REGISTRATION RIGHTS AGREEMENT by and among Brigham Exploration Company Brigham, Inc. Brigham Oil & Gas, L.P. and Banc of America Securities LLC Credit Suisse Securities (USA) LLC Dated as of April 9, 2007
Exhibit
10.2
EXECUTION
COPY
by
and
among
▇▇▇▇▇▇▇
Exploration Company
▇▇▇▇▇▇▇,
Inc.
▇▇▇▇▇▇▇
Oil & Gas, L.P.
and
Banc
of America Securities LLC
Credit
Suisse Securities (USA) LLC
Dated
as
of April 9, 2007
This
Registration Rights Agreement (this “Agreement”) is made and entered into as of
April 9, 2007, by and among ▇▇▇▇▇▇▇ Exploration Company, a Delaware corporation
(the “Company”), ▇▇▇▇▇▇▇, Inc., a Nevada corporation and ▇▇▇▇▇▇▇ Oil & Gas,
L.P., a Delaware limited partnership (collectively, with ▇▇▇▇▇▇▇, Inc., the
“Guarantors”), and Banc of America Securities LLC and Credit Suisse Securities
(USA) LLC (collectively, the “Initial Purchasers”), each of whom has agreed to
purchase the Company’s 9 ⅝% Senior Notes due 2014 (the “Initial Notes”) fully
and unconditionally guaranteed by the Guarantors (the “Guarantees”) pursuant to
the Purchase Agreement (as defined below). The Initial Notes and the Guarantees
attached thereto are herein collectively referred to as the “Initial
Securities.”
This
Agreement is made pursuant to the Purchase Agreement, dated March 30, 2007
(the
“Purchase Agreement”), among the Company, the Guarantors and the Initial
Purchasers (i) for the benefit of the Initial Purchasers and (ii) for the
benefit of the holders from time to time of the Initial Securities, including
the Initial Purchasers. In order to induce the Initial Purchasers to purchase
the Initial Securities, the Company has agreed to provide the registration
rights set forth in this Agreement. The execution and delivery of this Agreement
is a condition to the obligations of the Initial Purchasers set forth in Section
5(h) of the Purchase Agreement.
The
parties hereby agree as follows:
SECTION
1.
Definitions.
In
addition to other terms defined herein, as used in this Agreement, the following
capitalized terms shall have the following meanings:
Additional
Interest Payment Date: With
respect to the Initial Securities, each Interest Payment Date.
Broker-Dealer:
Any
broker or dealer registered under the Exchange Act.
Business
Day:
Any day
other than a Saturday, Sunday or U.S. federal holiday or a day on which banking
institutions or trust companies located in New York, New York are authorized
or
obligated to be closed.
Closing
Date: The
date
of this Agreement.
Commission:
The
Securities and Exchange Commission.
Company:
As
defined in the preamble hereto.
Consummate:
A
registered Exchange Offer shall be deemed “Consummated” for purposes of this
Agreement upon the occurrence of (i) the filing and effectiveness under the
Securities Act of the Exchange Offer Registration Statement relating to the
Exchange Securities to be issued in the Exchange Offer, (ii) the maintenance
of
such Registration Statement continuously effective and the keeping of the
Exchange Offer open for a period not less than the minimum period required
pursuant to Section 3(b) hereof, and (iii) the delivery by the Company to the
Registrar under the Indenture of Exchange Securities in the same aggregate
principal amount as the aggregate principal amount of Initial Securities that
were tendered by Holders thereof pursuant to the Exchange
Offer.
Effectiveness
Target Date: As
defined in Section 5 hereof.
Exchange
Act: The
Securities Exchange Act of 1934, as amended.
Exchange
Offer: The
registration by the Company under the Securities Act of the Exchange Securities
pursuant to a Registration Statement pursuant to which the Company offers the
Holders of all outstanding Transfer Restricted Securities the opportunity to
exchange all such outstanding Transfer Restricted Securities held by such
Holders for Exchange Securities in an aggregate principal amount equal to the
aggregate principal amount of the Transfer Restricted Securities tendered in
such exchange offer by such Holders.
Exchange
Offer Registration Statement: The
Registration Statement relating to the Exchange Offer, including the related
Prospectus.
Exempt
Resales: The
transactions in which the Initial Purchasers propose to sell the Initial
Securities to certain “qualified institutional buyers,” as such term is defined
in Rule 144A under the Securities Act and to certain non-U.S. persons pursuant
to Regulation S under the Securities Act.
Exchange
Securities: The
9 ⅝%
Senior Notes due 2014, of the same series under the Indenture as the Initial
Securities, to be issued to Holders in exchange for Transfer Restricted
Securities pursuant to this Agreement.
Guarantees:
As
defined in the preamble hereto.
Guarantors:
As
defined in the preamble hereto.
Holders:
As
defined in Section 2(b) hereof.
Indemnified
Holder: As
defined in Section 9(a) hereof.
Indenture:
The
Indenture, dated as of April 20, 2006, by and among the Company, the Guarantors
and ▇▇▇▇▇ Fargo Bank, N.A., as trustee (the “Trustee”), pursuant to which the
Securities are to be issued, as such Indenture is amended or supplemented from
time to time in accordance with the terms thereof.
Initial
Purchasers: As
defined in the preamble hereto.
Initial
Notes: As
defined in the preamble hereto.
Initial
Placement: The
issuance and sale by the Company of the Initial Securities to the Initial
Purchasers pursuant to the Purchase Agreement.
Initial
Securities: As
defined in the preamble hereto.
Interest
Payment Date: As
defined in the Indenture and the Securities.
2
Issuer
Free Writing Prospectus:
As
defined in Section 4(c) hereof.
Market-Maker:
As
defined in Section 6 hereof.
Market-Maker’s
Information: As
defined in Section 6 hereof.
Market-Making
Registration: As
defined in Section 6 hereof.
Market-Making
Registration Statement: As
defined in Section 6 hereof.
NASD:
NASD
Inc.
Person:
An
individual, partnership, corporation, trust or unincorporated organization,
or a
government or agency or political subdivision thereof.
Prospectus:
The
prospectus included in a Registration Statement, as amended or supplemented
by
any prospectus supplement and by all other amendments thereto, including
post-effective amendments, and all material incorporated by reference into
such
Prospectus.
Registration
Default: As
defined in Section 5 hereof.
Registration
Statement: Any
registration statement of the Company relating to (a) an offering of Exchange
Securities pursuant to an Exchange Offer, (b) the registration for resale of
Transfer Restricted Securities pursuant to the Shelf Registration Statement,
or
(c) the Market-Making Registration, which is filed pursuant to the provisions
of
this Agreement, in each case, including the Prospectus included therein, all
amendments and supplements thereto (including post-effective amendments) and
all
exhibits and material incorporated by reference therein. Notwithstanding the
foregoing, solely for purposes of Section 7(c) hereof, the Market Making
Registration Statement is excluded from this definition of “Registration
Statement.”
Rule
430B Information: Any
information included in a Prospectus that was omitted from the Registration
Statement at the time it became effective but that is deemed to be part of
and
included in such Registration Statement pursuant to Rule 430B under the 1933
Act.
Securities:
The
Initial Securities and the Exchange Securities.
Securities
Act: The
Securities Act of 1933, as amended.
Shelf
Filing Deadline: As
defined in Section 4(a) hereof.
Shelf
Registration Statement: As
defined in Section 4(a) hereof.
Trust
Indenture Act: The
Trust
Indenture Act of 1939, as amended.
3
Transfer
Restricted Securities: Each
Initial Security, until the earliest to occur of (a) the date on which such
Initial Security is exchanged in the Exchange Offer for an Exchange Security
entitled to be resold to the public by the Holder thereof without complying
with
the prospectus delivery requirements of the Securities Act, (b) the date on
which such Initial Security has been effectively registered under the Securities
Act and disposed of in accordance with a Shelf Registration Statement, (c)
the
date on which such Initial Security is distributed to the public pursuant to
Rule 144 under the Securities Act or by a Broker-Dealer pursuant to the “Plan of
Distribution” contemplated by the Exchange Offer Registration Statement
(including delivery of the Prospectus contained therein), and (d) the date
on
which such Initial Security may be resold without restriction pursuant to Rule
144(k) under the Securities Act.
Underwritten
Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an underwriter
for
reoffering to the public.
SECTION
2.
Securities
Subject to this Agreement.
(a)
Transfer
Restricted Securities. The
securities entitled to the benefits of this Agreement are the Transfer
Restricted Securities.
(b)
Holders
of Transfer Restricted Securities. A
Person
is deemed to be a holder of Transfer Restricted Securities (each, a “Holder”)
whenever such Person owns Transfer Restricted Securities. Holders may include
one or more of the Initial Purchasers from time to time.
SECTION
3.
Registered
Exchange Offer.
(a)
Unless the Exchange Offer shall not be permissible under applicable law or
Commission policy (after the procedures set forth in Section 7(a) hereof have
been complied with), each of the Company and the Guarantors shall use their
reasonable best efforts to (i) cause to be filed with the Commission as soon
as
practicable after the Closing Date, but in no event later than 90 days after
the
Closing Date (or if such 90th day is not a Business Day, the next succeeding
Business Day), a Registration Statement under the Securities Act relating to
the
Exchange Securities and the Exchange Offer, (ii) cause such Registration
Statement to become effective at the earliest possible time, but in no event
later than 180 days after the Closing Date (or if such 180th day is not a
Business Day, the next succeeding Business Day), (iii) in connection with the
foregoing, (A) file all pre-effective amendments to such Registration Statement
as may be necessary in order to cause such Registration Statement to become
effective, (B) if applicable, file a post-effective amendment to such
Registration Statement pursuant to Rule 430A under the Securities Act and (C)
cause all necessary filings in connection with the registration and
qualification of the Exchange Securities to be made under the state securities
or blue sky laws of such jurisdictions as are necessary to permit Consummation
of the Exchange Offer, and (iv) upon the effectiveness of such Registration
Statement, commence the Exchange Offer. The Exchange Offer shall be on the
appropriate form permitting registration of the Exchange Securities to be
offered in exchange for the Transfer Restricted Securities and to permit resales
of Initial Securities held by Broker-Dealers as contemplated by Section 3(c)
hereof.
4
(b)
The Company and the Guarantors shall cause the Exchange Offer Registration
Statement to be effective continuously and shall keep the Exchange Offer open
for a period of not less than the minimum period required under applicable
federal and state securities laws to Consummate the Exchange Offer; provided,
however,
that in
no event shall such period be less than 30 days (or longer if required by
applicable law) after the date notice of the Exchange Offer is mailed to the
Holders. The Company shall cause the Exchange Offer to comply with all
applicable federal and state securities laws. No securities other than the
Exchange Securities shall be included in the Exchange Offer Registration
Statement. The Company shall use its reasonable best efforts to cause the
Exchange Offer to be Consummated on the earliest practicable date after the
Exchange Offer Registration Statement has become effective, but in no event
later than 210 days after the Closing Date (or if such 210th day is not a
Business Day, the next succeeding Business Day).
(c)
The Company shall indicate in a “Plan of Distribution” section contained in the
Prospectus forming a part of the Exchange Offer Registration Statement that
any
Broker-Dealer who holds Initial Securities that are Transfer Restricted
Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company), may exchange such
Initial Securities pursuant to the Exchange Offer; however, such Broker-Dealer
may be deemed to be an “underwriter” within the meaning of the Securities Act
and must, therefore, deliver a prospectus meeting the requirements of the
Securities Act in connection with any resales of the Exchange Securities
received by such Broker-Dealer in the Exchange Offer, which prospectus delivery
requirement may be satisfied by the delivery by such Broker-Dealer of the
Prospectus contained in the Exchange Offer Registration Statement. Such “Plan of
Distribution” section shall also contain all other information with respect to
such resales by Broker-Dealers that the Commission may require in order to
permit such resales pursuant thereto, but such “Plan of Distribution” shall not
name any such Broker-Dealer or disclose the amount of Initial Securities held
by
any such Broker-Dealer except to the extent required by the Commission as a
result of a change in policy after the date of this Agreement.
Each
of
the Company and the Guarantors shall use its reasonable best efforts to keep
the
Exchange Offer Registration Statement continuously effective, supplemented
and
amended as required by the provisions of Section 7(c) hereof to the extent
necessary to ensure that it is available for resales of Initial Securities
acquired by Broker-Dealers for their own accounts as a result of market-making
activities or other trading activities, and to ensure that it conforms with
the
requirements of this Agreement, the Securities Act and the policies, rules
and
regulations of the Commission as announced from time to time, for a period
ending on the earlier of (i) 180 days from the date on which the Exchange Offer
Registration Statement is declared effective and (ii) the date on which a
Broker-Dealer is no longer required to deliver a prospectus in connection with
market-making or other trading activities.
The
Company shall provide sufficient copies of the latest version of such Prospectus
to Broker-Dealers promptly upon request at any time during such 180-day (or
shorter as provided in the foregoing sentence) period in order to facilitate
such resales.
5
(d)
As a condition to its participation in the Exchange Offer pursuant to the terms
of this Agreement, each Holder of Transfer Restricted Securities shall furnish,
upon the request of the Company, prior to the Consummation thereof, a written
representation to the Company (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement) to the
effect that (A) it is not an affiliate of the Company, (B) it is not engaged
in,
and does not intend to engage in, and has no arrangement or understanding with
any Person to participate in, a distribution of the Exchange Securities to
be
issued in the Exchange Offer, (C) it is acquiring the Exchange Securities in
its
ordinary course of business, (D) at the time of the commencement of the Exchange
Offer, such Holder will have no arrangement or understanding with any Person
to
participate in the distribution (within the meaning of the Securities Act)
of
the Exchange Securities in violation of the provisions of the Securities Act,
and (E) if such Holder is a Broker-Dealer that will receive Exchange Securities
for its own account in exchange for Transfer Restricted Securities that were
acquired as a result of market-making or other trading activities, that it
will
deliver a Prospectus in connection with any resale of such Exchange Securities.
In addition, all such Holders of Transfer Restricted Securities shall otherwise
cooperate in the Company’s preparations for the Exchange Offer. Each Holder
hereby acknowledges and agrees that any Broker-Dealer and any such Holder using
the Exchange Offer to participate in a distribution of the securities to be
acquired in the Exchange Offer (1) could not under Commission policy as in
effect on the date of this Agreement rely on the position of the Commission
enunciated in ▇▇▇▇▇▇
▇▇▇▇▇▇▇ and Co., Inc.
(available June 5, 1991) and Exxon
Capital Holdings Corporation
(available May 13, 1988), as interpreted in the Commission’s letter to Shearman
& Sterling dated July 2, 1993, and similar no-action letters (which may
include any no-action letter obtained pursuant to clause (i) above), and (2)
must comply with the registration and prospectus delivery requirements of the
Securities Act in connection with a secondary resale transaction and that such
a
secondary resale transaction should be covered by an effective registration
statement containing the selling security holder information required by Item
507 or 508, as applicable, of Regulation S-K if the resales are of Exchange
Securities obtained by such Holder in exchange for Initial Securities acquired
by such Holder directly from the Company.
SECTION
4.
Shelf
Registration.
(a)
Shelf
Registration. If
(i)
the Company is not required to file an Exchange Offer Registration Statement
or
to consummate the Exchange Offer because the Exchange Offer is not permitted
by
applicable law or Commission policy (after the procedures set forth in Section
7(a) hereof have been complied with), (ii) for any reason the Exchange Offer
is
not Consummated within 210 days after the Closing Date (or if such 210th day
is
not a Business Day, the next succeeding Business Day), or (iii) with respect
to
any Holder of Transfer Restricted Securities which notifies the Company in
writing prior to the 20th day following the Consummation of the Exchange Offer
(A) such Holder is prohibited by applicable law or Commission policy from
participating in the Exchange Offer, or (B) such Holder may not resell the
Exchange Securities acquired by it in the Exchange Offer to the public without
delivering a prospectus and that the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales by
such
Holder, or (C) such Holder is a Broker-Dealer and holds Initial Securities
acquired directly from the Company or one of its affiliates, the Company and
the
Guarantors shall
(x)
cause to be filed a shelf registration statement pursuant to Rule 415 under
the
Securities Act, which may be an amendment to the Exchange Offer Registration
Statement (in either event, the “Shelf Registration Statement”) as promptly as
practicable, and in any event on or prior to the earliest to occur of (1) the
30th day after the date on which the Company determines that it is not required
to file the Exchange Offer Registration Statement, (2) the 240th day after
the
Closing Date (in the case of clause (ii) above) (or if such 240th day is not
a
Business Day, the next succeeding Business Day) and (3) the 30th day after
the
date on which the Company receives notice from a Holder of Transfer Restricted
Securities or an Initial Purchaser as contemplated by clause (iii) above (such
earliest date being the “Shelf Filing Deadline”), which Shelf Registration
Statement shall provide for resales of all Transfer Restricted Securities the
Holders of which shall have provided the information required pursuant to
Section 4(b) hereof; and
6
(y)
use their reasonable best efforts to cause such Shelf Registration Statement
to
be declared effective by the Commission on or before the 60th day after the
Shelf Filing Deadline (or if such 60th day is not a Business Day, the next
succeeding Business Day).
Each
of
the Company and the Guarantors shall use its reasonable best efforts to keep
such Shelf Registration Statement continuously effective, supplemented and
amended as required by the provisions of Sections 7(b) and (c) hereof to the
extent necessary to ensure that it is available for resales of Transfer
Restricted Securities by the Holders entitled to the benefit of this Section
4(a), and to ensure that it conforms with the requirements of this Agreement,
the Securities Act and the policies, rules and regulations of the Commission
as
announced from time to time, for a period of at least two years following the
effective date of such Shelf Registration Statement (or shorter period that
will
terminate when all the Initial Securities covered by such Shelf Registration
Statement have been sold pursuant to such Shelf Registration
Statement).
(b)
Provision
by Holders of Certain Information in Connection with the Shelf Registration
Statement. No
Holder
of Transfer Restricted Securities may include any of its Transfer Restricted
Securities in any Shelf Registration Statement pursuant to this Agreement unless
and until such Holder furnishes to the Company in writing, within 20 Business
Days after receipt of a request therefor, such information as the Company may
reasonably request for use in connection with any Shelf Registration Statement
or Prospectus or preliminary Prospectus included therein. By acquiring the
Initial Securities, each Holder agrees to provide the indemnity set forth in
Section 9(b) hereof with respect to the information such Holder furnishes to
the
Company expressly for use in any Shelf Registration Statement. Each Holder
as to
which any Shelf Registration Statement is being effected agrees to furnish
promptly to the Company all information required to be disclosed in order to
make the information previously furnished to the Company by such Holder not
materially misleading.
(c)
Issuer
Free Writing Prospectuses.
The
Company represents that any Issuer Free Writing Prospectus will not include
any
information that conflicts with the information contained in the Shelf
Registration Statement or the Prospectus and, any Issuer Free Writing
Prospectus, when taken together with the information in the Shelf Registration
Statement and the Prospectus, will not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make
the
statements therein, in light of the circumstances under which they were made,
not misleading.
7
SECTION
5.
Additional
Interest. If
(i)
the Exchange Offer Registration Statement or any Shelf Registration Statement
required by this Agreement is not filed with the Commission on or prior to
the
date specified for such filing in this Agreement, (ii) the Exchange Offer
Registration Statement or any Shelf Registration Statement has not been declared
effective by the Commission on or prior to the date specified for such
effectiveness in this Agreement (the “Effectiveness Target Date”), (iii) the
Exchange Offer has not been Consummated on or prior to the date specified for
such consummation in this Agreement or (iv) any Exchange Offer Registration
Statement or Shelf Registration Statement required by this Agreement is filed
and declared effective but shall thereafter cease to be effective or fail to
be
usable for its intended purpose for more than 30 days (each such event referred
to in clauses (i) through (iv), a “Registration Default”), the Company hereby
agrees that the interest rate borne by the Transfer Restricted Securities shall
be increased by 0.25% per annum during the 90-day period immediately following
the occurrence of any Registration Default and shall increase by 0.25% per
annum
at the end of each subsequent 90-day period during which such Registration
Default continues, but in no event shall such increase exceed 1.00% per annum.
Following the cure of all Registration Defaults relating to any particular
Transfer Restricted Securities, the interest rate borne by the relevant Transfer
Restricted Securities will be reduced to the original interest rate borne by
such Transfer Restricted Securities; provided,
however,
that, if
after any such reduction in interest rate, a different Registration Default
occurs, the interest rate borne by the relevant Transfer Restricted Securities
shall again be increased pursuant to the foregoing provisions.
All
obligations of the Company and the Guarantors set forth in the preceding
paragraph that are outstanding with respect to any Transfer Restricted Security
at the time such security ceases to be a Transfer Restricted Security shall
survive until such time as all such obligations with respect to such security
shall have been satisfied in full. Notwithstanding the foregoing, (i) the amount
of additional interest payable shall not increase because more than one
Registration Default has occurred and is pending, and (ii) a Holder of Transfer
Restricted Securities or Exchange Securities who is not entitled to the benefits
of the Shelf Registration Statement shall not be entitled to additional interest
with respect to a Registration Default that pertains to the Shelf Registration
Statement.
SECTION
6.
Market-Making
Registration.
(a)
For the sole benefit of Credit Suisse Securities (USA) LLC (in such capacity,
the “Market-Maker”) or any of its affiliates (as defined in the rules and
regulations of the Commission), so long as (x) any of the Transfer Restricted
Securities or Exchange Securities are outstanding and (y) the Market-Maker
or
any of its affiliates is an affiliate of the Company, the Guarantors or any
of
their respective affiliates and the Market-Maker proposes to make a market
in
the Transfer Restricted Securities or Exchange Securities as part of its
business in the ordinary course, the following provisions shall apply for the
sole benefit of the Market-Maker:
(i)
The Company and the Guarantors shall file under the Securities Act a
registration statement (which may be the Exchange Offer Registration Statement
or the Shelf Registration Statement if permitted by the rules and regulations
of
the Commission), in a form reasonably acceptable to the Market-Maker (such
filing, the “Market-Making Registration,” and such registration statement, the
“Market-Making Registration Statement”). The Company and the Guarantors agree to
use their reasonable best efforts to cause the Market-Making Registration
Statement to be declared effective on or prior to (i) the date the Exchange
Offer is completed pursuant to Section 3 above or (ii) the date the Shelf
Registration becomes or is declared effective pursuant to Section 4 above,
and
to keep such Market-Making Registration Statement continuously effective for
so
long as the Market-Maker may be required to deliver a Prospectus in connection
with transactions in the Securities or the Exchange Securities, as the case
may
be. In the event that the Market-Maker holds Securities at the time an Exchange
Offer is to be conducted under Section 3 above, the Company and the Guarantors
agree that the Market-Making Registration shall, if permitted by Commission
rules and regulations, provide for the resale by the Market-Maker of such
Securities and shall be kept continuously effective for so long as the
Market-Maker may be required to deliver a Prospectus in connection with the
sale
of such Securities. The Company and the Guarantors further agree to supplement
or make amendments to the Market-Making Registration Statement, as and when
required by the rules, regulations or instructions applicable to the
registration form used by the Company and the Guarantors for such Market-Making
Registration Statement, and the Company and the Guarantors agree to furnish
to
the Market-Maker copies of any such supplement or amendment prior to its being
used or promptly following its filing with the Commission.
8
(ii)
Notwithstanding the foregoing, the Company may suspend the offering and sale
under the Market-Making Registration Statement for a period or periods that
the
Board of Directors of the Company reasonably determines to be advisable for
valid business reasons, but in any event not to exceed 60 days (or such period
as otherwise acceptable to the Market-Maker) in each year during which the
Market-Making Registration Statement is required to be effective and usable
hereunder (measured from the effective time of the Market-Making Registration
Statement to successive anniversaries thereof) if (A) (i) the Board of Directors
of the Company determines in good faith that such action is in the best
interests of the Company or (ii) the Market Making Registration Statement,
Prospectus or amendment or supplement thereto contains an untrue statement
of a
material fact or omits to state a material fact necessary in order to make
the
statements therein, in light of the circumstances under which they were made,
not misleading, and (B) the Company notifies the Market-Maker within five days
after such Board of Directors makes the relevant determination set forth in
clause (A).
(iii)
The Company shall notify the Market-Maker (A) when any post-effective amendment
to the Market-Making Registration Statement or any amendment or supplement
to
the related Prospectus has been filed, and, with respect to any post-effective
amendment, when the same has become effective; (B) of any request by the
Commission for any post-effective amendment to the Market-Making Registration
Statement, any supplement or amendment to the related Prospectus or for
additional information; (C) the issuance by the Commission of any stop order
suspending the effectiveness of the Market-Making Registration Statement or
the
initiation of any proceedings for that purpose; (D) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Transfer Restricted Securities or Exchange Securities for sale in any
jurisdiction or the initiation or threatening of any proceedings for such
purpose; and (E) within 5 days after the happening of any event that results
in
the Market-Making Registration Statement, the related Prospectus or any
amendment or supplement containing an untrue statement of a material fact or
omitting to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(iv)
If any event contemplated by Section 6(a)(iii)(B) through (E) occurs during
the
period for which the Company and the Guarantors are required to maintain an
effective Market-Making Registration Statement, the Company and the Guarantors
shall promptly prepare and file with the Commission a post-effective amendment
to the Market-Making Registration Statement or a supplement to the related
Prospectus or file any other required document so that the Prospectus will
not
include an untrue statement of a material fact or omit to state a material
fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
9
(v)
In the event of the issuance of any stop order suspending the
effectiveness of the Market-Making Registration Statement or of any order
suspending the qualification of the Transfer Restricted Securities or Exchange
Securities for sale in any jurisdiction, the Company and the Guarantors shall
promptly use their reasonable best efforts to obtain its
withdrawal.
(vi)
The Company shall furnish to the Market-Maker, without charge, (i) at
least one conformed copy of the Market-Making Registration Statement and any
post-effective amendment thereto; and (ii) as many copies of the related
Prospectus and any amendment or supplement thereto as the Market-Maker may
reasonably request.
(vii)
The Company and the Guarantors shall consent to the use of the Prospectus
contained in the Market-Making Registration Statement or any amendment or
supplement thereto by the Market-Maker in connection with its market-making
activities.
(viii)
Notwithstanding the foregoing provisions of this Section 6, the Company may
for
valid business reasons, including without limitation, a potential acquisition,
divestiture of assets or other material corporate transaction, or if required
under the Securities Act or Exchange Act, issue a notice that the Market-Making
Registration Statement is no longer effective or the Prospectus included therein
is no longer usable for offers and sales of Transfer Restricted Securities
or
Exchange Securities and may issue any notice suspending use of the Market-Making
Registration Statement required under applicable securities laws to be issued
for so long as valid business reasons exist and the Company shall not be
obligated to amend or supplement the Market-Making Registration Statement or
the
Prospectus included therein until it reasonably deems appropriate. The
Market-Maker agrees that upon receipt of any notice from the Company pursuant
to
this Section 6(a)(viii), it will discontinue use of the Market-Making
Registration Statement until receipt of copies of the supplemented or amended
Prospectus relating thereto and until advised in writing by the Company that
the
use of the Market-Making Registration Statement may be resumed.
(b)
In connection with the Market-Making Registration, the Company shall (i)
make reasonably available for inspection by a representative of, and counsel
acting for, the Market-Maker all relevant financial and other records, pertinent
corporate documents and properties of the Company and the Guarantors and (ii)
use its reasonable best efforts to have its officers, directors, employees,
accountants and counsel supply all relevant information reasonably requested
by
such representative or counsel or the Market-Maker.
(c)
Prior to the effective date of the Market-Making Registration Statement, the
Company and the Guarantors will use their reasonable best efforts to register
or
qualify such Transfer Restricted Securities or Exchange Securities for offer
and
sale under the securities or blue sky laws of such jurisdictions as the
Market-Maker reasonably requests in writing and do any and all other acts or
things necessary or advisable to enable the offer and sale in such jurisdictions
of the Transfer Restricted Securities or Exchange Securities covered by the
Market-Making Registration Statement; provided
that the
Company and the Guarantors will not be required to qualify generally to do
business in any jurisdiction where they are not then so qualified or to take
any
action which would subject them to general service of process or to taxation
in
any such jurisdiction where they are not then so subject.
10
(d)
The Company represents that the Market-Making Registration Statement, any
post-effective amendments thereto, any amendments or supplements to the related
Prospectus and any documents filed by them under the Exchange Act will, when
they become effective or are filed with the Commission, as the case may be,
conform in all material respects to the requirements of the Securities Act
and
the Exchange Act and the rules and regulations of the Commission thereunder
and
will not, as of the effective date of such Market-Making Registration Statement
or post-effective amendments and as of the filing date of amendments or
supplements to such Prospectus or filings under the Exchange Act, contain an
untrue statement of a material fact or omit to state a material fact required
to
be stated therein or necessary to make the statements therein, in light of
the
circumstances under which they were made, not misleading; provided
that no
representation or warranty is made as to information contained in or omitted
from the Market-Making Registration Statement or the related Prospectus in
reliance upon and in conformity with written information furnished to the
Company by the Market-Maker specifically for inclusion therein, which
information the parties hereto agree will be limited to the statements
concerning the market-making activities of the Market-Maker to be set forth
on
the cover page and in the “Plan of Distribution” section of the Prospectus (the
“Market-Maker’s Information”).
(e)
At the time of effectiveness of the Market-Making Registration Statement (unless
it is the same as the time of effectiveness of the Exchange Offer Registration
Statement) and concurrently with each time the Market-Making Registration
Statement or the related Prospectus shall be amended or such Prospectus shall
be
supplemented, the Company shall notify the Market-Maker and its counsel
that:
(i)
the Market-Making Registration Statement has been declared
effective;
(ii)
in the case of an amendment or supplement, such amendment has become effective
under the Securities Act, and if required, such amendment or supplement to
the
Prospectus was filed with the Commission pursuant to the subparagraph of Rule
424(b) under the Securities Act; and
(iii)
if requested by the Market-Maker after notice has been provided pursuant
to clauses (i) or (ii) above, as of the date of the Market-Making Registration
Statement, amendment or supplement, as applicable, the Market-Making
Registration Statement and the Prospectus, as amended or supplemented, if
applicable, did not include any untrue statement of a material fact and did
not
omit to state a material fact required to be stated therein or necessary to
make
the statements therein not misleading.
(f)
The Company and the Guarantors, on the one hand, and the Market-Maker, on the
other hand, hereby agree to indemnify each other, and, if applicable, contribute
to the other, in accordance with Section 9 of this Agreement.
11
(g)
The Company and the Guarantors will comply with the provisions of this Section
6
at their own expense and will reimburse the Market-Maker for its reasonable
expenses associated with this Section 6 (including reasonable fees of
counsel).
(h)
The agreements contained in this Section 6 and the representations,
warranties and agreements contained in this Agreement shall survive all offers
and sales of the Transfer Restricted Securities or Exchange Securities and
shall
remain in full force and effect for so long as any of the Transfer Restricted
Securities or Exchange Securities are outstanding, regardless of any termination
or cancellation of this Agreement or any investigation made by or on behalf
of
any indemnified party.
(i)
For purposes of this Section 6, any reference to the terms “amend,” “amendment”
or “supplement” with respect to the Market-Making Registration Statement or the
Prospectus contained therein shall be deemed to refer to and include the filing
under the Exchange Act of any document deemed to be incorporated therein by
reference.
SECTION
7.
Registration
Procedures.
(a)
Exchange
Offer Registration Statement. In
connection with the Exchange Offer, the Company and the Guarantors shall comply
with all of the provisions of Section 7(c) hereof, shall use their reasonable
best efforts to effect such exchange to permit the sale of Transfer Restricted
Securities being sold in accordance with the intended method or methods of
distribution thereof.
(b)
Shelf
Registration Statement. In
connection with the Shelf Registration Statement, each of the Company and the
Guarantors shall comply with all the provisions of Section 7(c) hereof and
shall
use its reasonable best efforts to effect such registration to permit the sale
of the Transfer Restricted Securities being sold in accordance with the intended
method or methods of distribution thereof, and pursuant thereto each of the
Company and the Guarantors will as expeditiously as possible prepare and file
with the Commission a Registration Statement relating to the registration on
any
appropriate form under the Securities Act, which form shall be available for
the
sale of the Transfer Restricted Securities in accordance with the intended
method or methods of distribution thereof.
(c)
General
Provisions. In
connection with any Exchange
Offer Registration Statement, any Shelf Registration Statement
and any
Prospectus related thereto required by this Agreement to permit the sale or
resale of Transfer Restricted Securities (including, without limitation, any
Exchange Offer Registration Statement, any Shelf Registration Statement and
the
related Prospectus required to permit resales of Initial Securities by
Broker-Dealers), each of the Company and the Guarantors shall:
(i)
use its reasonable best efforts to keep such Registration Statement continuously
effective and provide all requisite financial statements (including, if required
by the Securities Act or any regulation thereunder, financial statements of
the
Guarantors) for the period specified in Section 3 or 4 hereof, as applicable;
upon the occurrence of any event that would cause any such Registration
Statement or the Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not to be effective and usable for resale of
Transfer Restricted Securities during the period required by this Agreement,
the
Company shall file promptly an appropriate amendment to such Registration
Statement, in the case of clause (A), correcting any such misstatement or
omission, and, in the case of either clause (A) or (B), use its reasonable
best
efforts to cause such amendment to be declared effective and such Registration
Statement and the related Prospectus to become usable for their intended
purpose(s) as soon as practicable thereafter;
12
(ii)
prepare and file with the Commission such amendments and post-effective
amendments to the applicable Registration Statement as may be necessary to
keep
the Registration Statement effective for the applicable period set forth in
Section 3 or 4 hereof, as applicable, or such shorter period as will terminate
when all Transfer Restricted Securities covered by such Registration Statement
have been sold; 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 to comply fully with the provisions of Rules
424
and 430A under the Securities Act, to the extent applicable, in a timely manner;
and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement during
the
applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration Statement
or
supplement to the Prospectus;
(iii)
advise the underwriter(s), if any, and selling Holders promptly and, if
requested by such Persons, to confirm such advice in writing, (A) when the
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to any Registration Statement or any post-effective
amendment thereto, when the same has become effective, (B) of any request by
the
Commission for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information relating thereto,
(C) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Securities Act or of
the
suspension by any state securities commission of the qualification of the
Transfer Restricted Securities for offering or sale in any jurisdiction, or
the
initiation of any proceeding for any of the preceding purposes, (D) of the
existence of any fact or the happening of any event that makes any statement
of
a material fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto, or any document incorporated by reference
therein untrue, or that requires the making of any additions to or changes
in
the Registration Statement or the Prospectus in order to make the statements
therein not misleading. If at any time the Commission shall issue any stop
order
suspending the effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or blue sky laws, each of the
Company
and the Guarantors shall
use
its reasonable best efforts to obtain the withdrawal or lifting of such order
at
the earliest possible time;
13
(iv)
furnish without charge to each of the Initial Purchasers, each selling
Holder named in any Registration Statement, and each of the underwriter(s),
if
any, before filing with the Commission, copies of any Registration Statement
or
any Prospectus included therein or any amendments or supplements to any such
Registration Statement or Prospectus (including all documents incorporated
by
reference after the initial filing of such Registration Statement), which
documents will be subject to the review and comment of such Holders and
underwriter(s) in connection with such sale, if any, for a period of at least
three Business Days, and the Company will not file any such Registration
Statement or Prospectus or any amendment or supplement to any such Registration
Statement or Prospectus (including all such documents incorporated by reference)
to which an Initial Purchaser of Transfer Restricted Securities covered by
such
Registration Statement or the underwriter(s), if any, shall reasonably object
in
writing within three Business Days after the receipt thereof (such objection
to
be deemed timely made upon confirmation of telecopy transmission within such
period). The objection of an Initial Purchaser or underwriter, if any, shall
be
deemed to be reasonable if such Registration Statement, amendment, Prospectus
or
supplement, as applicable, as proposed to be filed, contains a material
misstatement or omission;
(v)
promptly prior to the filing of any document that is to be incorporated by
reference into a Registration Statement or Prospectus, provide copies of such
document to the Initial Purchasers, each selling Holder named in any
Registration Statement, and to the underwriter(s), if any, make the Company’s
and the Guarantors’ management, officers and other representatives available for
discussion of such document and other customary due diligence matters, and
include such information in such document prior to the filing thereof as such
selling Holders or underwriter(s), if any, reasonably may request;
(vi)
make available at reasonable times for inspection by the Initial Purchasers,
the
managing underwriter(s), if any, participating in any disposition pursuant
to
such Registration Statement and any attorney or accountant retained by such
Initial Purchasers or any of the underwriter(s), all financial and other
records, pertinent corporate documents and properties of each of the Company
and
the Guarantors and cause the Company’s and the Guarantors’ officers, directors
and employees to supply all information reasonably requested by any such Holder,
underwriter, attorney or accountant in connection with such Registration
Statement or any post-effective amendment thereto subsequent to the filing
thereof and prior to its effectiveness and to participate in meetings with
investors to the extent requested by any Holder, the Initial Purchasers or
the
managing underwriter(s), if any;
(vii)
if requested by any selling Holders or the underwriter(s), if any,
promptly incorporate in any Registration Statement or Prospectus, pursuant
to a
supplement or post-effective amendment if necessary, such information as such
selling Holders and underwriter(s), if any, may reasonably request to have
included therein, including, without limitation, information relating to the
“Plan of Distribution” of the Transfer Restricted Securities, information with
respect to the principal amount of Transfer Restricted Securities being sold
to
such underwriter(s), the purchase price being paid therefor and any other terms
of the offering of the Transfer Restricted Securities to be sold in such
offering; and make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the Company is notified
of
the matters to be incorporated in such Prospectus supplement or post-effective
amendment;
14
(viii)
cause the Transfer Restricted Securities covered by the Registration Statement
to be rated with the appropriate rating agencies, if so requested by the Holders
of a majority in aggregate principal amount of Securities covered thereby or
the
underwriter(s), if any;
(ix)
furnish to each selling Holder and each of the underwriter(s), if any, without
charge, at least one copy of the Registration Statement, as first filed with
the
Commission, and of each amendment thereto, including financial statements and
schedules, all documents incorporated by reference therein and all exhibits
(including exhibits incorporated therein by reference);
(x)
deliver to each selling Holder and each of the underwriter(s), if any, without
charge, as many copies of the Prospectus (including each preliminary prospectus)
and any amendment or supplement thereto as such Persons reasonably may request;
each of the Company and the Guarantors hereby consents to the use of the
Prospectus and any amendment or supplement thereto by each of the selling
Holders and each of the underwriter(s), if any, in connection with the offering
and the sale of the Transfer Restricted Securities covered by the Prospectus
or
any amendment or supplement thereto;
(xi)
enter into such agreements (including an underwriting agreement), and make
such
representations and warranties, and take all such other actions in connection
therewith in order to expedite or facilitate the disposition of the Transfer
Restricted Securities pursuant to any Registration Statement contemplated by
this Agreement, all to such extent as may be requested by any Holder of Transfer
Restricted Securities or underwriter in connection with any sale or resale
pursuant to any Registration Statement contemplated by this Agreement; and
whether or not an underwriting agreement is entered into and whether or not
the
registration is an Underwritten Registration, each of the Company and the
Guarantors shall:
(A)
furnish to each Initial Purchaser, each selling Holder and each underwriter,
if
any, in such substance and scope as they may request and as are customarily
made
by issuers to underwriters in primary underwritten offerings, upon the date
of
the Consummation of the Exchange Offer and, if applicable, the effectiveness
of
the Shelf Registration Statement:
(1)
a certificate, dated the date of Consummation of the Exchange Offer or the
date
of effectiveness of the Shelf Registration Statement, as the case may be, signed
by (y) the President or any Vice President and (z) a principal financial or
accounting officer of each of the Company and the Guarantors, confirming, as
of
the date thereof, the matters set forth in paragraphs (i), (ii) and (iii) of
Section 5(e) of the Purchase Agreement and such other matters as such parties
may reasonably request;
15
(2)
an opinion, dated the date of Consummation of the Exchange Offer or the date
of
effectiveness of the Shelf Registration Statement, as the case may be, of
counsel for the Company and the Guarantors, covering the matters set forth
in
Section 5(c) of the Purchase Agreement and such other matter as such parties
may
reasonably request, and in any event including a statement to the effect that
such counsel has participated in conferences with officers and other
representatives of the Company and the Guarantors, representatives of the
independent public accountants for the Company and the Guarantors,
representatives of the underwriter(s), if any, and counsel to the
underwriter(s), if any, in connection with the preparation of such Registration
Statement and the related Prospectus and have considered the matters required
to
be stated therein and the statements contained therein, although such counsel
has not independently verified the accuracy, completeness or fairness of such
statements; and that such counsel advises that, on the basis of the foregoing,
no facts came to such counsel’s attention that caused such counsel to believe
that the applicable Registration Statement, at the time such Registration
Statement or any post-effective amendment thereto became effective, and, in
the
case of the Exchange Offer Registration Statement, as of the date of
Consummation, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus contained in such
Registration Statement as of its date and, in the case of the opinion dated
the
date of Consummation of the Exchange Offer, as of the date of Consummation,
contained an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein not misleading. Without
limiting the foregoing, such counsel may state further that such counsel assumes
no responsibility for, and has not independently verified, the accuracy,
completeness or fairness of the financial statements, notes and schedules and
other financial data and statistical data derived from such financial
statements, notes and schedules and other financial, oil and gas reserves or
prospects or production data included in any Registration Statement contemplated
by this Agreement or the related Prospectus; and
(3)
a customary comfort letter, dated the date of effectiveness of the Shelf
Registration Statement, from the Company’s independent accountants, in the
customary form and covering matters of the type customarily requested to be
covered in comfort letters by underwriters in connection with primary
underwritten offerings, and covering or affirming the matters set forth in
the
comfort letters delivered pursuant to Section 5(a) of the Purchase Agreement,
without exception;
(B)
set forth in full or incorporate by reference in the underwriting agreement,
if
any, the indemnification provisions and procedures of Section 9 hereof with
respect to all parties to be indemnified pursuant to said Section;
and
(C)
deliver such other documents and certificates as may be reasonably requested
by
such parties to evidence compliance with Section 7(c)(xi)(A) hereof and with
any
customary conditions contained in the underwriting agreement or other agreement
entered into by the Company or any of the Guarantors pursuant to this Section
7(c)(xi), if any.
16
If
at any
time the representations and warranties of the Company and the Guarantors
contemplated in Section 7(c)(xi)(A)(1) hereof cease to be true and correct,
the
Company or the Guarantors shall so advise the Initial Purchasers and the
underwriter(s), if any, and each selling Holder promptly and, if requested
by
such Persons, shall confirm such advice in writing;
(xii)
prior to any public offering of Transfer Restricted Securities, cooperate with
the selling Holders, the underwriter(s), if any, and their respective counsel
in
connection with the registration and qualification of the Transfer Restricted
Securities under the state securities or blue sky laws of such jurisdictions
as
the selling Holders or underwriter(s), if any, may request and do any and all
other acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the Shelf
Registration Statement; provided,
however,
that
none of the Company or the Guarantors shall be required to register or qualify
as a foreign corporation where it is not then so qualified or to take any action
that would subject it to the service of process in suits or to taxation, other
than as to matters and transactions relating to the Registration Statement,
in
any jurisdiction where it is not then so subject;
(xiii)
shall issue, upon the request of any Holder of Initial Securities covered
by the Exchange Offer Registration Statement, Exchange Securities having an
aggregate principal amount equal to the aggregate principal amount of Initial
Securities surrendered to the Company by such Holder in exchange therefor or
being sold by such Holder; such Exchange Securities to be registered in the
name
of such Holder or in the name of the purchaser(s) of such Exchange Securities,
as the case may be; in return, the Initial Securities held by such Holder shall
be surrendered to the Company for cancellation;
(xiv)
cooperate with the selling Holders and the underwriter(s), if any, to facilitate
the timely preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive legends; and
enable such Transfer Restricted Securities to be in such denominations and
registered in such names as the Holders or the underwriter(s), if any, may
request at least two Business Days prior to any sale of Transfer Restricted
Securities made by such Holders or underwriter(s);
(xv)
use its reasonable best efforts to cause the Transfer Restricted
Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the seller or sellers thereof or the underwriter(s), if any, to
consummate the disposition of such Transfer Restricted Securities, subject
to
the proviso contained in Section 7(c)(xii) hereof;
(xvi)
if any fact or event contemplated by Section 7(c)(iii)(D) hereof shall exist
or
have occurred, prepare a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the Prospectus
will not contain an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein not
misleading;
17
(xvii)
provide a CUSIP number for all Transfer Restricted Securities not later than
the
effective date of the Registration Statement covering such Transfer Restricted
Securities and provide the Trustee under the Indenture with printed certificates
for such Transfer Restricted Securities which are in a form eligible for deposit
with the Depository Trust Company and take all other reasonable action necessary
to ensure that all such Transfer Restricted Securities are eligible for deposit
with the Depository Trust Company;
(xviii)
cooperate and assist in any filings required to be made with the NASD and in
the
performance of any due diligence investigation by any underwriter (including
any
“qualified independent underwriter”) that is required to be retained in
accordance with the rules and regulations of the NASD, and use its reasonable
best efforts to cause such Registration Statement to become effective and
approved by such governmental agencies or authorities as may be necessary to
enable the Holders selling Transfer Restricted Securities to consummate the
disposition of such Transfer Restricted Securities;
(xix)
otherwise use its reasonable best efforts to comply with all applicable rules
and regulations of the Commission, and make generally available to its security
holders, as soon as practicable, a consolidated earnings statement meeting
the
requirements of Rule 158 (which need not be audited) for the twelve-month period
(A) commencing at the end of any fiscal quarter in which Transfer Restricted
Securities are sold to underwriters in a firm commitment or best efforts
Underwritten Offering or (B) if not sold to underwriters in such an offering,
beginning with the first month of the Company’s first fiscal quarter commencing
after the effective date of the Registration Statement;
(xx)
cause the Indenture to be qualified under the Trust Indenture Act not later
than
the effective date of the first Registration Statement required by this
Agreement, and, in connection therewith, cooperate with the Trustee and the
Holders of Securities to effect such changes to the Indenture as may be required
for such Indenture to be so qualified in accordance with the terms of the Trust
Indenture Act; and to execute and use its reasonable best efforts to cause
the
Trustee to execute, all documents that may be required to effect such changes
and all other forms and documents required to be filed with the Commission
to
enable such Indenture to be so qualified in a timely manner;
(xxi)
cause all Securities covered by the Registration Statement to be listed on
each
securities exchange or automated quotation system on which similar securities
issued by the Company are then listed if requested by the Holders of a majority
in aggregate principal amount of Initial Securities or the managing
underwriter(s), if any; and
(xxii)
provide promptly to each Holder upon request each document filed with the
Commission pursuant to the requirements of Section 13 and Section 15 of the
Exchange Act.
18
Each
Holder agrees by acquisition of a Transfer Restricted Security that, upon
receipt of any notice from the Company of the existence of any fact of the
kind
described in Section 7(c)(iii)(D) hereof, such Holder will forthwith discontinue
disposition of Transfer Restricted Securities pursuant to the applicable
Registration Statement until such Holder’s receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 7(c)(xvi) 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 that are incorporated by reference in the Prospectus.
If so
directed by the Company, each Holder will deliver to the Company (at the
Company’s expense) all copies, other than permanent file copies then in such
Holder’s possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice. In the event
the Company shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4 hereof,
as applicable, 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
7(c)(iii)(D) hereof to and including the date when each selling Holder covered
by such Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 7(c)(xvi) hereof
or
shall have received the Advice; provided,
however,
that no
such extension shall be taken into account in determining whether Additional
Interest is due pursuant to Section 5 hereof or the amount of such Additional
Interest, it being agreed that the Company’s option to suspend use of a
Registration Statement pursuant to this paragraph shall be treated as a
Registration Default for purposes of Section 5 hereof.
SECTION
8.
Registration
Expenses.
(a)
All expenses incident to the Company’s and the Guarantors’ performance of or
compliance with this Agreement will be borne by the Company and the Guarantors
jointly and severally, regardless of whether a Registration Statement becomes
effective, including, without limitation: (i) all registration and filing fees
and expenses (including filings made by any Initial Purchaser or Holder with
the
NASD (and, if applicable, the fees and expenses of any “qualified independent
underwriter” and its counsel that may be required by the rules and regulations
of the NASD)); (ii) all fees and expenses of compliance with federal securities
and state securities or blue sky laws; (iii) all expenses of printing (including
printing certificates for the Exchange Securities to be issued in the Exchange
Offer and printing of Prospectuses), messenger and delivery services and
telephone; (iv) all fees and disbursements of counsel for the Company, the
Guarantors and, subject to Section 8(b) hereof, the Holders of Transfer
Restricted Securities; (v) all application and filing fees in connection with
listing the Exchange Securities on a securities exchange or automated quotation
system pursuant to the requirements thereof; and (vi) all fees and disbursements
of independent certified public accountants of the Company and the Guarantors
(including the expenses of any special audit and comfort letters required by
or
incident to such performance).
Each
of
the Company and the Guarantors will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Company or the Guarantors.
19
(b)
In connection with any Registration Statement required by this Agreement
(including, without limitation, the Exchange Offer Registration Statement and
the Shelf Registration Statement), the Company and the Guarantors, jointly
and
severally, will reimburse the Holders of Transfer Restricted Securities being
tendered in the Exchange Offer and/or resold pursuant to the “Plan of
Distribution” contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for
the
reasonable fees and disbursements of not more than one counsel, who shall be
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP or such other counsel as may be
chosen by the Holders of a majority in principal amount of the Transfer
Restricted Securities for whose benefit such Registration Statement is being
prepared.
SECTION
9.
Indemnification.
(a)
The Company and the Guarantors, jointly and severally, agree to indemnify and
hold harmless (i) each Holder (including, without limitation, the Initial
Purchasers and the Market-Maker) and (ii) each Person, if any, who controls
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) any Holder (any of the Persons referred to in this clause (ii)
being hereinafter referred to as a “controlling person”) and (iii) the
respective officers, directors, partners, employees, representatives and agents
of any Holder or any controlling person (any Person referred to in clause (i),
(ii) or (iii) may hereinafter be referred to as an “Indemnified Holder”), to the
fullest extent lawful, from and against any and all losses, claims, damages,
liabilities, judgments, actions and expenses (including, without limitation,
and
as incurred, reimbursement of all reasonable costs of investigating, preparing,
pursuing, settling, compromising, paying or defending any claim or action,
or
any investigation or proceeding by any governmental agency or body, commenced
or
threatened, including the reasonable fees and expenses of counsel to any
Indemnified Holder), joint or several, directly or indirectly caused by, related
to, based upon, arising out of or in connection with any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (including the Rule 430B Information) or Prospectus (or any amendment
or supplement thereto) or any Issuer Free Writing Prospectus (or any amendment
or supplement thereto), or any omission or alleged omission to state therein
a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or, in the case of the Market-Maker, any breach by
the
Company or the Guarantors of their representations, warranties and agreements
contained in Section 6 hereof, except insofar as such losses, claims, damages,
liabilities or expenses are caused by an untrue statement or omission or alleged
untrue statement or omission that is made in reliance upon and in conformity
with information relating to any of the Holders furnished in writing to the
Company by any of the Holders expressly for use therein. This indemnity
agreement shall be in addition to any liability which the Company or any of
the
Guarantors may otherwise have.
20
In
case
any action or proceeding (including any governmental or regulatory investigation
or proceeding) shall be brought or asserted against any of the Indemnified
Holders with respect to which indemnity may be sought against the Company or
the
Guarantors, such Indemnified Holder (or the Indemnified Holder controlled by
such controlling person) shall promptly notify the Company and the Guarantors
in
writing; provided,
however,
that the
failure to give such notice shall not relieve any of the Company or the
Guarantors of its obligations pursuant to this Agreement. Such Indemnified
Holder shall have the right to employ its own counsel in any such action and
the
fees and expenses of such counsel shall be paid, as incurred, by the Company
and
the Guarantors (regardless of whether it is ultimately determined that an
Indemnified Holder is not entitled to indemnification hereunder). The Company
and the Guarantors shall not, in connection with any one such action or
proceeding or separate but substantially similar or related actions 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 (in addition to any local counsel) at any time
for such Indemnified Holders, which firm shall be designated by the Holders.
The
Company and the Guarantors shall be liable for any settlement of any such action
or proceeding effected with the Company’s and the Guarantors’ prior written
consent, which consent shall not be withheld unreasonably, and each of the
Company and the Guarantors agrees to indemnify and hold harmless any Indemnified
Holder from and against any loss, claim, damage, liability or expense by reason
of any settlement of any action effected with the written consent of the Company
and the Guarantors. The Company and the Guarantors shall not, without the prior
written consent of each Indemnified Holder, settle or compromise or consent
to
the entry of judgment in or otherwise seek to terminate any pending or
threatened action, claim, litigation or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not any
Indemnified Holder is a party thereto), unless such settlement, compromise,
consent or termination includes an unconditional release of each Indemnified
Holder from all liability arising out of such action, claim, litigation or
proceeding.
(b)
Each Holder of Transfer Restricted Securities agrees, severally and not jointly,
to indemnify and hold harmless the Company, the Guarantors and their respective
directors, officers of the Company and the Guarantors who sign a Registration
Statement, and any Person controlling (within the meaning of Section 15 of
the
Securities Act or Section 20 of the Exchange Act) the Company or any of the
Guarantors, and the respective officers, directors, partners, employees,
representatives and agents of each such Person, to the same extent as the
foregoing indemnity from the Company and the Guarantors to each of the
Indemnified Holders, but only with respect to claims and actions based on
information relating to such Holder furnished in writing by such Holder
expressly for use in any Registration Statement. In case any action or
proceeding shall be brought against the Company, the Guarantors or their
respective directors or officers or any such controlling person in respect
of
which indemnity may be sought against a Holder of Transfer Restricted
Securities, such Holder shall have the rights and duties given the Company
and
the Guarantors, and the Company, the Guarantor, their respective directors
and
officers and such controlling person shall have the rights and duties given
to
each Holder by the preceding paragraph.
21
(c)
If the indemnification provided for in this Section 9 is unavailable to an
indemnified party under Section 9(a) or (b) hereof (other than by reason of
exceptions provided in those Sections) in respect of any losses, claims,
damages, liabilities, judgments, actions or expenses referred to therein, then
each applicable 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 or expenses in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantors, on the one hand, and the Holders, on the other
hand,
from the Initial Placement (which in the case of the Company and the Guarantors
shall be deemed to be equal to the total gross proceeds to the Company and
the
Guarantors from the Initial Placement), the amount of Additional Interest which
did not become payable as a result of the filing of the Registration Statement
resulting in such losses, claims, damages, liabilities, judgments actions or
expenses, and such Registration Statement, or if such allocation is not
permitted by applicable law, the relative fault of the Company and the
Guarantors, on the one hand, and the Holders, on the other hand, in connection
with the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of the Company and the Guarantors on the one hand and of
the
Indemnified Holder on the other shall be determined by reference to, among
other
things, whether the untrue or alleged untrue statement of a material fact or
the
omission or alleged omission to state a material fact relates to information
supplied by the Company or any of the Guarantors, on the one hand, or the
Indemnified Holders, on the other hand, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of
the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in the second paragraph
of Section 9(a) hereof, any legal or other fees or expenses reasonably incurred
by such party in connection with investigating or defending any action or
claim.
The
Company, the Guarantors and each Holder of Transfer Restricted Securities agree
that it would not be just and equitable if contribution pursuant to this Section
9(c) were determined by pro rata allocation (even if the Holders were treated
as
one entity for such purpose) or by any other method of allocation which does
not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as
a
result of the losses, claims, damages, liabilities or expenses referred to
in
the immediately preceding paragraph shall be deemed to include, subject to
the
limitations set forth above, any legal or other expenses reasonably incurred
by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this ▇▇▇▇▇▇▇ ▇, ▇▇▇▇ of
the
Holders (and its related Indemnified Holders) shall be required to contribute,
in the aggregate, any amount in excess of the amount by which the total discount
received by such Holder with respect to the Initial Securities exceeds the
amount of any damages which such Holder has otherwise been required to pay
by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation. The Holders’
obligations to contribute pursuant to this Section 9(c) are several in
proportion to the respective principal amount of Initial Securities held by
each
of the Holders hereunder and not joint.
SECTION
10. Rule
144A. Each
of
the Company and the Guarantors hereby agrees with each Holder, for so long
as
any Transfer Restricted Securities remain outstanding, to make available to
any
Holder or beneficial owner of Transfer Restricted Securities in connection
with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities from such Holder or beneficial owner, the information required by
Rule 144A(d)(4) under the Securities Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A under the Securities
Act.
SECTION
11. Participation
in Underwritten Registrations. No
Holder
may participate in any Underwritten Registration hereunder unless such Holder
(a) agrees to sell such Holder’s Transfer Restricted 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
reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of
such
underwriting arrangements.
22
SECTION
12. Selection
of Underwriters. The
Holders of Transfer Restricted Securities covered by the Shelf Registration
Statement who desire to do so may sell such Transfer Restricted Securities
in an
Underwritten Offering. In any such Underwritten Offering, the investment
banker(s) and managing underwriter(s) that will administer such offering will
be
selected by the Holders of a majority in aggregate principal amount of the
Transfer Restricted Securities included in such offering; provided,
however,
that
such investment banker(s) and managing underwriter(s) must be reasonably
satisfactory to the Company.
SECTION
13. Miscellaneous.
(a)
Remedies.
Each
of
the Company and the Guarantors hereby agrees that monetary damages would not
be
adequate compensation for any loss incurred by reason of a breach by it of
the
provisions of this Agreement and hereby agree to waive the defense in any action
for specific performance that a remedy at law would be adequate.
(b)
No
Inconsistent Agreements. Each
of
the Company and the Guarantors will not on or after the date of this Agreement
enter into any agreement with respect to its securities that is inconsistent
with the rights granted to the Holders in this Agreement or otherwise conflicts
with the provisions hereof. Neither the Company nor any of the Guarantors has
previously entered into any agreement granting any registration rights with
respect to its securities to any Person. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company’s or any of the Guarantors’
securities under any agreement in effect on the date hereof.
(c)
Adjustments
Affecting the Securities. The
Company will not take any action, or permit any change to occur, with respect
to
the Securities that would materially and adversely affect the ability of the
Holders to Consummate any Exchange Offer.
(d)
Amendments
and Waivers. The
provisions of this Agreement may not be amended, modified or supplemented,
and
waivers or consents to or departures from the provisions hereof may not be
given
unless the Company has (i) in the case of Section 5 hereof and this Section
13(d)(i), obtained the written consent of Holders of all outstanding Transfer
Restricted Securities and (ii) in the case of all other provisions hereof,
obtained the written consent of Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities (excluding any Transfer
Restricted Securities held by the Company or its Affiliates). Notwithstanding
the foregoing, a waiver or consent to departure from the provisions hereof
that
relates exclusively to the rights of Holders whose securities are being tendered
pursuant to the Exchange Offer and that does not affect directly or indirectly
the rights of other Holders whose securities are not being tendered pursuant
to
such Exchange Offer may be given by the Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities being tendered or registered;
provided,
however,
that,
with respect to any matter that directly or indirectly affects the rights of
any
Initial Purchaser hereunder, the Company shall obtain the written consent of
each such Initial Purchaser with respect to which such amendment, qualification,
supplement, waiver, consent or departure is to be effective. Any amendments,
modifications, supplements, waivers or consents pursuant to Section 6 or any
related sections shall require the written consent of the
Market-Maker.
23
(e)
Notices.
All
notices and other communications provided for or permitted hereunder shall
be
made in writing by hand-delivery, first-class mail (registered or certified,
return receipt requested), telex, telecopier, or air courier guaranteeing
overnight delivery:
(i)
if to a Holder, at the address set forth on the records of the Registrar under
the Indenture, with a copy to the Registrar under the Indenture;
(ii)
if to the Market-Maker:
Credit
Suisse Securities (USA) LLC
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇▇▇▇
Managing
Director
and
(iii)
if to the Company and the Guarantors:
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Chief
Financial Officer
With
a
copy to:
▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇ LLP
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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, postage prepaid, if mailed; when answered back, if
telexed; when receipt acknowledged, if telecopied; and on the next Business
Day,
if timely delivered to an air courier guaranteeing overnight
delivery.
24
Copies
of
all such notices, demands or other communications shall be concurrently
delivered by the Person giving the same to the Trustee at the address specified
in the Indenture.
(f)
Successors
and Assigns. This
Agreement shall inure to the benefit of and be binding upon the successors
and
assigns of each of the parties, including, without limitation, and without
the
need for an express assignment, subsequent Holders of Transfer Restricted
Securities; provided,
however,
that
this Agreement shall not inure to the benefit of or be binding upon a successor
or assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities from such Holder.
(g)
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.
(h)
Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(i)
Governing
Law. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW RULES
THEREOF.
(j)
Severability.
In
the
event that any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
(k)
Entire
Agreement. This
Agreement is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein with respect to the registration
rights granted by the Company with respect to the Transfer Restricted
Securities. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
25
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
|
▇▇▇▇▇▇▇
EXPLORATION COMPANY, a Delaware
corporation
|
|||
|
By:
|
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
|
||
|
Name:
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇.
|
||
|
Title:
|
Executive
Vice President and Chief Financial Officer
|
||
|
▇▇▇▇▇▇▇,
INC., a Nevada corporation
|
|||
|
By:
|
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
|
||
|
Name:
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇.
|
||
|
Title:
|
Chief
Financial Officer
|
||
|
▇▇▇▇▇▇▇
OIL & GAS, L.P., a
Delaware limited partnership
|
|||
|
By:
|
▇▇▇▇▇▇▇,
INC.,
|
||
|
Its
managing general partner
|
|||
|
By:
|
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
|
||
|
Name:
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇.
|
||
|
Title:
|
Chief
Financial Officer
|
||
26
The
foregoing Registration Rights Agreement is hereby confirmed and accepted as
of
the date first above written:
BANC
OF
AMERICA SECURITIES LLC
CREDIT
SUISSE SECURITIES (USA) LLC
By:
Banc
of America Securities LLC
|
By:
|
/s/
▇▇▇ ▇▇▇▇▇▇▇▇
|
|||||
|
Name:
|
▇▇▇
▇▇▇▇▇▇▇▇
|
|||||
|
Title:
|
Managing
Director
|
|||||
27