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EXHIBIT 10.6
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of __, 1998, among
Conoco Inc., a Delaware corporation (the "Company"), and E. I. du Pont de
Nemours and Company, a Delaware corporation ("Du Pont").
W I T N E S S E T H
WHEREAS, pursuant to a Restructuring, Transfer and Separation
Agreement, dated as of , 1998 (the "Separation Agreement"), by and among the
Company, Du Pont and certain subsidiaries of Conoco and Du Pont, and the IPO
(as hereinafter defined), the Common Stock (as hereinafter defined) will become
publicly traded.
WHEREAS, the parties hereto desire to set forth the rights of
the Holders (as hereinafter defined) and the obligations of the Company with
respect to the registration of the Registrable Securities (as hereafter
defined) pursuant to the Securities Act (as hereafter defined); and
WHEREAS, the execution and delivery of this Agreement by the
parties hereto is a condition to the obligations of each of Du Pont and Conoco
under the Separation Agreement;
NOW, THEREFORE, in consideration of the covenants and
agreements of Du Pont and Conoco contained herein and in the Separation
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Definitions. Capitalized terms used but not otherwise defined
herein shall have the meanings assigned to such terms in the Separation
Agreement. For purposes of this Agreement the following terms shall have the
following meanings:
"Affiliate" has the meaning assigned to such term under Rule
405 of the Securities Act.
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"Class B Common Stock" means the shares of Class B common
stock, par value $.01 per share, of the Company.
"Common Stock" means the shares of Class A common stock, par
value $0.01 per share, of the Company.
"Continuously Effective," with respect to a specified
Registration Statement, means that such Registration Statement shall not cease
to be effective and available for transfers of Registrable Securities in
accordance with the method of distribution set forth therein for longer than
five (5) Business Days during the period specified in the relevant provision of
this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations thereunder.
"Holders" means, collectively, Du Pont and its affiliates
(other than the Company and, after giving effect to Section 2.1 of the
Separation Agreement, subsidiaries of the Company) who from time to time own
Registrable Securities; each of such entities separately is sometimes referred
to herein as a "Holder."
"IPO" means the initial public offering of Shares
contemplated by the Separation Agreement.
"IPO Closing Date" means the date of the first closing of the
sale of shares of Common Stock to the underwriters by the Company pursuant to
the IPO.
"IPO Restricted Period" means the period, if any, during
which Du Pont agrees with the Underwriters' Representative in the IPO not to
sell shares of Common Stock or Class B Common Stock, as the same may be waived,
shortened or, with the consent of Du Pont, extended.
"Maximum Number" when used in connection with an underwritten
offering, shall mean the maximum number of shares of Common Stock (or amount of
other Registrable Securities) that the Underwriters' Representative has
informed the Company may be included as part of such offering without
materially and adversely affecting the success or pricing of such offering.
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"Person" shall mean any natural person, firm, individual,
corporation, partnership, limited liability company, joint venture, business
trust, association, trust, company or other organization or entity, whether
incorporated or unincorporated.
"Pre-Demand Period" means a period commencing on the IPO
Closing Date and ending on the earlier of (i) the first date as of which all
Registrable Securities cease to be Registrable Securities and (ii) the date
which is the second anniversary of the effectiveness of a Shelf Registration
Statement pursuant to Section 3(a) hereof.
"Prospectus" means the prospectus included in a Registration
Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by such Registration Statement and by all other amendments and
supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
"Registrable Securities" means, collectively, (i) the shares
of Common Stock into which shares of Class B Common Stock owned by Du Pont
immediately following the IPO Closing Date are convertible pursuant to the
Company's certificate of incorporation(the "Shares"), (ii) any stock or other
securities into which or for which the Shares may hereafter be changed,
converted or exchanged and (iii) any other securities issued or distributed in
respect of the Shares by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, reorganization, merger,
consolidation or otherwise, (iv) any other securities into which or for which
shares of Class B Common Stock are converted or exchanged or are convertible or
exchangeable, (v) any other successor securities received in respect of any of
the foregoing (i) through (iv); provided that in the event that any Registrable
Securities (as defined without giving effect to this proviso) are being
registered pursuant hereto, the Holder may include in such registration (subject
to the limitations of this Agreement otherwise applicable to the inclusion of
Registrable Securities) any shares of Common Stock or Class B Common Stock or
securities acquired in respect thereof thereafter acquired by such Holder, which
shall also be deemed to be "Shares", and accordingly Registrable Securities, for
purposes of such registration.
"Registration Expenses" means any and all out-of-pocket
expenses incident to performance of or compliance with this Agreement,
including, without limitation, (i) all SEC and securities exchange registration
and filing fees, (ii) all fees
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and expenses of complying with securities or blue sky laws (including fees and
disbursements of counsel for any underwriters in connection with blue sky
qualifications of the Registrable Securities) or relating to the National
Association of Securities Dealers, Inc. (the "NASD"), (iii) all printing,
messenger and delivery expenses, (iv) all fees and expenses incurred in
connection with the listing of the Registrable Securities on any securities
exchange pursuant to Section 7(h), (v) the fees and disbursements of counsel for
the Company and of its independent public accountants, (vi) all expenses in
connection with the preparation, printing and filing of the Registration
Statement, any preliminary Prospectus or final Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to any
Holders, underwriters and dealers and all expenses incidental to delivery of the
Registrable Securities, (vii) subject to the limitations set forth in Section 8,
the reasonable fees and disbursements of counsel, other than the Company's
counsel, selected by the Holders of the Registrable Securities being registered,
(viii) any fees and disbursements of underwriters customarily paid by the
issuers or sellers of securities, and the reasonable fees and expenses of any
special experts retained in connection with the requested registration, but
excluding underwriting discounts and commissions and transfer taxes, if any, and
(ix) the expenses incurred in connection with making "roadshow" presentations
and holding meetings with potential investors to facilitate the distribution and
sale of Registrable Securities.
"Registration Statement" means any registration statement of
the Company which covers Registrable Securities pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to such
registration statements including post-effective amendments, and all exhibits
and all material incorporated by reference in such Registration Statement.
"Related Securities" means any securities of the Company
similar or identical to any of the Registrable Securities including, without
limitation, Common Stock, Class B Common Stock and all options, warrants,
rights and other securities convertible into, or exchangeable or exercisable
for Common Stock or Class B Common Stock (other than any of the foregoing to be
offered or sold to officers, directors or employees as compensation).
"Securities Act" means the Securities Act of 1933, as amended
from time to time, and the rules and regulations thereunder.
"SEC" means the Securities and Exchange Commission.
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"Shelf Registration Statement" means a Registration Statement
filed with the SEC for an offering to be made on a continuous basis pursuant to
Rule 415 under the Securities Act (or any similar rule that may be adopted by
the SEC) covering some or all of the Registrable Securities, as applicable.
"Underwritten Registration or Underwritten Offering" shall
mean a registration in which securities of the Company are sold to one or more
underwriters for reoffering to the public.
"Underwriters' Representative" when used in connection with
an Underwritten Offering, shall mean the managing underwriter of such offering,
or, in the case of a co-managed underwriting, the managing underwriter
designated as the Underwriters' Representative by the co-managers.
2. Securities Subject to This Agreement. The securities
entitled to the benefits of this Agreement are the Registrable Securities. For
the purposes of this Agreement, Registrable Securities will cease to be
Registrable Securities when (i) a Registration Statement covering such
Registrable Securities has been declared effective under the Securities Act and
they have been disposed of pursuant to such effective Registration Statement,
(ii) such Registrable Securities are distributed to the public pursuant to Rule
144 (or any similar provision then in force) under the Securities Act, (iii)
such Registrable Securities shall have been otherwise transferred to a person
who is not a Holder, or (iv) such Registrable Securities shall have ceased to
be outstanding.
3. Registration Under the Securities Act.
(a) Shelf Registration. Within 120 days after the IPO
Closing Date, the Company shall file and use its best efforts to cause to
become effective not later than the later of (i) the 150th day after the IPO
Closing Date and (ii) the end of the IPO Restricted Period, a Shelf
Registration Statement on any appropriate form for all the Registrable
Securities, which form shall be available for the sale of the Registrable
Securities in accordance with the intended method or methods of distribution
thereof, as specified by Du Pont (including pursuant to one or more
Underwritten Offerings); provided that at the request of the Holders, the
filing and effectiveness of the Shelf Registration Statement may be delayed for
such a period as the Holders request. The Company agrees to use its best
efforts, taking into account the unavailability of incorporation by reference
during the portion of the Pre-Demand Period prior to the Company's becoming
eligible to use Form S-3, to keep such
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Registration Statement Continuously Effective and usable for resale of
Registrable Securities, for a period of twenty-four (24) months from the date on
which the SEC declares such Registration Statement effective or such shorter
period which will terminate when all the Registrable Securities covered by such
Registration Statement cease to be Registrable Securities; provided, however,
that the Company may elect that such Registration Statement not be filed or
usable during any Blackout Period (as defined in Section 4). No incidental or
piggyback registration rights shall be available to any Person (including the
Company) with respect to the Shelf Registration Statement, and no Person
(including the Company) shall have the right to have any securities other than
the Registrable Securities included therein or registered thereon.
The registration rights granted pursuant to the provisions of
this Section 3(a) shall be in addition to the registration rights granted
pursuant to the other provisions of this Section 3 and the number of Demand
Registrations provided pursuant to Section 3(b) below shall not be reduced by
reason of any underwritten offerings effected pursuant to the Shelf
Registration.
(b) Required Registration.
(i) In addition to the registration permitted pursuant to
Section 3(a), the Holders shall have the right after the expiration of the
Pre-Demand Period to request in writing (a "Request") (which Request shall
specify the Registrable Securities intended to be disposed of by such Holders
and the intended method of distribution thereof) that the Company register such
portion of such Holders' Registrable Securities as shall be specified in the
Request (a "Demand Registration") by filing with the SEC, as soon as
practicable thereafter, but, not later than the 30th day (or the 45th day if
the applicable registration form is other than Form S-3) after the receipt of
such a Request by the Company, a registration statement (a "Demand Registration
Statement") covering such Registrable Securities, and the Company shall use its
best efforts to have such Demand Registration Statement declared effective by
the SEC as soon as practicable thereafter, but in no event later than the 75th
day (or the 90th day if the applicable registration form is other than Form
S-3) after the receipt of such a Request, and to keep such Demand Registration
Statement Continuously Effective for a period of at least 60 days following the
date on which such Demand Registration Statement is declared effective, as
extended by the length of any Suspension Period (as defined in Section 7) with
respect thereto (or for such shorter period which will terminate when all of
the Registrable Securities covered by such Demand Registration Statement shall
have been sold pursuant thereto), including,
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if necessary, by filing with the SEC a post-effective amendment or a supplement
to the Demand Registration Statement or the related prospectus or any document
incorporated therein by reference or by filing any other required document or
otherwise supplementing or amending the Demand Registration Statement, if
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Demand Registration Statement or
by the Securities Act, the Exchange Act, any state securities or blue sky laws,
or any rules and regulations thereunder; provided that such period during which
the Demand Registration Statement shall remain Continuously Effective shall, in
the case of an Underwritten Offering, be extended for such period (if any) as
the underwriters shall reasonably require, including to satisfy, in the judgment
of counsel to the underwriters, any prospectus delivery requirements imposed by
applicable law.
The Company shall not be obligated to effect more than three
(3) Demand Registrations pursuant to Requests. For purposes of the preceding
sentence, a Demand Registration shall not be deemed to have been effected, (i)
unless a Demand Registration Statement with respect thereto has become
effective, (ii) if after such Demand Registration Statement has become
effective, the offer, sale or distribution of Registrable Securities thereunder
is prevented by any stop order, injunction or other order or requirement of the
SEC or other Governmental Entity for any reason not attributable to any Holder
and such effect is not thereafter eliminated, or (iii) if the conditions to
closing specified in the underwriting agreement entered into in connection with
such Registration are not satisfied or waived, other than by reason of a failure
on the part of any Holder. If the Company shall have complied with its
obligations under this Agreement, a right to a Demand Registration pursuant to
this Section 3 shall be deemed to have been satisfied upon the earlier of (x)
the date as of which all of the Registrable Securities included therein shall
have been sold to the underwriters or distributed pursuant to the Demand
Registration Statement, and (y) the date as of which such Demand Registration
shall have been Continuously Effective for a 60-day period or other period
specified in the preceding paragraph following the effectiveness of such Demand
Registration Statement.
Any Request made pursuant to this Section 3(b) shall be
addressed to the attention of the Secretary of the Company, and shall specify
(a) the number of Registrable Securities to be Registered (which shall be not
less than the lesser of (i) 5% of the total number of shares of Common Stock
and Class B Common Stock outstanding or (ii) the remaining balance of the
Registrable Securities then held by the Holders, provided that the aggregate
public offering price of the Registrable Securities to be registered (based on
the closing sale price of the Common Stock on
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the last trading day prior to the delivery of a Request) would not be less than
$500 million), (b) the intended method of distribution thereof and (c) that
the request is for a Demand Registration pursuant to this Section 3.1(b).
(ii) The Company may not include in a Demand Registration
pursuant to Section 3(b)(i)1 hereof shares of Common Stock for the account of
the Company or any subsidiary of the Company, but, if and to the extent
required by a contractual obligation, may, subject to compliance with Section
3.1(b)(iii), include shares of Common Stock for the account of any other Person
who holds shares of Common Stock entitled to be included therein; provided,
however, that if the Underwriters' Representative of any offering described in
this Section 3(b) shall have informed the Company in writing that in its
judgment there is a Maximum Number of shares of Common Stock that all Holders
and any other Persons desiring to participate in such Registration may include
in such offering, then the Company shall include in such Demand Registration
all Registrable Securities requested to be included in such Registration by the
Holders together with up to such additional number of shares of Common Stock
that any other Persons entitled to participate in such Registration desire to
include in such Registration up to the Maximum Number that the Underwriters'
Representative has informed the Company may be included in such Registration
without materially and adversely affecting the success or pricing of such
offering; provided that the number of shares of Common Stock to be offered for
the account of all such other Persons participating in such Registration shall
be reduced in a manner determined by the Company in its sole discretion.
(iii) No Holder may participate in any underwritten offering
under Section 3 hereof and no other Person shall be permitted to participate in
any such offering pursuant to Section 3(b) or Section 4 hereof unless it
completes and executes all customary questionnaires, powers of attorney, custody
agreements, underwriting agreements, and other customary documents required
under the customary terms of such underwriting arrangements. In connection with
any underwritten offering under Section 3 or Section 4 hereof, each
participating Holder and the Company and, except in the case of Section 3(a)
hereof, each other Person shall be a party to the underwriting agreement with
the underwriters and may be required to make certain customary representations
and warranties and provide certain customary indemnifications for the benefit of
the underwriters; provided that the Holders shall not be required to make
representations and warranties with respect to the Company and its subsidiaries
or their business and operations and shall not be required to agree to any
indemnity or contribution provisions less favorable to them than as are set
forth herein.
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(c) Incidental Registration.
(i) If at any time the Company proposes to register any
Related Securities under the Securities Act (other than in connection with any
acquisition or business combination transaction and other than in connection
with stock options and other stock-based employee benefit plans and
compensation) either in connection with a primary offering for cash for the
account of the Company, a secondary offering or a combined primary and secondary
offering, the Company will each time it intends to effect such a registration,
give written notice (a "Company Notice") to all Holders of Registrable
Securities at least 10 business days prior to the initial filing of a
registration statement with the SEC pertaining thereto, informing such Holders
of its intent to file such registration statement and of the Holders' right to
request the registration of the Registrable Securities held by the Holders. Upon
the written request of the Holders made within 7 business days after any such
Company Notice is given (which request shall specify the Registrable Securities
intended to be disposed of by such Holder and, unless the applicable
registration is intended to effect a primary offering of Common Stock for cash
for the account of the Company, the intended method of distribution thereof),
the Company will use its best efforts to effect the registration under the
Securities Act of all Registrable Securities which the Company has been so
requested to register by the Holders to the extent required to permit the
disposition (in accordance with the intended methods of distribution thereof or,
in the case of a registration which is intended to effect a primary offering for
cash for the account of the Company, in accordance with the Company's intended
method of distribution) of the Registrable Securities so requested to be
registered, including, if necessary, by filing with the SEC a post-effective
amendment or a supplement to the registration statement filed by the Company or
the related prospectus or any document incorporated therein by reference or by
filing any other required document or otherwise supplementing or amending the
registration statement filed by the Company, if required by the rules,
regulations or instructions applicable to the registration form used by the
Company for such registration statement or by the Securities Act, any state
securities or blue sky laws, or any rules and regulations thereunder; provided,
however, that if, at any time after giving written notice of its intention to
register any securities and prior to the effective date of the registration
statement filed in connection with such registration, the Company shall
determine for any reason not to register or to delay such registration of the
securities, the Company shall give written notice of such determination to each
Holder of Registrable Securities and, thereupon, (A) in the case of a
determination not to register, the Company shall be relieved of its obligation
to register any Registrable Securities in connection with such registration (but
not from its obligation to pay the Registration Expenses
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incurred in connection therewith), and (B) in the case of a determination to
delay such registration, the Company shall be permitted to delay registration
of any Registrable Securities requested to be included in such registration
statement for the same period as the delay in registering such other
securities.
The registration rights granted pursuant to the provisions of
this Section 3(c) shall be in addition to the registration rights granted
pursuant to the other provisions of this Section 3.
(ii) If, in connection with a Registration Statement
pursuant to this Section 3(c), the Underwriters' Representative of the offering
registered thereon shall inform the Company in writing that in its opinion there
is a Maximum Number of shares of Common Stock that may be included therein; then
(a) in the event such Registration Statement relates to an offering initiated by
the Company of Common Stock being offered for the account of the Company, the
Company may include in such registration the number of shares it proposes to
offer and, if such number is less than the Maximum Number, then the number of
shares of Common Stock requested to be included by any Person other than the
Company may be reduced, pro rata in proportion to the respective number of
shares of Common Stock requested to be included by such Persons (other than any
Person in respect of whom such reduction would place the Company in breach of
any then existing contractual obligations that it might have), to the extent
necessary to reduce the respective total number of shares of Common Stock
requested to be included in such offering to the Maximum Number of shares of
Common Stock recommended by such Underwriters' Representative and (b) in the
event such a Registration Statement is initiated by any Person other than the
Company, such Person shall have the right, in its sole discretion, to include in
such registration the number of shares of Common Stock it proposes to offer and,
if such number is less than the Maximum Number, then the number of shares of
Common Stock requested to be included by any other Person may be reduced pro
rata in proportion to the respective number of shares of Common Stock requested
to be included by such other Persons (other than any Person in respect of whom
such reduction would place the Company in breach of any then existing
contractual obligations that it might have), to the extent necessary to reduce
the respective total number of shares of Common Stock requested to be included
in such offering to the Maximum Number.
4. Blackout Period. The Company shall be entitled to
elect that a Registration Statement not be usable, or that the filing thereof
be delayed beyond the time otherwise required, for a reasonable period of time,
but not in excess of 60 days
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(a "Blackout Period"), if the Company determines in good faith that the
registration and distribution of Registrable Securities (or the use or filing of
the Registration Statement or related Prospectus) would interfere with any
pending material financing, acquisition, corporate reorganization or any other
material corporate development involving the Company or any of its subsidiaries
or would require premature disclosure thereof and promptly gives the Holders of
Registrable Securities written notice of such determination, and if requested by
Holders, the Company will promptly deliver to it a general statement of the
reasons for such postponement or restriction on use and to the extent
practicable an approximation of the anticipated delay; provided, however, that
the aggregate number of days included in all Blackout Periods, when taken
together with any Suspension Periods (as defined in Section 7), during any
consecutive 12 months shall not exceed 90 days.
5. Selection of Underwriters.
If any offering pursuant to a Shelf Registration Statement or
a Demand Registration Statement is an underwritten offering, Du Pont will
select a managing underwriter or underwriters to administer the offering, which
managing underwriter or underwriters shall be reasonably satisfactory to the
Company (it being agreed that Xxxxxx Xxxxxxx & Co. Incorporated, Credit Suisse
First Boston Corporation and X.X. Xxxxxx Securities Inc. are satisfactory to
the Company).
6. Holdback Agreement.
(a) If so requested by the Underwriters' Representative in
connection with an offering of securities covered by a registration statement
filed by the Company, whether or not Registrable Securities of the Holders are
included therein, each Holder shall agree not to effect any sale or distribution
of the Shares, including a sale pursuant to Rule 144, without the prior written
consent of the Underwriters' Representative (except as part of such Underwritten
Registration), during the 7-day period prior to, and during the 90-day
period beginning on, the date such registration statement is declared effective
under the Securities Act by the SEC; provided that the Holders are timely
notified of such effective date in writing by the Company or the Underwriters'
Representative. The Holders shall not be subject to the restrictions set forth
in this Section 6(a) for longer than 97 days during any 12-month period and a
Holder shall no longer be subject to such restrictions at such time as such
Holder together with its affiliates shall own less than 5% of the then
outstanding shares of Common Stock on a fully-diluted basis.
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(b) If so requested by the Underwriters' Representative in
connection with an offering of any Registrable Securities, the Company shall
agree not to effect any sale or distribution of shares of Common Stock, without
the prior written consent of the Underwriters' Representative (other than as a
part of such offering or in connection with any acquisition or business
combination transaction and other than in connection with stock options and
employee benefit plans and compensation) during the 7-day period prior to, and
during the 90-day period beginning on, the date such registration statement is
declared effective under the Securities Act by the SEC and shall use its best
efforts to obtain and enforce similar agreements from any other Persons if
requested by the Underwriters' Representative; provided that the Company or such
Persons shall not be subject to the restrictions set forth in this Section 6(b)
for longer than 97 days during any 12-month period.
(d) Notwithstanding anything else in this Section 6 to the
contrary, no Holder shall be precluded from distributing to any or all of its
stockholders any or all of the Registrable Securities.
(e) As used in paragraphs (a) and (b) of this Section 6,
"sales" or "distributions" shall be deemed to include, to the extent requested
by the Underwriters' Representative, (1) contracts to sell, sales of options or
contracts to purchase, purchases of any option or contract to sell, grants of
options, rights or warrants to purchase or otherwise transfer or dispose of,
directly or indirectly, any of the Shares or any securities convertible into or
exercisable or exchangeable for the Shares and (2) swaps or other arrangements
that transfer to another, in whole or in part, any of the economic consequences
of ownership of the Shares, whether any such transaction described in clause (1)
or (2) above is to be settled by delivery of the Shares or such other
securities, in cash or otherwise.
7. Registration Procedures. If and whenever the Company
is required to or to use its best efforts to effect or cause the registration
of any Registrable Securities under the Securities Act as provided in this
Agreement, the Company will, as expeditiously as possible and without limiting
any time period or obligation set forth elsewhere in this Agreement:
(a) Prepare and file with the SEC a Registration Statement
with respect to such Registrable Securities on a form for which the Company
then qualifies, and which form shall be available for the sale of the
Registrable Securities in accordance with the intended methods of distribution
thereof, and use its best efforts to cause such Registration Statement to
become and
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remain effective; provided that, a reasonable time before filing a Registration
Statement or Prospectus, or any amendments or supplements thereto (other than
reports required to be filed by it under the Exchange Act and the rules and
regulations adopted by the SEC thereunder), the Company will furnish to the
Holders and their counsel for review and comment, copies of all documents
proposed to be filed and provided further, that if Du Pont so requests (x) it
and its counsel and other representatives may participate in the drafting and
preparation of such Registration Statement and (y) such information as its
believes may be beneficial to be included in the Registration Statement for
marketing purposes shall be included therein so long as disclosure of such
information (1) is in compliance with applicable law and (2) does not
competitively harm the Company;
(b) prepare and file with the SEC amendments and
post-effective amendments to each such Registration Statement and such
amendments and supplements to the Prospectus used in connection therewith as
may be required by the Securities Act or the Exchange Act or otherwise
necessary to keep the Registration Statement effective for the applicable
period and cause the Prospectus as so supplemented to be filed pursuant to Rule
424 under the Securities Act, and to otherwise comply with the provisions of
the Securities Act with respect to the disposition of all securities covered by
such Registration Statement until such time as all of such securities have been
disposed of in accordance with the intended methods of disposition set forth in
such Registration Statement and Prospectus or such earlier time as the Company's
obligations to maintain the effectiveness and availability for use of such
Registration Statement ceases;
(c) furnish to each Holder of such Registrable Securities
such number of copies of such Registration Statement and of each amendment and
post-effective amendment thereto (in each case including all exhibits), the
Prospectus and Prospectus supplement, as applicable, and such other documents as
such Holder may reasonably request in order to facilitate the disposition of the
Registrable Securities by such Holder (the Company hereby consenting to the use
(subject to the limitations set forth in the last paragraph of this Section 7)
of the Prospectus or any amendment or supplement thereto in connection with such
disposition);
(d) use its best efforts to register or qualify such
Registrable Securities covered by such Registration Statement under such other
securities or
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blue sky laws of such jurisdictions as each Holder shall reasonably request,
and do any and all other acts and things which may be reasonably necessary or
advisable to enable such Holder to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such Holder, except that
the Company shall not for any such purpose be required to qualify generally to
do business as a foreign corporation in any jurisdiction where, but for the
requirements of this Section 7(d), it would not be obligated to be so
qualified, to subject itself to taxation in any such jurisdiction, or to
consent to general service of process in any such jurisdiction;
(e) notify each Holder of any such Registrable Securities
covered by such Registration Statement, at any time when a Prospectus relating
thereto is required to be delivered under the Securities Act within the
appropriate period mentioned in Section 7(b), of the Company's becoming aware
that the Prospectus included in such Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading, then
existing, and at the request of any such Holder, prepare and furnish to such
Holder a reasonable number of copies of an amendment or supplement to the
Registration Statement or related Prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
Prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading;
(f) notify each Holder of Registrable Securities covered
by such Registration Statement at any time,
(1) when the Prospectus or any Prospectus supplement
or post-effective amendment has been filed, and, with respect
to the Registration Statement or any post-effective amendment,
when the same has become effective,
(2) of any request by the SEC for amendments or
supplements to the Registration Statement or the Prospectus
or for additional information, and of any comments, oral or
written, by the SEC with respect thereto,
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(3) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose,
(4) if at any time the representations and warranties
of the Company made pursuant to agreements contemplated by
paragraph (i)(1) below cease to be true and correct, and
(5) of the receipt by the Company of any notification
with respect to the suspension of qualification or exemption
from qualification of the Registrable Securities for offering
or sale in any jurisdiction or the initiation or threatening
of any proceeding for such pur pose;
(g) otherwise use its best efforts to make available to
its security holders, as soon as reasonably practicable (but not more than
eighteen months) after the effective date of the Registration Statement, an
earnings statement which shall satisfy the provisions of Section 11(a) of the
Securities Act and the rules and regulations promulgated thereunder;
(h) cause all such Registrable Securities to be listed on
any securities exchange on which the Common Stock is then listed, if such
Registrable Securities are not already so listed and if such listing is then
permitted under the rules of such exchange, and to provide a transfer agent,
CUSIP number and registrar for such Registrable Securities covered by such
Registration Statement no later than the effective date of such Registration
Statement;
(i) enter into agreements (including underwriting
agreements) and take all other appropriate actions in order to expedite or
facilitate the disposition of such Registrable Securities as is customarily made
or done by issuers of comparable standing in connection with comparable
offerings and in such connection (to the extent so customary):
(1) make such representations and warranties to the
Holders of such Registrable Securities and the underwriters,
if any, and agree to such indemnification and contribution
agreements, in form, substance and scope as are customarily
made by issuers to underwriters in comparable underwritten
offerings;
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(2) obtain opinions of counsel to the Company (which
counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the underwriters, if any, and the
Holders of the Registrable Securities being sold) addressed
to each Holder and the underwriters, if any, covering the
matters customarily covered in opinions requested in
comparable underwritten offerings and such other matters as
may be reasonably requested by such Holders and underwriters;
(3) obtain comfort letters and updates thereof from
the Company's independent accountants addressed to the
selling Holders of Registrable Securities and the
underwriters, if any, such letters to be in customary form
and covering matters of the type customarily covered in "cold
comfort" letters by underwriters in connection with
comparable underwritten offerings;
(4) if requested, provide the indemnification in
accordance with the provisions and procedures of Section 9
hereof to all parties to be indemnified pursuant to said
Section; and
(5) deliver such documents and certificates as may be
reason ably requested by the Holders of a majority of the
Registrable Securities being sold and the underwriters, if
any, to evidence compliance with clause (f) above and with
any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company.
The matters set forth in this Section 7(i) shall be effected at each
closing under any underwriting or similar agreement as and to the
extent required thereunder.
(j) cooperate with the Holders of Registrable Securities
covered by such Registration Statement and the underwriter or underwriters, if
any, to facilitate the timely preparation and delivery of certificates (not
bearing any restrictive legends) representing the securities to be sold under
such Registration Statement, and enable such securities to be in such
denominations and registered in such names as the underwriter or underwriters,
if any, or such Holders may request, or take other appropriate action if the
Registrable Securities are to be uncertificated;
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(k) if requested by the underwriter or underwriters or a
Holder of Registrable Securities being sold in connection with an underwritten
offering, promptly incorporate in a Prospectus supplement or post-effective
amendment such information as the underwriters and the Holders of the
Registrable Securities being sold agree should be included therein relating to
the plan of distribution with respect to such Registrable Securities, including,
without limitation, information with respect to the amount of Registrable
Securities being sold to such underwriters, the purchase price being paid
therefor by such underwriters and with respect to any other terms of the
underwritten offering of the Registrable Securities to be sold in such offering
and make all required filings of such Prospectus supplement or post-effective
amendment promptly upon being notified of the matters of be incorporated in such
Prospectus supplement or post-effective amendment;
(l) in the event of any Underwritten Offering,
participate, and have senior management available to participate, in any
"roadshow" marketing efforts reasonably requested by the underwriters; and
(m) make available for inspection by any Holder of
Registrable Securities included in such Registration Statement, any underwriter
participating in any disposition pursuant to such Registration Statement, and
any attorney, accountant or other agent retained by any such Holder or under
writer in connection with such disposition, such financial and other records and
other information, pertinent corporate documents and properties of any of the
Company and its subsidiaries and affiliates, as shall be reasonably necessary to
enable them to exercise their due diligence responsibility.
The Company may require each Holder of Registrable Securities
as to which any registration is being effected to furnish the Company with such
information regarding such Holder and pertinent to the disclosure requirements
relating to the registration and the distribution of such securities as the
Company may from time to tine reasonably request.
Each Holder of Registrable Securities agrees that, upon
receipt of any notice (the "Suspension Notice") from the Company of the
happening of any event of the kind described in Section 7(e), such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to the
Prospectus or Registration Statement covering such Registrable Securities until
such Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 7(e), and, if so
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directed by the Company, such Holder will use its reasonable best efforts to
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice. In the event the Company shall give any such notice, the period of time
during which the Registration Statement is required to be Continuously Effective
pursuant to Section 3 hereof shall be extended by the number of days during the
period (the "Suspension Period") from the date of the giving of such Suspension
Notice and through the date when the Holders of Registrable Securities covered
by such Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 7(e).
8. Registration Expenses. The Company will pay all
Registration Expenses in connection with all registrations of Registrable
Securities, except to the extent such Registration Expenses constitute
Separation Expenses, and the Holders shall pay all underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
such Holders' Registrable Securities pursuant to a Registration Statement. To
the extent Registration Expenses constitute Separation Expenses, they will be
the responsibility of Du Pont.
9. Indemnification; Contribution. (a) Indemnification by
the Company. The Company agrees to indemnify each Holder of Registrable
Securities, its officers and directors and each Person who controls such Holder
(within the meaning of the Securities Act), and any agent and investment or
financial adviser thereof against all losses, claims, damages, liabilities and
expenses (including reasonable attorneys' fees and expenses of investigation)
incurred by such party pursuant to any actual or threatened action, suit,
proceeding or investigation arising out of or based upon (i) any untrue or
alleged untrue statement of material fact contained in a Registration
Statement, any Prospectus or preliminary Prospectus, or any amendment or
supplement to any of the foregoing or (ii) any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein (in the case of a Prospectus or a preliminary
Prospectus, in light of the circumstances under which they were made) not
misleading, except in each case insofar as the same arise out of or are based
upon any such untrue statement or omission made in reliance on and in
conformity with information furnished in writing to the Company by any
indemnified party or its counsel expressly for use therein. In connection with
an Underwritten Offering, the Company will indemnify the underwriters thereof,
their officers and directors and each Person who controls such underwriters
(within the meaning of the Securities Act) to the same extent as provided above
with respect to the indemnification of the Holders of Registrable
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Securities (provided that as to each underwriter the exception to such
indemnification obligation shall instead be for information with respect to
such underwriter furnished in writing by such underwriter or its counsel).
Notwithstanding the foregoing provisions of this Section 9(a), in the case of
an offering that is not an Underwritten Offering, the Company will not be
liable to any Holder of Registrable Securities under the indemnity agreement in
this Section 9(a) for any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense that arises out of such Holder's
failure to send or give a copy of the final Prospectus (as it may then be
amended or supplemented) to the Person asserting an untrue statement or alleged
untrue statement or omission or alleged omission at or prior to the written
confirmation of the sale of the Registrable Securities to such Person if such
statement or omission was corrected in such final Prospectus (as it may then be
amended or supplemented) and the Company has previously furnished copies
thereof in accordance with this Agreement.
(b) Indemnification by Holders of Registrable Securities.
In connection with a Registration Statement, each Holder will furnish to the
Company in writing such information, including with respect to the name,
address and the amount of Registrable Securities held by such Holder, as the
Company reasonably requests for use in such Registration Statement or the
related Prospectus and agrees to indemnify and hold harmless (in the same
manner and to the same extent as set forth in Section 9(a)) the Company, all
other prospective Holders or any underwriter, as the case may be, and any of
their respective affiliates, directors, officers and controlling Persons
(within the meaning of the Securities Act) against any losses, claims, damages,
liabilities and expenses resulting from any untrue or alleged untrue statement
of a material fact or any omission or alleged omission of a material fact
required to be stated in such Registration Statement or Prospectus or any
amendment or supplement to either of them or necessary to make the statements
therein (in the case of a Prospectus, in the light of the circumstances then
existing) not misleading, but only to the extent that any such untrue statement
or omission is made in reliance on and in conformity with information with
respect to such Holder furnished in writing to the Company by such Holder or
its counsel specifically for inclusion therein.
(c) Conduct of Indemnification Proceedings. Any Person
entitled to indemnification hereunder agrees to give prompt written notice to
the indemnifying party after the receipt by such indemnified party of any
written notice of the commencement of any action, suit, proceeding or
investigation or threat thereof made in writing for which such indemnified
party may claim indemnification or
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contribution pursuant to this Agreement (provided that failure to give such
notification shall not affect the obligations of the indemnifying person
pursuant to this Section 9 except to the extent the indemnifying party shall
have been actually prejudiced as a result of such failure). In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to the indemnified parties and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under these indemnification provisions for any
legal expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation, except as provided in the following
sentence. Any such indemnified party shall have the right to employ separate
counsel in any such action, claim or proceeding and to participate in the
defense thereof, but the fees and expenses of such counsel shall be the expenses
of such indemnified party unless (i) the indemnifying party has agreed to pay
such fees and expenses or (ii) the indemnifying party shall have failed to
promptly assume the defense of such action, claim or proceeding or (iii) the
named parties to any such action, claim or proceeding (including any impleaded
parties) include both such indemnified party and the indemnifying party, and
such indemnified party shall have been advised by counsel that there may be one
or more legal defenses available to it which are different from or in addition
to those available to the indemnifying party and that the assertion of such
defenses could, in the good faith judgment of the indemnified party, create a
conflict of interest such that counsel employed by the indemnifying party could
not faithfully represent the indemnified party (in case of clauses (ii) and
(iii) , if such indemnified party notifies the indemnifying party in writing
that it elects to employ separate counsel at the expense of the indemnifying
party (which counsel shall be reasonably satisfactory to the indemnifying
party), the indemnifying party shall not have the right to assume the defense of
such action, claim or proceeding on behalf of such indemnified party; it being
understood, however, that the indemnifying party shall not, in connection with
any one such action, claim or proceeding or separate but substantially similar
or related actions, claims or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys (together with
appropriate local counsel) at any time for all such indemnified parties, unless
in the good faith judgment of such indemnified party a conflict of interest may
exist between such indemnified party
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and any other of such indemnified parties with respect to such action, claim or
proceeding, in which event the indemnifying party shall be obligated to pay the
fees and expenses of such additional counsel or counsels) . The indemnifying
party will not be subject to any liability for any settlement made without its
consent (which consent will not be unreasonably withheld).
(d) Contribution. To the extent the indemnification from
the indemnifying party provided for in this Section 9 is unavailable to an
indemnified party hereunder in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then the indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and expenses in such proportion as is appropriate to
reflect the relative fault of the indemnifying party and indemnified party in
connection with the actions which resulted in such losses, claims, damages,
liabilities and expenses, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and indemnified
party shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the
limitations set forth in Section 9(c), any legal and other fees and expenses
reasonably incurred by such indemnified party in connection with any
investigation or proceeding.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 9(d) were determined by pro
rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. Notwithstanding the provisions of this Section 9(d), no
underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Registrable Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission, and
no Holder of Registrable Securities shall be required to contribute any amount
in excess of the amount by which the total price at which the Registrable
Securities of such Holder were offered to the public (net of all underwriting
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discounts and commissions) exceeds the amount of any damages which such Holder
has otherwise been required to pay by reason of such untrue statement or
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
To the extent indemnification is available under this Section
9, the indemnifying parties shall indemnify each indemnified party to the full
extent provided in Section 9(a) or (b), as the case may be, without regard to
the relative fault of said indemnifying parties or indemnified party or any
other equitable consideration provided for in this Section 9(d).
(e) The provisions of this Section 9 shall be applicable
in respect of each registration pursuant to this Agreement, shall be in
addition to any liability which any party may have to any other party and shall
survive any termination of this Agreement.
10. Rule 144. For a period of two years following the
Closing Date or, if at the end of such two year period, a Holder is an
affiliate of the Company, until such time as no Holder is an affiliate of the
Company, the Company covenants that it will file the reports required to be
filed by it under the Securities Act and the Ex change Act (or, if the Company
is not required to file such reports, it will, upon the request of any Holder
of Registrable Securities, make publicly available other information so long as
necessary to satisfy the requirements of Rule 144 under the Securities Act
relating to the availability of public information), all to the extent required
from time to time to enable such Holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or (b) any similar rule or regulation hereafter adopted by
the SEC. Upon the request of any Holder of Registrable Securities, the Company
will deliver to such Holder a written statement as to whether it has complied
with such requirements.
11. Miscellaneous.
(a) Remedies. Each Holder of Registrable Securities in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement.
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(b) Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of the
Holders of the Registrable Securities.
(c) Notices. All notices and other communications provided
for or permitted hereunder shall be in writing and shall be deemed to have been
duly given if delivered personally or sent by telex or telecopier, registered
or certified mail (return receipt requested), postage prepaid, or courier
guaranteeing next day delivery to the parties at the following addresses (or at
such other address for any party an shall be specified by like notice, provided
that notices of a change of address shall be effective only upon receipt
thereof). Notices delivered personally shall be effective upon receipt, notices
sent by mail shall be effective three days after mailing, notices sent by telex
shall be effective when answered back, notices sent by telecopier shall be
effective when receipt is acknowledged, and notices sent by courier
guaranteeing next day delivery shall be effective on the next business day
after timely delivery to the courier:
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(1) if Du Pont, to it at:
E.I. du Pont de Nemours & Company
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn. Xxxxx Xxxxxxxxx, Esq.
Tel.: 000-000-0000
Fax: 000-000-0000
(2) if the Company, to it at:
000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attn. X.X. Xxxxxxxxxx, Esq.
Tel.: 000-000-0000
Fax: 000-000-0000
(d) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors of each of the parties and
transferees of Registrable Securities who come within the term Holder.
(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 applicable to
contracts made and to be performed wholly within that State.
(h) 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 in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any
way impaired thereby, it being intended that all remaining provisions contained
herein shall not be in any way
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impaired thereby, it being intended that all of the rights and privileges of
the Stock holders shall be enforceable to the fullest extent permitted by law.
(i) Entire Agreement. This Agreement is intended by the
parties as a final expression and a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter hereof. There are no restrictions, promises, warranties or undertakings
with respect to the subject matter hereof, other than those set forth or
referred to herein and therein. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
CONOCO INC.
by:
------------------------------------
Name:
Title:
E.I. DU PONT DE NEMOURS AND COMPANY
by:
---------------------------------
Name:
Title:
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