Exhibit 4.4
$132,000,000
Xxxxxx Energy Company
4.75% Convertible Senior Notes due May 15, 2023
Registration Rights Agreement
New York, New York
May 29, 2003
Citigroup Global Markets Inc.
UBS Warburg LLC
As Representatives of the Initial Purchasers
Named in Schedule I to the Purchase Agreement
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxx Energy Company, a Delaware corporation (the "Company"),
proposes to issue and sell (such issuance and sale, the "Initial Placement") to
the several parties named in Schedule I to the Purchase Agreement (the "Initial
Purchasers") for whom you (the "Representatives") are acting as representatives,
upon the terms set forth in a purchase agreement dated May 23, 2003 (the
"Purchase Agreement"), $132,000,000 aggregate principal amount of its 4.75%
Convertible Senior Notes due May 15, 2023 (the "Notes"). The Notes are
convertible into shares of Common Stock (as defined below) of the Company, and
are unconditionally guaranteed by A.T. Xxxxxx Coal Company, Inc., a Virginia
corporation and a wholly owned subsidiary of the Company (the "Guarantor") upon
the terms and subject to the conditions set forth in the Indenture (as defined
below).
As an inducement to you to enter into the Purchase Agreement and in
satisfaction of a condition to your obligations thereunder, the Issuer (as
defined herein) agrees with you, (i) for your benefit and (ii) for the benefit
of the holders from time to time of the Notes and the Common Stock issuable upon
conversion of the Notes (including you), as follows:
1. Definitions. Capitalized terms used herein without definition shall
have the respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized terms shall have the following
meanings:
"Act" means the Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
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"Affiliate" of any specified person means any other person, directly
or indirectly, controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling",
"controlled by" and "under common control with"), as used with respect to any
person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such person (and
shall be presumed to exist if a person can, directly or indirectly, vote 10% or
more of the securities having ordinary voting power for the election of
directors of such person) whether through the ownership of voting securities or
by agreement or otherwise.
"Broker-Dealer" means any broker or dealer registered as such under
the Exchange Act.
"Business Day" has the meaning set forth in the Indenture.
"Closing Date" means May 29, 2003.
"Common Stock" means the common stock, par value $0.625 per share, of
the Company, as it exists on the date of this Agreement and any other shares of
capital stock or other securities of the Company into which such Common Stock
may be reclassified or changed, together with any and all other securities which
may from time to time be issuable upon conversion of Notes.
"Default Rate" means 4.75% per annum.
"DTC" means the Depository Trust Company or its successor.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Final Maturity Date" means May 15, 2023.
"Holder" means a person who is a holder or beneficial owner (including
the Initial Purchasers) of any Notes or shares of Common Stock issued upon
conversion of Notes; provided that, unless otherwise expressly stated herein,
only registered holders of Notes or Common Stock issued on exchange of the Notes
shall be counted for purposes of calculating any proportion of holders entitled
to take any action or give notice pursuant to this Agreement.
"Indenture" means the Indenture relating to the Notes dated as of May
29, 2003, between the Company and Wilmington Trust Company, as trustee, as the
same may be amended from time to time in accordance with the terms thereof.
"Initial Placement" has the meaning set forth in the preamble hereto.
"Initial Purchasers" has the meaning set forth in the preamble hereto.
"Interest Payment Date" shall mean May 15 and November 15.
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"Issuer" means, collectively, the Company and the Guarantor.
"Liquidated Damages" has the meaning set forth in Section 2(e) hereof.
"Liquidated Damages Payment Date" means, with respect to the Notes or
the Common Stock issuable upon conversion of the Notes, as applicable, each
Interest Payment Date; and in the event that any Note, or portion thereof, is
called for redemption or surrendered for purchase by the Company and not
withdrawn pursuant to a Fundamental Change Offer (as defined in the Indenture),
the relevant redemption date or Fundamental Change Payment Date (as defined in
the Indenture), as the case may be, shall also be a Liquidated Damages Payment
Date with respect to such Note, or portion thereof, unless the Indenture
provides that accrued and unpaid interest on the Note (or portion thereof) to be
redeemed or repurchased, as the case may be, is to be paid to the person who was
the Record Holder thereof on a record date prior to such redemption date or
Fundamental Change Payment Date, as the case may be, in which case the relevant
Liquidated Damages Payment Date shall be the date on which interest is payable
to such Record Holder.
"Losses" has the meaning set forth in Section 5(d) hereof.
"Majority Holders" means the Holders of a majority of the then
outstanding aggregate principal amount of Notes registered under a Shelf
Registration Statement; provided that Holders of Common Stock issued upon
conversion of Notes shall be deemed to be Holders of the aggregate principal
amount of Notes from which such Common Stock was converted; and provided,
further, that Notes or Common Stock which have been sold or otherwise
transferred pursuant to the Shelf Registration Statement (or are not otherwise
Transfer Restricted Securities) shall not be included in the calculation of
Majority Holders.
"Majority Underwriting Holders" means, with respect to any
Underwritten Offering, the Holders of a majority of the then outstanding
aggregate principal amount of Notes registered under any Shelf Registration
Statement whose Notes are or are to be included in such Underwritten Offering;
provided that Holders of Common Stock (which remains a Transfer Restricted
Security) issued upon conversion of the Notes shall be deemed to be Holders of
the aggregate principal amount of Notes from which such Common Stock was
converted.
"Managing Underwriters" means the Underwriter or Underwriters that
shall administer an Underwritten Offering.
"NASD" has the meaning set forth in Section 3(i) hereof.
"Notice and Questionnaire" means a Selling Securityholder Notice and
Questionnaire substantially in the form of Exhibit A hereto.
"Notice Holder" shall mean, on any date, any Holder of Transfer
Restricted Securities that has delivered a completed and signed Notice and
Questionnaire to the Company on or prior to such date.
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"Offering Memorandum" means the Final Memorandum as defined in the
Purchase Agreement.
"Person" has the meaning set forth in the Indenture.
"Prospectus" means the prospectus included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Notes or Common Stock issuable upon conversion of
the Notes covered by such Shelf Registration Statement, and all amendments and
supplements to such prospectus, including all documents incorporated or deemed
to be incorporated by reference in such prospectus.
"Purchase Agreement" has the meaning set forth in the preamble hereto.
"Record Holder" means (i) with respect to any Liquidated Damages
Payment Date which occurs on an Interest Payment Date, each person who is
registered on the books of the registrar as the holder of Notes at the close of
business on the record date with respect to such Interest Payment Date and (ii)
with respect to any Liquidated Damages Payment Date relating to the Common Stock
issued upon conversion of the Notes, each person who is a holder of record of
such Common Stock fifteen days prior to the Liquidated Damages Payment Date.
"Registration Default" has the meaning set forth in Section 2(e)
hereof.
"Representative" has the meaning set forth in the preamble hereto.
"Rule 144" means Rule 144 (or any successor provision) under the Act.
"SEC" means the Securities and Exchange Commission.
"Shelf Registration" means a registration effected pursuant to Section
2 hereof.
"Shelf Registration Period" has the meaning set forth in Section 2(c)
hereof.
"Shelf Registration Statement" means a "shelf" registration statement
of the Company filed pursuant to the provisions of Section 2 hereof which covers
some or all of the Notes and the Common Stock issuable upon conversion of the
Notes, as applicable, on Form S-3 or on another appropriate form for an offering
to be made on a delayed or continuous basis pursuant to Rule 415 under the Act,
or any similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all documents incorporated or deemed to be incorporated by reference
therein.
"Suspension Period" has the meaning set forth in Section 2(d) hereof.
"Transfer Restricted Securities" means each Note and each share of
Common Stock issuable or issued upon conversion of the Notes until the date on
which such Note or share
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of Common Stock, as the case may be, (i) has been transferred pursuant to the
Shelf Registration Statement or another registration statement covering such
Note or share of Common Stock which has been filed with the SEC pursuant to the
Act, in either case after such registration statement has become effective and
while such registration statement is effective under the Act, (ii) has been
transferred pursuant to Rule 144 under the Act (or any similar provision then in
force) or (iii) may be sold or transferred pursuant to Rule 144(k) under the Act
(or any successor provision then in force).
"Trustee" means the trustee with respect to the Notes under the
Indenture.
"Underwriter" means any underwriter of the Notes or Common Stock
issuable upon conversion of the Notes in connection with an offering thereof
under a Shelf Registration Statement.
"Underwritten Offering" means an offering in which the Notes or Common
Stock issued upon conversion of the Notes are sold to an Underwriter or with the
assistance of an Underwriter for reoffering to the public.
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included," or "stated" in the Shelf
Registration Statement, any preliminary Prospectus or Prospectus (and all other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
or deemed to be incorporated by reference in such Shelf Registration Statement,
preliminary Prospectus or Prospectus, as the case may be; and all references in
this Agreement to amendments or supplements to the Shelf Registration Statement,
any preliminary Prospectus or Prospectus shall be deemed to mean and include any
document filed with the SEC under the Exchange Act, after the date of such Shelf
Registration Statement, preliminary Prospectus or Prospectus, as the case may
be, which is incorporated or deemed to be incorporated by reference therein.
2. Shelf Registration Statement.
(a) The Issuer shall prepare and file with the SEC within 90 days
following the Closing Date a Shelf Registration Statement with respect to
resales of the Transfer Restricted Securities by the Holders from time to
time in accordance with the methods of distribution elected by such Holders
and set forth in such Shelf Registration Statement (subject to Section
3(u)), and thereafter shall use its reasonable best efforts to cause such
Shelf Registration Statement to be declared effective under the Act within
180 days after the Closing Date. The Issuer shall supplement or amend the
Shelf Registration Statement if required by the rules, regulations or
instructions applicable to the registration form used by the Issuer for the
Shelf Registration Statement, or by the Act, the Exchange Act or the SEC.
(b) (i) Not less than 30 calendar days prior to the effectiveness
of the Shelf Registration Statement, the Issuer shall mail the Notice
and Questionnaire to the Holders of Transfer Restricted Securities.
The Issuer shall use commercially reasonable efforts to name each
Holder that is a Notice Holder as of the date that
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is 10 calendar days prior to the effectiveness of the Shelf
Registration Statement so that such Holder is named as a selling
security holder in the Shelf Registration Statement at the time of its
effectiveness and is permitted to deliver the Prospectus forming a
part thereof as of such time to purchasers of such Holder's Transfer
Restricted Securities in accordance with applicable law. The Issuer
shall be under no obligation to name any Holder that is not a Notice
Holder as a selling security holder in the Shelf Registration
Statement and no Holder may sell any Transfer Restricted Securities
pursuant to the Shelf Registration Statement without being deemed a
selling security holder in the Prospectus and delivering the
Prospectus to purchasers of such Holder's Transfer Restricted
Securities in accordance with applicable law. Each Holder shall
promptly provide the Issuer with written notice of any changes or
amendments that may be necessary or appropriate to the Notice Holder's
Notice and Questionnaire.
(ii) After the Shelf Registration Statement has become
effective, the Issuer shall, upon the request of any Holder of
Transfer Restricted Securities, promptly send a Notice and
Questionnaire to such Holder. From and after the date on which the
Shelf Registration Statement has become effective, the Issuer shall
(i) as promptly as is practicable after the date a completed and
signed Notice and Questionnaire is delivered to the Issuer, and in any
event within five Business Days after such date, prepare and file with
the SEC (x) a supplement to the Prospectus or, if required by
applicable law, a post-effective amendment to the Shelf Registration
Statement and (y) any other document required by applicable law, so
that the Holder delivering such Notice and Questionnaire is named as a
selling security holder in the Shelf Registration Statement and is
permitted to deliver the Prospectus to purchasers of such Holder's
Transfer Restricted Securities in accordance with applicable law, and
(ii) if the Issuer shall file a post-effective amendment to the Shelf
Registration Statement, use its reasonable best efforts to cause such
post-effective amendment to become effective under the Act as promptly
as is practicable; provided, however, that if a Notice and
Questionnaire is delivered to the Issuer during a Suspension Period,
the Issuer shall not be obligated to take the actions set forth in
clauses (i) and (ii) until the termination of such Suspension Period.
(c) The Issuer shall use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective under the Act in order to
permit the Prospectus forming a part thereof to be usable, subject to
Section 2(d), by all Notice Holders until the earliest of (i) the latest of
the second anniversary of (A) the issue date, or (B) the last date on which
any Common Stock is issued or issuable upon conversion of any Note, (ii)
the date on which all the unregistered Notes or Common Stock issued or
issuable upon conversion of the Notes may be sold by non-affiliates
("affiliates" for such purpose having the meaning set forth in Rule 144) of
the Issuer pursuant to paragraph (k) of Rule 144 (or any successor
provision) promulgated by the SEC under the Act, (iii) the date as of which
all the unregistered Notes or Common Stock issued or issuable upon
conversion of the Notes have been transferred pursuant to Rule 144 under
the Act (or any similar provision then in force) and (iv) such date as of
which all the Notes or the
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Common Stock issued or issuable upon conversion of the Notes have been sold
pursuant to the Shelf Registration Statement (in any such case, such period
being called the "Shelf Registration Period").
The Issuer will, (x) subject to Section 2(d), prepare and file
with the SEC such amendments and post-effective amendments to the Shelf
Registration Statement as may be necessary to keep the Shelf Registration
Statement continuously effective for the Shelf Registration Period, (y)
subject to Section 2(d), cause the related Prospectus to be supplemented by
any required supplement, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provisions then in force) under the Act and (z)
comply in all material respects with the provisions of the Act with respect
to the disposition of all securities covered by the Shelf Registration
Statement during the applicable period in accordance with the intended
methods of disposition by the sellers thereof set forth in such Shelf
Registration Statement as so amended or such Prospectus as so supplemented.
(d) The Issuer may suspend the use of the Prospectus for a period not
to exceed 30 days in any three-month period or for three periods not to
exceed an aggregate of 60 days in any 12-month period (the "Suspension
Period") for valid business reasons, to be determined by the Issuer in its
sole reasonable judgment (not including avoidance of the Issuer's
obligations hereunder), including, without limitation, the acquisition or
divestiture of assets, public filings with the SEC, pending corporate
developments and similar events; provided that the Issuer promptly
thereafter complies with the requirements of Section 3(j) hereof, if
applicable; provided, further, that the existence of a Suspension Period
will not prevent the occurrence of a Registration Default or otherwise
limit the obligation of the Issuer to pay Liquidated Damages.
(e) The Issuer and the Initial Purchasers agree that the Holders of
Transfer Restricted Securities will suffer damages if the Issuer fails to
fulfill its obligations under this Section 2 and that it would not be
feasible to ascertain the extent of such damages with precision.
Accordingly, the Issuer agrees to pay, as liquidated damages, additional
interest on the Transfer Restricted Securities ("Liquidated Damages") under
the following circumstances:
If (i) the Shelf Registration Statement is not filed with the SEC
on or prior to 90 days after the Closing Date, (ii) the Shelf Registration
Statement has not been declared effective by the SEC within 180 days after
the Closing Date or (iii) the Shelf Registration Statement is filed and
declared effective but shall thereafter cease to be effective (without
being succeeded immediately by a replacement shelf registration statement
filed and declared effective) or usable (including as a result of a
Suspension Period) for the offer and sale of Transfer Restricted Securities
for a period of time (including any Suspension Period) which exceeds 60
days in the aggregate in any 12-month period during the period beginning on
the issue date and ending on or prior to the second anniversary of the
latest of (a) such date or (b) the last day on which any Common Stock is
issued or issuable upon conversion of any Note (each such event referred to
in clauses (i) through (iii), a "Registration Default"), the Company will
pay Liquidated Damages to each Holder of Transfer Restricted Securities who
has complied with such Holder's obligations under this Agreement. The
amount of Liquidated Damages payable
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during any period in which a Registration Default has occurred and is
continuing is the amount which is equal to one quarter of one percent (25
basis points) per annum per $1,000 principal amount of Notes or $2.50 per
annum per 51.573 shares of Common Stock (subject to adjustment in the event
of a stock split, stock recombination, stock dividend and the like)
constituting Transfer Restricted Securities for the first 90 days during
which a Registration Default has occurred and is continuing and one-half of
one percent (50 basis points) per annum per $1,000 principal amount of
Notes or $5.00 per annum per 51.573 shares of Common Stock (subject to
adjustment as set forth above) constituting Transfer Restricted Securities
for any additional days during which a Registration Default has occurred
and is continuing (in each case subject to further adjustment from time to
time in the event of a stock split, stock recombination, stock dividend and
the like), it being understood that all calculations pursuant to this and
the preceding sentence shall be carried out to five decimals. Following the
cure of all Registration Defaults, Liquidated Damages will cease to accrue
with respect to such Registration Default. Liquidated Damages shall cease
to accrue in respect of any Transfer Restricted Security when it shall
cease to be such. All accrued Liquidated Damages shall be paid by wire
transfer of immediately available funds or by federal funds check by the
Issuer on each Liquidated Damages Payment Date and Liquidated Damages will
be calculated on the basis of a 360-day year consisting of twelve 30-day
months. In the event that any Liquidated Damages are not paid when due,
then to the extent permitted by law, such overdue Liquidated Damages, if
any, shall bear interest until paid at the Default Rate, compounded
semi-annually. The parties hereto agree that the Liquidated Damages
provided for in this Section 2(e) constitute a reasonable estimate of the
damages that may be incurred by Holders by reason of a Registration
Default.
(f) All of the Issuer's obligations (including, without limitation,
the obligation to pay Liquidated Damages) set forth in the preceding
paragraph which are outstanding or exist 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.
(g) Promptly upon the occurrence or the termination of a Registration
Default, the Issuer shall give the Trustee, in the case of notice with
respect to the Notes, and the transfer and paying agent for the Common
Stock, in the case of notice with respect to Common Stock issued or
issuable upon conversion of the Notes, notice of such commencement or
termination, of the obligation to pay Liquidated Damages with regard to the
Notes and Common Stock and the amount thereof and of the event giving rise
to such commencement or termination (such notice to be contained in an
Officers' Certificate (as such term is defined in the Indenture)), and
prior to receipt of such Officers' Certificate the Trustee and such
transfer and paying agent shall be entitled to assume that no such
commencement or termination has occurred, as the case may be.
(h) All Notes which are redeemed, purchased or otherwise acquired by
the Issuer or any of its subsidiaries or affiliates (as defined in Rule 144
(or any successor provision) under the Act) prior to the Final Maturity
Date shall be delivered to the Trustee for cancellation and the Issuer may
not hold or resell such Notes or issue any new
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Notes to replace any such Notes or any Notes that any Holder has exchanged
pursuant to the Indenture. All shares of Common Stock issued upon
conversion of the Notes which are repurchased or otherwise acquired by the
Issuer or any of its subsidiaries or affiliates (as defined in Rule 144 (or
any successor provision) under the Act) at any time while such shares are
"restricted securities" within the meaning of Rule 144 shall not be resold
or otherwise transferred except pursuant to a registration statement which
has been declared effective under the Act.
3. Registration Procedures. In connection with any Shelf Registration
Statement, the following provisions shall apply:
(a) The Issuer shall:
(i) furnish to the Representatives, prior to the filing thereof
with the SEC, a copy of any Shelf Registration Statement, and each
amendment thereof, and a copy of any Prospectus, and each amendment or
supplement thereto (excluding amendments caused by the filing of a
report under the Exchange Act), and shall use its commercially
reasonable efforts to reflect in each such document, when so filed
with the SEC, such comments as the Representative reasonably may
promptly propose; and
(ii) include information regarding the Notice Holders and the
methods of distribution they have elected for their Transfer
Restricted Securities provided to the Issuer in Notice and
Questionnaires as necessary to permit such distribution by the methods
specified therein.
(b) Subject to Section 2(d), the Issuer shall ensure that (i) any
Shelf Registration Statement and any amendment thereto and any Prospectus
forming a part thereof and any amendment or supplement thereto comply in
all material respects with the Act and the rules and regulations
thereunder, (ii) any Shelf Registration Statement and any amendment thereto
does not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and
(iii) any Prospectus forming a part of any Shelf Registration Statement,
and any amendment or supplement to such Prospectus, does 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 light of the
circumstances under which they were made, not misleading; provided that the
Issuer make no representation with respect to information with respect to
any Underwriter or any Holder required to be included in any Shelf
Registration Statement or Prospectus pursuant to the Act or the rules and
regulations thereunder and which information is included therein in
reliance upon and in conformity with information furnished to the Issuer in
writing by such Underwriter or Holder.
(c) The Issuer, as promptly as reasonably practicable, shall advise
the Representatives and each Notice Holder and, if requested by you or any
such Holder, confirm such advice in writing:
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(i) when a Shelf Registration Statement and any amendment thereto
has been filed with the SEC and when the Shelf Registration Statement
or any post-effective amendment thereto (other than as a result of the
events described in Section 2(b)(ii)) has become effective;
(ii) of any request by the SEC for amendments or supplements to
the Shelf Registration Statement or the Prospectus or for additional
information (a copy of each written request and the Issuer's responses
shall be promptly given to the Initial Purchasers and their counsel);
(iii) of the determination by the Issuer that a post-effective
amendment to the Shelf Registration Statement would be appropriate
(other than as a result of the events described in Section 2(b)(ii));
(iv) of the commencement or termination of (but not the nature of
or details concerning) any Suspension Period;
(v) of the issuance by the SEC of any stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation of
any proceedings for that purpose;
(vi) of the receipt by the Issuer of any notification with
respect to the suspension of the qualification of the Transfer
Restricted Securities included in any Shelf Registration Statement for
sale in any jurisdiction or the initiation or threat of any proceeding
for such purpose;
(vii) of the happening of (but not the nature of or details
concerning) any event that requires the making of any changes in the
Shelf Registration Statement or the Prospectus so that, as of such
date, the statements therein are not misleading and the Shelf
Registration Statement or the Prospectus, as the case may be, does 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 the case of the Prospectus, in light of the
circumstances under which they were made) not misleading; and
(viii) of the Issuer's suspension of the use of the Prospectus as
a result of any of the events or circumstances described in paragraphs
(ii) through (vii) above, and of the termination of any such
suspension.
(d) The Issuer shall use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of any Shelf
Registration Statement or the lifting of any suspension of the
qualification (or exemption from qualification) of any of the Transfer
Restricted Securities for offer or sale in any jurisdiction at the earliest
possible time.
(e) The Issuer shall promptly furnish to each Notice Holder, without
charge, at least one copy of any Shelf Registration Statement and any
post-effective amendment
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thereto, including all exhibits (including those incorporated by
reference), financial statements and schedules.
(f) The Issuer shall, during the Shelf Registration Period, promptly
deliver to each Initial Purchaser, each Notice Holder and any sales or
placement agent or Underwriters acting on their behalf, without charge, as
many copies of the Prospectus (including each preliminary Prospectus)
included in any Shelf Registration Statement (excluding documents
incorporated by reference), and any amendment or supplement thereto, as
such person may reasonably request; and, except as provided in Sections
2(d) and 3(s) hereof, the Issuer consents to the use of the Prospectus or
any amendment or supplement thereto by each of the selling Holders in
connection with the offering and sale of the Transfer Restricted Securities
covered by the Prospectus or any amendment or supplement thereto.
(g) Prior to any offering of Transfer Restricted Securities pursuant
to any Shelf Registration Statement, the Issuer shall register or qualify
or cooperate with the Notice Holders and their respective counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Transfer Restricted Securities for
offer and sale, under the securities or blue sky laws of such jurisdictions
within the United States as any such Notice Holders reasonably request and
shall maintain such qualification in effect so long as required 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 covered by
such Shelf Registration Statement; provided, however, that the Issuer will
not be required to (A) qualify to do business as a foreign corporation or
as a dealer in securities in any jurisdiction where it is not then so
qualified or to (B) take any action which would subject it to service of
process or taxation in any such jurisdiction where it is not then so
subject.
(h) The Issuer shall cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Transfer
Restricted Securities sold pursuant to any Shelf Registration Statement
free of any restrictive legends and in such denominations permitted by the
Indenture and registered in such names as Holders may request at least two
Business Days prior to settlement of sales of Transfer Restricted
Securities pursuant to such Shelf Registration Statement.
(i) Subject to the exceptions contained in (A) and (B) of Section 3(g)
hereof, the Issuer shall use its reasonable best efforts to cause the
Transfer Restricted Securities covered by the applicable Shelf Registration
Statement to be registered with or approved by such other federal, state
and local governmental agencies or authorities, and self-regulatory
organizations in the United States as may be necessary to enable the
Holders to consummate the disposition of such Transfer Restricted
Securities as contemplated by the Shelf Registration Statement; without
limitation to the foregoing, the Issuer shall make all filings and provide
all such information as may be required by the National Association of
Securities Dealers, Inc. (the "NASD") in connection with the offering under
the Shelf Registration Statement of the Transfer Restricted Securities
(including, without limitation, such as may be required by NASD Rule 2710
or 2720), and shall
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cooperate with each Holder in connection with any filings required to be
made with the NASD by such Holder in that regard.
(j) Upon the occurrence of any event described in Section 3(c)(vii)
hereof, the Issuer shall promptly prepare and file with the SEC a
post-effective amendment to any Shelf Registration Statement or an
amendment or supplement to the related Prospectus or any document
incorporated therein by reference or file a document which is incorporated
or deemed to be incorporated by reference in such Shelf Registration
Statement or Prospectus, as the case may be, so that, as thereafter
delivered to purchasers of the Transfer Restricted Securities included
therein, the Shelf Registration Statement and the Prospectus, in each case
as then amended or supplemented, will not include an untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein (in the case
of the Prospectus in light of the circumstances under which they were made)
not misleading and, in the case of a post-effective amendment, use its
reasonable best efforts to cause it to become effective as promptly as
practicable; provided that the Issuer's obligations under this paragraph
(j) shall be suspended if the Issuer has suspended the use of the
Prospectus in accordance with Section 2(d) hereof and given notice of such
suspension to Notice Holders, it being understood that the Issuer's
obligations under this paragraph (j) shall be automatically reinstated at
the end of such Suspension Period.
(k) The Issuer shall use its reasonable best efforts to provide, on or
prior to the first Business Day following the effective date of any Shelf
Registration Statement hereunder (i) a CUSIP number for the Transfer
Restricted Securities registered under such Shelf Registration Statement
and (ii) global certificates for such Transfer Restricted Securities to the
Trustee, in a form eligible for deposit with DTC.
(l) The Issuer shall use its reasonable best efforts to comply with
all applicable rules and regulations of the SEC and shall make generally
available to its security holders as soon as practicable but in any event
not later than 50 days after the end of a 12-month period after (i) the
effective date of the applicable Shelf Registration Statement, (ii) the
effective date of each post-effective amendment to any Shelf Registration
Statement and (iii) the date of each filing by the Issuer with the SEC of
an Annual Report on Form 10-K that is incorporated by reference or deemed
to be incorporated by reference in the Shelf Registration Statement, an
earnings statement satisfying the provisions of Section 11(a) of the Act
and Rule 158 promulgated by the SEC thereunder.
(m) The Issuer shall use its reasonable best efforts to cause the
Indenture to be qualified under the TIA (as defined in the Indenture) in a
timely manner.
(n) The Issuer shall use its reasonable best efforts to cause all
Common Stock issued or issuable upon conversion of the Notes to be listed
on each securities exchange or quotation system on which the Common Stock
is then listed no later than the date the applicable Shelf Registration
Statement is declared effective and, in connection therewith, use its
reasonable best efforts to make such filings as may be required under
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the Exchange Act and to have such filings declared effective as and when
required thereunder.
(o) The Issuer may require each Holder of Transfer Restricted
Securities to be sold pursuant to any Shelf Registration Statement to
furnish to the Issuer such information regarding the Holder and the
distribution of such Transfer Restricted Securities sought by the Notice
and Questionnaire and such additional information as may, from time to
time, be required by the Act and the rules and regulations promulgated
thereunder, and the obligations of the Issuer to any Holder hereunder shall
be expressly conditioned on the continued compliance of such Holder with
such request.
(p) The Issuer shall, if requested, use its reasonable best efforts to
promptly incorporate in a Prospectus supplement or post-effective amendment
to a Shelf Registration Statement (i) such information as the Majority
Holders reasonably provide or, if Transfer Restricted Securities are being
sold in an Underwritten Offering, as the Managing Underwriters or the
Majority Underwriting Holders reasonably agree should be included therein
and provide to the Issuer in writing for inclusion in the Shelf
Registration Statement or Prospectus, and (ii) such information as a Holder
may reasonably provide from time to time to the Issuer in writing for
inclusion in a Prospectus or any Shelf Registration Statement concerning
such Holder and the distribution of such Holder's Transfer Restricted
Securities and, in either case, shall make all required filings of such
Prospectus supplement or post-effective amendment promptly after being
notified in writing of the matters to be incorporated in such Prospectus
supplement or post-effective amendment, provided that the Issuer shall not
be required to take any action under this Section 3(p) that is not, in the
reasonable opinion of counsel for the Issuer, in compliance with applicable
law.
(q) The Issuer shall enter into such reasonable and customary
agreements (including underwriting agreements) and take all other
appropriate actions as may be reasonably requested in order to expedite or
facilitate the registration or the disposition of the Transfer Restricted
Securities, and in connection therewith, if an underwriting agreement is
entered into, the Issuer shall cause the same to contain indemnification
and contribution provisions and procedures no less favorable than those set
forth in Section 5 hereof (or such other reasonable and customary
provisions and procedures acceptable to the Majority Underwriting Holders
and the Managing Underwriters, if any, with respect to all parties to be
indemnified pursuant to Section 5). The plan of distribution in the Shelf
Registration Statement and the Prospectus included therein shall permit
resales of Transfer Restricted Securities to be made by selling security
holders through underwriters, brokers and dealers, and shall also include
such other information as the Representative may reasonably request.
(r) The Issuer shall if reasonably requested in writing by Majority
Holders, by Majority Underwriting Holders or by the Managing Underwriter:
(i) make reasonably available for inspection during normal
business hours by any Underwriter participating in any disposition
pursuant to such Shelf Registration Statement, and any attorney,
accountant or other agent retained by
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any such Underwriter all relevant financial and other records,
pertinent corporate documents and properties of the Issuer and its
subsidiaries as is reasonable and customary for due diligence
examinations in connection with public offerings;
(ii) cause the Issuer's officers, directors, employees,
accountants and auditors to supply all relevant information reasonably
requested by any such Underwriter, attorney, accountant or agent in
connection with any such Shelf Registration Statement as is reasonable
and customary for similar due diligence examinations; provided,
however, that the Holders or any such Underwriter, attorney,
accountant or agent shall execute a confidentiality agreement in a
reasonable and customary form as a condition to any disclosure made in
connection therewith;
(iii) deliver a letter, addressed to the selling Holders and the
Underwriters, if any, in which the Issuer shall make such
representations and warranties in form, substance and scope as are
reasonably and customarily made by issuers to Underwriters;
(iv) obtain opinions of counsel to the Issuer and updates thereof
(which counsel and opinions, in form, scope and substance, shall be
reasonably satisfactory to the Managing Underwriters, if any)
addressed to each selling Holder and the Underwriters, if any,
covering such matters as are reasonably and customarily covered in
opinions requested in public offerings;
(v) obtain "cold comfort" letters and updates thereof from the
current and former independent certified public accountants of the
Issuer (and, if necessary, any other independent certified public
accountants of any subsidiary of the Issuer or of any business
acquired by the Issuer for which financial statements and financial
data are, or are required to be, included in the Shelf Registration
Statement), addressed to each selling Holder (provided such Holder
furnishes the accountants, prior to the date such "cold comfort"
letter is required to be delivered, with such representations as the
accountants reasonably and customarily require in similar situations)
and the Underwriters, if any, in reasonable and customary form and
covering matters of the type reasonably and customarily covered in
"cold comfort" letters in connection with primary underwritten
offerings; and
(vi) deliver such documents and certificates as may be reasonably
requested by the Majority Holders or, in the case of an Underwritten
Offering, the Majority Underwriting Holders, and the Managing
Underwriters, if any, including those to evidence compliance with
Section 3(j) and with any reasonable and customary conditions
contained in the underwriting agreement or other agreement entered
into by the Issuer.
The foregoing actions set forth in clauses (iii), (iv), (v) and
(vi) of this Section 3(r) shall be performed at (A) the effectiveness
of such Shelf Registration
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Statement and each post-effective amendment thereto and (B) each
closing under any underwriting or similar agreement as and to the
extent required thereunder.
(s) Each Notice Holder agrees that, upon receipt of notice of the
happening of an event described in Sections 3(c)(ii) through and including
3(c)(vii), each Holder shall forthwith discontinue (and shall cause its
agents and representatives to discontinue) disposition of Transfer
Restricted Securities and will not resume disposition of Transfer
Restricted Securities until such Holder has received copies of an amended
or supplemented Prospectus contemplated by Section 3(j) hereof, or until
such Holder is advised in writing by the Issuer that the use of the
Prospectus may be resumed or that the relevant Suspension Period has been
terminated, as the case may be, provided that, the foregoing shall not
prevent the sale, transfer or other disposition of Transfer Restricted
Securities by a Notice Holder in a transaction which is exempt from, or not
subject to, the registration requirements of the Act, so long as such
Notice Holder does not and is not required to deliver the applicable
Prospectus or Shelf Registration Statement in connection with such sale,
transfer or other disposition, as the case may be; and provided, further,
that the provisions of this Section 3(s) shall not prevent the occurrence
of a Registration Default or otherwise limit the obligation of the Issuer
to pay Liquidated Damages.
(t) The Issuer shall in connection with an Underwritten Offering use
its reasonable best efforts (i) if the Notes have been rated prior to the
initial sale of such Notes, to confirm that such ratings will apply to the
Notes covered by the Shelf Registration Statement; or (ii) if the Notes
were not previously rated, to cause the Notes covered by the Shelf
Registration Statement to be rated with at least one nationally recognized
statistical rating agency, if so requested by the Majority Holders or by
any Managing Underwriters.
(u) In the event that any Broker-Dealer shall underwrite any Notes or
participate as a member of an underwriting syndicate or selling group or
"assist in the distribution" (within the meaning of the NASD Rules)
thereof, whether as a Holder of such Transfer Restricted Securities or as
an underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, the Issuer shall assist such Broker-Dealer in
complying with the NASD Rules, including, without limitation, by:
(i) if the NASD Rules shall so require, engaging a "qualified
independent underwriter" (as defined in the NASD Rules) to participate
in the preparation of the Shelf Registration Statement, to exercise
usual standards of due diligence with respect thereto and, if any
portion of the offering contemplated by the Shelf Registration
Statement is an Underwritten Offering or is made through a placement
or sales agent, to recommend the price of such Transfer Restricted
Securities;
(ii) indemnifying any such qualified independent underwriter to
the extent of the indemnification of Underwriters provided in Section
5 hereof; and
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(iii) providing such information to such Broker-Dealer as may be
required in order for such Broker-Dealer to comply with the
requirements of the NASD Rules.
(iv) Anything herein to the contrary notwithstanding, the Issuer
will not be required to pay the costs and expenses of, or to
participate in the marketing or "road show" presentations of, more
than one Underwritten Offering initiated at the request of the Holders
of Notes or shares of Common Stock issued or issuable upon conversion
of the Notes, or to effect more than one Underwritten Offering at the
request of such Holders. The Issuer will not be required to pay the
costs and expenses of, or to participate in the marketing or "road
show" presentations of, an Underwritten Offering unless Holders of at
least the Minimum Amount (as defined below) of Notes and/or Common
Stock issued or issuable on exchange of the Notes have requested that
such Notes and/or shares of such Common Stock be included in such an
Underwritten Offering. For purposes of this Agreement, the "Minimum
Amount" means 50% of the aggregate principal amount of Notes
originally issued under the Indenture; provided that, for purposes of
computing the Minimum Amount, Holders of Common Stock issued upon
conversion of Notes shall be deemed to be holders of the aggregate
principal amount of Notes which were converted into those shares of
Common Stock. Only Holders of Notes or shares of Common Stock issued
or issuable upon conversion of the Notes which are Transfer Restricted
Securities shall be entitled to include such Notes or shares of such
Common Stock in an Underwritten Offering and only Transfer Restricted
Securities shall be included in the computation of the Minimum Amount.
The Underwritten Offering initiated by Holders as aforesaid shall
include both Notes and such Common Stock if so requested by the
Holders. Upon receipt by the Issuer, from Holders of at least the
Minimum Amount of Notes and/or Common Stock issued or issuable upon
conversion of the Notes, of a request for an Underwritten Offering,
the Issuer will, within 10 Business Days thereafter, cause the Company
to mail notice to all Holders of Notes and shares of Common Stock
issued upon conversion of the Notes stating that: (1) the Company has
received a request from the Holders of the requisite amount of Notes
and/or Common Stock issued or issuable upon conversion of the Notes to
effect an Underwritten Offering on behalf of such Holders; (2) under
the terms of this Agreement, all Holders of Notes and shares of such
Common Stock issued or issuable upon conversion of the Notes which are
Transfer Restricted Securities may include their Notes and shares of
such Common Stock in such Underwritten Offering, subject to the terms
and conditions set forth in this Agreement and subject to the right of
the Managing Underwriters to reduce, in light of market conditions and
other similar factors, the aggregate principal amount of Notes and
number of shares of such Common Stock included in such Underwritten
Offering; (iii) all Holders electing to include Notes or shares of
such Common Stock in such Underwritten Offering must notify the Issuer
in writing of such election (the "Election"), and setting forth an
address and facsimile number to which such written elections may be
sent and the deadline (which shall be 12:00 midnight on the 10th
calendar day after such notice is mailed to Holders or, if not a
Business
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Day, the next succeeding Business Day (the "Deadline")) by which such
elections must be received by the Issuer; and (iv) setting forth such
other instructions as shall be necessary to enable Holders to include
their Notes and shares of such Common Stock in such Underwritten
Offering. No Holder shall be entitled to participate in an
Underwritten Offering unless such Holder notifies the Issuer of such
Election by the Deadline. Notwithstanding anything to the contrary
contained herein, if the Managing Underwriters for an Underwritten
Offering to be effected pursuant to this Section 3(u) advise the
Holders of the Notes and shares of such Common Stock to be included in
such Underwritten Offering that, because of aggregate principal amount
of Notes and/or number of shares of such Common Stock that such
Holders have requested be included in the Underwritten Offering, the
success of the offering would likely be adversely affected by the
inclusion of all of the Notes and shares of such Common Stock
requested to be included, then the principal amount of Notes and the
number of shares of such Common Stock to be offered for the accounts
of Holders shall be reduced pro rata, according to the aggregate
principal amount of Notes and number of shares of such Common Stock,
respectively, requested for inclusion by each such Holder, to the
extent necessary to reduce the size of the offering to the size
recommended by the Managing Underwriter. Notwithstanding anything to
the contrary contained herein, in the event the Managing Underwriter
recommends reducing the size of the offering and such offering is
thereafter reduced, neither the Issuer nor any Person, other than a
Holder of Notes or shares of such Common Stock issued or issuable upon
conversion of the Notes and only with respect to its Transfer
Restricted Securities, shall be entitled to include any securities in
the Underwritten Offering.
4. Registration Expenses. The Issuer shall bear all expenses incurred
in connection with the performance of its obligations under Sections 2 and 3
hereof and shall reimburse the Holders for the reasonable fees and disbursements
of one firm or counsel designated by the Majority Holders to act as counsel for
the Holders in connection therewith. Notwithstanding the provisions of this
Section 4, each Holder shall bear the expense of any broker's commission, agency
fee or Underwriter's discount or commission.
5. Indemnification and Contribution.
(a) The Issuer agrees to indemnify and hold harmless each Holder of
Transfer Restricted Securities covered by any Shelf Registration Statement
(including each of the Initial Purchasers), the directors, officers,
employees and agents of each such Holder and each person who controls any
such Holder within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in the Shelf Registration Statement as originally filed or in any
amendment thereof, or in any preliminary Prospectus or Prospectus, or in
any amendment thereof or supplement
A-17
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by any of them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Issuer will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon (A) any
such untrue statement or alleged untrue statement or omission or alleged
omission made therein (or in any amendment thereof or supplement thereto)
in reliance upon and in conformity with written information furnished to
the Issuer by or on behalf of any such Holder or any Initial Purchaser
specifically for inclusion therein, (B) use of a Shelf Registration
Statement or the related Prospectus during a period when use of such
Prospectus has been suspended pursuant to Section 2(d) or Section 3(s)
hereof; provided, further, in each case, that Holders received prior notice
of such suspension, or (C) if the Holder fails to deliver a Prospectus, as
then amended or supplemented, provided that the Issuer shall have delivered
to such Holder such Prospectus, as then amended or supplemented. This
indemnity agreement will be in addition to any liability which the Issuer
may otherwise have.
(b) Each Holder of Transfer Restricted Securities covered by a Shelf
Registration Statement (including the Initial Purchasers) severally and not
jointly agrees to indemnify and hold harmless:
(i) the Issuer;
(ii) each of its directors;
(iii) each of its officers; and
(iv) each person who controls the Issuer within the meaning of
either the Act or the Exchange Act to the same extent as the
foregoing indemnity from the Issuer to each such Holder,
but only with reference to written information relating to such Holder
furnished to the Issuer by or on behalf of such Holder specifically for
inclusion in the documents referred to in the foregoing indemnity.
This indemnity agreement shall be in addition to any liability which any
such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
5 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 5, notify the indemnifying party in writing of the
commencement thereof; but the failure to so notify the indemnifying party
will not relieve it from liability under paragraph (a) or (b) above unless
and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses. The
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indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if:
(i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a
conflict of interest;
(ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to
the indemnifying party and that representation of the indemnified
party by counsel chosen by the indemnifying party would be
inappropriate due to actual or potential differing interests among the
parties represented by such counsel;
(iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such
action; or
(iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying party.
Neither an indemnifying party nor an indemnified party will, without the
prior written consent of the other parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not such other parties are actual or potential
parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of such other parties from all
liability arising out of such claim, action, suit or proceeding. An
indemnifying party shall not be liable for any losses, claims, damages or
liabilities by reason of any settlement of any action or proceeding
effected without such indemnifying party's prior written consent, which
consent will not be unreasonably withheld.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 5 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party
shall have an obligation to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively
A-19
"Losses") to which such indemnified party may be subject in such proportion
as is appropriate to reflect the relative benefits received by such
indemnifying party, on the one hand, and such indemnified party, on the
other hand, from the Initial Placement and any sales of Transfer Restricted
Securities under the Shelf Registration Statement; provided, however, that
in no case shall the Initial Purchasers (except as may be provided in any
agreement among the Initial Purchasers relating to the offering of the
Securities) be responsible, in the aggregate, for any amount in excess of
the purchase discount or commission applicable to the Notes, as set forth
in the Purchase Agreement. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the indemnifying party
and the indemnified party shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of such indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the statements or
omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Issuer shall be deemed
to be equal to the sum of (x) the total net proceeds from the Initial
Placement (before deducting expenses) and (y) the total amount of
Liquidated Damages which the Issuer were not required to pay as a result of
registering the Transfer Restricted Securities covered by the Shelf
Registration Statement which resulted in such Losses. Benefits received by
the Initial Purchasers shall be deemed to be equal to the total purchase
discounts and commissions received in connection with the Initial
Placement, and benefits received by any other Holders shall be deemed to be
equal to the value of receiving Transfer Restricted Securities registered
under the Act. Benefits received by any Underwriter shall be deemed to be
equal to the total underwriting discounts and commissions, as set forth on
the cover page of the Prospectus forming a part of the Shelf Registration
Statement which resulted in such Losses. Relative fault shall be determined
by reference to whether any untrue statement or omission or alleged untrue
statement or omission relates to information provided by the indemnifying
party, on the one hand, or by the indemnified party, on the other hand, the
intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission.
The parties agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation
which does not take account of the equitable considerations referred to
above. Notwithstanding the provisions of this Section 5(d), no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section
5, each person who controls a Holder within the meaning of either the Act
or the Exchange Act and each director, officer, employee and agent of such
Holder shall have the same rights to contribution as such Holder, and each
person who controls the Issuer within the meaning of either the Act or the
Exchange Act, each officer of the Issuer who signed the Shelf Registration
Statement and each director of the Issuer shall have the same rights to
contribution as the Issuer, and each person who controls an Underwriter
within the meaning of either the Act or the Exchange Act and each officer
and director of each Underwriter shall have the same rights to contribution
as such Underwriter, subject in each case to the applicable terms and
conditions of this paragraph (d).
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(e) The provisions of this Section 5 will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder,
any Underwriter, the Issuer or any of the officers, directors or
controlling persons referred to in Section 5 hereof, and will survive the
sale by a Holder of Transfer Restricted Securities covered by a Shelf
Registration Statement.
6. Miscellaneous.
(a) No Inconsistent Agreements. The Issuer has not, as of the date
hereof, entered into nor shall it, on or after the date hereof, enter into,
any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders herein or otherwise conflicts with the
provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Issuer has obtained the
written consent of the Majority Holders, on the one hand, or unless the
Holders have obtained the written consent of the Issuer, on the other hand;
provided that with respect to any matter that directly or indirectly
affects the rights of the Initial Purchasers hereunder, the Issuer shall
obtain the written consent of each of the Initial Purchasers against which
such amendment, qualification, supplement, waiver or consent is to be
effective. Notwithstanding the foregoing (except the foregoing proviso), a
waiver or consent to departure from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders whose Transfer
Restricted Securities are being sold pursuant to a Shelf Registration
Statement and that does not directly or indirectly affect the rights of
other Holders may be given by the Majority Holders, determined on the basis
of the Transfer Restricted Securities being sold rather than registered
under such Shelf Registration Statement.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telecopier or air courier guaranteeing overnight delivery:
(i) if to the Representative, initially at its address set forth
in the Purchase Agreement;
(ii) if to any other Holder, at the most current address of such
Holder maintained by the Registrar under the Indenture or the
registrar of the Common Stock (provided that while the Notes or the
Common Stock are in book-entry form, notice to the Trustee shall serve
as notice to the Holders), or, in the case of the Notice Holder, the
address set forth in its Notice and Questionnaire; and
(iii) if to the Issuer, initially at the Company's address set
forth in the Purchase Agreement.
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All such notices and communications shall be deemed to have been duly
given when received, if delivered by hand or air courier, and when sent, if
sent by first-class mail or telecopier.
The Initial Purchasers, Holders or the Issuer by written notice to the
other may designate additional or different addresses for subsequent
notices or communications.
(d) Satisfaction of Issuer Obligations. Satisfaction of any obligation
of the Issuer contained herein by either the Company or the Guarantor shall
satisfy the obligation of both the Company and the Guarantor with respect
thereto unless satisfaction by only one such party and not the other would
adversely affect the rights of any Holder, in which case both the Company
and the Guarantor shall both be required to satisfy such obligation.
(e) 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 the need for an express assignment or any consent by the
Issuer thereto, subsequent Holders. The Issuer hereby agrees to extend the
benefits of this Agreement to any Holder and Underwriter and any such
Holder and Underwriter may specifically enforce the provisions of this
Agreement as if an original party hereto. In the event that any other
person shall succeed to the Issuer under the Indenture, then such successor
shall enter into an agreement, in form and substance reasonably
satisfactory to the Representative, whereby such successor shall assume all
of the Issuer's obligations, as the case may be, under this Agreement.
(f) 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.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
(i) 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 hereof shall not be in any way
impaired or affected thereby, it being intended that all of the rights and
privileges of the parties shall be enforceable to the fullest extent
permitted by law.
(j) Securities Held by the Issuer, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Notes
or the Common Stock
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issuable upon conversion of the Notes is required hereunder, Notes or the
Common Stock issued upon conversion of the Notes held by the Issuer or its
Affiliates (other than subsequent Holders of Notes or the Common Stock
issued upon conversion of the Notes if such subsequent Holders are deemed
to be Affiliates solely by reason of their holdings of such securities)
shall not be counted in determining whether such consent or approval was
given by the Holders of such required percentage.
(k) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Shelf Registration Period,
except for any liabilities or obligations under Sections 2(e), 4 or 5 to
the extent arising prior to the end of the Shelf Registration Period.
[signature page follows]
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Please confirm that the foregoing correctly sets forth the agreement
among the Issuer and you.
Very truly yours,
XXXXXX ENERGY COMPANY
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxxxx, Xx.
Title: Vice President and Treasurer
A.T. XXXXXX COAL COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxxxx, Xx.
Title: Vice President and Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
CITIGROUP GLOBAL MARKETS INC.
By /s/ W. Xxxxxxx Xxxxx
---------------------------------
Name: W. Xxxxxxx Xxxxx
Title: Director
UBS WARBURG LLC
By /s/ Xxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxx
Title: Executive Director
By /s/ Ankur Kamalia
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Name: Ankur Kamalia
Title: Director
For themselves and the other several
Initial Purchasers
A-24
Exhibit A
Form of Selling Securityholder Notice and Questionnaire
SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
The undersigned beneficial holder of 4.75% Convertible Senior Notes due
2023 (the "Notes") of Xxxxxx Energy Company (the "Company") or shares of common
stock of the Company issuable upon conversion of the Notes (together with the
Notes, the "Registrable Securities") understands that the Company has filed or
intends to file with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-3 (the "Shelf Registration Statement") for the
registration and resale under Rule 415 of the Securities Act of 1933, as amended
(the "Securities Act"), of the Registrable Securities in accordance with the
terms of the Registration Rights Agreement (the "Registration Rights Agreement")
dated as of May 29, 2003 between the Company and the initial purchasers named
therein. The Registration Rights Agreement is available from the Company upon
request at the address set forth below. All capitalized terms not otherwise
defined herein shall have the meaning ascribed thereto in the Registration
Rights Agreement.
Each beneficial owner of Registrable Securities is entitled to the benefits
of the Registration Rights Agreement. In order to sell or otherwise dispose of
any Registrable Securities pursuant to the Shelf Registration Statement, a
beneficial owner of Registrable Securities generally will be required to be
named as a selling securityholder in the related prospectus, deliver a
prospectus to purchasers of Registrable Securities and be bound by those
provisions of the Registration Rights Agreement applicable to such beneficial
owner (including certain indemnification provisions as described below).
Beneficial owners that do not complete this Notice and Questionnaire and deliver
it to the Company as provided below will not be named as selling securityholders
in the prospectus and therefore will not be permitted to sell any Registrable
Securities pursuant to the Shelf Registration Statement. Beneficial owners are
encouraged to complete and deliver this Notice and Questionnaire prior to the
effectiveness of the Shelf Registration Statement so that such beneficial owners
may be named as selling securityholders in the related prospectus at the time of
effectiveness. Upon receipt of a completed Notice and Questionnaire from a
beneficial owner following the effectiveness of the Shelf Registration
Statement, the Company will, as promptly as practicable but in any event within
five business days of such receipt, file such amendments to the Shelf
Registration Statement or supplements to the related prospectus as are necessary
to permit such holder to deliver such prospectus to purchasers of Registrable
Securities.
Certain legal consequences may arise from being named as selling
securityholders in the Shelf Registration Statement and the related prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and the related prospectus.
Notice
The undersigned beneficial owner (the "Selling Securityholder") of
Registrable Securities hereby gives notice to the Company of its intention to
sell or otherwise dispose of Registrable Securities beneficially owned by it and
listed below in Item 3 (unless otherwise specified under Item 3) pursuant to the
Shelf Registration Statement. The undersigned, by signing and returning this
Notice and Questionnaire, understands that it will be bound by the terms and
conditions of this Notice and Questionnaire and the Registration Rights
Agreement.
The undersigned hereby provides the following information to the Company
and represents and warrants that such information is accurate and complete:
Questionnaire
1. (a) Full Legal Name of Selling Securityholder:
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(b) Full legal name of Registered Holder (if not the same as (a) above)
through which Registrable Securities listed in (3) below are held:
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A-25
(c) Full legal name of broker-dealer or other third party through which
Registrable Securities listed in (3) below are held:
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(d) Full legal name of DTC Participant (if applicable and if not the same
as (b) or (c) above) through which Registrable Securities listed in
(3) below are held:
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2 Address for Notices to Selling Securityholder:
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Telephone:
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Fax:
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Contact Person:
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3 Beneficial Ownership of Registrable Securities:
(a) Type and Principal Amount of Registrable Securities beneficially
owned:
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Unless otherwise indicated in the space provided below, all Notes and all
shares of common stock listed in response to Item (3)(a) above, and all
shares of common stock issuable upon conversion of the Notes listed in
response to Item (3)(a) above, will be included in the Shelf Registration
Statement. If the undersigned does not wish all such Notes or shares of
common stock to be so included, please indicate below the principal amount
or the number of shares to be included:
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4 Beneficial Ownership of Xxxxxx Energy Company securities owned by the
Selling Securityholder:
Except as set forth below in this Item (4), the undersigned is not the
beneficial or registered owner of any securities of Xxxxxx Energy Company
other than the Registrable Securities listed above in Item (3).
(a) Type and Amount of Other Securities beneficially owned by the Selling
Securityholder:
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(b) CUSIP No(s). of such Other Securities beneficially owned:
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5 Relationship with the Company:
Except as set forth below, neither the undersigned nor any of its
affiliates, directors or principal equity holders (5% or more) has held any
position or office or has had any other material relationship with the
Company (or its predecessors or affiliates) during the past three years.
State any exceptions here:
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6 Plan of Distribution:
Except as set forth below, the undersigned (including its donees or
pledgees) intends to distribute the Registrable Securities listed above in
Item (3) pursuant to the Shelf Registration Statement only as follows (if
at all): Such Registrable Securities may be sold from time to time directly
by the undersigned or alternatively through underwriters or broker-dealers
or agents. If the Registrable Securities are sold through underwriters or
broker-dealers or agents, the Selling Securityholder will be responsible
for underwriting discounts or commissions or agent's commissions. Such
Registrable Securities may be sold in one or more transactions at fixed
prices, at prevailing market prices at the time of sale, at varying prices
determined at the time of sale, or at negotiated prices. Such sales may be
effected in transactions (which may involve crosses or block transactions)
(i) on any national securities exchange or quotation service on which the
Registrable Securities may be listed or quoted at the time of sale, (ii) in
the over-the-counter market, (iii) in transactions otherwise than on such
exchanges or services or in the over-the-counter market, or (iv) through
the writing of options. In connection with sales of the Registrable
Securities or otherwise, the undersigned may enter into hedging
transactions with broker-dealers, which may in turn engage in short sales
of the Registrable Securities, short and deliver Registrable Securities to
close out such short positions, or loan or pledge Registrable Securities to
broker-dealers that in turn may sell such securities. The Selling
Securityholder may pledge or grant a security interest in some or all of
the Registrable Securities owned by it and, if it defaults in the
performance of its secured obligations, the pledgees or secured parties may
offer and sell the Registrable Securities from time to time pursuant to the
prospectus. The Selling Securityholder also may transfer and donate shares
in other circumstances in which case the transferees, donees, pledges or
other successors in interest will be the selling securityholder for
purposes of the prospectus.
State any exceptions here:
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Note: In no event will such method(s) of distribution take the form of an
underwritten offering of the Registrable Securities without the prior
agreement of the Company.
The undersigned acknowledges that it understands its obligation to comply
with the provisions of the Securities Exchange Act of 1934, as amended, and the
rules thereunder relating to stock manipulation, particularly Regulation M
thereunder (or any successor rules or regulations) and the provisions of the
Securities Act of 1933, as amended, relating to prospectus delivery, in
connection with any offering of Registrable Securities pursuant to the Shelf
Registration Statement. The undersigned agrees that neither it nor any person
acting on its behalf will engage in any transaction in violation of such
provisions.
The Selling Securityholder hereby acknowledges its obligations under the
Registration Rights Agreement to indemnify and hold harmless certain persons set
forth therein.
Pursuant to the Registration Rights Agreement, the Company has agreed under
certain circumstances to indemnify the Selling Securityholders against certain
liabilities.
In accordance with the undersigned's obligation under the Registration
Rights Agreement to provide such information as maybe required by law for
inclusion in the Shelf Registration Statement, the undersigned agrees to
promptly notify the Company of any inaccuracies or changes in the information
provided herein that may occur subsequent to the date hereof at any time while
the Shelf Registration Statement remains effective. All notices hereunder and
pursuant to the Registration Rights Agreement shall be made in writing at the
address set forth below.
In the event any Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Company, the Selling Securityholder
will notify the transferee(s) at the time of transfer of its rights and
obligations under this Notice and Questionnaire and the Registration Rights
Agreement.
By signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and the
related prospectus. The undersigned understands that such information will be
relied upon by the Company without independent investigation or inquiry in
connection with the preparation or amendment of the Shelf Registration Statement
and the related prospectus.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its authorized agent.
Beneficial Owner:
By:
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Name:
Title:
Dated:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO:
Xxxxxx Energy Company
0 Xxxxx 0xx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
