EXHIBIT 4.5
================================================================================
REGISTRATION RIGHTS AGREEMENT
Dated as of April 19, 2004
among
Noble Energy, Inc.
and
the Initial Purchasers
set forth herein
================================================================================
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into this 19th day of April, 2004, by and among Noble Energy, Inc., a
Delaware corporation (the "Company"), and Citigroup Global Markets Inc.,
Deutsche Bank Securities Inc., ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇▇▇▇▇, Sachs &
Co., Wachovia Capital Markets, LLC, Barclays Capital Inc., BNP Paribas
Securities Corp., Credit Lyonnais Securities (USA) Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated and ▇▇ ▇▇▇▇▇ Securities Corporation (collectively, the "Initial
Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated
April 14, 2004 (the "Purchase Agreement"), among the Company and the Initial
Purchasers, which provides for the sale by the Company to the Initial Purchasers
of an aggregate of $200,000,000 principal amount of the Company's 5.25% Notes
due 2014 (the "Notes"). In order to induce the Initial Purchasers to enter into
the Purchase Agreement, the Company has agreed to provide to the Initial
Purchasers and their direct and indirect transferees the registration rights set
forth in this Agreement. The execution and delivery of this Agreement is a
condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from
time to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Closing Date" shall mean the Closing Time as defined in the
Purchase Agreement.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company, provided, however, that such
depositary must have an address in the Borough of Manhattan, in The City
of New York.
"Exchange Notes" shall mean the 5.25% Notes due 2014, issued by the
Company under the Indenture containing terms identical to the Notes in all
material respects (except for references to certain interest rate
provisions, restrictions on transfers and restrictive legends), to be
offered to Holders of Notes in exchange for Registrable Notes pursuant to
the Exchange Offer.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Notes for Registrable Notes pursuant to Section 2.1 hereof.
"Exchange Offer Registration" shall mean a registration under the
1933 Act effected pursuant to Section 2.1 hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such registration
statement, including the Prospectus contained therein, all exhibits
thereto and all documents incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2.1
hereof.
"Holder" shall mean each of the Initial Purchasers, for so long as
it owns any Registrable Notes, and each of its successors, assigns and
direct and indirect transferees who become registered owners of
Registrable Notes under the Indenture.
"Indenture" shall mean the Indenture relating to the Notes, dated as
of April 1, 1997, by and among the Company and The Bank of New York Trust
Company, N.A., as successor trustee, as the same may be amended,
supplemented, waived or otherwise modified from time to time in accordance
with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the
preamble to this Agreement.
"Company" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Outstanding (as defined in the Indenture)
Registrable Notes; provided that whenever the consent or approval of
Holders of a specified percentage of Registrable Notes is required
hereunder, Registrable Notes held by the Company or any Affiliate (as
defined in the Indenture) of the Company shall be disregarded in
determining whether such consent or approval was given by the Holders of
such required percentage amount.
"Notes" shall have the meaning set forth in the preamble to this
Agreement.
"Participating Broker-Dealer" shall mean Citigroup Global Markets
Inc., Deutsche Bank Securities Inc., ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇▇▇▇▇,
Sachs & Co., Wachovia Capital Markets, LLC, Barclays Capital Inc., BNP
Paribas Securities Corp., Credit Lyonnais Securities (USA) Inc., ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated and ▇▇ ▇▇▇▇▇ Securities Corporation and any
other broker-dealer which makes a market in the Notes and exchanges
Registrable Notes in the Exchange Offer for Exchange Notes.
"Person" shall mean an individual, partnership (general or limited),
corporation, limited liability company, trust or incorporated
organization, or a government or agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus
as amended or supplemented by any prospectus supplement, including any
such prospectus supplement with respect to the terms of the offering of
any portion of the Registrable Notes covered
2
by a Shelf Registration Statement, and by all other amendments and
supplements to a prospectus, including post-effective amendments, and in
each case including all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble.
"Registrable Notes" shall mean the Notes of any Holder; provided,
however, that such Notes shall cease to be Registrable Notes when (i) a
Registration Statement with respect to such Notes shall have been declared
effective under the 1933 Act and such Notes shall have been disposed of
pursuant to such Registration Statement, (ii) such Notes can be sold to
the public pursuant to Rule 144 (or any similar provision then in force,
but not Rule 144A) under the 1933 Act, (iii) such Notes shall have ceased
to be outstanding or (iv) the Exchange Offer is consummated (except in the
case of Notes purchased from the Company and continued to be held by the
Initial Purchasers).
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. (the "NASD") registration and filing fees,
including, if applicable, the reasonable fees and expenses of any
"qualified independent underwriter" (and its counsel) that is required to
be retained by any holder of Registrable Notes in accordance with the
rules and regulations of the NASD, (ii) all reasonable fees and expenses
incurred in connection with compliance with state securities or blue sky
laws and compliance with the rules of the NASD (including reasonable fees
and disbursements of counsel for any underwriters or Holders in connection
with blue sky qualification of any of the Exchange Notes or Registrable
Notes and any filings with the NASD), (iii) all expenses of any Persons in
preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities sales
agreements and other documents relating to the performance of and
compliance with this Agreement, (iv) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable Notes on
any securities exchange or exchanges, (v) all rating agency fees, (vi) the
fees and disbursements of counsel for the Company and of the independent
public accountants of the Company, including the expenses of any special
audits or "cold comfort" letters required by or incident to such
performance and compliance, (vii) the fees and expenses of the Trustee,
and any escrow agent or custodian, (viii) the reasonable fees and expenses
of the Initial Purchasers in connection with the Exchange Offer, including
the reasonable fees and expenses of counsel to the Initial Purchasers in
connection therewith, and (ix) any reasonable fees and disbursements of
the underwriters customarily required to be paid by issuers or sellers of
securities and the reasonable fees and expenses of any special experts
retained by the Company in connection with any Registration Statement, but
excluding underwriting discounts and commissions and transfer taxes, if
any, relating to the sale or disposition of Registrable Notes by a Holder,
it being understood that in no event shall the Company be liable for the
fees and expenses of more than one counsel (in addition to any local
counsel) in connection with registration pursuant to either Section 2.1 or
2.2.
3
"Registration Statement" shall mean any registration statement of
the Company which covers any of the Exchange Notes or Registrable Notes
pursuant to the provisions of this Agreement, and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission or any
successor agency or government body performing the functions currently
performed by the United States Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2.2 hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2.2 of this
Agreement which covers all of the Registrable Notes on an appropriate form
under Rule 415 under the 1933 Act, or any similar rule that may be adopted
by the SEC, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Trustee" shall mean the trustee with respect to the Notes under the
Indenture.
2. Registration Under the 1933 Act.
2.1. Exchange Offer. The Company shall (A) prepare and, as soon as
practicable but not later than 90 calendar days following the Closing Date, file
with the SEC an Exchange Offer Registration Statement with respect to a proposed
Exchange Offer and the issuance and delivery to the Holders, in exchange for the
Registrable Notes of each series, a like principal amount of Exchange Notes of
such series, (B) use its reasonable best efforts to cause the Exchange Offer
Registration Statement to be declared effective under the 1933 Act not later
than 150 calendar days following the Closing Date, (C) use its reasonable best
efforts to keep the Exchange Offer Registration Statement effective until the
closing of the Exchange Offer and (D) use its reasonable best efforts to cause
the Exchange Offer to be consummated within 270 calendar days following the
Closing Date. The Exchange Notes will be issued under the Indenture. Upon the
effectiveness of the Exchange Offer Registration Statement, the Company shall
promptly commence the Exchange Offer, it being the objective of such Exchange
Offer to enable each Holder eligible and electing to exchange Registrable Notes
for Exchange Notes (assuming that such Holder (a) is not an affiliate of the
Company within the meaning of Rule 405 under the 1933 Act, (b) is not a
broker-dealer tendering Registrable Notes acquired directly from the Company for
its own account, (c) acquired the Exchange Notes in the ordinary course of such
Holder's business and (d) has no arrangements or understandings with any person
to participate in the Exchange Offer for the purpose of distributing the
Exchange Notes) to transfer such Exchange Notes from and after their receipt
without any limitations or restrictions under the 1933 Act and without material
restrictions under the securities laws of a substantial proportion of the
several states of the United States. The Exchange Notes will be issued under the
Exchange Offer as evidence of the same continuing indebtedness under the
Registrable Notes. Under no
4
circumstances will the surrender of the Registrable Notes and the issue of the
Exchange Notes constitute new indebtedness or obligate the Company to repay the
principal amount of the Registrable Notes in connection with the Exchange Offer.
In connection with the Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement together with an appropriate
letter of transmittal and related documents;
(b) keep the Exchange Offer open for acceptance for a period of
not less than 20 business days after the date notice thereof is mailed to
the Holders (or longer if required by applicable law) (such period
referred to herein as the "Exchange Period");
(c) utilize the services of the Depositary for the Exchange Offer;
(d) permit Holders to withdraw tendered Registrable Notes at any
time prior to 5:00 p.m. (Eastern Time) on the last business day of the
Exchange Period, by sending to the institution specified in the notice, a
telegram, telex, facsimile transmission or letter setting forth the name
of such Holder, the principal, the principal amount of Registrable Notes
delivered for exchange, and a statement that such Holder is withdrawing
his election to have such Notes exchanged;
(e) notify each Holder that any Registrable Notes not tendered
will remain outstanding and continue to accrue interest, but will not
retain any rights under this Agreement (except in the case of the Initial
Purchasers and Participating Broker-Dealers as provided herein); and
(f) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the Company
shall:
(i) accept for exchange all Registrable Notes duly tendered and not
validly withdrawn pursuant to the Exchange Offer in accordance with
the terms of the Exchange Offer Registration Statement and the
letter of transmittal which shall be an exhibit thereto;
(ii) deliver to the Trustee for cancellation all Registrable Notes so
accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver the
respective Exchange Notes to each Holder of Registrable Notes so
accepted for exchange in a principal amount equal to the principal
amount of the Registrable Notes of such Holder so accepted for
exchange.
The Company shall use its reasonable best efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement the
Prospectus contained therein,
5
in order to permit such Prospectus to be lawfully delivered by all Participating
Broker-Dealers subject to the prospectus delivery requirements of the 1933 Act
for such period of time as such Participating Broker-Dealers must comply with
such requirements in order to resell the Exchange Notes; provided, however, that
(i) such period shall be the lesser of 90 days after the consummation of the
Exchange Offer and the date on which all Participating Broker-Dealers have sold
all Exchange Notes held by them (unless such period is extended pursuant to the
penultimate paragraph of Section 3 below) and (ii) the Company shall make such
Prospectus, and any amendment or supplement thereto, available to any such
Participating Broker-Dealer for use in connection with any resale of any
Exchange Notes for a period of the lesser of 90 days after the consummation of
the Exchange Offer and the date on which all Participating Broker-Dealers have
sold all Exchange Notes held by them (unless such period is extended pursuant to
the penultimate paragraph of Section 3 below).
Interest on the Exchange Notes will accrue from the most recent
interest payment date to which interest has been paid on the respective
Registrable Notes surrendered in exchange therefor or, if no interest has been
paid on such Registrable Notes, from the date of original issuance. The Exchange
Offer shall not be subject to any conditions, other than (i) that the Exchange
Offer, or the making of any exchange by a Holder, does not violate applicable
law or any applicable interpretation of the staff of the SEC, (ii) the due
tendering of Registrable Notes in accordance with the Exchange Offer, (iii) that
each Holder of Registrable Notes exchanged in the Exchange Offer shall have
represented that all Exchange Notes to be received by it shall be acquired in
the ordinary course of its business and that at the time of the consummation of
the Exchange Offer it shall have no arrangement or understanding with any person
to participate in the distribution (within the meaning of the ▇▇▇▇ ▇▇▇) of the
Exchange Notes and shall have made such other representations as may be
reasonably necessary under applicable SEC rules, regulations or interpretations
to render the use of Form S-4 or other appropriate form under the 1933 Act
available and (iv) that no action or proceeding shall have been instituted or
threatened in any court or by or before any governmental agency with respect to
the Exchange Offer which, in the judgment of the Company, would reasonably be
expected to impair the ability of the Company to proceed with the Exchange
Offer. The Company shall inform the Initial Purchasers of the names and
addresses of the Holders to whom the Exchange Offer is made, and the Initial
Purchasers shall have the right to contact such Holders and otherwise facilitate
the tender of Registrable Notes in the Exchange Offer.
2.2. Shelf Registration. (i) If, because of any changes in law, SEC
rules or regulations or applicable interpretations thereof by the staff of the
SEC, the Company is not permitted to effect the Exchange Offer as contemplated
by Section 2.1 hereof, (ii) if for any other reason (A) the Exchange Offer
Registration Statement is not declared effective within 150 calendar days
following the Closing Date or (B) the Exchange Offer is not consummated within
270 calendar days after the Closing Date (provided that the Company is not then
actively pursuing such effectiveness or consummation, as the case may be), (iii)
upon the written request of the Initial Purchasers with respect to any
Registrable Notes which it acquired directly from the Company or (iv) upon the
written request of any Holder that either (A) is not permitted pursuant to
applicable law, SEC rules and regulations or applicable interpretations thereof
by the staff of the SEC to participate in the Exchange Offer or (B) participates
in the Exchange Offer and does
6
not receive fully tradable Exchange Notes pursuant to the Exchange Offer, then
in case of each of clauses (i) through (iv) the Company shall, at its cost:
(a) As promptly as practicable, file with the SEC, and thereafter
shall use its reasonable best efforts to cause to be declared effective as
promptly as practicable but no later than 270 calendar days after the
Closing Date, a Shelf Registration Statement relating to the offer and
sale of the Registrable Notes by the Holders from time to time in
accordance with the methods of distribution elected by the Majority
Holders participating in the Shelf Registration and set forth in such
Shelf Registration Statement.
(b) Use its reasonable best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the prospectus forming
part thereof to be usable by Holders for a period ending on the earliest
of (i) two years from the date the Registrable Notes were originally
issued by the Company, (ii) the date on which the Registrable Notes become
eligible for resale without volume limitations pursuant to Rule 144 under
the 1933 Act, or (iii) for such shorter period that will terminate when
all Registrable Notes of each series covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement or
cease to be outstanding or otherwise to be Registrable Notes.
(c) Notwithstanding any other provisions hereof, use its best
efforts to ensure that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any
supplement thereto complies in all material respects with the 1933 Act and
the rules and regulations thereunder, (ii) any Shelf Registration
Statement and any amendment thereto does not, when it becomes effective,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) any Prospectus forming part of any Shelf
Registration Statement, and any supplement to such Prospectus (as amended
or supplemented from time to time), does not include an untrue statement
of a material fact or omit to state a material fact necessary in order to
make the statements, in light of the circumstances under which they were
made, not misleading.
The Company further agrees, if necessary, to supplement or amend the
Shelf Registration Statement, as required by Section 3(b) below, and to furnish
to the Holders of Registrable Notes copies of any such supplement or amendment
promptly as reasonably practicable after its being used or filed with the SEC.
2.3. Expenses. The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2.1 or 2.2. Each Holder
shall pay all underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Notes pursuant
to the Shelf Registration Statement.
2.4. Effectiveness. (a) The Company will be deemed not to have used
its reasonable best efforts to cause the Exchange Offer Registration Statement
or the Shelf Registration Statement, as the case may be, to become, or to
remain, effective during the requisite period if the Company voluntarily takes
any action that would, or omits to take any action which omission would, result
in any such Registration Statement not being declared
7
effective or in the holders of Registrable Notes covered thereby not being able
to exchange or offer and sell such Registrable Notes that during that period as
and to the extent contemplated hereby, unless such action is required by
applicable law.
(b) An Exchange Offer Registration Statement pursuant to Section
2.1 hereof or a Shelf Registration Statement pursuant to Section 2.2 hereof will
not be deemed to have become effective unless it has been declared effective by
the SEC; provided, however, that if, after it has been declared effective, the
offering of Registrable Notes pursuant to a Shelf Registration Statement is
interfered with by any stop order, injunction or other order or requirement of
the SEC or any other governmental agency or court, such Registration Statement
will be deemed not to have become effective during the period of such
interference until the offering of Registrable Notes pursuant to such
Registration Statement may legally resume.
2.5. Interest. The Notes will provide that if the Exchange Offer is
not consummated and the Shelf Registration Statement is not declared effective
on or prior to the date that is 270 days after the Closing Date, the interest
rate on the Notes will be increased by [0.25]% per annum commencing the date
that is 270 days after the Closing Date, until the Exchange Offer is consummated
or the Shelf Registration Statement is declared effective by the SEC; provided,
that in the case of a Shelf Registration Statement, if the Company are unable to
cause such Shelf Registration Statement to become effective because Holders of
Registrable Notes have not provided information with respect to themselves as
required by law to be included therein pursuant to the Company's request as
provided herein, such [0.25]% increase in the interest rate shall be payable
only to Holders that have furnished such information required by law to be
included therein to the Company pursuant to its request hereunder from but
excluding the date such information is provided to the Company to but excluding
the date the Shelf Registration Statement is declared effective by the SEC.
2.6. Specific Enforcement. Without limiting the remedies available
to the Initial Purchasers and the Holders, the Company acknowledges that any
failure by the Company to comply with its obligations under Sections 2.1 and 2.2
hereof may result in material irreparable injury to the Initial Purchasers or
the Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, the Initial Purchasers or any Holder may obtain such relief
as may be required to specifically enforce the Company's obligations under
Sections 2.1 and 2.2 hereof.
3. Registration Procedures. In connection with the obligations of
the Company with respect to Registration Statements pursuant to Sections 2.1 and
2.2 hereof, the Company shall:
(a) prepare and file with the SEC a Registration Statement, within
the relevant time period specified in Section 2, on the appropriate form
under the 1933 Act, which form (i) shall be selected by the Company, (ii)
shall in the case of a Shelf Registration, be available for the sale of
the Registrable Notes by the selling Holders thereof, (iii) shall comply
as to form in all material respects with the requirements of the
applicable form and include or incorporate by reference all financial
statements required by the SEC to be filed therewith or incorporated by
reference therein, and (iv) shall comply in all respects with the
requirements of Regulation S-T under the 1933 Act, and use its reasonable
best
8
efforts to cause such Registration Statement to become effective and
remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary under applicable law to keep such Registration Statement
effective for the applicable period; and cause each Prospectus to be
supplemented by any required prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 under the 1933 Act and comply with the
provisions of the 1933 Act applicable to them with respect to the
disposition of all securities covered by each Registration Statement
during the applicable period in accordance with the intended method or
methods of distribution by the selling Holders thereof;
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Notes, at least 5 business days prior to filing, that a Shelf
Registration Statement with respect to the Registrable Notes is being
filed and advising such Holders that the distribution of Registrable Notes
will be made in accordance with the method selected by the Majority
Holders participating in the Shelf Registration; (ii) furnish to each
Holder of Registrable Notes and to each underwriter of an underwritten
offering of Registrable Notes, if any, without charge, as many copies of
each Prospectus, including each preliminary Prospectus, and any amendment
or supplement thereto and such other documents as such Holder or
underwriter may reasonably request, including financial statements and
schedules and, if the Holder so requests, all exhibits in order to
facilitate the public sale or other disposition of the Registrable Notes;
and (iii) hereby consent to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of Registrable Notes in
connection with the offering and sale of the Registrable Notes covered by
the Prospectus or any amendment or supplement thereto;
(d) use its reasonable best efforts to register or qualify the
Registrable Notes under all applicable state Notes or "blue sky" laws of
such jurisdictions as any Holder of Registrable Notes covered by a
Registration Statement and each underwriter of an underwritten offering of
Registrable Notes shall reasonably request by the time the applicable
Registration Statement is declared effective by the SEC, and do any and
all other acts and things which may be reasonably necessary or advisable
to enable each such Holder and underwriter to consummate the disposition
in each such jurisdiction of such Registrable Notes owned by such Holder;
provided, however, that the Company shall not be required to (i) qualify
as a foreign corporation or as a dealer in Securities in any jurisdiction
where it would not otherwise be required to qualify but for this Section
3(d), or (ii) take any action which would subject it to general service of
process or taxation in any such jurisdiction where it is not then so
subject;
(e) notify promptly each Holder of Registrable Notes under a Shelf
Registration or any Participating Broker-Dealer who has notified the
Company that it is utilizing the Exchange Offer Registration Statement as
provided in paragraph (f) below, and, if requested by such Holder or
Participating Broker-Dealer, confirm such advice in writing promptly (i)
when a Registration Statement has become effective and when any
post-effective amendments and supplements thereto become effective, (ii)
of any request
9
by the SEC or any state securities authority for post-effective amendments
and supplements to a Registration Statement and Prospectus or for
additional information after the Registration Statement has become
effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (iv) in
case of a Shelf Registration, if, between the effective date of a
Registration Statement and the closing of any sale of Registrable Notes
covered thereby, the representations and warranties of the Company
contained in any underwriting agreement, securities sales agreement or
other similar agreement, if any, relating to the offering cease to be true
and correct in all material respects, (v) of the happening of any event or
the discovery of any facts during the period a Shelf Registration
Statement is effective which makes any statement made in such Registration
Statement or related Prospectus untrue in any material respect or which
requires the making of any changes in such Registration Statement or
Prospectus in order to make the statements therein not misleading and (vi)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Registrable Notes or the Exchange
Notes, as the case may be, for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose;
(f) (A) in the case of the Exchange Offer Registration Statement
(i) include in the Exchange Offer Registration Statement a section
entitled "Plan of Distribution" which section shall include all
information that the Initial Purchasers may reasonably request, and which
shall contain a summary statement of the positions taken or policies made
by the staff of the SEC with respect to the potential "underwriter" status
of any broker-dealer that holds Registrable Notes acquired for its own
account as a result of market-making activities or other trading
activities and that will be the beneficial owner (as defined in Rule 13d-3
under the ▇▇▇▇ ▇▇▇) of Exchange Notes to be received by such broker-dealer
in the Exchange Offer, whether such positions or policies have been
publicly disseminated by the staff of the SEC or such positions or
policies, in the reasonable judgment of the Initial Purchasers and their
counsel, represent the prevailing views of the staff of the SEC, including
a statement that any such broker-dealer who receives Exchange Notes for
Registrable Notes pursuant to the Exchange Offer may be deemed a statutory
underwriter and must deliver a prospectus meeting the requirements of the
1933 Act in connection with any resale of such Exchange Notes, (ii)
furnish to each Participating Broker-Dealer who has delivered to the
Company the notice referred to in Section 3(e), without charge, as many
copies of each Prospectus included in the Exchange Offer Registration
Statement, including any preliminary prospectus, and any amendment or
supplement thereto, as such Participating Broker-Dealer may reasonably
request, (iii) hereby consent to the use of the Prospectus forming part of
the Exchange Offer Registration Statement or any amendment or supplement
thereto, by any person subject to the prospectus delivery requirement of
the SEC, including all Participating Broker-Dealers, in connection with
the sale or transfer of the Exchange Notes covered by the Prospectus or
any amendment or supplement thereto, and (iv) include in the transmittal
letter or similar documentation to be executed by an exchange offeree in
order to participate in the Exchange Offer (x) the following provision:
10
"if the exchange offeree is a broker-dealer holding
Registrable Notes acquired for its own account as a result of
market-making activities or other trading activities, it will
deliver a prospectus meeting the requirements of the 1933 Act
in connection with any resale of Exchange Notes received in
respect of such Registrable Notes pursuant to the Exchange
Offer;" and
(y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus in
connection with the exchange of Registrable Notes, the broker-dealer will
not be deemed to admit that it is an underwriter within the meaning of the
1933 Act; and
(B) in the case of any Exchange Offer Registration Statement, the Company
agrees to deliver to the Participating Broker-Dealers, if any, at the end
of the Exchange Period and with respect to each amendment or supplement,
if any, to the Prospectus during the 90-day (or lesser, if applicable)
period referred to in the penultimate paragraph of Section 2.1 (i) an
opinion of counsel or opinions of counsel substantially in the form
attached hereto as Exhibit A, (ii) an officers' certificate substantially
in the form customarily delivered in a public offering of debt securities
and (iii) a comfort letter or comfort letters in customary form if
permitted by Statement on Auditing Standards No. 72 of the American
Institute of Certified Public Accounts ("SAS 72"), or if such a comfort
letter is not permitted by SAS 72, an agreed upon procedures letter in
customary form at least as broad in scope and coverage as the comfort
letter or comfort letters delivered to the Initial Purchasers in
connection with the initial sale of the Notes to the Initial Purchasers;
(g) (i) in the case of an Exchange Offer, furnish counsel for the
Initial Purchasers and (ii) in the case of a Shelf Registration, furnish
counsel for the Holders of Registrable Notes copies of any comment letters
received from the SEC or any other request by the SEC or any state
securities authority for amendments or supplements to a Registration
Statement and Prospectus or for additional information;
(h) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the
earliest possible moment;
(i) in the case of a Shelf Registration, furnish to each Holder of
Registrable Notes, and each underwriter, if any, without charge, at least
one conformed copy of each Registration Statement and any post-effective
amendment thereto, including financial statements and schedules (without
documents incorporated therein by reference and all exhibits thereto,
unless requested);
(j) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Notes to facilitate the timely preparation
and delivery of certificates representing Registrable Notes to be sold and
not bearing any restrictive legends; and enable such Registrable Notes to
be in such denominations (consistent with the provisions of the Indenture)
and registered in such names as the selling Holders or the
11
underwriters, if any, may reasonably request at least 3 business days
prior to the closing of any sale of Registrable Notes;
(k) upon the occurrence of any event or the discovery of any
facts, each as contemplated by Sections 3(c)(ii) through 3(e)(v) hereof,
use its reasonable best efforts to prepare a supplement or post-effective
amendment to the Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the
Registrable Notes or Participating Broker-Dealers, such Prospectus will
not contain at the time of such delivery any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading or will remain so qualified;
(l) in the case of a Shelf Registration, a reasonable time prior
to the filing of any Registration Statement, any Prospectus, an amendment
to a Registration Statement or amendment or supplement to a Prospectus or
any document which is to be incorporated by reference into a Registration
Statement or a Prospectus after initial filing of a Registration
Statement, provide copies of such document to the Initial Purchasers on
behalf of such Holders; and make representatives of the Company as shall
be reasonably requested by the Holders of Registrable Notes, or the
Initial Purchasers on behalf of such Holders, available for discussion of
such document;
(m) obtain a CUSIP number of all Exchange Notes or Registrable
Notes, as the case may be, not later than the effective date of a
Registration Statement, and provide the Trustee with printed certificates
for the Exchange Notes or the Registrable Notes, as the case may be, in a
form eligible for deposit with the Depositary;
(n) (i) cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), in connection with the
registration of the Exchange Notes or Registrable Notes, as the case may
be, (ii) cooperate with the Trustee and the Holders to effect such changes
to the Indenture as may be required for the Indenture to be so qualified
in accordance with the terms of the TIA and (iii) execute, and use its
reasonable best efforts to cause the Trustee to execute, all documents as
may be required to effect such changes, and all other forms and documents
required to be filed with the SEC to enable the Indenture to be so
qualified in a timely manner;
(o) in the case of a Shelf Registration, enter into agreements
(including underwriting agreements) and take all other customary and
appropriate actions in order to expedite or facilitate the disposition of
such Registrable Notes and in such connection whether or not an
underwriting agreement is entered into and whether or not the registration
is an underwritten registration:
(i) make such representations and warranties to the Holders of such
Registrable Notes and the underwriters, if any, in form, substances
and scope as are customarily made by issuers to underwriters in
similar underwritten offerings as may be reasonably requested by
them;
12
(ii) obtain opinions of counsel to the Company and updates thereof (which
counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriters, if any, and
the holders of a majority in principal amount of the Registrable
Notes of each series being sold) addressed to each selling Holder
and the underwriters, if any, covering the matters customarily
covered in opinions requested in sales of securities or underwritten
offerings and such other matters as may be reasonably requested by
such Holders and underwriters;
(iii) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants who have certified the
financial statements of the Company and any other entity included or
incorporated by reference in the Registration Statement addressed to
the underwriters, if any, and use reasonable efforts to have such
letter addressed to the selling Holders of Registrable Notes (to the
extent consistent with SAS 72), such letters to be in customary form
and covering matters of the type customarily covered in "cold
comfort" letters to underwriters in connection with similar
underwritten offerings;
(iv) enter into a securities sales agreement with the Holders and an
agent of the Holders providing for, among other things, the
appointment of such agent for the selling Holders for the purpose of
soliciting purchases of Registrable Notes, which agreement shall be
in form, substances and scope customary for similar offerings;
(v) if an underwriting agreement is entered into, cause the same to set
forth indemnification provisions and procedures substantially
equivalent to the indemnification provisions and procedures set
forth in Section 4 hereof with respect to the underwriters and all
other parties to be indemnified pursuant to said Section or, at the
request of any underwriters, in the form customarily provided to
such underwriters in similar types of transactions; and
(vi) deliver such documents and certificates as may be reasonably
requested and as are customarily delivered in similar offerings to
the Holders of a majority in principal amount of the Registrable
Notes of each series being sold and the managing underwriters, if
any.
The above shall be done at (i) the effectiveness of such Registration
Statement (and each post-effective amendment thereof) and (ii) each
closing under any underwriting or similar agreement as and to the extent
required thereunder;
(p) in the case of a Shelf Registration, make available for
inspection by representatives of the Holders of the Registrable Notes and
any underwriters participating in any disposition pursuant to a Shelf
Registration Statement and any counsel or accountant retained by such
Holders or underwriters, all financial and other records, pertinent
corporate documents and properties of the Company reasonably requested by
any such persons and use its reasonable best efforts to cause the
respective officers,
13
directors, employees, and any other agents of the Company to supply all
information reasonably requested by any such representative, underwriter,
special counsel or accountant in connection with a Registration Statement,
and make such representatives of the Company available for discussion of
such documents as shall be reasonably requested by the Initial Purchasers;
(q) (i) in the case of an Exchange Offer Registration Statement,
within a reasonable time prior to the filing of any Exchange Offer
Registration Statement, any Prospectus forming a part thereof, any
amendment to an Exchange Offer Registration Statement or amendment or
supplement to such Prospectus, provide copies of such document to the
Initial Purchasers and make such changes in any such document prior to the
filing thereof as the Initial Purchasers may reasonably request and,
except as otherwise required by applicable law, not file any such document
in a form to which the Initial Purchasers on behalf of the Holders of
Registrable Notes shall reasonably object, and make the representatives of
the Company available for discussion of such documents as shall be
reasonably requested by the Initial Purchasers; and (ii) in the case of a
Shelf Registration, within a reasonable time prior to filing any Shelf
Registration Statement, any Prospectus forming a part thereof, any
amendment to such Shelf Registration Statement or amendment or supplement
to such Prospectus, provide copies of such document to the Holders of
Registrable Notes, to the Initial Purchasers, to counsel on behalf of the
Holders and to the underwriter or underwriters of an underwritten offering
of Registrable Notes, if any, make such changes in any such document prior
to the filing thereof as the Initial Purchasers, the counsel to the
Holders or the underwriter or underwriters reasonably request and not file
any such document in a form to which the Majority Holders or the Initial
Purchasers on behalf of the Holders of Registrable Notes or any
underwriter may reasonably object and make the representatives of the
Company available for discussion of such document as shall be reasonably
requested by the Holders of Registrable Notes, the Initial Purchasers on
behalf of such Holders, or any underwriter.
(r) in the case of a Shelf Registration, use its reasonable best
efforts to cause all Registrable Notes to be listed on any securities
exchange on which similar debt securities issued by the Company are then
listed if requested by the Majority Holders, or if requested by the
underwriter or underwriters of an underwritten offering of Registrable
Notes, if any;
(s) in the case of a Shelf Registration, use its reasonable best
efforts to cause the Registrable Notes to be rated by the appropriate
rating agencies, if so requested by the Majority Holders, or if requested
by the underwriter or underwriters of an underwritten offering of
Registrable Notes, if any;
(t) otherwise comply with all applicable rules and regulations of
the SEC and make available to Holders, as soon as reasonably practicable,
an earnings statement covering at least 12 months which shall satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder;
14
(u) cooperate and assist in any filings required to be made with
the NASD and, in the case of a Shelf Registration, in the performance of
any due diligence investigation by any underwriter and its counsel
(including any "qualified independent underwriter" that is required to be
retained in accordance with the rules and regulations of the NASD); and
(v) upon consummation of an Exchange Offer, obtain a customary
opinion of counsel to the Company addressed to the Trustee for the benefit
of all Holders of Registrable Notes participating in the Exchange Offer,
and which includes an opinion that (i) the Company has duly authorized,
executed and delivered the Exchange Notes and the Indenture and (ii) each
of the Exchange Notes and Indenture constitute a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance
with its respective terms (with customary exceptions).
In the case of a Shelf Registration Statement, the Company may (as a
condition to such Holder's participation in the Shelf Registration) require each
Holder of Registrable Notes to furnish to the Company such information regarding
the Holder and the proposed distribution by such Holder of such Registrable
Notes as the Company may from time to time reasonably request in writing for use
in connection with any Shelf Registration Statement or Prospectus included
therein, including, without limitation, information specified in item 507 of
Regulation S-K under the 1933 Act. Each Holder as to which any Shelf
Registration is being effected agrees to furnish promptly to the Company all
information required to be disclosed with respect to such Holder in order to
make any information with respect to such Holder previously furnished to the
Company by such Holder not materially misleading.
In the case of a Shelf Registration Statement, each Holder agrees
and, in the event that any Participating Broker-Dealer is using the Prospectus
included in the Exchange Offer Registration Statement in connection with the
sale of Exchange Securities pursuant to Section 3(f), each such Participating
Broker-Dealer agrees that, upon receipt of any notice from the Company of the
happening of any event or the discovery of any facts of the kind described in
Section 3(e)(v) hereof, such Holder or Participating Broker-Dealer, as the case
may be, will forthwith discontinue disposition of Registrable Securities
pursuant to a Registration Statement until receipt by such Holder or
Participating Broker-Dealer, as the case may be, of (i) the copies of the
supplemented or amended Prospectus contemplated by Section 3(k) hereof or (ii)
written notice from the Company that the Shelf Registration Statement or the
Exchange Offer Registration Statement, respectively, are once again effective or
that no supplement or amendment is required. If so directed by the Company, such
Holder or Participating Broker-Dealer, as the case may be, will deliver to the
Company (at the Company's expense) all copies in its possession, other than
permanent file copies then in its possession, of the Prospectus covering such
Registrable Securities current at the time of receipt of such notice.
If the Company shall give any such notice to suspend the disposition
of Registrable Securities pursuant to the immediately preceding paragraph, the
Company shall extend the period during which the Shelf Registration Statement or
the Exchange Offer Registration Statement or both, as the case may be, shall be
maintained effective pursuant to this Agreement (and, if applicable, the period
during which Participating Broker-Dealers may use the Prospectus included in the
Exchange Offer Registration Statement pursuant to Section 3(f)
15
hereof) by the number of days during the period from and including the date of
the giving of such notice to and including the earlier of the date when the
Holders or Participating Broker-Dealers, respectively, shall have received
copies of the supplemented or amended Prospectus necessary to resume such
dispositions and the effective date of written notice from the Company to the
Holders or Participating Broker-Dealers, respectively, that the Shelf
Registration Statement or the Exchange Offer Registration Statement,
respectively, are once again effective or that no supplement or amendment is
required.
If any of the Registrable Notes covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the underwriter or
underwriters and manager or managers that will manage such offering will be
selected by the Majority Holders of such Registrable Notes included in such
offering and shall be acceptable to the Company. No Holder of Registrable Notes
may participate in any underwritten registration hereunder unless such Holder
(a) agrees to sell such Holder's Registrable Notes 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 required
under the terms of such underwriting agreement.
4. Indemnification; Contribution. (a) The Company agrees to
indemnify and hold harmless the Initial Purchasers, each Holder, each
Participating Broker-Dealer, each Person who participates as an underwriter (any
such Person being an "Underwriter") and each Person, if any, who controls any
Holder or Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in
any Registration Statement (or any amendment or supplement
thereto) pursuant to which Exchange Notes or Registrable Notes
were registered under the 1933 Act, or the omission or alleged
omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged
untrue statement of a material fact contained in any
Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue
statement or omission; provided that (subject to Section 4(d)
below) any such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by any
indemnified party as provided herein), reasonably incurred in
investigating, preparing or defending against any
16
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter with
respect to such Initial Purchaser, Holder, Participating Broker-Dealer or
Underwriter, as the case may be, expressly for use in a Registration Statement
(or any amendment thereto) or any Prospectus (or any amendment or supplement
thereto) or made in reliance upon the Statements of Eligibility and
Qualification of Trustees (Form T-1) under the 1939 Act filed as exhibits to the
Registration Statement.
(b) Each Holder, each Initial Purchaser, each Participating
Broker-Dealer and each Underwriter severally, but not jointly, agrees to
indemnify and hold harmless the Company, each other Initial Purchaser,
each other Participating Broker-Dealer, each other Underwriter and each
other selling Holder, and each of their respective directors and officers,
and each Person, if any, who controls the Company, any Initial Purchaser,
any Underwriter, any Participating Broker-Dealer or any other selling
Holder within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, against any and all loss, liability, claim, damage and
expense described in the indemnity contained in Section 4(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Shelf Registration
Statement (or any amendment thereto) or any Prospectus included therein
(or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such
Holder, Initial Purchaser, Underwriter or Participating Broker-Dealer,
respectively, expressly for use in the Shelf Registration Statement (or
any amendment thereto) or such Prospectus (or any amendment or supplement
thereto); provided, however, that no indemnifying party shall be liable
for any claims hereunder in excess of the amount of net proceeds received
by such indemnifying party from the sale of Registrable Securities
pursuant to such Shelf Registration Statement;
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action (including
any governmental investigation) commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any
liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement.
An indemnifying party may participate at its own expense in the defense of
such action; provided, however, that counsel to the indemnifying party
shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying party
or parties be liable for the fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
17
indemnified parties in connection with any one action of separate but
similar or related actions in the same jurisdiction arising out of the
same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever in respect of
which indemnification or contribution could be sought under this Section 4
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising
out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be
liable for any settlement of the nature contemplated by Section 4(a)(ii)
effected without its written consent if (i) such settlement is entered
into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice
of the terms of such settlement at least 30 days prior to such settlement
being entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
(e) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in this
Section 4 is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities,
claims, damages or expenses referred to therein, then each indemnifying
party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Initial Purchasers, Holders, Participating Broker-Dealers and Underwriters
on the other hand or (ii) if the allocation provided by clause (i) 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 Company on the one hand and of the Initial
Purchasers, Holder, Participating Broker-Dealers and Underwriters on the
other hand in connection with the statements or omissions that resulted in
such losses, liabilities, claims, damages or expenses, as well as any
other relevant equitable considerations.
The relative benefits received by the Company from the offering of
the Notes, Exchange Notes and Registrable Notes (taken together) included in
such offering shall in each case be deemed to include the proceeds received by
the Company in connection with the offering of the Notes pursuant to the
Purchase Agreement. The parties hereto agree that any underwriting fee or
commission or reimbursement of fees paid to the Initial Purchasers pursuant to
the Purchase Agreement shall not be deemed to be a benefit received by the
Initial Purchasers in connection with the offering of the Exchange Notes or
Registrable Notes included in such offering.
18
The relative fault of the Company on the one hand and the Initial
Purchasers, Holders, Participating Broker-Dealers and Underwriters 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 Company
or by the Initial Purchases, Holders, Participating Broker-Dealers and
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Initial Purchasers, the Holders and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 4 were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 4. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 4 shall be deemed to include any
legal and other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 4, no Initial
Purchaser or Holder, Participating Broker-Dealer or Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Notes sold by it were offered exceeds the amount of any
damages which such Initial Purchaser, Holder, Participating Broker-Dealer or
Underwriter 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4, each person, if any, who controls an
Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as such Initial Purchaser, Holder, Participating
Broker-Dealer or Underwriter, as the case may be, and each director of the
Company, each officer of the Company who signs the Shelf Registration Statement
or Exchange Offer Registration Statement, and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Company,
respectively. The respective obligations of the Initial Purchasers, Holders,
Participating Broker-Dealers and Underwriters to contribute pursuant to this
Section 4 are several in proportion to the principal amount of Notes purchased
by them and not joint.
5. Miscellaneous.
5.1. Rule 144 and Rule 144A. For so long as the Company is subject
to the reporting requirements of Section 13 or 15 of the 1934 Act, the Company
covenants that it will file the reports required to be filed by it under the
1933 Act and Section 13(a) or 15(d) of the
19
1934 Act and the rules and regulations adopted by the SEC thereunder. If the
Company ceases to be so required to file such reports, the Company covenants
that it will upon the request of any Holder of Registrable Notes (a) make
publicly available such information as is necessary to permit sales pursuant to
Rule 144 under the 1933 Act, (b) deliver such information to a prospective
purchaser as is necessary to permit sales pursuant to Rule 144A under the 1933
Act, and (c) take such further action that is reasonable in the circumstances,
in each case, to the extent required from time to time to enable such Holder to
sell its Registrable Notes without registration under the 1933 Act within the
limitation of the exemptions provided by (i) Rule 144 under the 1933 Act, as
such Rule may be amended from time to time, (ii) Rule 144A under the 1933 Act,
as such Rule may be amended from time to time, or (iii) any similar rules or
regulations hereafter adopted by the SEC. Upon the request of any Holder of
Registrable Notes, the Company will deliver to such Holder a written statement
as to whether it has complied with such requirements. The Company agrees to
comply with the information obligations to the extent that it is required by
applicable law or regulations.
5.2. No Inconsistent Agreements. The Company have not entered into
and the Company will not after the date of this Agreement enter into any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Notes in this Agreement or otherwise conflicts with the provisions
hereof. The rights granted to the Holders hereunder do not in any way conflict
with the rights granted to the Holders of the Company's other issued and
outstanding Notes under any such agreements.
5.3. Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers of consents to departures from the provisions hereof
may not be given unless the Company have obtained the written consent of Holders
of at least a majority in aggregate principal amount of the outstanding
Registrable Notes of each series affected by such amendment, modification,
supplement, waiver or departure.
5.4. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (a) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 5.4, which address initially is the address set forth in the Purchase
Agreement with respect to the Initial Purchasers; and (b) if to the Company
initially at the Company's address set forth in the Purchase Agreement, and
thereafter at such other address of which notice is given in accordance with the
provisions of this Section 5.4.
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; two business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall
be concurrently delivered by the person given the same to the Trustee under the
Indenture, at the address specified in such Indenture.
20
5.5. Successor and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Notes in
violation of the terms of the Purchase Agreement. If any transferee of any
Holder shall acquire Registrable Notes, in any manner, whether by operation of
law or otherwise, such Registrable Notes shall be held subject to all of the
terms of this Agreement, and by taking any holding such Registrable Notes such
person shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement, including the restrictions on
resale set forth in this Agreement and, if applicable, the Purchase Agreement,
and such person shall be entitled to receive the benefits hereof.
5.6. Third Party Beneficiaries. The Initial Purchasers (even if the
Initial Purchasers are not Holders of Registrable Notes) shall be a third party
beneficiary to the agreements made hereunder between the Company, on the one
hand, and the Holders, on the other hand, and shall have the right to enforce
such agreements directly to the extent it deems such enforcement necessary or
advisable to protect its rights or the rights of Holders hereunder. Each Holder
of Registrable Notes shall be a third party beneficiary to the agreements made
hereunder between the Company, on the one hand, and the Initial Purchasers, on
the other hand, and shall have the right to enforce such agreements directly to
the extent it deems such enforcement necessary or advisable to protect its
rights hereunder.
5.7. Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
5.8. Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
5.9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
5.10. 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.
21
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
NOBLE ENERGY, INC.
as Company
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President and
Chief Financial Officer
22
Confirmed and accepted as
of the date first above written:
CITIGROUP GLOBAL MARKETS INC.
DEUTSCHE BANK SECURITIES INC.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇▇, SACHS & CO.
WACHOVIA CAPITAL MARKETS, LLC
BARCLAYS CAPITAL INC.
BNP PARIBAS SECURITIES CORP.
CREDIT LYONNAIS SECURITIES (USA) INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇ ▇▇▇▇▇ SECURITIES CORPORATION
By: CITIGROUP GLOBAL MARKETS INC.
By: /s/ Citigroup Global Markets Inc.
------------------------------------
Authorized Signatory
By: DEUTSCHE BANK SECURITIES INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Authorized Signatory
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Authorized Signatory
By: ▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Authorized Signatory
Acting severally on behalf of themselves and as representatives
of the Initial Purchasers named above.
23
Exhibit A
Form of Opinion of Counsel
We are of the opinion that the Exchange Offer Registration Statement
and the Prospectus (other than the financial statements, notes or schedules
thereto and other financial data and supplemental schedules included or
incorporated by reference therein or omitted therefrom and the Form T-1, as to
which we need express no opinion), comply as to form in all material respects
with the requirements of the 1933 Act and the applicable rules and regulations
promulgated under the 1933 Act.
In addition, we have participated in conferences with officers and
other representatives of the Company, representatives of the independent public
accountants of the Company and representatives of the Initial Purchasers, at
which the contents of the Registration Statement and the Prospectus and related
matters were discussed and, although we are not passing upon, and do not assume
any responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Prospectus and have not made any
independent check or verification thereof, during the course of such
participation, no facts came to our attention that caused us to believe that the
Registration Statement or any amendment thereto, at the time the Registration
Statement or any such amendment became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or that the
Prospectus or any amendment or supplement thereto, at the time the Prospectus
was issued, at the time any such amended or supplemented Prospectus was issued
or at the Closing Time, included or includes an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading; it being understood that we express no belief with respect to
the financial statements and schedules and engineering reports and other
financial or engineering data included in the Registration Statement and the
Prospectus.
24