EX-4
REGISTRATION RIGHTS AGREEMENT
between
WAI, INC.,
an Oklahoma corporation
and
WESTERN RESOURCES, INC.,
a Kansas corporation
Dated as of November 26, 1997
TABLE OF CONTENTS
Page
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1. Defined Terms.................................................. 1
Section 1.2. General........................................................ 3
Section 1.3. Headings....................................................... 3
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties of the Shareholder.............. 4
Section 2.2. Representations and Warranties of the Company.................. 4
ARTICLE III
REGISTRATION RIGHTS
Section 3.1. Demand Registrations........................................... 4
Section 3.2. "Piggy-Back" Registrations..................................... 6
Section 3.3. Additional Agreements.......................................... 8
Section 3.4. Registration Procedures........................................ 9
Section 3.5. Registration Expenses..........................................16
Section 3.6. Indemnification; Contribution..................................16
Section 3.7. Underwriters...................................................20
Section 3.8. Exchange Act Filings; Rule 144; Rule 144A......................20
Section 3.9. Agreement of the Shareholder...................................20
Section 3.10. Legends........................................................21
Section 3.11. Treatment of Convertible Preferred Stock
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ARTICLE IV
MISCELLANEOUS
Section 4.1. Term of Agreement; Termination.................................22
Section 4.2. Recapitalizations, Exchanges, Etc. Affecting the Shares........22
Section 4.3. Other Company Securities.......................................22
Section 4.4. Amendment......................................................22
Section 4.5. Notices........................................................22
Section 4.6. Integration....................................................23
Section 4.7. Binding Effect; Benefit........................................23
Section 4.8. Assignability..................................................23
Section 4.9. Counterparts...................................................24
Section 4.10. Applicable Law.................................................24
Section 4.11. Shareholder Agreement..........................................24
Section 4.12. Severability...................................................24
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of November
26, 1997, between Western Resources, Inc., a Kansas corporation (the
"Shareholder") and WAI, Inc., an Oklahoma corporation (the "Company").
WHEREAS, the Shareholder, the Company and ONEOK Inc., a Delaware
corporation ("ONEOK"), have entered into an Agreement, dated as of December 12,
1996, amended and restated as of May 19, 1997 (the "Merger Agreement"), pursuant
to which ONEOK will be merged with and into the Company (the "Merger") and the
Shareholder has acquired pursuant to the Agreement beneficial ownership of
2,996,702 shares of common stock of the Company, no par value (the "Common
Stock") and 19,317,584 shares of a new series of convertible preferred stock of
the Company, par value $0.01 per share (the "Convertible Preferred Stock"),
pursuant to the Merger and the transactions contemplated thereby;
WHEREAS, the parties each desire to make certain covenants and
agreements concerning, among other things, the registration from time to time of
the Shareholder's shares of Common Stock and Common Stock obtainable upon
conversion of Convertible Preferred Stock (the "Shares") under the Securities
Act of 1933, as amended (the "Securities Act"); and
WHEREAS, concurrently with the execution and delivery hereof, the
Shareholder and ONEOK have entered into an agreement with respect to the
Shareholder's investment in the Company (the "Shareholder Agreement").
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, representations, warranties and agreements contained herein, the
Company and the Shareholder hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1. Defined Terms. In addition to other terms defined
elsewhere in this Agreement, as used in this Agreement, the following
capitalized terms have the respective meanings set forth below:
"Affiliate" shall mean, with respect to any person, any other person
that directly or indirectly through one or more intermediaries controls or is
controlled by or is under common control with such person. For the purposes of
this definition, "control" when used with respect to any particular person,
means the power to direct the management and policies of such person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Blackout Period" shall have the meaning assigned to such term in
Section 3.1(b).
"Claims" shall have the meaning assigned to such term in Section
3.6(a).
"Demand Period" shall have the meaning assigned to such term in Section
3.1(a).
"Demand Registration" shall have the meaning assigned to such term in
Section 3.1(a).
"Demand Request" shall have the meaning assigned to such term in
Section 3.1(a).
"Effective Period" shall have the meaning assigned to such term in
Section 3.4(a)(iii).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Holder" shall mean, with respect to any shares of Common Stock, the
signatory to the Agreement; and the terms "hold", "held" and "holding" shall
have meanings correlative to the foregoing.
"Inspectors" shall have the meaning assigned to such term in Section
3.4(a)(iv).
"Maximum Number" shall have the meaning assigned to such term in
Section 3.2(b).
"Other Holder" shall have the meaning assigned to such term in Section
3.2(b).
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"person" shall mean any individual, corporation, company, partnership,
joint venture, trust, group (as such term is used in Rule 13d-5 under the
Exchange Act), business association, government or political subdivision
thereof, governmental body or other entity.
"Piggy-Back Registration" shall have the meaning assigned to such term
in Section 3.2(a).
"Piggy-Back Request" shall have the meaning assigned to such term in
Section 3.2(a).
"Records" shall have the meaning assigned to such term in Section
3.4(a)(iv).
"Registered Shares" shall have the meaning assigned to such term in
Section 3.4(a)(xviii).
"Registration" shall have the meaning assigned to such term in Section
3.2(a).
"Registration Expenses" shall have the meaning assigned to such term in
Section 3.5.
"SEC" shall mean the United States Securities and Exchange Commission
or any other United States federal agency at the time administering the
Securities Act or the Exchange Act, as applicable, whichever is the relevant
statute.
Section 1.2. General. Unless the context otherwise requires, references
in this Agreement to any "section" or "article" shall mean a section or article
of this Agreement, as the case may be, and the terms "hereof," "hereunder" and
"hereto" and words of similar meaning shall mean this Agreement in its entirety
and not any particular provisions of this Agreement. Unless the context
otherwise requires, the terms defined herein include the singular as well as the
plural.
Unless the context otherwise requires, each reference herein to the
Securities Act, the Exchange Act or Rule 144 (or any other rule, regulation or
form promulgated under either such statute) shall be deemed to mean, as of any
time, such statute, rule, regulation or form as then in effect, after all
amendments thereto, or, if not then in effect, any successor statute, rule,
regulation or form as then in effect, after all amendments thereto.
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Section 1.3. Headings. The descriptive headings of the several Sections
and paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the meaning
or interpretation of this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties of the Shareholder. The
Shareholder hereby represents and warrants to the Company (i) that it has been
duly organized and is an existing corporation in good standing as a corporation
under the laws of the State of Kansas, (ii) that it has all requisite corporate
power and authority and has received all requisite approvals (including any
necessary approval of its board of directors) to complete the transactions
contemplated hereby, and (iii) that this Agreement has been duly authorized,
executed and delivered by the Shareholder and constitutes a valid and binding
agreement of the Shareholder enforceable against the Shareholder in accordance
with its terms.
Section 2.2. Representations and Warranties of the Company. The Company
hereby represents and warrants to the Shareholder (i) that it has been duly
organized and is an existing corporation in good standing under the laws of the
State of Oklahoma, (ii) that it has all requisite corporate power and authority,
and has received all requisite approvals (including any necessary approval of
its Board of Directors) to complete the transactions contemplated hereby and
(iii) this Agreement has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding agreement enforceable against the
Company in accordance with its terms.
ARTICLE III
REGISTRATION RIGHTS
Section 3.1. Demand Registrations. (a) At any time following the date
hereof and prior to the date on which the Company shall have obtained a written
opinion of legal counsel reasonably satisfactory to the Shareholder and
addressed to the Company and the Shareholder to the effect that the Shares may
be publicly offered for sale in the United States by the Shareholder without
restriction as to manner of sale and amount of securities sold and without
registration under the Securities Act (such period, the "Demand Period"), the
Shareholder shall have the right on five (5) occasions to require
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the Company to file a registration statement under the Securities Act in respect
of all or a portion of the Shares (so long as such request covers at least
25,000 shares), by delivering to the Company written notice stating that such
right is being exercised, specifying the number of the Shares to be included in
such registration and describing the intended method of distribution thereof (a
"Demand Request"). As promptly as practicable, but in no event later than thirty
(30) days after the Company receives a Demand Request, the Company shall file
with the SEC and thereafter use its best efforts to cause to be declared
effective promptly a registration statement (including, without limitation, by
means of a shelf registration pursuant to Rule 415 under the Securities Act if
so requested and if the Company is then eligible to use such a registration) (a
"Demand Registration") providing for the registration of such number of Shares
the Shareholder shall have demanded be registered for distribution in accordance
with such intended method of distribution.
(b) Anything in this Agreement to the contrary notwithstanding, the
Company shall be entitled to postpone and delay, for a reasonable period of
time, not to exceed ninety (90) days in the case of clauses (i) and (ii) below,
or thirty (30) days in the case of clause (iii) below (each, a "Blackout
Period"), the filing of any Demand Registration if the Company shall determine
that any such filing or the offering of any Shares would (i) in the good faith
judgment of the Board of Directors of the Company, unreasonably impede, delay or
otherwise interfere with any pending or contemplated financing, acquisition,
corporate reorganization or other similar transaction involving the Company,
(ii) based upon advice from the Company's investment banker or financial
advisor, adversely affect any pending or contemplated offering or sale of any
class of securities by the Company, or (iii) in good faith judgment of the Board
require disclosure of material non-public information (other than information
relating to an event described in clause (i) or (ii) of this subsection (b))
which, if disclosed at such time, would be materially harmful to the interests
of the Company and its stockholders; provided, however, that in the case of a
Blackout Period pursuant to clause (i) or (ii) above, the Blackout Period shall
earlier terminate upon the completion or abandonment of the relevant securities
offering or sale, financing, acquisition, corporate reorganization or other
similar transaction; and provided, further, that in the case of a Blackout
Period pursuant to clause (iii) above, the Company shall give written notice of
its determination to postpone or delay the filing of any Demand Registration and
in the case of clause (iii) above, the Blackout Period shall earlier terminate
upon public disclosure by the Company or public admission by the Company of such
material non-public information or such time as such material non-public
information shall be publicly disclosed without breach of the last sentence of
this subsection (b); and provided, further, that in the case of a Blackout
Period pursuant to clause (i), (ii) or (iii) above, the Company shall furnish to
the Shareholder a certificate of an executive officer of the Company to the
effect that an event permitting a Blackout Period has occurred. Notwithstanding
anything herein to the contrary, the Company shall not exercise pursuant to
clause (i) or (ii) of the preceding sentence the right to postpone or delay the
filing of any Demand Registration more than
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twice in any twelve (12) month period. Upon notice by the Company to the
Shareholder of any such determination, the Shareholder covenants that it shall
keep the fact of any such notice strictly confidential, and, in the case of a
Blackout Period pursuant to clause (iii) above or Section 3.1(c) below, promptly
halt any offer, sale, trading or transfer by it or any of its Affiliates of any
Common Stock for the duration of the Blackout Period set forth in such notice
(or until such Blackout Period shall be earlier terminated in writing by the
Company) and promptly halt any use, publication, dissemination or distribution
of the Demand Registration, each prospectus included therein, and any amendment
or supplement thereto by it and any of its Affiliates for the duration of the
Blackout Period set forth in such notice (or until such Blackout Period shall be
earlier terminated in writing by the Company) and, if so directed by the
Company, will deliver to the Company any copies then in such Shareholder's
possession of the prospectus covering such Shares, that was in effect at the
time of receipt of such notice. After the expiration of any Blackout Period and
without further request from the Shareholder, the Company shall effect the
filing of the relevant Demand Registration and shall use its best efforts to
cause any such Demand Registration to be declared effective as promptly as
practicable unless the Shareholder shall have, prior to the effective date of
such Demand Registration, withdrawn in writing its initial request, in which
case such withdrawn request shall not constitute a Demand Registration for
purposes of determining the number of Demand Registrations to which the
Shareholder is entitled under this Agreement.
(c) Anything in this Agreement to the contrary notwithstanding, in case
a Demand Registration has been filed, if a transaction of the type specified in
Section 3.1(b)(i) has not resulted from actions taken by the Company, the
Company may cause such Demand Registration to be withdrawn and its effectiveness
terminated or may postpone amending or supplementing such Demand Registration
for a reasonable period of time, not to exceed the Blackout Period applicable to
Section 3.1(b)(i); provided, however, that in no event shall a Demand
Registration so withdrawn count as one of the five Demand Registrations which
the Shareholder is entitled to make pursuant to Section 3.1(a) hereof.
(d) The Shareholder may withdraw a Demand Request in circumstances
including, but not limited to, the following: if (i) the Company is in material
breach of its obligation hereunder and has not cured such breach after having
received notice thereof and a reasonable opportunity to do so or (ii) the
withdrawal occurs during a Blackout Period. Any Demand Request withdrawn prior
to such Demand Registration becoming effective and pursuant to this subsection
(d) shall not constitute a Demand Registration for the purposes of determining
the number of Demand Registrations to which the Shareholder is entitled.
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(e) The Company may elect to include in any registration statement
filed pursuant to this Section 3.1 any Common Stock to be issued by it or held
by any of its subsidiaries or by any other shareholders only to the extent such
Common Stock is offered and sold pursuant to, and on the terms and subject to
the conditions of, any underwriting agreement or distribution arrangements
entered into or effected by the Shareholder.
(f) The managing underwriter for any Demand Registration shall be
selected by the party or parties making the demand for such registration,
provided that such underwriter shall be reasonably satisfactory to the Company.
Section 3.2. "Piggy-Back" Registrations. (a) If, at any time following
the effective time of the Merger, the Company proposes to register any Common
Stock under the Securities Act on a registration statement on Form S-1, Form S-2
or Form S-3 (or any equivalent general registration form then in effect other
than pursuant to a Demand Registration under Section 3.1) for purposes of a
primary offering, secondary offering or combined offering of such Common Stock,
the Company shall give prompt written notice to the Shareholder of its intention
to do so. Such notice shall specify, at a minimum, the number of shares of
Common Stock so proposed to be registered, the proposed date of filing of such
registration statement, any proposed means of distribution of such Common Stock,
any proposed managing underwriter or underwriters of such offering and a good
faith estimate by the Company of the proposed maximum offering price thereof, as
such price is proposed to appear on the facing page of such registration
statement. Upon the written direction of the Shareholder (a "Piggy-Back
Request"), given within fifteen (15) business days following the receipt by the
Shareholder of any such written notice (which direction shall specify the number
of the Shares intended to be disposed of by the Shareholder), the Company shall
include in such registration statement (a "Piggy-Back Registration" and,
collectively with a Demand Registration, a "Registration"), subject to the
provisions of Section 3.2 hereof, such numbers of the Shares as shall be set
forth in such Piggy-Back Request.
(b) In the event that the Company proposes to register Common Stock in
connection with an underwritten offering and a nationally recognized independent
investment banking firm selected by the Company to act as managing underwriter
thereof reasonably and in good faith shall have advised the Company, any holder
of Common Stock intending to offer such Common Stock in a secondary offering or
combined offering (each, an "Other Holder") or the Shareholder in writing that,
in its opinion, the inclusion in the registration statement of some or all of
the Shares sought to be registered by the Shareholder creates a substantial risk
that the price per share of Common Stock that the Company or any Other Holder
will derive from such registration will be materially and adversely affected or
that the number of shares of Common Stock sought to be registered (including any
shares of Common Stock sought to be registered at the
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request of the Company and any Other Holder and those sought to be registered by
the Shareholder) is a greater number than can reasonably be sold, the Company
shall include in such registration statement such number of shares of Common
Stock as the Company, any Other Holder and the Shareholder are so advised can be
sold in such offering without such an effect (the "Maximum Number") as follows
and in the following order of priority: (A) first, such number of shares of
Common Stock as the Company intended to be registered and sold by the Company
and (B) second, in the case of a secondary offering or a combined offering and
if and to the extent that the number of shares of Common Stock to be registered
under clause (A) is less than the Maximum Number, such number of shares of
Common Stock as the Shareholder and any Other Holder shall have intended to
register which, when added to the number of shares of Common Stock to be
registered under clause (A), is less than or equal to the Maximum Number;
provided that if such number exceeds the Maximum Number, the shares of Common
Stock of the Shareholder and such Other Holders will be excluded on a pro rata
basis according to the total number of Shares and shares of Common Stock
requested to be registered by such persons.
(c) No Piggy-Back Registration effected under this Section 3.2 shall be
deemed to have been effected pursuant to Section 3.1 hereof or shall release the
Company of its obligations to effect any Demand Registration upon request as
provided under Section 3.1 hereof.
(d) Notwithstanding any request under this Section 3.2, a selling
Holder may elect in writing to withdraw its request for inclusion of its Shares
in any registration statement; provided, however, that (i) such request must be
made in writing prior to the earlier of the execution of the underwriting
agreement or the execution of the custody agreement with respect to such
registration and (ii) such withdrawal shall be irrevocable and, after making
such withdrawal, a Holder shall no longer have any right to include Shares in
the registration as to which such withdrawal was made.
(e) If, at any time after giving written notice of its intention to
register any Common Stock and prior to the effective date of the registration
statement filed in connection with such registration, the Company shall
determine for any reason not to register or to delay registration of such Common
Stock, the Company may, at its election, give written notice of such
determination to all Holders of record of Shares and (i) in the case of a
determination not to register, shall be relieved of its obligation to register
any Shares in connection with such abandoned registration, without prejudice,
however, to the rights of Holders under Section 3.1 and (ii) in the case of a
determination to delay such registration of the Company's Common Stock, shall be
permitted to delay the registration of such Shares for the same period as the
delay in registering such other Common Stock.
(f) If, as a result of the proration provisions of this Section 3.2,
any Holder shall not be entitled to include all Shares in a registration that
such Holder has
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requested to be included, such Holder may elect to withdraw his request to
include Shares in such registration or may reduce the number requested to be
included, provided that the same limitations in subsection (c) shall apply.
Section 3.3. Additional Agreements. Anything in this Agreement to the
contrary notwithstanding, if at any time the Company shall obtain a written
opinion of legal counsel reasonably satisfactory to the Shareholder and
addressed to the Company and the Shareholder to the effect that the Shares may
be publicly offered for sale in the United States by the Shareholder without
restriction as to manner of sale and amount of securities sold and without
registration under the Securities Act, the Company shall no longer be obligated
to file or maintain a registration statement with respect to the Shares pursuant
to this Agreement. In such case, the Company shall issue to the Shareholder
certificates representing the Shares without any legend restricting transfer and
shall remove all stop transfer orders relating to the Shares.
Section 3.4. Registration Procedures. (a) In connection with each
registration statement prepared pursuant to this Agreement, and in accordance
with the intended method or methods of distribution of the Shares as described
in such registration statement, the Company shall, as soon as reasonably
practicable (and, in any event, subject to the terms of this Agreement,
including, without limitation, Section 3.1(a), at or before the time required by
applicable laws and regulations):
(i) Prepare and file with the SEC a registration statement on an
appropriate registration form of the SEC, with respect to such Shares,
which form shall be selected by the Company with the Shareholder's
reasonable consent, and use its best efforts to cause such registration
statement to become and remain effective promptly; provided that before
filing a registration statement or prospectus or any amendments or
supplements thereto, the Company will furnish to one counsel selected by
the Shareholder, and the sales or placement agent or agents, if any, for
the Shares and the managing underwriter or underwriters, if any, draft
copies of all such documents proposed to be filed at least seven (7) days
prior to such filing, which documents will be subject to the reasonable
review of the Shareholder, the sales or placement agent or agents, if any,
for the Shares and the managing underwriter or underwriters, if any, and
their respective agents and representatives and (x) the Company will not
include in any registration statement information concerning or relating to
the Shareholder to which the Shareholder shall reasonably object in writing
(unless the inclusion of such information is required by applicable law or
the regulations of any securities exchange to which the Company may be
subject), and (y) the Company will not file any Demand Registration or
amendment thereto or any prospectus or any supplement thereto to which the
Shareholder shall reasonably object in writing;
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(ii) Furnish without charge to the Shareholder, the sales or placement
agent or agents, if any, and the managing underwriter or underwriters, if
any, such number of copies of such registration statement and of each
amendment and supplement thereto (in each case including all exhibits),
such number of copies of the summary, preliminary, final, amended or
supplemented prospectuses included in such registration statement in
conformity with the requirements of the Securities Act and any regulations
promulgated thereunder and (upon the reasonable request by the Shareholder)
any documents incorporated therein by reference and such other documents as
the Shareholder may reasonably request in order to facilitate the public
sale or other disposition of such Shares (the Company hereby consenting to
the use in accordance with all applicable law of the prospectus or any
amendment or supplement thereto by the Shareholder in connection with the
offering and sale of the Shares covered by the prospectus or any amendment
or supplement thereto);
(iii) Use its reasonable best efforts to keep such registration
statement effective for at least 180 days (the "Effective Period"); prepare
and file with the SEC such amendments, post-effective amendments and
supplements to the registration statement and the prospectus as may be
necessary to maintain the effectiveness of the registration for the
Effective Period and to cause the prospectus (and any amendments or
supplements thereto) to be filed pursuant to Rules 424 and 430A under the
Securities Act and/or any successor rules that may be adopted by the SEC,
as such rules may be amended from time to time; and comply with the
provisions of the Securities Act with respect to the disposition of all
Shares covered by such registration statement during the applicable period
in accordance with the intended method or methods of distribution thereof,
as specified in writing by the Shareholder;
(iv) Except during any Blackout Period, make available for inspection
by the Shareholder or by any underwriter, attorney, accountant or other
agent retained by the Shareholder (collectively, the "Inspectors")
financial and other records and pertinent corporate documents of the
Company (collectively, the "Records"), provide the Inspectors with
opportunities to discuss the business of the Company with its officers and
provide opportunities to discuss the business of the Company with the
independent public accountants who have certified its most recent annual
financial statements, in each case to the extent customary for transactions
of the size and type intended, as specified by the Shareholder, but only to
the extent reasonably necessary to enable the Shareholder or any
underwriter retained by the Shareholder to conduct a "reasonable
investigation" for purposes of Section 11(a) of the Securities Act. Records
which the Company determines, in good faith, to be confidential and which
it notifies the Inspectors are confidential shall not be disclosed by the
Inspector unless (A) the disclosure of
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such Records is necessary to avoid or correct a misstatement of a
material fact or omission to state a material fact in the Registration, (B)
the disclosure of such Records is required by any court or governmental
body with jurisdiction over the Shareholder or Inspector or (C) all of the
information contained in such Records has been made generally available to
the public. The Shareholder agrees that it will, upon learning that
disclosure of such Records is sought in a court of competent jurisdiction
or by any governmental body, promptly give prior notice to the Company and
allow the Company, at its expense, to undertake appropriate action to
prevent disclosure of those Records deemed confidential;
(v) If requested by the Shareholder, promptly incorporate in a
prospectus, prospectus supplement or post-effective amendment such
information as the Shareholder reasonably specifies should be included
therein, including, without limitation, information relating to the planned
distribution of Shares, the number of Shares being sold by the Shareholder,
the name and description of the Shareholder, the offering price of such
Shares and any discount, commission or other compensation payable in
respect of the Shares being sold, the purchase price being paid therefor to
the Shareholder and information with respect to any other terms of the
underwritten offering of the Shares to be sold in such offering, except to
the extent that the Company is advised in a written opinion of outside
counsel that the inclusion of such information is reasonably likely to
violate applicable securities laws; and make all required filings of such
prospectus, prospectus supplement or post-effective amendment promptly
after notification of the matters to be incorporated in such prospectus,
prospectus supplement or post-effective amendment;
(vi) If requested by the Shareholder, use reasonable efforts to
participate in and assist with a "road show" and other customary marketing
efforts in connection with the sale of Shares pursuant to such registration
statement, at such times and in such manner as the Company and the
Shareholder mutually may determine (and as do not unreasonably interfere
with the Company's operations);
(vii) Use its best efforts to register or qualify the Shares covered by
such registration statement under such other securities or "blue sky" laws
of such jurisdictions in the United States as the Shareholder shall
reasonably request, keep such registrations or qualifications in effect for
so long as the registration statement remains in effect, and do any and all
other acts and things which may be reasonably necessary to enable the
Shareholder or any underwriter to consummate the public sale or other
disposition of the Shares in such jurisdictions; provided, however, that in
no event shall the Company be required to qualify to do business as a
foreign corporation in any jurisdiction where it is not so qualified; to
execute or file any general consent to service of process under the laws of
any jurisdiction;
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to take any action that would subject it to service of process in suits
other than those arising out of the offer and sale of the Shares
covered by the registration statement; or to subject itself to taxation
in any jurisdiction where it would not otherwise be obligated to do so,
but for this paragraph (vii);
(viii) Use its best efforts to cause the Shares to be registered
with or approved by such other governmental agencies or authorities as
may be necessary to enable the Shareholder to consummate the public sale or
other disposition of the Shares;
(ix) Use its best efforts to cause all Shares covered by such
registration statement to be approved for trading on a national interdealer
quotation system or listed on the securities exchanges on which similar
securities issued by the Company are then listed or traded;
(x) Promptly notify the Shareholder, at any time when a prospectus
relating to any of the Shares covered by such registration statement is
required to be delivered under the Securities Act, of the Company's
becoming aware that the prospectus included in such registration statement,
as then in effect, includes an untrue statement of a material fact or omits
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the
circumstances then existing, and, at the request of the Shareholder,
promptly prepare and furnish to the Shareholder a reasonable number of
copies of a prospectus supplemented or amended so that, as thereafter
delivered to the pur chasers of such Shares, such prospectus shall not
include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing;
(xi) Promptly notify the Shareholder, the sales or placement agent or
agents, if any, for the Shares and the managing underwriter or
underwriters, if any, thereof, after becoming aware thereof, when the
registration statement or any related prospectus or any amendment or
supplement has been filed, and, with respect to the registration statement
or any post-effective amendment, when the same has become effective, (A) of
any request by the SEC for amendments or supplements to the registration
statement or the related prospectus or for additional information, (B) of
the issuance by the SEC of any stop order suspending the effectiveness of
the registration statement or the initiation of any proceedings for that
purpose, (C) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation of any proceeding for such purpose or (D)
within the Effective Period of the happening of any event which makes any
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statement in the registration statement or any post-effective amendment
thereto, prospectus or any amendment or supplement thereto, or any
document incorporated therein by reference untrue in any material
respect or which requires the making of any changes in the registration
statement or post-effective amendment thereto or any prospectus or
amendment or supplement thereto so that they 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 light of the circumstances under which they were made) not
misleading;
(xii) During the Effective Period, use its best efforts to obtain the
withdrawal of any order suspending the effectiveness of the registration
statement or any post-effective amendment thereto;
(xiii) Permit the Shareholder if, in its sole judgment exercised in
good faith, it believes it might be deemed to be a controlling person of
the Company, to participate in the preparation of such registration
statement and all discussions between the Company and the SEC or its staff
with respect to such registration statement, and to require the insertion
therein of material, furnished to the Company in writing, which in the
reasonable judgement of the Shareholder should be included;
(xiv) Deliver promptly to the Shareholder, upon the Shareholder's
request, copies of all correspondence between the SEC and the Company, its
counsel or auditors and all memoranda relating to discussions with the SEC
or its staff with respect to the registration statement and permit the
Shareholder to do such investigation, with respect to information contained
in or omitted from the registration statement, as it deems reasonably
necessary. The Shareholder agrees that it will use its best efforts not to
interfere unreasonably with the Company's business when conducting any such
investigation;
(xv) Provide a transfer agent and registrar for all such Shares
covered by such registration statement not later than the effective
date of such registration statement, which transfer agent and registrar may
be the Company, subject to any applicable law or regulations;
(xvi) Cooperate with the Shareholder and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing such Shares to be sold under the registration
statement, which certificates shall not bear any restrictive legends except
as required by law; and, in the case of an underwritten offering, enable
such Shares to be in such denominations and registered in such names as the
managing underwriter or
-13-
underwriters, if any, may request in writing at least two (2) business days
prior to any sale of the Shares to the underwriters;
(xvii) Enter into such agreements (including, if the offering is an
underwritten offering, an underwriting agreement) as are customary in
transactions of such kind and take such other actions as are reasonably
necessary in connection therewith in order to expedite or facilitate the
disposition of such Shares; and (A) make such representations and
warranties with respect to the registration statement, post-effective
amendment or supplement thereto, prospectus or any amendment or supplement
thereto, and documents incorporated by reference, if any, to the managing
underwriter or underwriters, if any, of the Shares and, at the option of
the Shareholder, make to and for the benefit of such Shareholder the
representations, warranties and covenants of the Company which are being
made to the underwriters, in form, substance and scope as are customarily
made by the Company in connection with offerings of Shares in transactions
of such kind (representations and warranties by the participating holders
shall also be made as are customary in agreements of that type); provided
that the Company shall not be required to make any representations or
warranties with respect to information specifically provided by a holder
for inclusion in the registration documents; (B) obtain an opinion of
counsel to the Company (which counsel may be internal counsel for the
Company unless the managing underwriter or underwriters shall otherwise
reasonably request) in customary form and covering matters of the type
customarily covered by such an opinion, addressed to such managing
underwriter or underwriters, if any, and to the Shareholder and dated the
date of the closing of the sale of the Shares relating thereto; (C) obtain
a "comfort" letter or letters from the independent certified public
accountants who have certified the Company's most recent audited financial
statements that are incorporated by reference in the registration statement
which is addressed to the Shareholder and the managing underwriter or
underwriters, if any, and is dated the date of the prospectus used in
connection with the offering of such Shares and/or the date of the closing
of the sale of such Shares relating thereto, such letter or letters to be
in customary form and covering such matters of the type customarily covered
by "comfort" letters of such type; (D) deliver such documents and
certificates as may be reasonably requested by the Shareholder and the
managing underwriter or underwriters, if any, of the Shares to evidence
compliance with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company; and (E) undertake
such obligations relating to expense reimbursement, indemnification and
contribution as provided in Sections 3.5 and 3.6 hereof; and
(xviii) Comply with all applicable rules and regulations of the SEC and
generally make available to its security holders an earnings statement
-14-
(which need not be audited), as soon as reasonably practicable but in
no event later than ninety (90) days after the end of the period of
twelve (12) months commencing on the first day of any fiscal quarter
next succeeding each sale by the Shareholder of Shares which have been
registered pursuant to this Agreement (the "Registered Shares") after
the date hereof, which earnings statement shall cover such twelve (12)
month period and shall satisfy the provisions of Section 11(a) of the
Securities Act and may be prepared in accordance with Rule 158 under
the Securities Act.
(b) In the event that the Company would be required, pursuant to
Section 3.4(a)(xi)(D) above, to notify the Shareholder, the sales or placement
agent or agents, if any, for the Shares and the managing underwriter or
underwriters, if any, thereof, the Company shall, subject to the provisions of
Section 3.1(b) hereof, as promptly as practicable, prepare and furnish to the
Shareholder, to each placement or sales agent, if any, and to each underwriter,
if any, a reasonable number of copies of a prospectus supplemented or amended so
that, as thereafter delivered to purchasers of Registered Shares, such
prospectus shall 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. The Shareholder agrees that, upon receipt of any notice
from the Company pursuant to Section 3.4(a)(xi)(D) hereof, the Shareholder
shall, and shall use its best efforts to cause any sales or placement agent or
agents for the Shares and the underwriters, if any, thereof, to forthwith
discontinue disposition of the Shares until such person shall have received
copies of such amended or supplemented prospectus and, if so directed by the
Company, to destroy or to deliver to the Company all copies, other than
permanent file copies, then in its possession of the prospectus (prior to such
amendment or supplement) covering such Shares as soon as practicable after the
Shareholder's receipt of such notice.
(c) The Shareholder shall furnish to the Company in writing such
information regarding the Shareholder and its intended method of distribution of
the Shares as the Company may from time to time reasonably request in writing,
but only to the extent that such information is required in order for the
Company to comply with its obligations under all applicable securities and other
laws and to ensure that the prospectus relating to such Shares conforms to the
applicable requirements of the Securities Act and the rules and regulations
thereunder. The Shareholder shall notify the Company as promptly as practicable
of any inaccuracy or change in information previously furnished by the
Shareholder to the Company or of the occurrence of any event, in either case as
a result of which any prospectus relating to the Shares contains or would
contain an untrue statement of a material fact regarding the Shareholder or its
intended method of distribution of such Shares or omits to state any material
fact regarding the Shareholder or its intended method of distribution of such
Shares required to be stated therein or
-15-
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and promptly furnish to the Company any
additional information required to correct and update any previously furnished
information or required so that such prospectus shall not contain, with respect
to the Shareholder or the distribution of the Shares, an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(d) Each Holder agrees not to effect any public sale or distribution of
any Shares, including any sale pursuant to Rule 144 under the Securities Act,
and not to effect any such public sale or distribution of any other equity
security of the Company or of any security convertible into or exchangeable or
exercisable for any equity security of the Company (in each case, other than as
part of such underwritten public offering) during the ten (10) days prior to,
and during the ninety (90) day period (or such longer period as each Holder
agrees with the underwriter of such offering) beginning on, the consummation of
any underwritten public offering of the Shares covered by a registration
statement referred to in Section 3.2 to the extent such Holder's Registered
Shares are being sold thereunder.
(e) In the case of any registration under Section 3.1 pursuant to an
underwritten offering, or in the case of a registration under Section 3.2 if the
Company has determined to enter into an underwriting agreement in connection
therewith, all Shares to be included in such registration shall be subject to an
underwriting agreement and no person may participate in such registration unless
such person agrees to sell such person's securities on the basis provided
therein and completes and executes all questionnaires, indemnities, underwriting
agreements and other document (other than powers of attorney) which must be
executed in connection therewith, and provides such other information to the
Company or the underwriter as may be necessary to register such Holder's Shares.
Section 3.5. Registration Expenses. The Company agrees to bear and to
pay, or cause to be paid, promptly upon request being made therefor, all
expenses incident to the Company's performance of or compliance with this
Agreement, including, without limitation: (a) all fees and expenses in
connection with the qualification of the Registered Shares for offering and sale
under state securities or "blue sky" laws referred to in Section 3.4(a)(vii)
hereof, including reasonable fees and disbursements of counsel for any placement
or sales agent or underwriter in connection with such qualifications, (b) all
expenses relating to the preparation, printing, distribution and reproduction of
the registration statement, each prospectus included therein or prepared for
distribution pursuant hereto, each amendment or supplement to the foregoing, the
certificates representing the Shares and all other documents relating hereto,
(c) the costs and charges of any escrow agent, transfer agent, registrar, any
custodian or attorney-in-fact appointed
-16-
to act on behalf of the Shareholder (including, without limitation, all salaries
and expenses of the Company's officers and employees performing legal or
accounting duties), (d) fees, disbursements and expenses of the Company's
counsel and its other advisors and experts and independent certified public
accountants of the Company (including the expenses of any opinions or "comfort"
letters required by or incident to such performance and compliance), (e) the
fees and expenses incurred in connection with the listing of the Shares on The
New York Stock Exchange, Inc. and any other stock exchange or national
securities exchange on which Shares shall at such time be listed, and (f)
reasonable fees and disbursements of counsel retained by the Shareholder in
connection with registration pursuant to this Agreement (collectively, the
"Registration Expenses"). To the extent that any Registration Expenses are
incurred, assumed or paid by the Shareholder, any sales or placement agent or
agents for the Shares and the underwriters, if any, thereof, the Company shall
reimburse such person for the full amount of the Registration Expenses so
incurred, assumed or paid promptly after receipt of a request therefor. Each
Holder of the Shares being registered shall pay all underwriting discounts and
commissions and any capital gains, income or transfer taxes, if any,
attributable to the sale of such Shares.
Section 3.6. Indemnification; Contribution. (a) Indemnification by the
Company. The Company shall, and it hereby agrees to, indemnify and hold harmless
the Shareholder, and each person who participates as a placement or sales agent
or as an underwriter in any offering or sale of the Shares, against any losses,
claims, damages or liabilities to which the Shareholder or such agent or
underwriter may become subject, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) (collectively,
"Claims") arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any registration statement, or any
preliminary or final prospectus contained therein, or any amendment or
supplement thereto, or any document incorporated by reference therein, or arise
out of or are 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, in light of the circumstances in which they were made, not misleading,
and the Company shall, and it hereby agrees to, reimburse the Shareholder or any
such agent or underwriter for any legal or other out-of-pocket expenses
reasonably incurred by them in connection with investigating or defending any
such Claims; provided, however, that the Company shall not be liable to any such
person in any such case to the extent that any such Claims arise out of or are
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, or preliminary or final
prospectus, or amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by the Shareholder
or any agent, underwriter or representative of the Shareholder expressly for use
therein, or by the Shareholder's failure to furnish the Company, upon request,
with the information with respect to the Share holder, or any agent, underwriter
or representative of the Shareholder, or the
-17-
Shareholder's intended method of distribution, that is the subject of the untrue
statement or omission or if the Company shall sustain the burden of proving that
the Shareholder or such agent or underwriter sold securities to the person
alleging such Claims without sending or giving, at or prior to the written
confirmation of such sale, a copy of the applicable prospectus (excluding any
documents incorporated by reference therein) or of the applicable prospectus, as
then amended or supplemented (excluding any documents incorporated by reference
therein), if the Company had previously furnished copies thereof to the
Shareholder or such agent or underwriter, and such prospectus corrected such
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement.
(b) Indemnification by the Shareholder and Any Agents or Underwriters.
The Shareholder shall, and hereby agrees, severally and not jointly, to (i)
indemnify and hold harmless the Company, its directors, officers, employees and
controlling persons, if any, and each underwriter, its partners, officers,
directors, employees and controlling persons, if any, in any offering or sale of
Shares, against any Claims to which the Company, its directors, officers,
employees and controlling persons, if any, may become subject, insofar as such
Claims (including any amounts paid in settlement as provided herein), or actions
or proceedings in respect thereof, arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in such
registration statement, or any preliminary or final prospectus contained
therein, or any amendment or supplement thereto, or any document incorporated by
reference therein, or arise out of or are 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, in each case only to
the extent that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by the Shareholder or such agent or
underwriter (as the case may be) expressly for use therein, and (ii) reimburse
the Company for any legal or other out-of-pocket expenses reasonably incurred by
the Company in connection with investigating or defending any such Claim.
(c) Notice of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of written notice of the commencement of
any action or proceeding for which indemnification under subsection (a) or (b)
may be requested, such indemnified party shall, without regard to whether a
claim in respect thereof is to be made against an indemnifying party pursuant to
the indemnification provisions of, or as contemplated by, this Section 3.6,
notify such indemnifying party and the underwriter in writing of the
commencement of such action or proceeding; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party in respect of such action or proceeding on account of the
indemnification provisions of or contemplated by Section 3.6(a) or 3.6(b) hereof
-18-
unless the indemnifying party was materially prejudiced by such failure of the
indemnified party to give such notice, and in no event shall such omission
relieve the indemnifying party from any other liability it may have to such
indemnified party. In case any such action or proceeding shall be brought
against any indemnified party and it shall notify an indemnifying party of the
commencement thereof, unless in the reasonable opinion of outside counsel to the
indemnified party a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, such indem nifying
party shall be entitled to participate therein and, to the extent that it shall
determine, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party, and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, such
indemnifying party shall not be liable to such indemnified party for any legal
or any other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of investigation
(unless such indemnified party reasonably objects to such assumption on the
grounds that there may be defenses available to it which are different from or
in addition to the defenses available to such indemnifying party, in which event
the indemnified party shall have the right to control its defense and shall be
reimbursed by the indemnifying party for the expenses incurred in connection
with retaining one separate counsel). If the indemnifying party is not entitled
to, or elects not to, assume the defense of a claim, it will not be obligated to
pay the fees and expenses of more than one counsel for each indemnified party
with respect to such claim. The indemnifying party will not be subject to any
liability for any settlement made without its consent, which consent shall not
be unreasonably withheld or delayed. No indemnifying party shall, without the
prior written consent of the indemnified party, compromise or consent to entry
of any judgment or enter into any settlement agreement with respect to any
action or proceeding in respect of which indemnification is sought under Section
3.6(a) or (b) (whether or not the indemnified party is an actual or potential
party thereto), unless such compromise, consent or settlement includes an
unconditional term thereof the giving by the claimant or plaintiff to the
indemnified party of a release from all liability in respect of such claim or
litigation and does not subject the indemnified party to any injunctive relief
or other equitable remedy.
(d) Contribution. The Shareholder and the Company agree that if, for
any reason, the indemnification provisions contemplated by Sections 3.6(a) or
3.6(b) hereof are unavailable to or are insufficient to hold harmless an
indemnified party in respect of any Claims referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such Claims in such proportion as is
appropriate to reflect the relative fault of, and benefits derived by, the
indemnifying party and the indemnified party, as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue
-19-
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by such indemnifying party or by such
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The relative benefit derived by the parties shall be determined by reference to
the fact that the Company entered into this Agreement to induce the Shareholder
to engage in the transaction in which the Shares were acquired. The parties
hereto agree that it would not be just and equitable if contribution pursuant to
this Section 3.6(d) were determined (i) by pro rata allocation (even if the
Shareholder or any agents for, or underwriters of, the Shares, or all of them,
were treated as one entity for such purpose); or (ii) by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 3.6(d). The amount paid or payable by an indemnified party as
a result of the Claims referred to above shall be deemed to include (subject to
the limitations set forth in Section 3.6(c) hereof) any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action, proceeding or claim. 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.
(e) The indemnification and contribution required by this Section 3.6
shall be made by periodic payments of the amount thereof during the course of
the investigation or defense, as and when bills are received or expense, loss,
damage or liability is incurred.
(f) Beneficiaries of Indemnification. The obligations of the Company
under this Section 3.6 shall be in addition to any liability that it may
otherwise have and shall extend, upon the same terms and conditions, to each
officer, director and partner of the Shareholder and each agent and underwriter
of the Shares and each person, if any, who controls the Shareholder or any such
agent or underwriter within the meaning of the Securities Act; and the
obligations of the Shareholder and any agents or underwriters contemplated by
this Section 3.6, shall be in addition to any liability that the Shareholder or
its respective agent or underwriter may otherwise have and shall extend, upon
the same terms and conditions, to each officer and director of the Company
(including any person who, with his consent, is named in any registration
statement as about to become a director of the Company) and to each person, if
any, who controls the Company within the meaning of the Securities Act.
Section 3.7. Underwriters. If any of the Shares are to be sold pursuant
to an underwritten offering, the investment banker or bankers and the managing
underwriter or underwriters thereof shall be selected by the Company except in
the case of a Demand Registration, in which the managing underwriter or
underwriters shall be
-20-
selected by the Shareholder, provided that such managing underwriter or
underwriters must be of recognized international standing.
Section 3.8. Exchange Act Filings; Rule 144; Rule 144A. (a) The Company
covenants to and with the Shareholder that to the extent it shall be required to
do so under the Exchange Act, the Company shall timely file the reports required
to be filed by it under the Exchange Act or the Securities Act (including, but
not limited to, the reports under Sections 13 and 15(d) of the Exchange Act
referred to in subparagraph (c)(1) of Rule 144 adopted by the SEC under the
Securities Act and the rules and regulations adopted by the SEC thereunder) and
shall take such further action as the Shareholder may reasonably request, all to
the extent required from time to time to enable the Shareholder to sell Shares
without registration under the Securities Act within the limitations of the
exemption provided by 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. Upon the request of the Shareholder, the Company shall deliver to
the Shareholder a written statement as to whether it has complied with such
requirements.
(b) If at any time the Company is not subject to Section 13 or 15(d) of
the Exchange Act and is not exempt from reporting pursuant to Rule 12g3-2(b)
under the Exchange Act, the Company agrees, upon the request of the Shareholder
seeking to transfer Shares in conformity with Rule 144A under the Securities
Act, to furnish to the Shareholder or prospective purchasers of the Shares from
the Shareholder the information required by Rule 144A(d)(4)(i) under the
Securities Act in the manner and at the times contemplated by such Rule.
(c) The Company covenants to make available "adequate current public
information" concerning the Company within the meaning of Rule 144(c) under the
Securities Act.
Section 3.9. Agreement of the Shareholder. The Shareholder agrees not
to, and it shall cause its subsidiaries not to, make any sale, transfer or other
disposition of Shares of Company Common Stock except in compliance with the
registration requirements of the Securities Act and the rules and regulations
thereunder or in accordance with the terms of this Agreement.
Section 3.10. Legends. (a) Stop transfer restrictions will be given to
the Company's transfer agent(s) with respect to the Shares and there will be
placed on the
-21-
certificates or instruments representing the Shares, and on any certificate or
instrument delivered in substitution therefor, a legend stating in substance:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT
TO SUCH REGISTRATION OR IN ACCORDANCE WITH AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
(b) The Company hereby agrees that it will cause stop transfer
restrictions to be released with respect to any Shares that are transferred (i)
pursuant to an effective registration statement under the Securities Act, (ii)
pursuant to Rule 144 or 145 under the Securities Act, (iii) in accordance with
the requirements of Rule 903 or 904 of Regulation S under the Securities Act, or
(iv) pursuant to another exemption from the registration requirements of the
Securities Act; provided, however, that in the case of any transfer pursuant to
clause (ii), (iii) or (iv) above, the request for transfer is accompanied by a
written statement signed by the Shareholder confirming compliance with the
requirements of the relevant exemption from registration; and provided, further,
that in the case of any transfer pursuant to clause (iv) above, other than any
transfer by the Shareholder to one or more of its direct or indirect
subsidiaries, or among such subsidiaries, or by any such subsidiary to the
Shareholder, the Company shall have received a written opinion of counsel
reasonably satisfactory to the Company. The Company further agrees that it will
cause the legend described in subsection (a) of this Section 3.10 to be removed
in the event of any transfer as provided in clause (i), (ii) or (iii) above.
Section 3.11. Treatment of Convertible Preferred Stock. Shares of
Convertible Preferred Stock owned by the Shareholder shall be treated in all
respects in the same manner as shares of Common Stock owned by the Shareholder
for the purposes of this Agreement. The Company and the Shareholder agree that
the Shareholder shall convert shares of Convertible Preferred Stock registered
and sold pursuant to this Agreement into shares of Common Stock
contemporaneously with the closing of any such sale.
-22-
ARTICLE IV
MISCELLANEOUS
Section 4.1. Term of Agreement; Termination. The term of this Agreement
shall commence on the date hereof and such term and this Agreement shall
terminate upon the expiration of the Demand Period.
Section 4.2. Recapitalizations, Exchanges, Etc. Affecting the Shares.
The provisions of this Agreement shall apply to any and all shares of capital
stock of the Company or any successor or assign of the Company (whether by
merger, consolidation, sale of assets or otherwise) which may be issued in
respect of, in exchange for, or in substitution of the Shares, by reason of a
stock dividend, stock split, stock issuance, reverse stock split, combination,
recapitalization, reclassification, merger, consolidation or otherwise. Upon the
occurrence of any such event, amounts hereunder shall be appropriately adjusted.
Section 4.3. Other Company Securities. The provisions of this Agreement
shall apply mutatis mutandis to any publicly traded security of the Company
other than the Common Stock which may be owned by the Shareholder from time to
time during the Demand Period.
Section 4.4. Amendment. This Agreement may not be amended except by a
written instrument, duly executed by the Company and the Shareholder.
Section 4.5. Notices. Except as otherwise provided in this Agreement,
all notices, requests, claims, demands, waivers and other communications
hereunder shall be in writing and shall be deemed to have been duly given when
delivered by hand, when delivered personally or by courier, three days after
being deposited in the mail (registered or certified mail, postage prepaid,
return receipt requested), or when received by facsimile transmission if
promptly confirmed by one of the foregoing means, as follows:
If to the Company:
ONEOK Inc.
βββ ββββ βββββ ββββββ
βββββ, ββββββββ βββββ
Attention: President
with a copy to:
βββββ βββββββ Mock βββββββ Khile ββββββββ
-23-
βββ β. βββββ ββββββ
βββββ ββββ
βββββ, ββββββββ βββββ
Attention: ββββββ β. βββββ, Esq.
and:
Fried, Frank, Harris, βββββββ & ββββββββ
βββ βββ ββββ βββββ
βββ ββββ, βββ ββββ βββββ
Attention: F. βββββββ βββββββ, Esq.
If to the Shareholder:
Western Resources, Inc.
βββ ββββββ ββββββ
ββββββ, ββββββ βββββ
Attention: President
with a copy to:
Western Resources, Inc.
βββ ββββββ ββββββ
ββββββ, ββββββ βββββ
Attention: ββββ β. βββββββββ, Esq.
and:
ββββββββ & ββββββββ
βββ βββββ ββββββ
βββ ββββ, βββ ββββ βββββ
Attention: βββββββ β. ββββββ, Esq.
Section 4.6. Integration. This Agreement and the other writings
referred to herein or delivered pursuant hereto which form a part hereof contain
the entire understanding of the parties with respect to its subject matter. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to its subject matter. There are no restrictions, agreements,
promises, representations, warranties, covenants or undertakings with respect to
its subject matter other than those expressly set forth or referred to herein.
-24-
Section 4.7. Binding Effect; Benefit. This Agreement shall inure to the
benefit of and be binding upon the parties hereto, and their respective
successors and permitted assigns. Nothing in this Agreement, expressed or
implied, is intended to confer on any person other than the parties hereto, and
their respective successors and permitted assigns, any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
Section 4.8. Assignability. This Agreement shall not be assignable by
any party hereto.
Section 4.9. Counterparts. This Agreement may be executed by the
parties hereto in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
Section 4.10. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the state of Oklahoma without
giving effect to principles of conflicts of law.
Section 4.11. Shareholder Agreement. This Agreement shall remain in
effect in accordance with its terms notwithstanding the termination or lapse in
effectiveness of any other agreement between the Shareholder and the Company,
including, but not limited to, the Shareholder Agreement.
Section 4.12. Severability. In the event 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, and such
unreasonable, unlawful or unenforceable provision shall be interpreted, revised
or applied in the manner that renders it lawful and enforceable to the fullest
extent possible under law.
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IN WITNESS WHEREOF, the parties named below have hereto set their hands
as of the day and year first above written.
NEWCORP, INC.
By:_______________________________
Name:
Title:
WESTERN RESOURCES, INC.
By:_______________________________
Name:
Title:
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