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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into as of July 23, 2001 by and between SEVEN SEAS PETROLEUM INC., a
Cayman Islands exempted company limited by shares (the "Company"), and
CHESAPEAKE ENERGY CORPORATION, an Oklahoma corporation ("Investor").
This Agreement is made pursuant to that certain Note Purchase and Loan
Agreement, dated as of July 9, 2001, by and between the Company and Investor
(the "Note Purchase Agreement"). In order to induce the Investor to consummate
the transactions contemplated by the Note Purchase Agreement, the Company has
agreed to provide the registration rights set forth in this Agreement.
In consideration of the mutual covenants and agreements contained
herein, the parties hereto agree as follows:
1. Definitions
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Affiliate: With respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with such Person.
Board: The board of directors of the Company.
Common Stock: The ordinary shares, par value $0.001 per share, of the
Company.
Demand Notice: See Section 3(a) hereof.
Demand Registration: A registration pursuant to Section 3(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended from time
to time.
Holder: Any party hereto (other than the Company) and any holder of
Registrable Securities or the right to acquire Registrable Securities who agrees
in writing to be bound by the provisions of this Agreement.
Initial Notice: See Section 4(a) hereof.
Investor: Investor and any of its Affiliates which hold Registrable
Securities, collectively.
NASD: National Association of Securities Dealers, Inc.
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Person: An individual, partnership, limited liability company, joint
venture, corporation, trust or unincorporated organization, a government or any
department, agency or political subdivision thereof or other entity.
Piggyback Notice: See Section 4(a) hereof.
Piggyback Registration: A registration pursuant to Section 4 hereof.
Prospectus: The prospectus included in any Registration Statement, as
amended or supplemented by any prospectus supplement with respect to the terms
of the offering of any portion of the Registrable Securities covered by such
Registration Statement and by all other amendments and supplements to the
prospectus, including post-effective amendments and all material incorporated by
reference in such prospectus.
Registrable Securities: All shares of Common Stock issued or issuable
on exercise of the Warrant and any securities of the Company which may be issued
or distributed with respect to, or in exchange or substitution for, or
conversion of, such Common Stock and such other securities pursuant to a stock
dividend, stock split or other distribution, merger, consolidation,
recapitalization or reclassification or otherwise; provided, however, that any
Registrable Securities shall cease to be Registrable Securities when (i) a
Registration Statement with respect to the sale of such Registrable Securities
has been declared effective under the Securities Act and such Registrable
Securities have been disposed of in accordance with the plan of distribution set
forth in such Registration Statement, (ii) such Registrable Securities are
distributed pursuant to Rule 144 (or any similar provision then in force)
promulgated under the Securities Act or (iii) such Registrable Securities shall
have been otherwise transferred to a Person other than an Investor and new
certificates for such securities that do not bear a legend restricting further
transfer under the Securities Act shall have been delivered by the Company. Any
securities that have ceased to be Registrable Securities cannot thereafter
become Registrable Securities and any security that is issued or distributed in
respect of securities that have ceased to be Registrable Securities is not a
Registrable Security.
Registration: A Demand Registration or a Piggyback Registration.
Registration Expenses: See Section 7 hereof.
Registration Statement: Any registration statement of the Company which
covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits and
all material incorporated by reference in such registration statement.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended from time to
time.
Underwritten Registration or Underwritten Offering: A sale of
securities of the Company to an underwriter for reoffering to the public.
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Warrant: As defined in the Note Purchase Agreement.
2. Securities Subject to this Agreement The securities entitled to the
benefits of this Agreement are the Registrable Securities.
3. Demand Registration
(a) Right to Demand; Demand Notices. Subject to the provisions of this
Section 3 at any time and from time to time, a Holder may make a written request
to the Company for registration under and in accordance with the provisions of
the Securities Act of all or part of the Registrable Securities. The Company
shall not be obligated to effect more than three Demand Registrations requested
by Holders pursuant to this Section 3(a), and shall not be obligated to effect a
Demand Registration if the Registrable Securities proposed to be registered
represent less than 25% of the shares of the Registrable Securities and have a
fair market value of less than $3.0 million. Promptly upon receipt of any such
request (but in no event more than five business days thereafter), the Company
will serve written notice (the "Demand Notice") of such registration request to
all Holders, and the Company will include in such registration all Registrable
Securities of any Holder with respect to which the Company has received written
requests for inclusion therein within 15 days after the Demand Notice has been
given to the applicable Holders. All requests made pursuant to this Section 3
will specify the aggregate amount of Registrable Securities to be registered and
will also specify the intended methods of disposition thereof.
(b) Company's Right to Defer Registration. If the Company is requested
to effect a Demand Registration and the Company furnishes to Holders requesting
such registration a copy of a resolution of the Board certified by the secretary
of the Company stating that (A)(i) the Company has commenced a financing plan
involving an Underwritten Offering, and (ii) the Company's underwriter has
notified the Company that it has reasonably determined that a registration at
the time and on the terms requested would materially and adversely affect such
Underwritten Offering, or (B) such registration would result in premature
disclosure of material pending corporate developments, which premature
disclosure would reasonably be expected to have a material adverse effect on
such developments, the Company shall have the right to defer such filing for a
period of not more than 90 days after receipt of the request for Demand
Registration. If the Company shall so postpone the filing of a registration
statement and if the Holders of a majority of a majority of the Registrable
Securities included in such Demand Registration request within 30 days after
receipt of the notice of postponement advises the Company in writing that such
Holders have determined to withdraw such request for registration, then such
Demand Registration shall be deemed to be withdrawn and the Company shall pay
all Registration Expenses in connection with such withdrawn registration
pursuant to Section 3(d) hereof. Notwithstanding the foregoing, the Company
shall not be permitted to defer requested registration in reliance on this
Section 3(b) more than once in any 12-month period.
(c) Registration Statement Form. Registrations under this Section 3
shall be on such appropriate registration form of the SEC (i) as shall be
selected by the Company and as shall be reasonably acceptable to the holders of
a majority of the Registrable Securities who demanded registration pursuant to
this Section 3 and (ii) as shall permit the disposition of such Registrable
Securities in accordance with the intended method or methods of disposition
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specified in the Holders' request for such registration. If the Company proposes
to use Form S-3 or any successor form for a Demand Registration and the managing
underwriter, if any, shall advise the Company in writing that in its reasonable
business judgment the use of another permitted form is of material importance to
the success of the offering, then such registration shall be on such other
permitted form.
(d) Expenses. The Company will pay all Registration Expenses in
connection with the Demand Registrations of Registrable Securities requested by
the Holder pursuant to this Section 3.
(e) Effective Registration Statement. The Company shall be deemed to
have effected a Demand Registration if (i) the Registration Statement relating
to such Demand Registration is declared effective by the SEC and the
Registration Statement is effective for a period of 90 days, or the period
requested pursuant to Section 3(h) if such period is longer; provided, however,
that no Demand Registration shall be deemed to have been effected if (x) such
registration, after it has become effective, is interfered with by any stop
order, injunction or other order or requirement of the SEC or other governmental
agency or court for any reason other than an act or omission by or on behalf of
the Holders, (y) the conditions to closing specified in the purchase agreement
or underwriting agreement entered into in connection with such registration are
not satisfied because of an act or omission by the Holders, or (z) the number of
shares covered by the Registration Statement is reduced under Section (f) by
more than 50% or (ii) at any time after the Holder requests a Demand
Registration and prior to the effectiveness of the Registration Statement, the
preparation of such Registration Statement is discontinued or such Registration
Statement is withdrawn or abandoned at the request of the Holder unless the
Holder has elected to pay and has paid to the Company in full the Registration
Expenses in connection with such Registration Statement or the Holder has made
such withdrawal request pursuant to the provisions of Section 3(b).
(f) Priority on Demand Registrations. If the managing underwriter of a
Demand Registration (or, in the case of a Demand Registration not being
underwritten, the Holders of a majority of the Registrable Securities to be
included in the Demand Registration), advises the Company in writing that in its
opinion the number of securities requested to be included in such Demand
Registration exceeds the number which can be sold in the offering covered by
such Demand Registration without a significant adverse effect on the price,
timing or distribution of the securities offered, then the Company will include
in such Registration only the number of securities that, in the reasonable
opinion of such underwriter (or such Holders, as the case may be), can be sold
without a significant adverse effect on the price, timing or distribution of the
securities offered, selected pro rata among the Holders which have requested to
be included in such Demand Registration based upon the relative aggregate amount
of gross proceeds to be received by such Holders in such offering to the extent
necessary to reduce the total amount of securities to be included in such
offering to the amount recommended by such underwriters (or such Holders, as the
case may be).
Notwithstanding anything herein to the contrary, neither the Company
nor any other holders of securities of the Company may include such securities
in such Registration without the prior written consent of the Holders of a
majority of the Registrable Securities included in such Demand Registration.
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(g) Selection of Underwriters. If any offering pursuant to a Demand
Registration involves an Underwritten Offering, the Holders of a majority of the
Registrable Securities included in such Demand Registration shall have the right
to select the managing underwriter or underwriters to administer the offering,
which managing underwriter shall be a firm of nationally recognized standing and
reasonably satisfactory to the Company.
(h) If any Demand Registration is requested to be a "shelf"
Registration pursuant to Rule 415 (or any successor thereto) under the
Securities Act, and if the Registration Statement is on Form S-3 or a successor
form, the Company shall keep the Registration Statement filed in respect thereof
effective for a period of up to two years from the date on which the SEC
declares such Registration Statement effective or such shorter period that will
terminate when all Registrable Securities covered by such Registration Statement
have been sold pursuant to such Registration Statement.
4. Piggyback Registrations
(a) Participation. Subject to Section 4(b) hereof, if at any time after
the date hereof the Company proposes to file a Registration Statement (other
than a registration on Form S-4 or S-8 or any successor form to such Forms or
any registration of securities as it relates to an offering and sale to
management of the Company pursuant to any employee stock plan or other employee
benefit plan arrangement) with respect to an offering that includes any shares
of Common Stock, then the Company shall give notice of the proposed filing (the
"Piggyback Notice") to the Holders as promptly as practicable (but in no event
less than fifteen (15) days before the anticipated filing date). The Piggyback
Notice shall offer the Holders the opportunity to register such number of shares
of Registrable Securities as the Holders may request and shall set forth (i) the
anticipated filing date of such Registration Statement and (ii) the number of
shares of Common Stock that is proposed to be included in such Registration
Statement. The Company shall include in such Registration Statement such shares
of Registrable Securities for which it has received written requests to register
such shares within 15 days after the Piggyback Notice has been given.
(b) Underwriter's Cutback. Notwithstanding the foregoing, if a
Registration pursuant to this Section 4 involves an Underwritten Offering and
the managing underwriter or underwriters of such proposed Underwritten Offering
delivers an opinion to the Holders that the total or kind of securities which
such Holders and any other persons or entities intend to include in such
offering are reasonably likely to significantly adversely affect the price,
timing or distribution of the securities offered in such offering, then the
Company shall include in such Registration.
(i) If such Registration was a primary registration by the Company
of its securities, the Company will include in such Registration to the extent
of the number of securities which the managing underwriter advises can be sold
in such Underwritten Offering: first, the securities proposed by the Company to
be sold for its own account; second, any Registrable Securities requested to be
included in such Registration by the Holders, pro rata on the basis of the
number of securities sought to be sold by the requesting Holders; and third,
other securities of the Company proposed to be included in such Registration,
allocated among
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the Company and the holders thereof in accordance with the priorities then
existing among the Company and such holders.
(ii) If such Registration was requested other than by the
Holders or the Company, the Company will include in such Registration to the
extent of the number of securities which the managing underwriter advises can be
sold in such Underwritten Offering: first, the securities proposed to be sold by
the security holder initiating the Registration; second, any Registrable
Securities requested to be included in such Registration, pro rata on the basis
of the number of securities sought to be sold by the requesting Holders; third,
any securities of the Company proposed by any other Persons to be included in
such Registration, pro rata on the basis of the number of securities proposed to
be sold by the requesting Persons; and fourth the securities proposed by the
Company to be sold for its own account.
(c) Expenses. The Company will pay all Registration Expenses in
connection with each registration of Registrable Securities requested pursuant
to this Section 4.
(d) Company Control. The Company may decline to file a Registration
Statement after giving the Initial Notice or the Piggyback Notice, or withdraw a
Registration Statement after filing and after such Piggyback Notice, but prior
to the effectiveness of the Registration Statement, provided that the Company
shall promptly notify each Holder in writing of any such action and provided
further that the Company shall bear all reasonable expenses incurred by such
Holder or otherwise in connection with such withdrawn Registration Statement.
(e) No Effect on Demand Registrations. No registration effected under
this Section 4 shall be deemed to have been effected pursuant to Section 3
hereof or shall relieve the Company of its obligation to effect any registration
upon request under Section 3 hereof.
5. Hold-Back Agreements
(a) Restrictions on Public Sale by Holder of Registrable Securities.
Each Holder whose Registrable Securities are covered by a Registration Statement
filed pursuant to Sections 3 and 4 hereof agrees, if requested by the managing
underwriters in an Underwritten Offering, not to effect any public sale or
distribution of securities of the Company the same as or similar to those being
registered, or any securities convertible into or exchangeable or exercisable
for such securities, in such Registration Statement, including a sale pursuant
to Rule 144 under the Securities Act (except as part of such Underwritten
Registration), during the 10-day period prior to, and during the 90-day period
(or such longer period of up to 180 days as may be required by such underwriter
of all Persons whose securities are covered by such Registration Statement)
beginning on, the effective date of any Registration Statement in which such
Holders are participating (except as part of such Registration) or the
commencement of the public distribution of securities, to the extent timely
notified in writing by the Company or the managing underwriters.
(b) Restrictions on Public Sale by the Company and Others. If and to
the extent requested by the managing underwriter, the Company agrees: (a) not to
effect any public or private sale or distribution of its equity securities, or
any securities convertible into or
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exchangeable or exercisable for such equity securities, during the 10 day period
prior to and the 90 day period (or such longer period of up to 180 days as may
be required by such underwriter) after the effective date of the Registration
Statement filed in connection with an Underwritten Offering made pursuant to a
Demand Registration or a Piggyback Registration (or for such shorter period of
time as is sufficient and appropriate, in the opinion of the managing
underwriter (except as part of such Underwritten Registration and except
pursuant to registrations on Form S-4 or Form S-8 promulgated by the Commission
or any successor or similar forms thereto; and (b) to cause each officer,
director, 1% shareholder and holder of its equity securities (or of any
securities convertible into or exchangeable or exercisable for such securities)
purchased from the Company at any time after the date of this Agreement (other
than in a public offering), to agree, to the extent permitted by law, not to
effect any such public or private sale or distribution of such securities
(including a sale under Rule 144), during such period, except as part of such
underwritten registration.
(c) Exclusions. Notwithstanding the foregoing provisions, this section
will not prevent the grant of compensatory stock options or similar grants to
employees of the Company pursuant to the Company's stock based incentive plans
and will not prevent the exercise, conversion or exchange of any securities
pursuant to the terms of such securities.
6. Registration Procedures
In connection with the Company's Registration obligations pursuant to
Sections 3 and 4 hereof, the Company will use its best efforts to effect such
Registration to permit the sale of such Registrable Securities in accordance
with the intended method or methods of distribution thereof, and pursuant
thereto the Company will as expeditiously as possible (but not later than sixty
(60) days after receipt of Demand Notice):
(a) prepare and file with the SEC a Registration Statement or
Registration Statements relating to the applicable Demand Registration or
Piggyback Registration including all exhibits and financial statements required
by the SEC to be filed therewith; prepare and file with the SEC such amendments
and post-effective amendments to the Registration Statement as may be necessary
to keep the Registration Statement effective for the applicable period specified
in Section 3(e) or 3(h) (or such shorter period which will terminate when all
Registrable Securities covered by such Registration Statement have been sold or
withdrawn), or, if such Registration Statement relates to an Underwritten
Offering, such longer period as in the opinion of counsel for the underwriters a
Prospectus is required by law to be delivered in connection with sales of
Registrable Securities by an underwriter or dealer; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the Securities Act; and comply with the
provisions of the Securities Act, the Exchange Act, and the rules and
regulations promulgated thereunder 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;
(b) notify the selling Holders and the managing underwriters, if any,
and (if requested) confirm such advice in writing, as soon as practicable after
notice thereof is received by the Company (i) when the Registration Statement or
any amendment thereto has been filed or
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becomes effective, the Prospectus or any amendment or supplement to the
Prospectus has been filed, and, to furnish such selling Holders and managing
underwriters with copies thereof, (ii) of any request by the SEC for amendments
or supplements to the Registration Statement or the Prospectus or for additional
information, (iii) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or any order preventing or
suspending the use of any preliminary Prospectus or Prospectus or the initiation
or threatening of any proceedings for such purposes, (iv) if at any time the
representations and warranties of the Company contemplated by paragraph (l)
below cease to be true and correct and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Securities for offering or sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose;
(c) (i) promptly notify the selling Holders and the managing
underwriters, if any, at any time during the period contemplated by paragraph
(a) above, when the Company becomes aware of the happening of any event as a
result of which the Prospectus included in such Registration Statement (as then
in effect) contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein (in the case of the
Prospectus and any preliminary Prospectus, in light of the circumstances under
which they were made) when such Prospectus was delivered not misleading or, if
for any other reason it shall be necessary during such time period to amend or
supplement the Prospectus in order to comply with the Securities Act and, (ii)
in either case as promptly as practicable thereafter, prepare and file with the
SEC, and furnish without charge to the selling Holders and the managing
underwriters, if any, a supplement or amendment to such Prospectus which will
correct such statement or omission or effect such compliance;
(d) make every reasonable effort to prevent the entry, or obtain the
withdrawal, of any stop order or other order suspending the use of any
preliminary Prospectus or Prospectus or suspending any qualification of the
Registrable Securities;
(e) if requested by the managing underwriter or underwriters or a
Holder of Registrable Securities being sold in connection with an Underwritten
Offering, promptly incorporate in a Prospectus supplement or post-effective
amendment such information as the managing underwriters and the Holders of a
majority of the Registrable Securities being sold agree should be included
therein relating to the plan of distribution with respect to such Registrable
Securities, including, without limitation, information with respect to the
number of Registrable Securities being sold to such underwriters, the purchase
price being paid therefor by such underwriters and with respect to any other
terms of the Underwritten (or best efforts underwritten) Offering of the
Registrable Securities to be sold in such offering; and make all required
filings of such Prospectus supplement or post-effective amendment as soon as
notified of the matters to be incorporated in such Prospectus supplement or
post-effective amendment;
(f) furnish to each selling Holder and each managing underwriter,
without charge, one executed copy and as many conformed copies as they may
reasonably request, of the Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (including those incorporated
by reference);
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(g) deliver to each selling Holder and the underwriters, if any,
without charge, as many copies of the Prospectus (including each preliminary
Prospectus) and any amendment or supplement thereto as such Persons may
reasonably request (it being understood that the Company consents to the use of
the Prospectus or any amendment or supplement thereto by each of the selling
Holders and the underwriters, if any, in connection with the offering and sale
of the Registrable Securities covered by the Prospectus or any amendment or
supplement thereto) and such other documents as such selling Holder may
reasonably request in order to facilitate the disposition of the Registrable
Securities by such Holder;
(h) on or prior to the date on which the Registration Statement is
declared effective, use its best efforts to register or qualify, and cooperate
with the selling Holders, the managing underwriter, if any, and their respective
counsel in connection with the registration or qualification of such Registrable
Securities for offer and sale under the securities or blue sky laws of each
state and other jurisdiction of the United States as any such seller,
underwriter reasonably requests in writing and do any and all other acts or
things reasonably necessary or advisable to keep such registration or
qualification in effect for so long as such Registration Statement remains in
effect and so as to permit the continuance of sales and dealings therein for as
long as may be necessary to complete the distribution of the Registrable
Securities covered by the Registration Statement; provided that the Company will
not be required to qualify generally to do business in any jurisdiction where it
is not then so qualified or to take any action which would subject it to general
service of process in any such jurisdiction where it is not then so subject;
(i) cooperate with the selling Holders and the managing underwriter, if
any, to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any restrictive
legends; and enable such Registrable Securities to be in such denominations and
registered in such names as the managing underwriters may request at least two
business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by
the applicable Registration Statement to be registered with or approved by such
other U.S. governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof or the underwriters, if any, to consummate the
disposition of such Registrable Securities;
(k) not later than the effective date of the applicable Registration,
provide a CUSIP number for all Registrable Securities and provide the applicable
trustee or transfer agent with printed certificates for the Registrable
Securities;
(l) make such representations and warranties to the Holders of
Registrable Securities being registered, and the underwriters, if any, in form,
substance and scope as are customarily made by issuers in primary underwritten
public offerings;
(m) enter into such customary agreements (including an underwriting
agreement) and take all such other actions as the Holders of a majority of the
Registrable Securities being sold or the managing underwriter, if any,
reasonably request in order to expedite or facilitate the Registration and
disposition of such Registrable Securities, including, without
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limitation, participation in any market effort or road shows as reasonably
requested by the Holders;
(n) obtain for delivery to the Holders of Registrable Securities being
registered and to the underwriter an opinion or opinions from counsel for the
Company, upon consummation of the sale of such Registrable Securities to the
underwriters (the "Closing Date") in customary form and in form, substance and
scope reasonably satisfactory to such Holders and their counsel, and the
underwriters and their counsel;
(o) obtain for delivery to the Company and the underwriter, with copies
to the Holders, a cold comfort letter from the Company's independent public
accountants in customary form and covering such matters of the type customarily
covered by cold comfort letters as the managing underwriter or the Holders of a
majority of the Registrable Securities being sold reasonably request, dated the
effective date of the Registration Statement and brought down to the Closing
Date;
(p) cooperate with each seller of Registrable Securities and each
underwriter participating in the disposition of such Registrable Securities and
their respective counsel in connection with any filings required to be made with
the NASD;
(q) make available for inspection by a representative of the Holders of
a majority of the Registrable Securities, any underwriter participating in any
disposition pursuant to such Registration, and any attorney or accountant
retained by such Holders or underwriter, all financial and other records,
pertinent corporate documents and properties of the Company, and cause the
Company's officers, directors and employees to supply all information reasonably
requested by any such representative, underwriter, attorney or accountant in
connection with such Registration; provided that any records, information or
documents that are designated by the Company in writing as confidential shall be
kept confidential by such Persons unless disclosure of such records, information
or documents is required by law;
(r) use its best efforts to comply with all applicable rules and
regulations of the SEC and make generally available to its security holders, as
soon as reasonably practicable (but not more than eighteen months) after the
effective date of the Registration Statement, an earnings statement satisfying
the provisions of Section 11 (a) of the Securities Act and the rules and
regulations promulgated thereunder;
(s) as promptly as practicable after filing with the SEC of any
document which is incorporated by reference into the Registration Statement or
the Prospectus, provide copies of such document to counsel for the selling
Holders and to the managing underwriters, if any;
(t) provide and cause to be maintained a transfer agent and registrar
for all Registrable Securities covered by such Registration Statement from and
after a date not later than the effective date of such Registration Statement;
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(u) use its best efforts to list (if such Registrable Securities are
not already listed) all Registrable Securities covered by such Registration
Statement on the principal stock exchange or market on which the Company's
Common Stock is then listed; and
(v) Take such further actions as are reasonably requested by the
Holders in order to expedite or facilitate the disposition of the Registrable
Securities.
The Company may require each Holder of Registrable Securities as to
which any Registration is being effected to furnish to the Company such
information regarding the distribution of such securities and such other
information relating to such Holder and its ownership of Registrable Securities
as the Company may from time to time reasonably request in writing. Each Holder
agrees to furnish such information to the Company and to cooperate with the
Company as necessary to enable the Company to comply with the provisions of this
Agreement.
Each Holder agrees by acquisition of such Registrable Securities that,
upon receipt of any notice from the Company of the happening of any event of the
kind described in Section 6(c)(i) hereof, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to such Registration Statement
until such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(ii) hereof, or until it is advised in
writing by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings which are incorporated
by reference in the Prospectus, and, if so directed by the Company, such 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 Registrable Securities current at the time of receipt of such
notice. In the event that the Company shall give such notice, the Company shall
extend the period during which such registration statement shall be maintained
effective by the number of days during the period from and including the date of
the giving of notice pursuant to Section 6(c)(i) hereof to the date when the
Company shall make available to the Holders a Prospectus supplemented or amended
to conform with the requirements of Section 6(c)(ii) hereof.
7. Registration Expenses
All expenses incident to the Company's performance of or compliance
with this Agreement, including without limitation (i) all registration and
filing fees, and any other fees and expenses associated with filings required to
be made with any stock exchange, the SEC and the NASD (including, if applicable,
the fees and expenses of any "qualified independent underwriter" and its counsel
as may be required by the rules and regulations of the NASD), (ii) all fees and
expenses of compliance with state securities or blue sky laws (including fees
and disbursements of counsel for the underwriters or selling Holders in
connection with blue sky qualifications of the Registrable Securities and
determination of their eligibility for investment under the laws of such
jurisdictions as the managing underwriters or the Holders of a majority of the
Registrable Securities being sold may designate), (iii) all printing and related
messenger and delivery expenses (including expenses of printing certificates for
the Registrable Securities and of printing Prospectuses), (iv) all fees and
disbursements of counsel for the Company and of all independent certified public
accountants of the Company (including the expenses of any special audit and
"cold comfort" letters required by or incident to such performance), (v)
Securities Act
SEVEN SEAS PETROLEUM INC.
REGISTRATION AGREEMENT
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liability insurance if the Company so desires or the underwriters so require,
(vi) all fees and expenses incurred in connection with the listing of the
Registrable Securities on any securities exchange and all rating agency fees,
(vii) all reasonable fees and disbursements of one counsel selected by the
Holders of the Registrable Securities being registered to represent such Holders
in connection with such registration, up to a maximum of $50,000 for each
Registration, (viii) all fees and disbursements of underwriters customarily paid
by the issuers or sellers of securities, excluding underwriting discounts and
commissions and transfer taxes, if any, and fees and disbursements of counsel to
underwriters (other than such fees and disbursements incurred in connection with
any registration or qualification of Registrable Securities under the securities
or blue sky laws of any state), and (ix) fees and expenses of other Persons
retained by the Company (all such expenses being herein called "Registration
Expenses"), will be borne by the Company, regardless of whether the Registration
Statement becomes effective (except as provided in Section 3(e) hereof). The
Company will, in any event, pay its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any audit and the fees and expenses
of any Person, including special experts, retained by the Company.
8. Indemnification
(a) Indemnification by Company. The Company agrees to indemnify and
hold harmless, to the full extent permitted by law, each Holder and each Person
who controls such Holder (within the meaning of the Securities Act), and each of
their respective partners, members, officers, directors, employees and agents
(collectively, the "Company Indemnified Persons"), against any and all losses,
claims, damages, liabilities, reasonable attorneys fees, costs or expenses and
costs and expenses of investigating and defending any such claim (collectively,
"Damages"), joint or several, and any action in respect thereof to which any
such Company Indemnified Person may become subject under the Securities Act or
otherwise, insofar as such Damages (or proceedings in respect thereof) arise out
of, or are based upon, any untrue or alleged untrue statement of a material fact
contained in any Registration Statement, Prospectus or preliminary Prospectus 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,
except insofar as the same are caused by or contained in any information
furnished in writing to the Company by such Holder expressly for use therein,
and shall promptly reimburse each Company Indemnified Person for any legal and
other expenses reasonably incurred by that Company Indemnified Person in
investigating or defending or preparing to defend against any such Damages or
proceedings; provided, however, that the Company shall not be liable in any such
case to the extent that any such Damages arise out of or are based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any such preliminary Prospectus if (i) such offering does not involve an
underwriter, (ii) such Holder failed to deliver or cause to be delivered a copy
of the Prospectus to the Person asserting such loss, claim, damage, liability or
expense after the Company had timely furnished such Holder with a sufficient
number of copies of the same and (iii) the Prospectus completely corrected in a
timely manner such untrue statement or omission; and provided, further, that the
Company shall not be liable in any such case to the extent that any such Damages
arise out of or are based upon an untrue statement or alleged untrue statement
or omission or alleged omission in the Prospectus, if (x) such offering does not
involve an underwriter, (y) such untrue statement or alleged untrue
SEVEN SEAS PETROLEUM INC.
REGISTRATION AGREEMENT
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statement, omission or alleged omission is completely corrected in an amendment
or supplement to the Prospectus and (z) the Holder thereafter fails to deliver
such Prospectus as so amended or supplemented prior to or concurrently with the
sale of the Registrable Securities to the Person asserting such loss, claim,
damage, liability or expense after the Company had furnished such Holder with a
sufficient number of copies of the same. The Company also agrees to indemnify
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, their officers and directors
and each Person who controls such Persons (within the meaning of the Securities
Act) to the same extent as provided above with respect to the indemnification of
the Holders.
(b) Indemnification by Selling Holder of Underlying Securities. In
connection with each Registration, each selling Holder will furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any Registration Statement or Prospectus and
agrees to indemnify and hold harmless, to the full extent permitted by law, the
Company and each Person who controls the Company (within the meaning of the
Securities Act), and each of their respective directors, officers, employees and
agents, against any and all Damages resulting from any untrue statement of a
material fact or any omission of a material fact required to be stated in the
Registration Statement or Prospectus or preliminary Prospectus or necessary to
make the statements therein not misleading, to the extent, but only to the
extent, that such untrue statement or omission is contained in any information
or affidavit so furnished in writing by such selling Holder to the Company
specifically for inclusion in such Registration Statement or Prospectus and has
not been corrected in a subsequent writing prior to or concurrently with the
sale of the Registrable Securities to the Person asserting such Damages. In no
event shall the liability of any selling Holder hereunder be greater in amount
than the dollar amount of the proceeds received by such Holder upon the sale of
the Registrable Securities giving rise to such indemnification obligation. The
Company shall be entitled to receive indemnities from underwriters, selling
brokers, dealer managers and similar securities industry professionals
participating in the distribution, to the same extent as provided above with
respect to information so furnished in writing by such Persons specifically for
inclusion in any Prospectus or Registration Statement.
(c) Conduct of Indemnification Proceedings. Any Person entitled to
indemnification hereunder will (i) give prompt (but in any event within 30 days
after such Person has actual knowledge of the facts constituting the basis for
indemnification) written notice to the indemnifying party of any claim with
respect to which it seeks indemnification and (ii) permit such indemnifying
party to assume the defense of such claim with counsel reasonably satisfactory
to the indemnified party; provided, however, that any delay or failure to so
notify the indemnifying party shall relieve the indemnifying party of its
obligations hereunder only to the extent, if at all, that it is prejudiced by
reason of such delay or failure; provided further, however, that any Person
entitled to indemnification hereunder shall have the right to select and employ
separate counsel and to participate in the defense of such claim, but the fees
and expenses of such counsel shall be at the expense of such Person unless (a)
the indemnifying party has agreed in writing to pay such fees or expenses, or
(b) the indemnifying party shall have failed to assume the defense of such claim
within a reasonable time after receipt of notice of such claim from the Person
entitled to indemnification hereunder and employ counsel reasonably satisfactory
to such Person or (c) in the reasonable judgment of any such Person, based upon
advice of its counsel, a
SEVEN SEAS PETROLEUM INC.
REGISTRATION AGREEMENT
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conflict of interest may exist between such Person and the indemnifying party
with respect to such claims (in which case, if the Person notifies the
indemnifying party in writing that such Person elects to employ separate counsel
at the expense of the indemnifying party, the indemnifying party shall not have
the right to assume the defense of such claim on behalf of such Person). If such
defense is not assumed by the indemnifying party, the indemnifying party will
not be subject to any liability for any settlement made without its consent (but
such consent will not be unreasonably withheld), provided that an indemnified
party shall not be required to consent to any settlement involving the
imposition of equitable remedies or involving the imposition of any material
obligations on such indemnified party other than financial obligations for which
such indemnified party will be indemnified hereunder. No indemnifying party will
be required to consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all liability
in respect to such claim or litigation. Whenever the indemnified party or the
indemnifying party receives a firm offer to settle a claim for which
indemnification is sought hereunder, it shall promptly notify the other of such
offer. If the indemnifying party refuses to accept such offer within 20 business
days after receipt of such offer (or of notice thereof), such claim shall
continue to be contested and, if such claim is within the scope of the
indemnifying party's indemnity contained herein, the indemnified party shall be
indemnified pursuant to the terms hereof. If the indemnifying party notifies the
indemnified Party in writing that the indemnifying party desires to accept such
offer, but the indemnified party refuses to accept such offer within 20 business
days after receipt of such notice, the indemnified party may continue to contest
such claim and, in such event, the total maximum liability of the indemnifying
party to indemnify or otherwise reimburse the indemnified party hereunder with
respect to such claim shall be limited to and shall not exceed the amount of
such offer, plus reasonable out-of-pocket costs and expenses (including
reasonable attorneys' fees and disbursements) to the date of notice that the
indemnifying party desires to accept such offer, provided that this sentence
shall not apply to any settlement of any claim involving the imposition of
equitable remedies or to any settlement imposing any material obligations on
such indemnified party other than financial obligations for which such
indemnified party will be indemnified hereunder. An indemnifying party who is
not entitled to, or elects not to, assume the defense of a claim will not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim in any one
jurisdiction, unless in the written opinion of counsel to the indemnified party,
reasonably satisfactory to the indemnifying party, use of one counsel would be
expected to give rise to a conflict of interest between such indemnified party
and any other of such indemnified parties with respect to such claim, in which
event the indemnifying party shall be obligated to pay the fees and expenses of
one such additional counsel.
(d) Contribution. If for any reason the indemnification provided for in
the preceding clauses (a) and (b) is unavailable to an indemnified party or
insufficient to hold it harmless as contemplated by the preceding clauses (a)
and (b), then the indemnifying party shall contribute to the amount paid or
payable by the indemnified party as a result of such Damages in such proportion
as is appropriate to reflect not only the relative benefits received by the
indemnified party and the indemnifying party, but also the relative fault of the
indemnified party and the indemnifying party, as well as any other relevant
equitable considerations, provided that no selling Holder shall be required to
contribute in an amount greater than the dollar amount of
SEVEN SEAS PETROLEUM INC.
REGISTRATION AGREEMENT
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the proceeds received by such selling Holder with respect to the sale of any
securities. 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. Each selling
Holder's obligation to contribute pursuant to this Section 8(d) is several and
not joint. The provisions of this Section 8 shall survive, notwithstanding any
transfer of the Registrable Securities by any Holder or any termination of this
Agreement.
9. Rule 144.
The Company covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder, and it will take such further action
as any Holder may reasonably request, all to the extent required from time to
time to enable such Holder to sell Registrable Securities without registration
under the Securities Act within the limitation of the exemption provided by (a)
Rule 144 under the Securities Act, as such Rule may be amended from time to
time, or (b) any similar rule or regulation hereafter adopted by the SEC. Upon
the request of any Holder, the Company will deliver to such Holder a written
statement as to whether it has complied with such information and requirements.
10. Participation in Underwritten Registrations
No Person may participate in any underwritten registration hereunder
unless such Person (a) agrees to sell such Person's securities on the basis
provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements, and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements and this Agreement; provided that (i) no selling Holder shall be
required to make any representations or warranties except those which relate
solely to such selling Holder and its intended method of distribution, and (ii)
the liability of each selling Holder to any underwriter under such underwriting
agreement will be limited to liability arising from misstatements or omissions
regarding such selling Holder and its intended method of distribution and any
such liability shall not exceed an amount equal to the amount of net proceeds
such selling Holder derives from such registration; provided, however, that in
an offering by the Company in which any Holder requests to be included in a
Piggyback Registration, the Company shall use its reasonable best efforts to
arrange the terms of the offering such that the provisions set forth in clauses
(i) and (ii) of this Section 10 are true; provided further, that if the Company
fails in its reasonable best efforts to so arrange the terms, the Holder may
withdraw all or any part of its Registrable Securities from the Piggyback
Registration and the Company shall reimburse such Holder for all reasonable
out-of-pocket expenses (including counsel fees and expenses) incurred prior to
such withdrawal.
11. Miscellaneous
(a) Remedies. Each Holder, in addition to being entitled to exercise
all rights provided herein or granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement. The
Company agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of the
SEVEN SEAS PETROLEUM INC.
REGISTRATION AGREEMENT
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provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate. Remedies
for breach by any Holder of its obligations under this Agreement shall be as set
forth in Section 8.
(b) Term. This Agreement shall terminate on the earlier to occur of (i)
the tenth anniversary of the date hereof or (ii) the first date on which there
are no longer any Registrable Securities.
(c) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Company has obtained the written consent of the Holders of a
majority of the outstanding Registrable Securities; provided, however, that the
Company and the Investor together may amend, modify or supplement the provisions
of this Agreement and may waive or consent to departures from the provisions
hereof, without the consent of the Holders of a majority of the outstanding
Registrable Securities so long as such amendment, modification, supplement,
waiver or consent does not adversely affect the rights of Holders of Registrable
Securities hereunder or so long as such amendment, modification, supplement,
waiver or consent affects the rights of the Investor and other Holders of
Registrable Securities hereunder equally.
(d) Notices. All notices, requests, consents and other communications
hereunder shall be in writing, shall be mailed (A) if within the United States
by nationally recognized overnight express courier, postage prepaid, or by
facsimile, or (B) if delivered from outside the United States, by International
Federal Express or facsimile, and shall be deemed given (i) if delivered by
nationally recognized overnight carrier, one (1) business day after so mailed,
(ii) if delivered by International Federal Express, two (2) business days after
so mailed, and (iii) if delivered by facsimile, upon electric confirmation of
receipt and shall be delivered as addressed as follows:
(x) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this Section 11(d),
and with respect to the Investor, Chesapeake Energy Corporation, 6100 North
Western, Oklahoma City, Oklahoma , Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇; and
(y) if to the Company, initially at the address set forth below and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 11(d): Seven Seas Petroleum Inc., ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇. In lieu of the foregoing, if the
Company has no officer in the United States, any notices may be provided to the
Agent appointed under the terms of the Warrant.
(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 limitation, and without the need for an express assignment
subsequent Holders of Registrable Securities.
(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
SEVEN SEAS PETROLEUM INC.
REGISTRATION AGREEMENT
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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 Oklahoma, without regard to the
principles of conflicts of laws.
(i) 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.
(j) 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 securities issued pursuant to the Warrant. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matters.
(k) Other Registration Rights. The Company has not entered into any
agreement with respect to its securities which grants any existing registration
rights to any other Person. Without the written consent of the Investor, the
Company shall not grant to any person the right to request the Company to
register any equity securities of the Company under the Securities Act unless
the rights so granted are subject to the prior rights of the Holders of
Registrable Securities set forth herein, and are not otherwise in conflict or
inconsistent with the provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
The Company: SEVEN SEAS PETROLEUM INC., a Cayman
Islands exempted company limited by shares
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
---------------------------------------
Its: President
The Investor: CHESAPEAKE ENERGY CORPORATION, an
Oklahoma corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇
---------------------------------------
Its: President
SEVEN SEAS PETROLEUM INC.
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