering of
Common Stock.
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"Long form Demand" shall have the meaning set forth in Section 3(a)(i).
"Permitted Transferee" shall mean a Person (i) to whom Holdings has
transferred either Common Stock acquired by Holdings pursuant to the Note and
Warrant Purchase Agreement or pursuant to Holdings' exercise of its preemptive
rights under the Shareholder Agreement or warrants acquired by Holdings pursuant
to the Note and Warrant Purchase Agreement and (ii) who has executed and
delivered to the Company an Additional Party Counterpart in the form set forth
in Exhibit A.
"Person" shall mean any individual, partnership, corporation, trust,
limited liability company 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 with respect to the terms
of the offering of the Common Stock covered by the Registration Statement, and
by all other amendments and supplements to such Prospectus, including
Post-effective amendments, and in each case including all materials incorporated
by reference therein.
"Registration Statement" shall mean any registration statement of the
Company on an appropriate form under the Securities Act (other than any
registration statement with respect to equity securities filed on a Form S-4 or
S-8 or any other forms prescribed for the same or similar Purposes) and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all materials incorporated by reference therein and all exhibits
thereto.
"Requisite Common Stock" shall mean (i) in connection with the first Long
Form Demand, shares of Eligible Common Stock aggregating the greater of $25
million or 25% of the aggregate of Holdings' and each Permitted Transferee's
interest in the Company at the date of such Long Form Demand and, (ii) in
connection with the second Long Form Demand, shares of Eligible Common Stock
aggregating the greater of $10 million or 25% of the aggregate of Holdings' and
each Permitted Transferee's interest in the Company at the date of such Demand.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations thereunder.
"Shareholder Agreement" shall mean the Shareholder Agreement between the
Company and Holdings dated as of October 15, 1997.
"Short Form Demand" shall have the meaning set forth in Section 3(a)(ii).
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"underwritten registration" or "underwritten offering" shall mean an
offering of the Common Stock pursuant to a Registration Statement in which the
Common Stock of the Company is sold to the public by one or more underwriters.
SECTION 2. Common Stock Subject to Registration Rights.
All Eligible Common Stock will cease to be Eligible Common Stock when (i)
a Registration Statement covering such Eligible Common Stock has been declared
effective by the SEC and such Eligible Common Stock has been disposed of
pursuant to such effective Registration Statement, (ii) it is distributed to the
public pursuant to Rule 144 (or any similar provision then in force) under the
Securities Act or (iii) it has otherwise been transferred and it may be resold
by such transferee without registration under the Securities Act and without
restriction under Rule 144.
SECTION 3. Registration Rights.
(a) Demand Registration.
(i) At any time after the date hereof Holdings shall have the right
to make up to two (2) written requests (each, a "Long Form Demand") on the
Company to cause the Company to make reasonable efforts to file and cause
to be declared effective a Registration Statement on Form S-1 or any other
appropriate form under the Securities Act with respect to the Requisite
Common Stock commencing on the earlier of (A) two years following the
closing date of the Note and Warrant Purchase Agreement or (B) six months
following the closing date of the Initial Public Offering; provided, that
the Company has not consummated an underwritten offering within the six
consecutive months (or such longer period requested by the managing
underwriters but not to exceed 12 consecutive months) prior to the date of
a Long Form Demand.
(ii) At any time after an Initial Public Offering, if the Company
and the Common Stock meet the eligibility requirements for such forms,
Holdings shall have the right to make an unlimited number of written
requests (each, a "Short Form Demand" and, together with Long Form
Demands, "Demands") on the Company to cause the Company to make reasonable
efforts to file and cause to be declared effective a Registration
Statement on Form S-3 or any other similar short form registration under
the Securities Act with respect to the Eligible Common Stock, provided,
that the expected offering price of the Eligible Common Stock requested to
be registered is at least $7,500,000 or such lesser amount if all the
remaining shares of Eligible Common Stock held by Holdings are registered,
and provided further that Holdings shall use reasonable efforts to sell
such Eligible Common Stock requested to be registered. This Section
3(a)(ii) shall be applicable for so long as the Eligible Common Stock
cannot be freely transferred pursuant to Rule 144 under the Securities Act
without the imposition of volume, price and holding period limitations.
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(iii) Each Demand will set forth the number of shares of Eligible
Common Stock proposed to be sold by Holdings and the intended method of
distribution of such shares.
(iv) If any offering or sale of Common Stock by Holdings pursuant to
a Registration Statement is not consummated due to any failure by the
Company to perform its obligations under this Agreement, the Long Form
Demand with respect to which such Registration Statement was filed shall
not be included among the Long Form Demands contemplated by Section
3(a)(i) above.
(b) Piggyback Registration.
(i) In the event the Company proposes to file a Registration
Statement with respect to its Common Stock, it will give written notice to
Holdings of the Company's intention to do so and, upon the written request
of Holdings given within 20 days after receipt of such notice, the Company
will make reasonable efforts to effect the registration of the Eligible
Common Stock of Holdings (the "Piggyback Securities") which it shall have
been so requested to register by including such Piggyback Securities in
the Registration Statement ("Piggyback Registration Rights"). Piggyback
Securities are to be included in the Registration Statement on the same
terms and conditions as the shares of Common Stock of the Company
otherwise being sold through underwriters under such Registration
Statement; provided however, that if the managing underwriter or
underwriters of any proposed underwritten offering determines and advises
the Company in writing that the inclusion in the Registration Statement of
all Piggyback Securities proposed to be included would adversely affect
the success of the proposed underwritten offering, the Company shall
include in such registration such number (if any) of the Piggyback
Securities so requested to be included which in the opinion of such
managing underwriter or underwriters can be sold by the Company, but (i)
only after the inclusion in such registration of Common Stock being sold
by the Company and (ii) only after the inclusion in such registration of
Common Stock being sold by persons exercising any demand registration
rights they may have in respect of the Company. If, in the opinion of such
managing underwriter or underwriters, some but not all of the Piggyback
Securities requested to be included may be included in such registration,
all holders of Piggyback Securities requested to be included therein, and
any other holders of Common Stock that have substantially similar
registration rights to the holders of Piggyback Securities and have
requested registration of such shares, shall share pro rata in the number
of such shares requested to be included therein based on the number of
such shares so requested to be included by such persons. The rights set
forth in this Section 3(b) shall be exercisable in connection with any
Registration Statement covering Common Stock.
(ii) In connection with any offering by the Company to which
Holdings has Piggyback Registration Rights, the Company, in its sole
discretion, shall determine (A) whether to initiate, proceed with or
terminate such registration, (B) the pricing (including underwriting
discounts and commissions) for such offering and (C) the timing of such
offering. The Company may withdraw any Registration Statement and abandon
any
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proposed sale of Common Stock without the consent of Holdings,
notwithstanding the request of Holdings to participate therein in
accordance with this Agreement, if the Company determines in its sole
discretion to so withdraw and abandon such proposed sale.
(iii) In the event that Holdings does not seek to exercise its Piggy
Back Registration Rights, a Permitted Transferee who holds more than 5% of
the outstanding Common Stock of the Company shall be entitled to exercise
the Piggyback Registration Rights on its own behalf, subject to all the
restrictions and limitations set forth herein.
SECTION 4. Holdback Agreements.
(a) Holdings agrees, and any transferee of Holdings, by acceptance of any
Eligible Common Stock agrees that if it is requested by the managing underwriter
or underwriters in an underwritten offering, not to effect any public sale or
distribution of securities of the Company of the same class as the securities
included in the Registration Statement, during the 15 day period prior to, and
during the 90 day period (or such longer period requested by the managing
underwriters but not to exceed 270 days) beginning on, the effective date of
such Registration Statements, including a sale pursuant to Rule 144 under the
Securities Act, to the extent timely notified in writing by the Company or the
managing underwriters.
(b) The Company agrees (i) if requested by the managing underwriter or
underwriters of an underwritten public offering pursuant to Section 3(a) not to
effect a public or private sale or distribution of its Common Stock, or any
securities convertible into or exchangeable for such securities (other than any
such sale or distribution of such securities in connection with any merger or
consolidation by the Company or a subsidiary thereof or the acquisition by the
Company or a subsidiary thereof of the capital stock or substantially all of the
assets of any other Person) during the 15 day period prior to, and during the 90
day period (or such longer period requested by the managing underwriters but not
to exceed 270 days) beginning on, the effective date of any Registration
Statement filed pursuant to Section 3(a) hereof and (ii) that any agreement
entered into after the date hereof pursuant to which the Company issues or
agrees to issue any privately placed Common Stock or securities convertible into
or exchangeable for Common Stock shall contain a provision under which holders
of such securities agree that if it is requested by the managing underwriter or
underwriters in an underwritten offering not to effect any public sale or
distribution of any such securities during the 30 day period prior to, and
during the 180 day period beginning on, the effective date of any Registration
Statement, including a sale pursuant to Rule 144 under the Securities Act
(except pursuant to a Registration Statement); provided, however, that the
provisions of this paragraph (b) shall not prevent (i) the conversion or
exchange of any securities, (ii) the exercise of options or warrants by the
holders thereof and (iii) grants of options pursuant to stock option plans of
the Company. Notwithstanding the foregoing provisions of this Section 4(b), in
the event that the Company exercises its right pursuant to the last paragraph of
Section 5 to (i) delay the filing of any Registration Statement, (ii) withhold
efforts to cause any Registration Statement to become effective or (iii) request
that Eligible Common Stock not be sold pursuant to an effective Registration
Statement, the holdback limitations set forth in this Section 4(b) shall cease
to be effective during the period in which the Company shall have exercised such
right.
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SECTION 5. Registration Procedures.
In connection with the Company's registration obligations pursuant to
Section 3 hereof, the Company will make reasonable efforts to effect the
registration of the Eligible Common Stock in accordance with the intended method
or methods of distribution thereof, and pursuant thereto the Company shall:
(a) prepare and file with the SEC, as soon as practicable, a
Registration Statement relating to the appropriate form under the
Securities Act, which form shall be available for the sale of the Eligible
Common Stock in accordance with the intended method or methods of
distribution thereof and shall include all financial statements and other
information required by the SEC to be filed therewith, and make reasonable
efforts to cause such Registration Statement to become effective;
(b) prepare and file with the SEC such amendments to the
Registration Statement as may be necessary to keep the Registration
Statement effective until the distribution of the Eligible Common Stock
under the Registration Statement is complete (which period shall not
exceed 180 days from the date the Registration Statement is declared
effective); cause the Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule
424 under the Securities Act; and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered
by such Registration Statement;
(c) notify Holdings and the managing underwriters, if any, promptly,
and (if requested by any such Person) confirm such advice in writing, (i)
when the Registration Statement has become effective and when any
post-effective amendment or supplements thereto become effective, (ii) of
the issuance by the SEC of any stop order suspending the effectiveness of
the Registration Statement or the initiation of any proceedings for the
purpose, (iii) if between the effective date of the Registration Statement
and the closing of the sale of the securities covered thereby, the
representations and warranties of the Company contemplated by paragraph
5(m) below cease to be true and correct, (iv) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Eligible Common Stock for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose and (v)
of the happening of any event which makes any statement made in the
Registration Statement or the Prospectus or any document incorporated
therein by reference untrue or misleading or which requires the making of
any changes in the Registration Statement or the Prospectus or any
document incorporated therein by reference to make the statements therein
not misleading;
(d) make reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of the Registration Statement at the earliest
possible time;
(e) as promptly as practicable prior to the filing of any document
which is to be incorporated by reference into the Registration Statement
or the Prospectus (after initial
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filing of the Registration Statement), provide copies of such document to
Holdings and to the managing underwriters, if any, make the Company's
representatives available for discussion of such document and make such
changes in such document prior to the filing thereof as Holdings or
underwriters may reasonably request;
(f) upon request, furnish to each managing underwriter, if any, and
Holdings, without charge, at least one signed copy of the Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, all documents incorporated therein by reference
and all exhibits (including those incorporated by reference);
(g) deliver to Holdings and each underwriter, if any, without
charge, as many copies of the Prospectus (including each preliminary
prospectus) and any amendment or supplement thereto as Holdings may
reasonably request; the Company consents to the use of the Prospectus or
any amendment or supplement thereto by Holdings and the underwriters, if
any, in connection with the offering and sale of the Eligible Common Stock
covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Eligible Common Stock, make
reasonable efforts to register or qualify or cooperate with Holdings, the
underwriters, if any, and their respective counsel in connection with the
registration or qualification of such Eligible Common Stock for offer and
sale under the securities or blue sky laws of such jurisdictions as
Holdings or any underwriter reasonably requests in writing and do any and
all other reasonable acts or things necessary or advisable to enable the
underwriters or Holdings, as the case may be, to consummate the
disposition in such jurisdictions of the Eligible Common Stock covered by
the Registration Statement; provided that the Company will not be required
to (i) qualify generally to do business in any jurisdiction where it is
not then so qualified: (ii) subject itself to taxation in any such
jurisdiction; or (iii) take any action which would subject it to general
service of process in any such jurisdiction where it is not then so
subject;
(i) cooperate with Holdings and the managing underwriters, if any,
to facilitate the timely preparation and delivery of certificates
representing the Eligible Common Stock to be sold and not bearing any
restrictive legends; and enable such Eligible Common Stock to be in such
denominations and registered in such names as the managing underwriters or
Holdings, as the case may be, may request at least two business days prior
to any sale of the Eligible Common Stock;
(j) as promptly as practicable following the occurrence of any event
contemplated by Section 5(c)(v) above, make reasonable 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 Eligible Common Stock, the Prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact required
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to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(k) make reasonable efforts to cause all the Eligible Common Stock
covered by the Registration Statement to be listed on each securities
exchange or automated quotation system, if any, on which similar
securities issued by the Company are then listed if requested by Holdings
or by the managing underwriters, if any;
(l) provide a CUSIP number for all Eligible Common Stock, not later
than the effective date of the applicable Registration Statement;
(m) if requested by Holdings, enter into an underwriting agreement
with an underwriter or underwriters providing for the sale of such
Eligible Common Stock in an underwritten offering which shall be customary
in form, substance and scope and shall contain customary requirements for
representations, warranties, covenants and opinions of counsel;
(n) make available for inspection by a representative of Holdings
and an underwriter, if any, participating in any disposition pursuant to
the Registration Statement, and any attorney or accountant retained by
Holdings or an underwriter, all relevant financial and other records,
pertinent corporate documents and properties of the Company, and cause the
Company's officers, directors and employees to supply all information
reasonably requested by any such representative, underwriter, attorney or
accountant in connection with such Registration Statement; provided,
however, that any records, information or documents that are designated by
the Company in writing as confidential shall be kept confidential by such
representative, underwriter, counsel or accountant unless disclosure of
such records, information or documents is required by court or
administrative order; and provided, further, if such representative,
underwriter, counsel or accountant is ordered to disclose any of such
records, documents or information, such representative, underwriter,
counsel or accountant will provide the Company with prompt written notice
of such requirement so that the Company at its expense may seek a
protective order or other appropriate remedy and/or waive compliance with
this Agreement. In the event that such protective order or other remedy is
not obtained, or that the Company waives compliance with the provisions
hereof, such representative, underwriter, counsel or accountant agrees to
furnish only that portion of such records, documents or information which
such representative, underwriter, counsel or accountant is legally
required to disclose in the opinion of the special counsel or counsel
representing such representative, underwriter or accountant;
(o) otherwise make reasonable efforts to comply with all applicable
rules and regulations of the SEC, and make generally available to its
security holders earnings statements no later than 45 days after the end
of any 12-month period (or 90 days, if such period is a fiscal year)
commencing at the end of any fiscal quarter in which Eligible
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Common Stock is sold to underwriters in an underwritten offering, which
statements shall cover said l2-month period; and
(p) make reasonable efforts to obtain any customary opinions of
counsel or customary accountants' "cold comfort" letters that might be
required by Holdings in connection with any registration of Eligible
Common Stock in a Registration Statement and enter into such customary
agreements and take all such other reasonable actions in connection with
such registration to expedite or facilitate the disposition of the
Eligible Common Stock as contemplated by the Registration Statement.
The Company may require Holdings (i) to furnish to the Company such
information regarding Holdings and the distribution of the Eligible Common Stock
as the Company may from time to time reasonably request in writing and (ii) to
enter into an underwriting agreement in the form contemplated by Section 5(m).
Holdings agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 5(c)(v) hereof, Holdings
will forthwith discontinue the offering and disposition of Eligible Common Stock
until Holdings' receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(j) hereof; or until it is advised in writing (the
"Advice") by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings which are incorporated
by reference in the Prospectus, and, if so directed by the Company, Holdings
will deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in Holdings' possession, of the Prospectus covering
such Eligible Common Stock current at the time of receipt of such notice. In the
event the Company shall give any such notice to suspend the offering and
disposition of the Eligible Common Stock, the time periods regarding the
maintenance of the applicable Registration Statement shall be extended by the
number of days during the period from and including the date of the giving of
such notice pursuant to Section 5(c)(v) hereof to and including the date when
Holdings shall have received the copies of the supplemented or amended
Prospectus contemplated by Section 5(j) hereof or the Advice.
Notwithstanding the foregoing, (a) the Company may delay the filing of any
Registration Statement, any amendment thereof or any supplement to the related
Prospectus, and may withhold efforts to cause any Registration Statement to
become effective, and (b) in the case of an effective Registration Statement,
upon the request of the Company the holders of Eligible Common Stock
participating in such registration shall refrain from selling any shares
pursuant to such Registration Statement, if (i) the Company determines in good
faith that such registration or sale would (A) interfere with or adversely
affect the negotiation or completion of any material transaction that is being
contemplated by the Company at the time the right to delay is exercised or a
request is made or (B) involve initial or continuing disclosure obligations not
otherwise required by law or and regulations of the SEC, which disclosure would
have a material adverse effect on the Company or (ii) in the written opinion of
an internationally recognized investment bank with experience in both the former
Soviet Union and the energy industry, that the Company is unable to consummate
an underwritten offering due to then currently prevailing market conditions;
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provided however, that the duration of any such delay or period in which shares
of Eligible Common Stock may not be sold pursuant to an effective Registration
Statement shall not exceed a period of 180 days.
SECTION 6. Registration Expenses.
All expenses incident to the Company's performance of or compliance with
this Agreement, including without limitation SEC registration and filing fees,
fees with respect to filings required to be made with the National Association
of Securities Dealers, Inc., printing expenses, and fees and disbursements of
counsel for the Company and of all independent certified public accountants of
the Company (including the expenses of any special audit and "cold comfort"
letters required by or incident to such performance) and the fees and expenses
incurred in connection with the listing of the securities to be registered on
each securities exchange on which similar securities issued by the Company are
then listed, in connection with the Demand Registration and Piggyback
Registration will be borne by the Company whether or not any such Registration
Statement becomes effective, provided that all underwriting discounts and
selling commissions applicable to the sale of the Eligible Common Stock and all
other expenses of Holdings incurred in connection with the distribution of
Eligible Common Stock (including all salaries of its officers and employees, all
fees and expenses of Holdings' auditors, consultants, advisors, attorneys,
special experts and other Persons and all relevant taxes, including transfer
taxes) will be borne by Holdings.
SECTION 7. Indemnification; Contribution.
(a) Indemnification by the Company. The Company agrees to indemnify and
hold harmless each Person who participates as an underwriter (any such Person
being an "Underwriter"), Holdings and each Person, if any, who controls Holdings
or any Underwriter within the meaning of the Securities Act as follows: (i)
against any and all loss, 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 thereto) pursuant
to which Eligible Common Stock was registered under the Securities 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), including all documents
incorporated therein by reference, 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 investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, if such
settlement is effected with the written consent of the Company; and (iii)
against any and all expense whatsoever, as incurred (including, subject to the
provisions of Section 7(c), fees and disbursements of counsel), reasonably
incurred in investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body,
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commenced or threatened, in each case whether or not a party, 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 (i) or (ii) above; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or
expense arises out of or is based upon an untrue statement or alleged untrue
statement or alleged omission in a Prospectus, if such untrue statement or
alleged untrue statement, omission or alleged omission is corrected in an
amendment or supplement to such Prospectus and Holdings or the Underwriter, as
the case may be, thereafter fails to deliver such Prospectus as so amended or
supplemented prior to or concurrently with the sale by Holdings or the
Underwriter, as the case may be, of the Eligible Common Stock to the Person
asserting such loss, claim, damage, liability or expense if the Company had
furnished Holdings or the Underwriter, as the case may be, within a reasonable
period of time prior to such sale with the number of copies of such amended or
supplemented Prospectus requested by Holdings or the Underwriter, as the case
may be; and provided, further, that this indemnity agreement does not apply to
Holdings or any Underwriter with respect to any loss, liability, claim, damage
or expense to the extent arising our 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 Holdings or any Underwriter
expressly for use in a Registration Statement (or any amendment thereto) or any
Prospectus (or any amendment or supplement thereto).
(b) Indemnification by Holdings. In connection with the applicable
Registration Statement, Holdings will furnish to the Company in writing such
information and affidavits as the Company reasonably requests for use in
connection with the Registration Statement or Prospectus and agrees to indemnify
and hold harmless the Company and each Underwriter, if any, and each of their
respective directors and officers (including each officer of the Company who
signed the Registration Statement), and each Person, if any, who controls the
Company or any Underwriter within the meaning of the Securities Act, against any
and all loss, liability, claim, damage and expense described in the indemnity
contained in Section 7(a) hereof, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in a
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information regarding Holdings furnished to the Company by Holdings expressly
for use in such Registration Statement (or any amendment thereto) or such
Prospectus (or any amendment or supplement thereto).
(c) Conduct of Indemnification Proceedings. Each indemnified party
shall give reasonably prompt notice to each indemnifying party of any action
or proceeding commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve it from any liability which it may have under this indemnity
agreement unless the indemnifying party is materially prejudiced by such
failure. If the indemnifying party so elects within a reasonable time after
receipt of such notice, the indemnifying party may assume the defense of such
action or proceeding at such indemnifying party's own expense with counsel
chosen by the indemnifying party and approved by the indemnified parties
defendant in such action or proceeding, which approval shall not be
unreasonably withheld; provided however, that, if such indemnified party or
parties reasonably determine that a conflict
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of interest exists where it is advisable for such indemnified party or parties
to be represented by separate counsel or that, upon advice of counsel, there may
be legal defenses available to them which are different from or in addition to
those available to the indemnifying party, then the indemnifying party shall not
be entitled to assume the defense and the indemnified party or parties shall be
entitled to one separate counsel at the indemnifying party's expense. If an
indemnifying party is not entitled to assume the defense of such action or
proceeding as a result of the proviso to the preceding sentence, such
indemnifying party's counsel shall be entitled to conduct such indemnifying
party's defense and counsel for the indemnified party or parties shall be
entitled to conduct the defense of such indemnified party or parties, it being
understood that both such counsel will cooperate with each other to conduct the
defense of such action or proceeding as efficiently as possible. If an
indemnifying party is nor so entitled to assume the defense of such action or
does nor assume such defense, after having received the notice referred to in
the first sentence of this paragraph, the indemnifying party or parties will pay
the reasonable fees and expenses of counsel for the indemnified party or
parties. In such event, however, no indemnifying party will be liable for any
settlement effected without the written consent of such indemnifying party. If
an indemnifying party is entitled to assume, and assumes, the defense of such
action or proceeding in accordance with this paragraph, such indemnifying party
shall not be liable for any fees and expenses of counsel for the indemnified
parties incurred thereafter in connection with such action or proceeding.
(d) Contribution. If for any reason the indemnification provided for in
the preceding subsections (a) and (b) of this Section 7 is unavailable to an
indemnified party or insufficient to hold it harmless as contemplated by such
preceding subsections, then the indemnifying party shall contribute to the
amount paid or payable by the indemnified party as a result of such
unavailability or insufficiency in proportion as is appropriate to reflect not
only the relative benefits received by the indemnified party and the
indemnifying party, but also the relative fault of the indemnified party and the
indemnifying party, as well as any other relevant equitable considerations,
provided that Holdings shall not be required to contribute in any amount greater
than the dollar amount of the proceeds received by Holdings with respect to the
sale of any Eligible Common Stock. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
SECTION 8. Rule 144.
The Company covenants that it will provide the information required
pursuant to Rule 144(c) under the Securities Act upon the request of Holdings
and it will take such further action as Holdings may reasonably request, all to
the extent required from time to time to enable Holdings to sell its Eligible
Common Stock without registration under the Securities Act within the
limitations of the exemptions provided by Rule 144 under the Securities Act, as
such Rule may be amended from time to time or any similar rules or regulations
hereafter adopted by the SEC. Upon the request of Holdings, the Company will
deliver to Holdings a written statement as to whether it has complied with such
requirements.
13
SECTION 9. Participation in Underwritten Registrations.
The investment banker or investment bankers and manager or managers, if
any, that will administer the registration of the Eligible Common Stock pursuant
to a Demand will be selected by the Company; provided that such investment
bankers and managers must be reasonably satisfactory to Holdings.
No person may participate in any underwritten registration hereunder
unless such Person (a) agrees to sell such Person's 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.
Nothing in this Section 9 shall be construed to create any additional rights
regarding the registration of Eligible Common Stock in any Person otherwise than
as set forth herein.
SECTION 10. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not on or after the date
of this Agreement enter into any agreement with respect to its securities which
is inconsistent with the rights granted to Holdings in this Agreement or
otherwise conflicts with the provisions hereof.
(b) 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 without the prior written consent of both parties.
(c) 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 air courier guaranteeing overnight
delivery:
(i) if to Holdings, initially at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ and thereafter at
such other address, notice of which is given in accordance with the
provisions of this Section 10(c), with a copy to King & ▇▇▇▇▇▇▇▇, ▇▇▇▇
Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇
▇▇▇▇▇▇▇▇▇, Esq.
(ii) if to the Company, initially at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ and thereafter at
such other address, notice of which is given in accordance with the
provisions of this Section 10(c), with a copy to Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail,
14
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and on the next business day, if timely delivered
to any air courier guaranteeing overnight delivery.
(d) Assignment of Registration Rights. Except as otherwise provided below,
neither party may assign this Agreement or any of the rights and obligations of
the parties hereunder without the prior written consent of the other party:
(i) Holdings may assign to a Permitted Transferee the right to
participate with Holdings in any registration of Eligible Common Stock
held by Holdings pursuant to Section 3 hereof;
(ii) Holdings may assign this Agreement and all of its rights and
obligations hereunder to a Permitted Transferee who acquires from Holdings
all of the shares of Eligible Common Stock owned by Holdings; or
(iii) either party may assign this Agreement and all its rights and
obligations under this Agreement to the assignee of all or substantially
all of the assets of such party including an acquisition through merger,
provided that such party shall in no event be released from its
obligations hereunder without the prior written consent of the other
party.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to such
jurisdiction's conflicts of law provisions.
(h) 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
such provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(i) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
15
(j) Confidentiality. The parties hereto agree, and will cause all Persons
under their control to agree, to maintain the confidentiality of any material,
non-public information with respect to the Company that they may obtain pursuant
to the terms of this Agreement, and not to use, or permit the use of, such
information for any improper purpose or in any manner that might be detrimental
to the Company.
(k) Termination. This Agreement and the respective obligations and
agreements of the parties hereto, except as otherwise expressly provided herein,
shall terminate on the date that Holdings is no longer the beneficial owner of
5% or more of the outstanding Common Stock.
16
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
KHANTY MANSIYSK OIL CORPORATION
By: /s/ [ILLEGIBLE]
---------------------------------------------
Name:
Title:
KHANTY HOLDINGS LLC
By: The Beacon Group Energy Investment Fund, L.P.
By: Beacon Energy Investors, L.L.C.,
its General Partner
By: Energy Fund GP, Inc.,
a Member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
16
Exhibit A
ADDITIONAL PARTY COUNTERPART
The undersigned, after having received and reviewed to its satisfaction a
copy of the Registration Rights Agreement, dated as of October 15, 1997 (the
"Registration Rights Agreement"), by and between Khanty Mansiysk Oil Corporation
(the "Company") and Khanty Holdings, LLC, does hereby agree to become party to
the Registration Rights Agreement thereby accepting all the rights, benefits and
obligations of a holder of Eligible Common Stock thereunder. The Company may
attach this page as a counterpart to the Registration Rights Agreement and the
undersigned agrees that such attachment shall be deemed conclusive evidence of
its acknowledgment and acceptance of the terms thereof.
Defined terms used herein and not otherwise defined herein shall have the
meaning given such terms in the Registration Rights Agreement.
Dated:
[NAME]
[ADDRESS FOR NOTICES]
By:
---------------------------
Name:
Title:
Acknowledged and Accepted By:
KHANTY MANSIYSK OIL CORPORATION
By:
----------------------------
Name:
Title:
