EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of December 13, 1996, by and among Tosco Corporation, a Nevada
corporation ("Tosco"), Tosco Financing Trust, a special purpose business trust
formed under the laws of the State of Delaware (the "Trust"), and Xxxxxx Xxxxxxx
& Co. Incorporated, Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation and
Xxxxxx Xxxx LLC (collectively, the "Initial Purchasers") pursuant to the
Placement Agreement, dated as of December 10, 1996 (the "Placement Agreement"),
among Tosco, the Trust and the Initial Purchasers. In order to induce the
Initial Purchasers to enter into the Placement Agreement, Tosco and the Trust
have agreed to provide the registration rights set forth in this Agreement. The
execution of this Agreement is a condition to the closing under the Placement
Agreement.
Tosco and the Trust agree with the Initial Purchasers, (i) for their
benefit as Initial Purchasers and (ii) for the benefit of the holders from time
to time of the Registrable Securities (including the Initial Purchasers) (each
of the foregoing a "Holder" and together the "Holders"), as follows:
SECTION 1. Definitions.
Capitalized terms used herein without definition shall have their respective
meanings set forth in the Placement Agreement. As used in this Agreement, the
following terms shall have the following meanings:
Affiliate: "Affiliate" means, with respect to any specified person, (i)
any other person directly or indirectly controlling or controlled by, or under
direct or indirect common control with, such specified person or (ii) any
officer or director of such other person. For purposes of this definition, the
term "control" (including the terms "controlling," "controlled by" and "under
common control with") of a person means the possession, direct or indirect, of
the power (whether or not exercised) to direct or cause the direction of the
management and policies of a person, whether through the ownership of voting
securities, by contract, or otherwise.
Applicable Conversion Price: The Applicable Conversion Price as of any
date of determination means the Conversion Price, as may be adjusted from time
to time, in effect as of such date of determination or, if no Convertible
Debentures are then outstanding, the Conversion Price that would be in effect
were Convertible Debentures then outstanding.
Business Day: Each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in The City of New York are
authorized or obligated by law or executive order to close.
Common Stock: The shares of common stock, $.75 par value per share, of
Tosco and any other shares of common stock as may constitute "Common Stock" for
purposes of the Indenture, including the Underlying Common Stock.
Conversion Price: Conversion Price shall have the meaning assigned
such term in Section 6.1 of the Supplemental Indenture.
Convertible Debentures: The 5 3/4% Convertible Junior Subordinated
Debentures of Tosco to be purchased by the Trust pursuant to the Debenture
Purchase Agreement, dated December 13, 1996, between Tosco and the Trust.
Convertible Preferred Securities: The 5 3/4% Trust Convertible
Preferred Securities of the Trust.
Damages Accrual Period: See Section 2(e) hereof.
Damages Payment Date: Each payment date under the Declaration, in the
case of Convertible Preferred Securities, each Interest Payment Date (as defined
in the Indenture), in the case of Convertible Debentures, and each September 15,
December 15, March 15 and June 15, in the case of Underlying Common Stock.
Declaration: The Amended and Restated Declaration of Trust dated as of
December 13, 1996 of the Trust.
Deferral Period: See Section 2(d)(ii) hereof.
Effectiveness Period: The period commencing with the date hereof and
ending on the date that all Registrable Securities have ceased to be Registrable
Securities.
Event: See Section 2(e) hereof.
Event Termination Date: See Section 2(e) hereof.
Event Date: See Section 2(e) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Filing Date: See Section 2(a) hereof.
Guarantee: The guarantee by Tosco of the Convertible Preferred
Securities pursuant to the Preferred Securities Guarantee Agreement dated as of
the date hereof.
Holder: See the second paragraph of this Agreement.
Indenture: The Indenture, dated as of May 1, 1996, between Tosco and
State Street Bank and Trust Company, as trustee, pursuant to which the
Convertible Debentures are being issued, as amended by the Supplemental
Indenture, dated December 13, 1996, between Tosco and State Street Bank and
Trust Company, as trustee.
Initial Purchasers: Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxxxx,
Lufkin & Xxxxxxxx Securities Corporation and Xxxxxx Xxxx LLC.
Initial Shelf Registration: See Section 2(a) hereof.
Losses: See Section 6 hereof.
Notice Holder: See Section 2(d)(i) hereof.
Placement Amount: See the first paragraph of this Agreement.
Prospectus: The prospectus included in any 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 promulgated under the Securities Act), as
amended or supplemented by any amendment or prospectus supplement, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
Registrable Securities: The Convertible Preferred Securities, the
Guarantee, the Convertible Debentures and the Underlying Common Stock, whether
or not such securities have been converted or exchanged, and at all times
subsequent to any such conversion or exchange, and any security issued with
respect thereto upon any stock dividend, split or similar event until, in the
case of any such security, (i) it is effectively registered under the Securities
Act and disposed of in accordance with the Registration Statement covering its
offering and sale, (ii) it is saleable by the Holder thereof pursuant to Rule
144(k) or (iii) it is sold to the public pursuant to Rule 144 and, as a result
of the event or circumstance described in any of the foregoing clauses (i)
through (iii), the legends with respect to transfer restrictions required under
the Declaration and the Indenture are removed or removable in accordance with
the terms of the Declaration or the Indenture, as the case may be.
Registration Expenses: See Section 5 hereof.
Registration Statement: Any registration statement of Tosco or the
Trust 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 or deemed to be incorporated by reference
in such registration statement.
Restricted Securities: As this term is defined in Rule 144.
Rule 144: Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
Rule 144A: Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations promulgated by the SEC thereunder.
Selling Period: See Section 2(d)(i) hereof.
Shelf Registration: See Section 2(a) hereof.
Special Counsel: Xxxxxxx & Xxxxx L.L.P. or such other successor
counsel as shall be specified by the Holders of a majority of the Registrable
Securities, the fees and expenses of which will be paid by Tosco pursuant to
Section 5 hereof.
Subsequent Shelf Registration: See Section 2(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The Bank of New York (or any successor entity), the
Institutional Trustee under the Declaration or, in the event the Convertible
Debentures are distributed to holders of the Convertible Preferred Securities
upon dissolution of the Trust, the Trustee under the Indenture.
Underlying Common Stock: The Common Stock of Tosco into which the
Convertible Debentures are convertible.
SECTION 2. Registration.
a. Shelf Registration. Tosco and the Trust shall prepare and
file with the SEC, as soon as practicable, but in any event within ninety (90)
days after the latest date of original issuance of the Convertible Preferred
Securities (the "Filing Date"), a Registration Statement for an offering to be
made on a delayed or continuous basis pursuant to Rule 415 of the Securities Act
(a "Shelf Registration") registering the resale from time to time by Holders
thereof of all of the Registrable Securities (the "Initial Shelf Registration").
The Initial Shelf Registration shall be on Form S-3 or another appropriate form
permitting registration of such Registrable Securities for resale by such
Holders in the manner or manners designated by them. Tosco and the Trust shall
use their best efforts to cause the Initial Shelf Registration to become
effective under the Securities Act as promptly as is practicable and to keep the
Initial Shelf Registration continuously effective under the Securities Act until
the end of the Effectiveness Period.
b. If the Initial Shelf Registration or any Subsequent Shelf
Registration, as defined below, ceases to be effective for any reason at any
time during the Effectiveness Period (other than because all Registrable
Securities shall have ceased to be Registrable Securities), Tosco and the Trust
shall use their best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within thirty (30)
days of such cessation of effectiveness amend the Shelf Registration in a manner
reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional Shelf Registration covering all of
the Registrable Securities (a "Subsequent Shelf Registration"). If a Subsequent
Shelf Registration is filed, Tosco and the Trust shall use their best efforts to
cause the Subsequent Shelf Registration to become effective as promptly as is
practicable after such filing and to keep such Registration Statement
continuously effective until the end of the Effectiveness Period.
x. Xxxxx and the Trust shall supplement and amend the Shelf
Registration if required by the rules, regulations or instructions applicable to
the registration form used by Tosco and the Trust for such Shelf Registration,
if required by the Securities Act, or if reasonably requested by the Initial
Purchasers or by the Trustee on behalf of the Holders of the Registrable
Securities covered by such Registration Statement.
d. Each Holder of Registrable Securities agrees that if such
Holder wishes to sell its Registrable Securities pursuant to a Shelf
Registration and related Prospectus, it will do so only in accordance with this
Section 2(d). Each Holder of Registrable Securities agrees to give written
notice to Tosco and the Trust at least three (3) Business Days prior to any
intended distribution of Registrable Securities under the Shelf Registration,
which notice shall specify the date on which such Holder intends to begin such
distribution and any information with respect to such Holder and the intended
distribution of Registrable Securities by such Holder required to amend or
supplement the Registration Statement with respect to such intended distribution
of Registrable Securities by such Holder. As promptly as is practicable after
the date such notice is provided, and in any event within two (2) Business Days
after such date, Tosco and the Trust shall either:
i. (A) prepare and file with the Commission a
post-effective amendment to the Shelf Registration or a supplement to
the related Prospectus or a supplement or amendment to any document
incorporated therein by reference or file any other required document
so that such Registration Statement will not 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 so that, as thereafter delivered to purchasers of the
Registrable Securities being sold thereunder, such Prospectus will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; (B) provide the Holders of the Registrable
Securities who gave such notice copies of any documents filed pursuant
to Section 2(d)(i)(A); and (C) inform each such Holder that Tosco and
the Trust have complied with its obligations in Section 2(d)(i)(A) (or
that, if Tosco and the Trust have filed a post-effective amendment to
the Shelf Registration which has not yet been declared effective, Tosco
and the Trust will notify each such Holder to that effect, will use
their best efforts to secure the effectiveness of such post-effective
amendment and will immediately notify each such Holder pursuant to
Section 2(d)(i)(A) hereof when the amendment has become effective);
each Holder who has given notice of intention to distribute such
Holder=s Registrable Securities in accordance with Section 2(d) hereof
(a "Notice Holder") will sell all or any or such Registrable Securities
pursuant to the Shelf Registration and related Prospectus only during
the 45-day period commencing with the date on which Tosco and the Trust
give notice, pursuant to Section 2(d)(i)(A), that the Registration
Statement and Prospectus may be used for such purpose (such 45-day
period is referred to as a "Selling Period"); the Notice Holders will
not sell any Restricted Securities pursuant to such Registration
Statement or Prospectus after such Selling Period without giving a new
notice of intention to sell pursuant to Section 2(d) hereof and
receiving a further notice from Tosco and the Trust pursuant to Section
2(d)(i)(A) hereof; or
ii. in the event (A) of the happening of any event of
the kind described in Section 2(e)(ii), 2(e)(iii) or 2(e)(iv) hereof or
(B) that, in the judgment of Tosco, it is advisable to suspend use of
the Prospectus for a discrete period of time due to pending material
corporate developments or similar material events that have not yet
been publicly disclosed and as to which Tosco believes public
disclosure will be prejudicial to Tosco or the Trust, Tosco shall
deliver a certificate in writing, signed by its Chief Executive Officer
or Chief Financial Officer, to the Notice Holders and the Special
Counsel to the effect of the foregoing and, upon receipt of such
certificate, each such Notice Holder=s Selling Period will not commence
until such Notice Holder=s receipt of copies of the supplemented or
amended Prospectus provided for in Section 2(d)(i)(A) hereof, or until
it is advised in writing by Tosco and the Trust that the Prospectus may
be used, and has received copies of any additional or supplemental
filings that are incorporated or deemed incorporated by reference in
such Prospectus. Tosco and the Trust will use their best efforts to
ensure that the use of the Prospectus may be resumed, and the Selling
Period will commence, as promptly as is practicable and, in the case of
a pending development or event referred to in Section 2(d)(ii)(B)
hereof, as soon as the earlier of (x) public disclosure of such pending
material corporate development or similar material event or (y) in the
judgment of Tosco, public disclosure of such material corporate
development or similar material event would not be prejudicial to Tosco
or the Trust. Notwithstanding the foregoing, Tosco and the Trust shall
not under any circumstances be entitled to exercise their right under
this Section 2(d)(ii) to defer the commencement of a Selling Period
more than one (1) time in any three (3) month period or two (2) times
in any twelve (12) month period, and the period during which a Selling
Period is suspended shall not exceed thirty (30) days unless Tosco and
the Trust shall deliver to such Notice Holders a second notice to the
effect set forth above, which shall have the effect of extending the
period during which such Selling Period is deferred by up to an
additional thirty (30) days, or such shorter period of time as is
specified in such second notice; provided that the period during which
a Selling Period is deferred, a "Deferred Period," shall not exceed
sixty (60) days in any twelve (12) month period.
e. The parties hereto agree that the Holders of Registrable Securities will
suffer damages, and that it would not be feasible to ascertain the extent of
such damages with precision, if (i) the Initial Shelf Registration has not been
filed on or prior to the Filing Date, (ii) prior to the end of the Effectiveness
Period, the SEC shall have issued a stop order suspending the effectiveness of
the Shelf Registration or proceedings have been initiated with respect to the
Shelf Registration under Section 8(d) or 8(e) of the Securities Act, (iii) the
aggregate number of days in any one Deferral Period exceeds the number permitted
pursuant to Section 2(d)(ii) hereof or (iv) the number of Deferral Periods
exceeds the number permitted pursuant to Section 2(d)(ii) hereof (each of the
events of a type described in any of the foregoing clauses (i) through (iv) are
individually referred to herein as an "Event," and the Filing Date in the case
of clause (i), the date on which the effectiveness of the Shelf Registration has
been suspended or proceedings with respect to the Shelf Registration under
Section 8(d) or 8(e) of the Securities Act have been commenced in the case of
clause (ii), the date on which the duration of a Deferral Period exceeds the
number of days permitted by Section 2(d)(ii) hereof in the case of clause (iii),
and the date of the commencement of a Deferral Period that causes the limit on
the number of Deferral Periods under Section 2(d)(ii) hereof to be exceeded in
the case of clause (iv), being referred to herein as an "Event Date"). Events
shall be deemed to continue until the "Event Termination Date," which shall be
the following dates with respect to the respective types of Events: the date the
Initial Registration Statement is filed in the case of an Event of the type
described in clause (i), the date that all stop orders suspending effectiveness
of the Shelf Registration have been removed and the proceedings initiated with
respect to the Shelf Registration under Section 8(d) or (e) of the Securities
Act have terminated, as the case may be, in the case of Events of the types
described in clause (ii), termination of the Deferral Period which caused the
limit on the duration of a Deferred Period set forth in Section 2(d)(ii) to be
exceeded in the case of the commencement of an Event of the type described in
clause (iii), and termination of the Deferral Period the commencement of which
caused the number of Deferral Periods permitted by Section 2(d)(ii) to be
exceeded in the case of Events of the type described in clause (iv).
Accordingly, upon the occurrence of any Event and until such time as there
are no Events that have occurred and are continuing (a "Damages Accrual
Period"), commencing on the Event Date on which such Damages Accrual Period
began, Tosco agrees to pay, as liquidated damages, and not as a penalty, an
additional amount (the "Liquidated Damages Amount"): (A) (i) to each Holder of
(x) a Convertible Preferred Security or (y) in the event that the Convertible
Debentures are distributed to holders of Convertible Preferred Securities upon
dissolution of the Trust in accordance with the Declaration, a Convertible
Debenture (in each case that is a Notice Holder), accruing at a rate equal to
one-quarter of one percent per annum (25 basis points) on an amount equal to the
liquidation amount of such Convertible Preferred Security or principal amount of
such Convertible Debenture, as the case may be, held by such Notice Holder and
(ii) to each Holder of Underlying Common Stock that is a Notice Holder, accruing
at a rate equal to one- quarter of one percent per annum (25 basis points)
calculated on an amount equal to the product of (x) the Applicable Conversion
Price as of the Business Day immediately prior to the applicable Damages Payment
Date times (y) the number of shares of Common Stock that are Registrable
Securities held by such Notice Holder; and (B) if the Damages Accrual Period
continues for in excess of thirty (30) days, from and after the end of such
thirty (30) day period until the applicable Event Termination Date, (i) to each
Holder of a (x) Convertible Preferred Security or (y) in the event that the
Convertible Debentures are distributed to holders of Convertible Preferred
Securities upon dissolution of the Trust in accordance with the Declaration, a
Convertible Debenture (in each case whether or not a Notice Holder), accruing at
a rate equal to one-quarter of one percent per annum (25 basis points) on an
amount equal to the liquidation amount of such Convertible Preferred Security or
principal amount of such Convertible Debenture, as the case may be, held by such
Holder and (ii) to each Holder of Underlying Common Stock (whether or not a
Notice Holder), accruing at a rate equal to one- quarter of one percent per
annum (25 basis points) calculated on an amount equal to the product of (x) the
Applicable Conversion Price as of the Business Day immediately prior to the
applicable Damages Payment Date times (y) the number of shares of Common Stock
that are Registrable Securities held by such Holder. Notwithstanding the
foregoing, no Liquidated Damages Amounts shall accrue (1) under clause (A) of
the preceding sentence during any period for which Liquidated Damages Amounts
accrue under clause (B) of the foregoing sentence as to any Registrable Security
from and after the earlier of (x) the date such security is no longer a
Registrable Security, and (y) expiration of the Effectiveness Period.
Notwithstanding the foregoing, no Damages Accrual Period with respect to any
Event described in clause (ii) of paragraph 2(e) shall commence unless and until
a Holder or Holders has given notice in accordance with Section 2(d) hereof. The
rate of accrual of the Liquidated Damages Amount with respect to any period
shall not exceed the rate provided for in this paragraph notwithstanding the
occurrence of multiple concurrent Events.
Tosco shall pay the liquidated damages due on any Convertible Preferred
Security, Convertible Debenture or Underlying Common Stock by depositing with
the Trustee, in trust for the benefit of the Holders of Convertible Preferred
Securities, Convertible Debentures or Underlying Common Stock, as the case may
be, entitled thereto, at least one (1) Business Day prior to the applicable
Damages Payment Date, sums sufficient to pay the liquidated damages accrued or
accruing from and including the last preceding Damages Payment Date to, but not
including, such Damages Payment Date. The Liquidated Damages Amount due shall be
payable on each Damages Payment Date to the Holders of Registrable Securities
entitled thereto holding such Registrable Securities on the record date for such
Damages Payment Date; provided that accrued Liquidated Damages Amounts shall be
paid on the applicable redemption date upon the redemption of any Convertible
Debenture or Convertible Preferred Security (to the extent accrued with respect
to such Convertible Debenture or Convertible Preferred Security). The Trustee
shall be entitled, on behalf of the Notice Holders and the Holders of
Convertible Preferred Securities, Convertible Debentures or Underlying Common
Stock, to seek any available remedy for the enforcement of this Agreement,
including for the payment of such liquidated damages. Notwithstanding the
foregoing, the parties agree that the sole damages payable for a violation of
the terms of this Agreement with respect to which liquidated damages are
expressly provided shall be such liquidated damages. Nothing shall preclude a
Notice Holder or Holder of Registrable Securities from pursuing or obtaining
specific performance or other equitable relief with respect to this Agreement.
All of Tosco's obligations set forth in this Section 2(e) which are
outstanding with respect to any Registrable Security at the time such security
ceases to be a Registrable Security shall survive until such time as all such
obligations with respect to such security have been satisfied in full
(notwithstanding termination of this Agreement pursuant to Section 9(o)).
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 of Registrable Securities (other than the Initial
Purchasers) by reason of the failure of the Shelf Registration to be filed or
declared effective or unavailable (absolutely or as a practical matter) for
effecting resales of Registrable Securities in accordance with the provisions
hereof.
SECTION 3. Registration Procedures.
In connection with the registration obligations of Tosco and the Trust
under Section 2 hereof, Tosco and the Trust shall effect such registrations to
permit the sale of the Registrable Securities in accordance with the intended
method or methods of disposition thereof, and pursuant thereto Tosco and the
Trust shall as expeditiously as possible:
a. Prepare and file with the SEC a Registration Statement on
any appropriate form under the Securities Act available for the sale of the
Registrable Securities by the Holders thereof in accordance with the intended
method or methods of distribution thereof, and use their best efforts to cause
each such Registration Statement to become effective and remain effective as
provided herein; provided, that before filing any such Registration Statement or
Prospectus or any amendments or supplements thereto (other than documents that
would be incorporated or deemed to be incorporated therein by reference and that
Tosco or the Trust is required by applicable securities laws or stock exchange
requirements to file) Tosco and the Trust shall furnish to the Initial
Purchasers and the Special Counsel of such offering, if any, copies of all such
documents proposed to be filed, which documents will be subject to the review of
the Initial Purchasers and the Special Counsel, and Tosco and the Trust shall
not file any such Registration Statement or amendment thereto or any Prospectus
or any supplement thereto (other than such documents which, upon filing, would
be incorporated or deemed to be incorporated by reference therein and that Tosco
or the Trust is required by applicable securities laws or stock exchange
requirements to file) to which the Initial Purchasers or the Special Counsel
shall reasonably object in writing within two (2) full Business Days.
b. Prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable
period specified in Section 2; cause the related Prospectus to be supplemented
by any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended methods
of disposition by the sellers thereof set forth in such Registration Statement
as so amended or such Prospectus as so supplemented.
c. Promptly notify the Notice Holders and, following the
giving of notice pursuant to Section 2(d), the Initial Purchasers and the
Special Counsel promptly, and (if requested by any such person) confirm such
notice in writing, (i) when a Prospectus, any Prospectus supplement, a
Registration Statement or a post-effective amendment to a Registration Statement
has been filed with the SEC and, with respect to a Registration Statement or any
post- effective amendment, when the same has become effective, (ii) of any
request by the SEC or any other federal or state governmental authority for
amendments or supplements to a Registration Statement or related Prospectus or
for additional information, (iii) of the issuance by the SEC or any other
federal or state governmental authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation or threatening of
any proceedings for that purpose, (iv) of the receipt by Tosco or the Trust of
any notification with respect to the suspension of the qualification or
exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) of the existence of any fact or happening of any event which makes
any statement of a material fact in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue or which would require the making of any changes in the
Registration Statement or Prospectus in order that, in the case of the
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case of
the Prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact or omit to state any 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 (vi) of the
determination by Tosco that a post-effective amendment to a Registration
Statement would be appropriate.
d. Use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement, or the lifting of any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction, at the earliest possible
moment.
e. If reasonably requested by the Initial Purchasers, the
Special Counsel, or the Holders of a majority of the Registrable Securities
being sold, (i) promptly incorporate in a Prospectus supplement or
post-effective amendment to a Registration Statement such information as the
Initial Purchasers, the Special Counsel, or such Holders, in connection with any
offering of Registrable Securities, agree should be included therein as required
by applicable law, and (ii) make all required filings of such Prospectus
supplement or such post-effective amendment as promptly as is practicable after
Tosco and the Trust have received notification of the matters to be incorporated
in such Prospectus supplement or post-effective amendment; provided, that Tosco
and the Trust shall not be required to take any actions under this Section 3(e)
that are not, in the reasonable opinion of counsel for Tosco, in compliance with
applicable law.
f. Furnish to each selling Holder, the Special Counsel and the
Initial Purchasers, without charge, at least one (1) conformed copy of the
Registration Statement and any amendment thereto, including financial statements
but excluding schedules, all documents incorporated or deemed to be incorporated
therein by reference and all exhibits (unless requested in writing by such
Holder, counsel or Initial Purchasers).
g. Deliver to each selling Holder, the Special Counsel and the
Initial Purchasers in connection with any offering of Registrable Securities,
without charge, as many copies of the Prospectus or Prospectuses relating to
such Registrable Securities (including each preliminary prospectus) and any
amendment or supplement thereto as such persons may reasonably request; and
Tosco and the Trust hereby consent to the use of such Prospectus or each
amendment or supplement thereto by each of the selling Holders of Registrable
Securities in connection with any offering and sale of the Registrable
Securities covered by such Prospectus or any amendment or supplement thereto.
h. Prior to any public offering of Registrable Securities, to
register or qualify or cooperate with the selling Holders and the Special
Counsel in connection with the registration or qualification (or exemption from
such registration or qualification) of such Registrable Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions within the
United States as any selling Holder reasonably requests in writing; keep each
such registration or qualification (or exemption therefrom) effective during the
period such Registration Statement is required to be kept effective and do any
and all other acts or things necessary or advisable to enable the disposition in
such jurisdictions of the Registrable Securities covered by the applicable
Registration Statement; provided, that neither Tosco nor the Trust will be
required to (i) qualify generally to do business in any jurisdiction where it is
not then so qualified or (ii) take any action that would subject it to general
service of process in suits or to taxation in any such jurisdiction where it is
not then so subject.
i. Cause the Registrable Securities covered by the applicable
Registration Statement to be registered with or approved by such other
governmental agencies or authorities within the United States (except as may be
required solely as a consequence of the nature of such selling Holder, in which
case Tosco and the Trust will cooperate in all reasonable respects with the
filing of such Registration Statement and the granting of such approvals) as may
be necessary to enable the selling Holder or Holders thereof to consummate the
disposition of such
Registrable Securities.
j. During any Selling Period (other than during a Deferral
Period), immediately upon the existence of any fact or the occurrence of any
event as a result of which a Registration Statement shall contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, or a
Prospectus shall contain any untrue statement of a material fact or omit to
state any 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, promptly prepare and file a post-effective amendment to
each Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required document
(such as a Current Report on Form 8-K) that would be incorporated by reference
into the Registration Statement so that the Registration Statement shall not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and so that the Prospectus will not contain any untrue statement
of a material fact or omit to state any 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, as thereafter
delivered to the purchasers of the Registrable Securities being sold thereunder,
and, in the case of a post-effective amendment to a Registration Statement, use
their best efforts to cause it to become effective as promptly as is
practicable.
k. Enter into such agreements and take all such other actions in
connection therewith in order to expedite or facilitate the disposition of such
Registrable Securities and in such connection (i) make such representations and
warranties, subject to the ability of Tosco and the Trust to do so, to the
Holders of such Registrable Securities with respect to the business of Tosco and
its subsidiaries and the Trust, the Registration Statement, Prospectus and
documents incorporated by reference or deemed incorporated by reference, if any,
in each case, in form, substance and scope as shall be reasonably satisfactory
to the Special Counsel and the Holders of a majority of the Registered
Securities being sold, and (ii) deliver such documents and certificates as may
be reasonably requested by the Holders of a majority of the Registrable
Securities being sold and the Special Counsel to evidence the continued validity
of the representations and warranties of Tosco and its subsidiaries and the
Trust made pursuant to clause (i) above. The plan of distribution of the
Registration Statement and the Prospectus included therein shall permit resales
of Registrable Securities to be made by selling security holders through brokers
and dealers. However, neither Tosco nor the Trust will be obligated hereunder to
pay the costs and expenses of opinions of counsel of such selling security
holders, or accountants' "cold comfort" letters and neither the officers and
directors of Tosco nor the trustees of the Trust will be obligated hereunder to
participate in marketing efforts on behalf of such selling securityholders.
l. If requested in connection with a disposition of Registrable
Securities pursuant to a Registration Statement, make available for inspection
by a representative of the Holders of Registrable Securities being sold, and any
Special Counsel or accountant retained by such selling Holders, financial and
other records, pertinent corporate documents and properties of Tosco and the
Trust and its subsidiaries, and cause the executive officers, directors and
employees of the Company and its subsidiaries to supply all information
reasonably requested by any such representative, Special Counsel or accountant
in connection with such disposition; subject to reasonable assurances by each
such person that such information will only be used in connection with matters
relating to such Registration Statement.
m. Comply with all applicable rules and regulations of the SEC and
make generally available to its securityholders earning statements (which need
not be audited) satisfying the provisions of Section 11 (a) of the Securities
Act and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12- month period (or
90 days after the end of any 12-month period if such period is a fiscal year)
commencing on the first day of the first fiscal quarter of Tosco commencing
after the effective date of a Registration Statement, which statements shall
cover said 12-month periods.
n. Cooperate with the selling Holders of Registrable Securities 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 Holders may request.
o. Provide a CUSIP number for all Registrable Securities not later
than the effective date of the Registration Statement and provide the Trustee
and the transfer agent for the Common Stock with printed certificates for the
Registrable Securities which are in a form eligible for deposit with the
Depositary Trust Company.
p. Cause all Underlying Common Stock covered by the Registration
Statement to be listed on each securities exchange or quotation system on which
Tosco's Common Stock is then listed no later than the date the Registration
Statement is declared effective and, in connection therewith, to the extent
applicable, to make such filings under the Exchange Act (e.g., the filing of a
Registration Statement on Form 8-A) and to have such filings declared effective
thereunder.
q. Cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc.
SECTION 4. Holder's Obligations.
Each Holder agrees, by acquisition of the Registrable Securities, that no
Holder of Registrable Securities shall be entitled to sell any of such
Registrable Securities pursuant to a Registration Statement or to receive a
Prospectus relating thereto, unless such Holder has furnished Tosco and the
Trust with the notice required pursuant to Section 2(d) hereof (including the
information required to accompany such notice) and, promptly after the request
by Tosco and the Trust, such other information regarding such Holder and the
distribution of such Registrable Securities as Tosco and the Trust may from time
to time reasonably request. Tosco and the Trust may exclude from such
registration the Registrable Securities of any Holder who does not furnish such
information provided above for so long as such information is not so furnished.
Each Holder of Registrable Securities as to which any Registration Statement is
being effected agrees promptly to furnish to Tosco and the Trust all information
required to be disclosed in order to make the information previously furnished
to Tosco and the Trust by such Holder not misleading. Any sale of any
Registrable Securities by any Holder shall constitute a representation and
warranty by such Holder that the information relating to such Holder and its
plan of distribution is as set forth in the Prospectus delivered by such Holder
in connection with such disposition, that such Prospectus does not as of the
time of such sale contain any untrue statement of a material fact relating to
such Holder or its plan of distribution and that such Prospectus does not as of
the time of such sale omit to state any material fact relating to such Holder or
its plan of distribution necessary to make the statements in such Prospectus, in
the light of the circumstances under which they were made, not misleading.
SECTION 5. Registration Expenses.
Subject to Section 3(k) hereof, all fees and expenses incident to the
performance by Tosco and the Trust of or compliance with this Agreement shall be
borne by Tosco whether or not any of the Registration Statements become
effective. Such fees and expenses shall include, without limitation, (i) all
registration and filing fees (including, without limitation, fees and expenses
(x) with respect to filings required to be made with the National Association of
Securities Dealers, Inc. and (y) of compliance with federal and state securities
or Blue Sky laws (including, without limitation, fees and disbursements of
Special Counsel in connection with Blue Sky qualifications of the Registrable
Securities under the laws of such jurisdictions as the Holders of a majority of
the Registrable Securities being sold may designate)), (ii) printing expenses
(including, without limitation, expenses of printing certificates for
Registrable Securities in a form eligible for deposit with The Depositary Trust
Company and of printing prospectuses if the printing of prospectuses is
requested by the Special Counsel or the Holders of a majority of the Registrable
Securities included in any Registration Statement), (iii) messenger, telephone
and delivery expenses, (iv) reasonable fees and disbursements of counsel for
Tosco and the Trust and the Special Counsel in connection with the Shelf
Registration (provided that Tosco shall not be liable for the fees and expenses
of more than one separate firm for all parties participating in any transaction
hereunder), and (v) Securities Act liability insurance obtained by Tosco in its
sole discretion. In addition, Tosco shall pay the internal expenses of Tosco and
the Trust (including, without limitation, all salaries and expenses of officers
and employees performing legal or accounting duties), the expense of any annual
audit, the fees and expenses incurred in connection with the listing of the
Underlying Common Stock and the fees and expenses of any person, including
special experts, retained by Tosco or the Trust. Notwithstanding the provisions
of this Section 5, each seller of Registrable Securities shall pay all
registration expenses to the extent Tosco is prohibited by applicable Blue Sky
laws from paying such expenses for or on behalf of such seller of Registrable
Securities, and shall pay all individual selling expenses of such seller,
including such seller's brokers' commissions.
SECTION 6. Indemnification.
a. Indemnification by Tosco. Tosco shall indemnify and hold harmless
each Holder and each person, if any, who controls any Holder (within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act)
from and against all losses, liabilities, claims, damages and expenses
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim)
(collectively, "Losses"), arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement or Prospectus or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or based upon 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 such
Losses arise out of or based upon the information relating to any Holder
furnished to Tosco in writing by such Holder expressly for use therein;
provided, that Tosco shall not be liable to any Holder of Registrable Securities
(or any person controlling such Holder) to the extent that any such Losses arise
out of or are based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any preliminary prospectus if either (A)
(i) such Holder failed to send or deliver a copy of the Prospectus with or prior
to the delivery of written confirmation of the sale by such Holder to the person
asserting the claim from which such Losses arise and (ii) the Prospectus would
have corrected such untrue statement or alleged untrue statement or such
omission or alleged omission, or (B) (x) such untrue statement or alleged untrue
statement, omission or alleged omission is corrected in an amendment or
supplement to the Prospectus and (y) having previously been furnished by or on
behalf of Tosco or the Trust with copies of the Prospectus as so amended or
supplemented, such Holder thereafter fails to deliver such Prospectus as so
amended or supplemented, with or prior to the delivery of written confirmation
of the sale of a Registrable Security to the person asserting the claim from
which such Losses arise. Tosco shall also indemnify each broker-dealer
participating in the offering and sale of Registrable Securities and each person
who controls such person (within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act) to the same extent and with the same
limitations as provided above with respect to the indemnification of the Holders
of Registrable Securities.
b. Indemnification by Holder of Registrable Securities. Each Holder
agrees severally and not jointly to indemnify and hold harmless Tosco and the
Trust, Tosco's directors, Tosco's officers who sign a Registration Statement,
the trustees of the Trust, and each person, if any, who controls Tosco or the
Trust (within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act), from and against all losses arising out of or based
upon any untrue statement of a material fact contained in any Registration
Statement, Prospectus or preliminary prospectus or arising out of or based upon
any omission of a material fact required to be stated therein 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
relating to such Holder so furnished in writing by such Holder to Tosco and the
Trust expressly for use in such Registration Statement or Prospectus. In no
event shall the liability of any selling Holder of Registrable Securities
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.
c. Conduct of Indemnification Proceedings. In case any proceeding
(including any governmental investigation) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "indemnified party") shall promptly
notify the person against whom such indemnity may be sought (the "indemnifying
party") in writing and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (a) the fees and expenses of
more than one separate firm (in addition to any local counsel) for all Holders
and all persons, if any, who control any Holder within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, and (b) the
fees and expenses of more than one separate firm (in addition to any local
counsel) for Tosco and the Trust, Tosco's directors, Tosco's officers who sign a
Registration Statement, the trustees of the Trust and each person, if any, who
controls Tosco or the Trust within the meaning of either such Section, and that
all such fees and expenses shall be reimbursed as they are incurred. In the case
of any such separate firm for Tosco and the Trust, and such directors, officers,
trustees and control persons of Tosco or the Trust, such firm shall be
designated in writing by Tosco. In the case of any such separate firm for the
Initial Purchasers, such firm shall be designated in writing by Xxxxxx Xxxxxxx &
Co. Incorporated. The indemnifying party shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
d. Contribution. To the extent that the indemnification provided for
in this Section 6 is unavailable to an indemnified party under Section 6(a) or
6(b) hereof in respect of any Losses or is insufficient to hold such indemnified
party harmless, then each applicable indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such Losses, (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying party
or parties on the one hand and the indemnified party or parties on the other
hand or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the indemnifying party or parties on the one hand and of the indemnified party
or parties on the other hand in connection with the statements or omissions that
resulted in such Losses, as well as any other relevant equitable considerations.
Benefits received by Tosco and the Trust shall be deemed to be equal to the
total net proceeds from the initial placement (before deducting expenses) of the
Convertible Preferred Securities pursuant to the Placement Agreement. Benefits
received by any Holder shall be deemed to be equal to the value of receiving
Registrable Securities that are registered under the Securities Act. The
relative fault of the Holders on the one hand and Tosco and the Trust on the
other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Holders
or by Tosco or the Trust and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Holders' respective obligations to contribute pursuant to this paragraph are
several in proportion to the respective number of Registrable Securities they
have sold pursuant to a Registration Statement, and not joint.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method, or allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the Losses
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding this Section 6(d), an
indemnifying party that is a selling Holder of Registrable Securities shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities sold by such indemnifying party and
distributed to the public were offered to the public exceeds the amount of any
damages which such indemnifying party has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
The indemnity, contribution and expense reimbursement obligations of
Tosco and the Trust hereunder shall be in addition to any liability Tosco or the
Trust may otherwise have hereunder, under the Placement Agreement or otherwise.
The provisions of this Section 6 shall survive, notwithstanding any transfer of
the Registrable Securities by any Holder or any termination of this Agreement.
The indemnity and contribution provisions contained in this Section 6
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Holder or any person controlling any Holder, or Tosco or the Trust, Tosco's
officers or Tosco's directors or the trustees of the Trust or any person
controlling Tosco or the Trust and (iii) the sale of any Registrable Securities
by any Holder.
SECTION 7. Information Requirements.
x. Xxxxx and the Trust shall file the reports required to be
filed by it under the Securities Act and the Exchange Act, and if at any time
Tosco or the Trust is not required to file such reports, it will, upon the
request of any Holder of Registrable Securities, make publicly available other
information so long as necessary to permit sales of Registrable Securities
pursuant to Rule 144 and Rule 144A under the Securities Act. Tosco and the Trust
further covenant that they will cooperate with any Holder of Registrable
Securities and take such further reasonable action as any Holder of Registrable
Securities may reasonably request (including, without limitation, making such
reasonable representations as any such 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 exemptions provided by Rule 144 and Rule 144A under the Securities Act.
Upon the request of any Holder of Registrable Securities, each of Tosco and the
Trust shall deliver to such Holder a written statement as to whether it has
complied with such filing requirements. Notwithstanding the foregoing, nothing
in this Section 7 shall be deemed to require Tosco or the Trust to register any
of its securities (other than the Common Stock) under any section of the
Exchange Act.
x. Xxxxx and the Trust shall file the reports required to be
filed by it under the Exchange Act and shall use its best efforts to comply with
all other requirements set forth in the instructions to Form S-3 in order to
allow it to be eligible to file registration statements on Form S-3.
SECTION 8. Submission to Jurisdiction.
Each of Tosco and the Trust irrevocably consents and agrees, for the benefit
of the Holders, that any legal action, suit or proceeding against it with
respect to its obligations, liabilities or any other matter arising out of or in
connection with this Agreement may be brought in the courts of the State of New
York or the courts of the United States located in The City of New York and
hereby irrevocably consents and submits to the non-exclusive jurisdiction of
each such court in personam, generally and unconditionally, with respect to any
such action, suit or proceeding for itself and in respect of its properties,
assets and revenues.
Each of Tosco and the Trust has irrevocably designated, appointed and
empowered C T Corporation System, as its designee, appointee and agent to
receive, accept and acknowledge for and on its behalf, and its properties,
assets and revenues, service of any and all legal process, summons, notices and
documents which may be served in any such action, suit or proceeding referred to
in the preceding paragraph of this Section 8 brought in any United States or
State court that may be made on such designee, appointee and agent in accordance
with legal procedures prescribed for such courts. Said designation and
appointment shall be irrevocable until the end of the Effectiveness Period,
provided, however, that if for any reason such designee, appointee and agent
hereunder shall cease to be available to act as such, Tosco and the Trust agree
to designate a new designee, appointee and agent in The City of New York on the
terms and for the purposes of this Section 8 satisfactory to the Initial
Purchasers. Each of Tosco and the Trust further hereby irrevocably consents and
agrees to the service of any and all legal process, summons, notices and
documents out of any of the aforesaid courts in any such action,
suit or proceeding by serving a copy thereof upon the relevant agent for
service of process referred to in this Section 8 (whether or not the appointment
of such agent shall for any reason prove to be ineffective or such agent shall
accept or acknowledge such service) or by mailing copies thereof by registered
or certified air mail, postage prepaid, to each of Tosco and the Trust at its
address specified in or designated pursuant to Section 9 of this Agreement. Each
of Tosco and the Trust agrees that the failure of such designee, appointee and
agent to give any notice of such service to it shall not impair or affect in any
way the validity of such service or any judgment rendered in any action or
proceeding based thereon. Nothing herein shall in any way be deemed to limit the
ability of the Notice Holders or the Holders of the Registrable Securities, to
serve any such legal process, summons, notices and documents in any other manner
permitted by applicable law or to obtain jurisdiction over Tosco or the Trust or
bring actions, suits or proceedings against Tosco or the Trust in such other
jurisdictions, and in such manner, as may be permitted by applicable law. Each
of Tosco and the Trust hereby irrevocably and unconditionally waives, to the
fullest extent permitted by law, any objection which it may now, or until the
end of the Effectiveness Period, have to the laying of venue or any of the
aforesaid actions, suits or proceedings arising out of or in connection with
this Agreement brought in the United States Federal courts located in The City
of New York or the courts of the State of New York and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such action, suit or proceeding brought in any such court
has been brought in an inconvenient forum.
The provisions of this Section 8 shall survive any termination of this
Agreement, in whole or in part.
SECTION 9. Miscellaneous.
a. Remedies. In the event of a breach by Tosco or the Trust
of its obligations under this Agreement, each Holder of Registrable Securities,
in addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement, provided, that the sole damages payable for a violation of
the terms of this Agreement for which liquidated damages are expressly provided
pursuant to Section 2(e) hereof shall be such liquidated damages. Each of Tosco
and the Trust agrees that monetary damages would not be adequate compensation
for any loss incurred by reason of a breach by it of any of the provisions of
this Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense that
a remedy at law would be adequate.
b. No Conflicting Agreements. Neither Tosco nor the Trust has,
as of the date hereof, entered into, nor shall Tosco or the Trust, on or after
the date of this Agreement, enter into, any agreement with respect to its
securities which conflicts with the rights granted to the Holders of Registrable
Securities in this Agreement. Each of Tosco and the Trust represents and
warrants that the rights granted to the Holders of Registrable Securities
hereunder do not in any way conflict with the rights granted to the Holders of
Tosco's or the Trust's securities under any other agreements.
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 Tosco and the Trust have obtained the written consent
of Holders of a majority of the then outstanding Underlying Common Stock
constituting Registrable Securities (with Holders of Convertible Preferred
Securities deemed to be the Holders, for purposes of this Section, of the number
of outstanding shares of Underlying Common Stock into which such Convertible
Preferred Securities are convertible or exchangeable). Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders of Registrable
Securities whose securities are being sold pursuant to a Registration Statement
and that does not directly or indirectly affect the rights of other Holders
of Registrable Securities may be given by Holders of at least a majority of the
Registrable Securities being sold by such Holders; provided, that the provisions
of this sentence may not be amended, modified, or supplemented except in
accordance with the provisions of the immediately preceding sentence.
d. Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing and shall be
deemed given (i) when made, if made by hand delivery, (ii) upon confirmation, if
made by telecopier or (iii) one (1) Business Day after being deposited with a
reputable next-day courier, postage prepaid, to the parties as follows (provided
that with respect to any notice of intention to sell given by a Holder to Tosco
and the Trust pursuant to Section 2(d) hereof in accordance with this Section
9(d) which is given on or after December 24 of any year and on or prior to
January 1 of the next year, such notice shall only be deemed given upon the
earlier of actual receipt of such notice by Tosco and the Trust or the first
Business Day next succeeding such January 1):
(A) if to a Holder of Registrable Securities, at the most
current address given by such Holder to Tosco and the Trust in
accordance with the provisions of Section 9(e);
(B) if to Tosco, to:
Tosco Corporation
00 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx XxXxxxx, III, General Counsel
Telecopy No.: (000) 000-0000
(C) if to the Trust, to:
Tosco Financing Trust
c/o Tosco Corporation
00 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx XxXxxxx, III, General Counsel
Telecopy No.: (000) 000-0000
and
(D) if to the Special Counsel, to:
Xxxxxxx & Xxxxx L.L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx
Telecopy No.: (000) 000-0000
or to such other address as such person may have furnished to the other persons
identified in this Section 9(d) in writing in accordance herewith.
e. Owner of Registrable Securities. Tosco and the Trust will maintain,
or will cause its registrar and transfer agent to maintain, a register with
respect to the Registrable Securities in which all transfers of Registrable
Securities of which Tosco or the Trust has received notice will be recorded.
Tosco and the Trust may deem and treat the person in whose name Registrable
Securities are registered in such register of Tosco and the Trust as the owner
thereof for all purposes, including, without limitation, the giving of notices
under this Agreement.
f. Approval of Holders. Whenever the consent or approval of Holders of
a specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by Tosco, the Trust or their respective affiliates
(as such term is defined in Rule 405 under the Securities Act) (other than the
Initial Purchasers or subsequent Holders of Registrable Securities if such
subsequent Holders are deemed to be such affiliates solely by reason of their
holdings of such Registrable Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
g. Successors and Assigns. Any person who purchases any Registrable
Securities from an Initial Purchaser shall be deemed, for purposes of this
Agreement, to be an assignee of such Initial Purchaser. This Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties and shall inure to the benefit of and be binding upon each Holder
of any Registrable Securities.
h. 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 original and all of which taken together
shall constitute one and the same agreement.
i. Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
j. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS.
k. Severability. If any term, provision, covenant or restriction of
this Agreement is held to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated thereby, and the parties hereto shall use their best efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms, provisions, covenants
and restrictions without including any of such which may be hereafter declared
invalid, void or unenforceable.
l. Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and is 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 and the registration rights
granted by Tosco and the Trust with respect to the Registrable Securities sold
pursuant to the Placement Agreement. Except as provided in the Placement
Agreement, 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 Tosco and the Trust with respect to the
Registrable Securities. This Agreement supersedes all prior agreements and
undertakings among the parties with respect to such registration rights.
m. Attorneys' Fees. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the prevailing party, as determined by the court, shall be
entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
n. Further Assurances. Each of the parties hereto shall use all
reasonable efforts to take, or cause to be taken, all appropriate action, do or
cause to be done all things reasonably necessary, proper or advisable under
applicable law, and execute and deliver such documents and other papers, as may
be required to carry out the provisions of this Agreement and the other
documents contemplated hereby and consummate and make effective the transactions
contemplated hereby.
o. Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except for
any liabilities or obligations under Sections 4, 5 or 6 hereof and the
obligations to make payments of and provide for liquidated damages under Section
2(e) hereof to the extent such damages accrue prior to the end of the
Effectiveness Period, each of which shall remain in effect in accordance with
their terms.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
TOSCO CORPORATION
By: /S/
Name: Xxxxxxxxx X. Xxxxx
Title: Executive Vice
President and Chief
Financial Officer
TOSCO FINANCIAL TRUST
By: /S/
Name: Xxxxxxxxx X. Xxxxx
Title: Trustee
Solely as trustee and not
in his individual capacity
Accepted as of the date first
above written,
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXXXX, LUFKIN AND XXXXXXXX
SECURITIES CORPORATION
XXXXXX XXXX LLC
By: XXXXXX XXXXXXX & CO. INCORPORATED
By: /S/
Name: Xxxx X. Xxxxxx
Title: Principal
