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EXHIBIT 4.6
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REGISTRATION RIGHTS AGREEMENT
Dated as of March 11, 1998
by and among
▇▇▇▇▇▇ Drilling Company
and the
Subsidiary Guarantors as defined in the Indenture referred to herein
and
▇▇▇▇▇▇▇▇▇ & Company, Inc.
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of March 11, 1998 by and among ▇▇▇▇▇▇ Drilling Company, a
Delaware corporation (the "Company"), and each of the Company's subsidiaries
that are "Subsidiary Guarantors" under the Indenture (as defined below), which
are listed on Annex I hereto (collectively, the "Subsidiary Guarantors"), and
▇▇▇▇▇▇▇▇▇ & Company, Inc. (the "Initial Purchaser") who has agreed to purchase
the Company's 9 3/4% Senior Notes due 2006, Series C (the "Original Notes")
pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated March
5, 1998 (the "Purchase Agreement"), by and among the Company, the Subsidiary
Guarantors and the Initial Purchaser. In order to induce the Initial Purchaser
to purchase the Original Notes, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the obligations of the Initial Purchaser set
forth in Section 2 of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Act: The Securities Act of 1933, as amended.
Broker-Dealer: Any broker or dealer registered under the Exchange
Act.
Certificated Securities: The registered certificated form of the
Global Notes and the Definitive Notes.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Consummate: A Registered Exchange Offer shall be deemed "Consummated"
for purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the New Notes to be issued in the Exchange Offer, (ii) the
maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum
period required pursuant to Section 3(b) hereof, and (iii) the delivery by the
Company to the Registrar under the Indenture of New Notes in the same aggregate
principal amount as the aggregate principal amount of Original Notes and Series
A/B Notes that were tendered by Holders thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Original Notes, each
Interest Payment Date.
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Definitive Notes: One or more fully registered definitive notes, as
provided for in the Indenture, evidencing all or a portion of the Original
Notes.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The registration by the Company under the Act of the
New Notes pursuant to a Registration Statement pursuant to which the Company
offers the Holders of Transfer Restricted Securities and Series A/B Notes the
opportunity to exchange the Transfer Restricted Securities and the Series A/B
Notes held by such Holders for New Notes in an aggregate principal amount equal
to the aggregate principal amount of the Transfer Restricted Securities and the
Series A/B Notes tendered in such exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchaser
proposes to sell the Original Notes to certain "qualified institutional
buyers," as such term is defined in Rule 144A under the Act, and to certain
institutional "accredited investors," as such term is defined in Rule
501(a)(1), (2), (3) and (7) of Regulation D under the Act ("Accredited
Institutions").
Global Note: One or more fully registered global notes, as provided
for in the Indenture, evidencing all or a portion of the Original Notes.
Global Note Holder: The nominee of the Depository in whose name the
Global Note is registered.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of March 11, 1998, among the
Company, Chase Bank of Texas, National Association, as trustee (the "Trustee")
and the Subsidiary Guarantors, pursuant to which the Notes are to be issued, as
such Indenture is amended or supplemented from time to time in accordance with
the terms thereof.
Initial Purchaser: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture and the Notes.
NASD: National Association of Securities Dealers, Inc.
New Notes: The Company's 9 3/4% Senior Notes due 2006, Series D to be
issued pursuant to the Indenture in the Exchange Offer.
Notes: The Original Notes and the New Notes.
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Person: An individual, partnership, limited liability company,
corporation, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement, as
amended or supplemented by any prospectus supplement and by all other
amendments thereto, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference into such
Prospectus.
Record Holder: With respect to any Damages Payment Date relating to
the Notes, each Person who is a Holder of Notes on the record date with respect
to the Interest Payment Date on which such Damages Payment Date shall occur.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company
relating to (i) an offering of New Notes pursuant to an Exchange Offer or (ii)
the registration for resale of Transfer Restricted Securities pursuant to the
Shelf Registration Statement, which is filed pursuant to the provisions of this
Agreement, in each case, including the Prospectus included therein, all
amendments and supplements thereto (including post-effective amendments) and
all exhibits and material incorporated by reference or deemed to be
incorporated by reference into such registration statement.
Series A/B Notes: The Company's 9 3/4% Senior Notes due 2006 in the
aggregate principal amount of $300,000,000 issued pursuant to the indenture
dated as of November 12, 1996 between the Company, the Subsidiary Guarantors
and Chase Bank of Texas, National Association (formerly Texas Commerce Bank,
National Association).
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Filing Event: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb)
as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Note until the earliest to occur
of (i) the date on which such Note has been exchanged by a person other than a
broker-dealer for a New Note in the Exchange Offer, (ii) following the exchange
by a broker-dealer in the Exchange Offer of a Note for a New Note, the date on
which such New Note is sold to a purchaser who receives from such broker-dealer
on or prior to the date of such sale a copy of the prospectus contained in the
Exchange Offer Registration Statement, (iii) the date on which such Note has
been effectively registered under the Act and disposed of in accordance with
the Shelf Registration Statement or (iv) the date on which such Note is
distributed to the public pursuant to Rule 144 under the Act.
Underwritten Registration or Underwritten Offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to
the public.
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SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities and Series A/B Notes. The
securities entitled to the benefits of this Agreement are the Transfer
Restricted Securities and the Series A/B Notes.
(b) Holders of Transfer Restricted Securities and Series A/B
Notes. A Person is deemed to be a holder of Transfer Restricted Securities
and/or Series A/B Notes (each, a "Holder") whenever such Person owns Transfer
Restricted Securities and/or Series A/B Notes.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) The Company hereby agrees: (i) to file an Exchange Offer
Registration Statement with the Commission on or prior to 60 days after the
Closing Date, (ii) to use its best efforts to have the Exchange Offer
Registration Statement declared effective by the Commission on or prior to 135
days after the Closing Date, (iii) unless the Exchange Offer would not be
permitted by applicable law or Commission policy, to commence the Exchange
Offer and use its best efforts to issue, on or prior to 30 business days after
the date on which the Exchange Offer Registration Statement was declared
effective by the Commission, New Notes in exchange for all Original Notes and
Series A/B Notes tendered prior thereto in the Exchange Offer and (iv) if
obligated to file the Shelf Registration Statement, to use its best efforts to
file the Shelf Registration Statement with the Commission on or prior to 30
days after such filing obligation arises (and in any event within 90 days after
the Closing Date) and to cause the Shelf Registration to be declared effective
by the Commission on or prior to 90 days after such obligation arises.
(b) The Company shall cause the Exchange Offer Registration
Statement to be effective continuously and shall keep the Exchange Offer open
for a period of not less than the minimum period required under applicable
federal and state securities laws to Consummate the Exchange Offer; provided,
however, that in no event shall such period be less than 20 business days. The
Company shall cause the Exchange Offer to comply with all applicable federal
and state securities laws. No securities other than the Notes, the Series A/B
Notes and the New Notes shall be included in the Exchange Offer Registration
Statement. The Company shall use its best efforts to cause the Exchange Offer
to be Consummated on the earliest practicable date after the Exchange Offer
Registration Statement has become effective, but in no event later than 30
business days thereafter.
(c) The Company shall indicate in a "Plan of Distribution" section
contained in the Prospectus contained in the Exchange Offer Registration
Statement that any Broker-Dealer who holds Original Notes that are Transfer
Restricted Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company), may exchange such
Original Notes pursuant to the Exchange Offer; however, such Broker-Dealer may
be deemed to be an "underwriter" within the meaning of the Act and must,
therefore, deliver a prospectus meeting the requirements of the Act in
connection with any resales of the New Notes received by such Broker-Dealer in
the Exchange Offer, which prospectus delivery requirement may be satisfied by
the delivery by such Broker-Dealer of the Prospectus contained in the Exchange
Offer Registration Statement. Such "Plan of Distribution" section shall also
contain all other information with respect to such resales by Broker-Dealers
that the Commission may require in order to permit such resales pursuant
thereto, but such "Plan of Distribution" shall not name any such Broker-Dealer
or disclose the
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amount of Notes held by any such Broker-Dealer except to the extent required by
the Commission as a result of a change in policy after the date of this
Agreement.
The Company and the Subsidiary Guarantors shall use their best efforts
to keep the Exchange Offer Registration Statement continuously effective,
supplemented and amended as required by the provisions of Section 6(c) below to
the extent necessary to ensure that it is available for resales of Notes
acquired by Broker-Dealers for their own accounts as a result of market-making
activities or other trading activities, and to ensure that it conforms with the
requirements of this Agreement, the Act and the policies, rules and regulations
of the Commission as announced from time to time, for a period of nine months
from the date on which the Exchange Offer Registration Statement is declared
effective.
The Company shall provide sufficient copies of the latest version of
such Prospectus to Broker-Dealers promptly upon request at any time during such
nine-month period in order to facilitate such resales.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company is not required to
file an Exchange Offer Registration Statement or permitted to consummate the
Exchange Offer because the Exchange Offer is not permitted by applicable law or
Commission policy (after the procedures set forth in Section 6(a) below have
been complied with) or (ii) if any Holder of Transfer Restricted Securities
shall notify the Company within 10 business days of the Consummation of the
Exchange Offer (A) that such Holder is prohibited by applicable law or
Commission policy from participating in the Exchange Offer, or (B) that such
Holder may not resell the New Notes acquired by it in the Exchange Offer to the
public without delivering a prospectus and that the Prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for such
resales by such Holder, or (C) that such Holder is a Broker-Dealer and holds
Original Notes acquired directly from the Company or any affiliate of the
Company (each such event referred to in clauses (i) and (ii) above, a "Shelf
Filing Event"), then the Company and each of the Subsidiary Guarantors shall:
(x) cause to be filed a shelf registration statement
pursuant to Rule 415 under the Act, which may be an amendment to the
Exchange Offer Registration Statement (in either event, the "Shelf
Registration Statement") on or prior to the later to occur of (1) the
30th day after the occurrence of a Shelf Filing Event, and (2) the
90th day after the Closing Date (such earliest date being the "Shelf
Filing Deadline"), which Shelf Registration Statement shall provide
for resales of all Transfer Restricted Securities the Holders of which
shall have provided the information required pursuant to Section 4(b)
hereof; and
(y) use their best efforts to cause such Shelf
Registration Statement to be declared effective by the Commission on
or before the 90th day after the Shelf Filing Event.
The Company and each of the Subsidiary Guarantors shall use its best
efforts to keep such Shelf Registration Statement continuously effective,
supplemented and amended as required by the provisions of Sections 6(b) and (c)
hereof to the extent necessary to ensure that such Shelf Registration Statement
is available for resales of Notes by the Holders of Transfer Restricted
Securities entitled to the benefit of this Section 4(a), and to ensure that
such Shelf Registration Statement conforms with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
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announced from time to time, for a period of (A) two years following the
Closing Date or (B) if sooner, the date immediately following the date that all
Transfer Restricted Securities covered by the Shelf Registration Statement have
been sold pursuant thereto.
(b) Provision by Holders of Certain Information in Connection with
the Shelf Registration Statement. No Holder of Transfer Restricted Securities
may include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 business days after receipt of a request
therefor, such information as the Company may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. No Holder of Transfer Restricted Securities shall
be entitled to Liquidated Damages pursuant to Section 5 hereof unless and until
such Holder shall have used its best efforts to provide all such reasonably
requested information. Each Holder as to which any Shelf Registration
Statement is being effected agrees to furnish promptly to the Company all
information required to be disclosed in order to make the information
previously furnished to the Company by such Holder not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
(a) If (i) the Company fails to file any of the Registration
Statements required by this Agreement on or before the date specified for such
filing, (ii) any of such Registration Statements is not declared effective by
the Commission on or prior to the date specified for such effectiveness (the
"Effectiveness Target Date"), (iii) the Company fails to consummate the
Exchange Offer within 30 business days of the Effectiveness Target Date with
respect to the Exchange Offer Registration Statement, or (iv) the Shelf
Registration Statement or the Exchange Offer Registration Statement is declared
effective but thereafter ceases to be effective or usable in connection with
the Exchange Offer or resales of Transfer Restricted Securities, as the case
may be, during the periods specified in the Registration Rights Agreement (each
such event referred to in clauses (i) through (iv) above, a "Registration
Default"), then the interest rate on the Transfer Restricted Securities, with
respect to the first 90-day period immediately following the occurrence of such
Registration Default shall increase ("Liquidated Damages") by 0.50% per annum
and will increase by an additional 0.50% per annum with respect to each
subsequent 90-day period until all Registration Defaults have been cured, up to
a maximum amount of Liquidated Damages of 2% per annum with respect to all
Registration Defaults. All accrued Liquidated Damages shall be paid by the
Company on each Damages Payment Date to the Global Note Holder by wire transfer
of immediately available funds and to Holders of Certificated Securities by
wire transfer to the accounts specified by them or by mailing checks to their
registered addresses if no such accounts have been specified. Following the
cure of all Registration Defaults, the accrual of Liquidated Damages shall
cease.
(b) All obligations of the Company and the Subsidiary Guarantors set
forth in Section 5(a) above that are outstanding with respect to any Transfer
Restricted Security at the time such security ceases to be a Transfer
Restricted Security shall survive until such time as all such obligations with
respect to such Transfer Restricted Security shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company and each of the Subsidiary Guarantors shall comply
with all of the provisions of Section 6(c) below, shall use its best efforts to
effect such exchange to permit the sale of Transfer Restricted Securities
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being sold in accordance with the intended method or methods of distribution
thereof, and shall comply with all of the following provisions:
(i) If in the reasonable opinion of counsel to the
Company there is a question as to whether the Exchange Offer is
permitted by applicable law, the Company and the Subsidiary Guarantors
hereby agree to seek a no-action letter or other favorable decision
from the Commission allowing the Company and the Subsidiary Guarantors
to Consummate an Exchange Offer for the Original Notes and the Series
A/B Notes. The Company and the Subsidiary Guarantors each hereby
agrees to pursue the issuance of such a decision to the Commission
staff level but shall not be required to take commercially
unreasonable action to effect a change of Commission policy. The
Company and the Subsidiary Guarantors each hereby agrees, however, to
(A) participate in telephonic conferences with the Commission, (B)
deliver to the Commission staff an analysis prepared by counsel to the
Company setting forth the legal bases, if any, upon which such counsel
has concluded that such an Exchange Offer should be permitted and (C)
diligently pursue a resolution (which need not be favorable) by the
Commission staff of such submission.
(ii) As a condition to its participation in the Exchange
Offer pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities and Series A/B Notes shall furnish, upon the
request of the Company, prior to the Consummation thereof, a written
representation to the Company (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement)
to the effect that (A) it is not an affiliate of the Company, (B) it
is not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any person to participate in, a
distribution of the New Notes to be issued in the Exchange Offer and
(C) it is acquiring the New Notes in its ordinary course of business.
In addition, all such Holders of Transfer Restricted Securities and
Series A/B Notes shall otherwise cooperate in the Company's
preparations for the Exchange Offer. Each Holder hereby acknowledges
and agrees that any Broker-Dealer and any such Holder using the
Exchange Offer to participate in a distribution of the securities to
be acquired in the Exchange Offer (1) could not under Commission
policy as in effect on the date of this Agreement rely on the position
of the Commission enunciated in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc.
(available June 5, 1991) and Exxon Capital Holdings Corporation
(available May 13, 1988), as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993, and similar no-action letters
(including any no- action letter obtained pursuant to clause (i)
above), and (2) must comply with the registration and prospectus
delivery requirements of the Act in connection with a secondary resale
transaction and that such a secondary resale transaction should be
covered by an effective registration statement containing the selling
security holder information required by Item 507 or 508, as
applicable, of Regulation S-K if the resales are of New Notes obtained
by such Holder in exchange for Original Notes acquired by such Holder
directly from the Company.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company and the Subsidiary Guarantors
shall provide a supplemental letter to the Commission (A) stating that
the Company and the Subsidiary Guarantors are registering the Exchange
Offer in reliance on the position of the Commission enunciated in
Exxon Capital Holdings Corporation (available May 13, 1988), ▇▇▇▇▇▇
▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991) and, if applicable, any
no- action letter obtained pursuant to clause (i) above and (B)
including a representation that neither the Company nor any of the
Subsidiary Guarantors has entered into any arrangement or
understanding with any Person to distribute the New Notes to be
received in the Exchange Offer and that, to the best of the Company's
information and belief, each Holder participating in the Exchange
Offer is acquiring the
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New Notes in its ordinary course of business and has no arrangement or
understanding with any Person to participate in the distribution of
the New Notes received in the Exchange Offer.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company and each of the Subsidiary Guarantors shall
comply with all the provisions of Section 6(c) below and shall use its best
efforts to effect such registration to permit the sale of the Transfer
Restricted Securities being sold in accordance with the intended method or
methods of distribution thereof, and pursuant thereto the Company shall as
expeditiously as possible prepare and file with the Commission a Registration
Statement relating to the registration on any appropriate form under the Act,
which form shall be available for the sale of the Transfer Restricted
Securities in accordance with the intended method or methods of distribution
thereof.
(c) General Provisions. In connection with any Registration
Statement and any Prospectus required by this Agreement to permit the sale or
resale of Transfer Restricted Securities (including, without limitation, any
Registration Statement and the related Prospectus required to permit resales of
Notes by Broker-Dealers), the Company shall:
(i) use its best efforts to keep such Registration
Statement continuously effective and provide all requisite financial
statements (including, if required by the Act or any regulation
thereunder, financial statements of the Subsidiary Guarantors) for the
period specified in Section 3 or 4 of this Agreement, as applicable;
upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to
contain a material misstatement or omission or (B) not to be effective
and usable for resale of Transfer Restricted Securities during the
period required by this Agreement, the Company shall file promptly an
appropriate amendment to such Registration Statement, in the case of
clause (A), correcting any such misstatement or omission, and, in the
case of either clause (A) or (B), use its best efforts to cause such
amendment to be declared effective and such Registration Statement and
the related Prospectus to become usable for their intended purpose(s)
as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments
and post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, as applicable,
or such shorter period as will terminate when all Transfer Restricted
Securities covered by such Registration Statement have been sold;
cause the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424
under the Act, and to comply fully with the applicable provisions of
Rules 424 and 430A under the Act in a timely manner; and comply with
the provisions of the Act with respect to the disposition of all
securities covered by such Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling
Holders promptly and, if requested by such Persons, to confirm such
advice in writing, (A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with
respect to any Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any request by the
Commission for amendments to the Registration Statement or amendments
or supplements to the Prospectus or for additional information
relating thereto, (C) of the issuance by
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the Commission of any stop order suspending the effectiveness of the
Registration Statement under the Act or of the suspension by any state
securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation
of any proceeding for any of the preceding purposes, (D) of the
existence of any fact or the happening of any event that makes any
statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any document
incorporated by reference therein untrue, or that requires the making
of any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not misleading. If
at any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky
laws, the Company and the Subsidiary Guarantors shall use their best
efforts to obtain the withdrawal or lifting of such order at the
earliest possible time;
(iv) furnish to each of the selling Holders and each of
the underwriter(s), if any, before filing with the Commission, copies
of any Registration Statement or any Prospectus included therein or
any amendments or supplements to any such Registration Statement or
Prospectus (including all documents incorporated by reference after
the initial filing of such Registration Statement), which documents
will be subject to the review of such Holders and underwriter(s), if
any, for a period of at least five business days, and the Company will
not file any such Registration Statement or Prospectus or any
amendment or supplement to any such Registration Statement or
Prospectus (including all such documents incorporated by reference) to
which a selling Holder of Transfer Restricted Securities covered by
such Registration Statement or the underwriter(s), if any, shall
reasonably object within five business days after the receipt thereof.
A selling Holder or underwriter, if any, shall be deemed to have
reasonably objected to such filing if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be
filed, contains a material misstatement or omission;
(v) promptly prior to the filing of any document that is
to be incorporated by reference into a Registration Statement or
Prospectus, provide copies of such document to the selling Holders and
to the underwriter(s), if any, make the Company's representatives
available (and representatives of the Subsidiary Guarantors) for
discussion of such document and other customary due diligence matters,
and include such information in such document prior to the filing
thereof as such selling Holders or underwriter(s), if any, reasonably
may request;
(vi) make available at reasonable times for inspection by
the selling Holders, any underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney or
accountant retained by such selling Holders or any of the
underwriter(s), all financial and other records, pertinent corporate
documents and properties of the Company and the Subsidiary Guarantors
and cause the Company's and the Subsidiary Guarantors' officers,
directors and employees to supply all information reasonably requested
by any such Holder, underwriter, attorney or accountant in connection
with such Registration Statement subsequent to the filing thereof and
prior to its effectiveness;
(vii) if requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in any Registration
Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such selling Holders and
underwriter(s), if any, may
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reasonably request to have included therein, including, without
limitation, information relating to the "Plan of Distribution" of the
Transfer Restricted Securities, information with respect to the
principal amount of Transfer Restricted Securities being sold to such
underwriter(s), the purchase price being paid therefor and any other
terms of the offering of the Transfer Restricted Securities to be sold
in such offering; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after
the Company is notified of the matters to be incorporated in such
Prospectus supplement or post-effective amendment;
(viii) furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of
each amendment thereto, including all documents incorporated by
reference therein and all exhibits (including exhibits incorporated
therein by reference);
(ix) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment
or supplement thereto as such Persons reasonably may request; the
Company and the Subsidiary Guarantors hereby consent to the use of the
Prospectus and any amendment or supplement thereto by each of the
selling Holders and each of the underwriter(s), if any, in connection
with the offering and the sale of the Transfer Restricted Securities
covered by the Prospectus or any amendment or supplement thereto;
(x) enter into, and cause the Subsidiary Guarantors to
enter into, such agreements (including an underwriting agreement), and
make, and cause the Subsidiary Guarantors to make, such
representations and warranties, and take all such other actions in
connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant to any
Registration Statement contemplated by this Agreement, all to such
extent as may be requested by any Purchaser or by any Holder of
Transfer Restricted Securities or underwriter in connection with any
sale or resale pursuant to any Registration Statement contemplated by
this Agreement; and whether or not an underwriting agreement is
entered into and whether or not the registration is an Underwritten
Registration, the Company and the Subsidiary Guarantors shall:
(A) furnish to the Initial Purchaser, each
selling Holder and each underwriter, if any, in such substance
and scope as they may request and as are customarily made by
issuers to underwriters in primary underwritten offerings,
upon the date of the Consummation of the Exchange Offer and,
if applicable, the effectiveness of the Shelf Registration
Statement:
(1) a certificate, dated the date of
Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as
the case may be, signed by (y) the President or any
Vice President and (z) a principal financial or
accounting officer of each of the Company and the
Subsidiary Guarantors, confirming, as of the date
thereof, the matters set forth in paragraphs (b)
through (f) of Section 9 of the Purchase Agreement
and such other matters as such parties may reasonably
request;
(2) an opinion, dated the date of
Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as
the case may be, of
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counsel for the Company and the Subsidiary
Guarantors, covering the matters set forth in Section
9(h) and 9(i) of the Purchase Agreement and such
other matter as such parties may reasonably request,
and in any event including a statement to the effect
that such counsel has participated in conferences
with officers and other representatives of the
Company, representatives of the independent public
accountants for the Company, the Initial Purchaser's
representatives and the Initial Purchaser's counsel
in connection with the preparation of such
Registration Statement and the related Prospectus and
have considered the matters required to be stated
therein and the statements contained therein,
although such counsel has not independently verified
the accuracy, completeness or fairness of such
statements; and that such counsel advises that, on
the basis of the foregoing (relying as to materiality
to a large extent upon facts provided to such counsel
by officers and other representatives of the Company
and without independent check or verification), no
facts came to such counsel's attention that caused
such counsel to believe that the applicable
Registration Statement, at the time such Registration
Statement or any post- effective amendment thereto
became effective, and, in the case of the Exchange
Offer Registration Statement, as of the date of
Consummation, 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 contained in such Registration Statement
as of its date and, in the case of the opinion dated
the date of Consummation of the Exchange Offer, as of
the date of Consummation, contained an untrue
statement of a material fact or omitted 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. Without
limiting the foregoing, such counsel may state
further that such counsel assumes no responsibility
for, and has not independently verified, the
accuracy, completeness or fairness of the financial
statements, notes and schedules and other financial
data included in any Registration Statement
contemplated by this Agreement or the related
Prospectus; and
(3) a customary comfort letter, dated as
of the date of Consummation of the Exchange Offer or
the date of effectiveness of the Shelf Registration
Statement, as the case may be, from the Company's
independent accountants, in the customary form and
covering matters of the type customarily covered in
comfort letters by underwriters in connection with
primary underwritten offerings, and affirming the
matters set forth in the comfort letters delivered
pursuant to Sections 9(l) and 9(m) of the Purchase
Agreement, without exception;
(B) set forth in full or incorporate by reference
in the underwriting agreement, if any, the indemnification
provisions and procedures of Section 8 hereof with respect to
all parties to be indemnified pursuant to said Section; and
(C) deliver such other documents and certificates
as may be reasonably requested by such parties to evidence
compliance with clause (A) above and with any customary
conditions contained in the underwriting agreement or other
agreement entered into by the Company pursuant to this clause
(xi), if any.
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If at any time the representations and warranties of the
Company and the Subsidiary Guarantors contemplated in clause (A)(1)
above cease to be true and correct, the Company or the Subsidiary
Guarantors shall so advise the Initial Purchaser and the
underwriter(s), if any, and each selling Holder promptly and, if
requested by such Persons, shall confirm such advice in writing;
(xi) prior to any public offering of Transfer Restricted
Securities, cooperate with, and cause the Subsidiary Guarantors to
cooperate with, the selling Holders, the underwriter(s), if any, and
their respective counsel in connection with the registration and
qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions as the selling
Holders or underwriter(s) may request and do any and all other acts or
things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the
Shelf Registration Statement; provided, however, that neither the
Company nor the Subsidiary Guarantors shall be required to register or
qualify as a foreign corporation where it is not now so qualified or
to take any action that would subject it to the service of process in
suits or to taxation, other than as to matters and transactions
relating to the Registration Statement, in any jurisdiction where it
is not now so subject;
(xii) shall issue, upon the request of any Holder of
Original Notes and Series A/B Notes covered by the Shelf Registration
Statement, New Notes, having an aggregate principal amount equal to
the aggregate principal amount of Original Notes and Series A/B Notes
surrendered to the Company by such Holder in exchange therefor or
being sold by such Holder; such New Notes to be registered in the name
of such Holder or in the name of the purchaser(s) of such Notes, as
the case may be; in return, the Original Notes and the Series A/B
Notes held by such Holder shall be surrendered to the Company for
cancellation;
(xiii) cooperate with, and cause the Subsidiary Guarantors
to cooperate with, the selling Holders and the underwriter(s), if any,
to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing
any restrictive legends; and enable such Transfer Restricted
Securities to be in such denominations and registered in such names as
the Holders or the underwriter(s), if any, may request at least two
business days prior to any sale of Transfer Restricted Securities made
by such underwriter(s);
(xiv) use its best efforts to cause the Transfer Restricted
Securities covered by the Registration Statement to be registered with
or approved by such other governmental agencies or authorities as may
be necessary to enable the seller or sellers thereof or the
underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in clause
(xii) above;
(xv) if any fact or event contemplated by clause
(c)(iii)(D) above shall exist or have occurred, prepare a supplement
or post-effective amendment to the Registration Statement or related
Prospectus or any document incorporated therein by reference or deemed
to be incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of
Transfer Restricted Securities, the Prospectus will not contain an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading;
(xvi) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the Registration
Statement and provide the Trustee under the Indenture with printed
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certificates for the Transfer Restricted Securities that are in a form
eligible for deposit with the Depository Trust Company;
(xvii) cooperate and assist in any filings required to be
made with the NASD and in the performance of any due diligence
investigation by any underwriter (including any "qualified independent
underwriter") that is required to be retained in accordance with the
rules and regulations of the NASD, and use its reasonable best efforts
to cause such Registration Statement to become effective and approved
by such governmental agencies or authorities as may be necessary to
enable the Holders selling Transfer Restricted Securities to
consummate the disposition of such Transfer Restricted Securities;
(xviii) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) for the twelve-month period (A) commencing
at the end of any fiscal quarter in which Transfer Restricted
Securities are sold to underwriters in a firm or best efforts
Underwritten Offering or (B) if not sold to underwriters in such an
offering, beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of the Registration
Statement;
(xix) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
required by this Agreement, and, in connection therewith, cooperate,
and cause the Subsidiary Guarantors to cooperate, with the Trustee and
the Holders of Notes to effect such changes to the Indenture as may be
required for such Indenture to be so qualified in accordance with the
terms of the TIA; and execute, and cause the Subsidiary Guarantors to
execute, and use its best efforts to cause the Trustee to execute, all
documents that may be required to effect such changes and all other
forms and documents required to be filed with the Commission to enable
such Indenture to be so qualified in a timely manner;
(xx) cause all Transfer Restricted Securities covered by
the Registration Statement to be listed on each securities exchange on
which similar securities issued by the Company are then listed if
requested by the Holders of a majority in aggregate principal amount
of Original Notes or the managing underwriter(s), if any; and
(xxi) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the requirements of
Section 13 and Section 15 of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice from the Company of the existence of
any fact of the kind described in Section 6(c)(iii)(D) hereof, such Holder will
forthwith discontinue disposition of Transfer Restricted Securities pursuant to
the applicable Registration Statement until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 6(c)(xvi)
hereof, or until it is advised in writing (the "Advice") by the Company that
the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference in the
Prospectus. If so directed by the Company, each Holder will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such Transfer
Restricted Securities that was current at the time of receipt of such notice.
In the event the Company shall give any such notice, the time period regarding
the effectiveness of such Registration Statement set forth in Section 3 or 4
hereof, as
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applicable, shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to Section
6(c)(iii)(D) hereof to and including the date when each selling Holder covered
by such Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof or
shall have received the Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's or the Subsidiary
Guarantors' performance of or compliance with this Agreement will be borne by
the Company or the Subsidiary Guarantors, regardless of whether a Registration
Statement becomes effective, including without limitation: (i) all registration
and filing fees and expenses (including filings made by the Initial Purchaser
or Holder with the NASD (and, if applicable, the fees and expenses of any
"qualified independent underwriter" and its counsel that may be required by the
rules and regulations of the NASD)); (ii) all fees and expenses of compliance
with federal securities and state Blue Sky or securities laws; (iii) all
expenses of printing (including printing certificates for the New Notes to be
issued in the Exchange Offer and printing of Prospectuses), messenger and
delivery services and telephone; (iv) all fees and disbursements of counsel for
the Company, the Subsidiary Guarantors and, subject to Section 7(b) below, the
Holders of Transfer Restricted Securities and Series A/B Notes; (v) all
application and filing fees in connection with listing Notes on a national
securities exchange or automated quotation system pursuant to the requirements
hereof; and (vi) all fees and disbursements of independent certified public
accountants of the Company and the Subsidiary Guarantors (including the
expenses of any special audit and comfort letters required by or incident to
such performance).
The Company shall, in any event, bear its and the Subsidiary
Guarantor's internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
the expenses of any annual audit and the fees and expenses of any Person,
including special experts, retained by the Company.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company shall reimburse
the Initial Purchaser and the Holders of Transfer Restricted Securities and
Series A/B Notes being tendered in the Exchange Offer and/or resold pursuant to
the "Plan of Distribution" contained in the Exchange Offer Registration
Statement or registered pursuant to the Shelf Registration Statement, as
applicable, for the reasonable fees and disbursements of not more than one
counsel, who shall be ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ or such other counsel as may be chosen
by the Holders of a majority in principal amount of the Transfer Restricted
Securities for whose benefit such Registration Statement is being prepared.
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SECTION 8. INDEMNIFICATION
(a) The Company and each Subsidiary Guarantor, jointly and
severally, agree: (i) to indemnify and hold harmless the Initial Purchaser and
each person, if any, who controls (within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act) the Initial Purchaser (any of such persons
being hereinafter referred to as a "controlling person") and the respective
officers, directors, partners, employees, representatives and agents of the
Initial Purchaser or any controlling person (any person referred to above being
sometimes referred to as an "Indemnified Party"), to the fullest extent lawful,
from and against any and all losses, claims, damages, liabilities, actions and
judgments directly or indirectly caused by, related to, based upon, arising out
of or in connection with any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or Prospectus (and any
amendment or supplement thereto) or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that neither the Company nor any
Subsidiary Guarantor will be liable in any such case to the extent, but only to
the extent, that any such loss, claim, damage, liability, action or judgment is
based upon an untrue statement or omission or alleged untrue statement or
omission made in any Registration Statement or Prospectus (or any amendment or
supplement thereto), in reliance upon and in conformity with written
information furnished to the Company or the Subsidiary Guarantors by or on
behalf of the Holders specifically for use therein; and (ii) to reimburse any
Indemnified Party for any reasonable legal or other expenses incurred by such
person in connection with investigating, preparing, pursuing or defending
against any such loss, claim, damage, liability, action or judgment or any
investigation or proceeding by any governmental or regulatory agency or body,
commenced or threatened, as such expenses are incurred. The Company and the
Subsidiary Guarantors shall notify the Holders promptly of the institution,
threat or assertion of any claim, proceeding (including any governmental or
regulatory investigation or proceeding) or action of which the Company or the
Subsidiary Guarantors are aware in connection with the matters addressed by
this Agreement that involves the Company, the Subsidiary Guarantors or any
Indemnified Party.
In case any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted against
any of the Indemnified Parties with respect to which indemnity may be sought
against the Company or the Subsidiary Guarantors, such Indemnified Party shall
promptly notify the Company in writing (provided that the failure to give such
notice shall not relieve the Company or the Subsidiary Guarantors of their
obligations pursuant to this Agreement) and the Company or the Subsidiary
Guarantors, as the case may be, shall assume the defense thereof, including the
employment of counsel satisfactory to such Indemnified Party or Indemnified
Parties and payment of all fees and expenses. Notwithstanding the foregoing,
such Indemnified Party or Indemnified Parties shall have the right to employ
its or their own counsel in any such action, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Party or Indemnified
Parties unless (i) the Company or any of the Subsidiary Guarantors agrees in
writing to pay such fees and expenses, (ii) the Company or any of the
Subsidiary Guarantors shall not have employed counsel reasonably satisfactory
to such Indemnified Party to take charge of the defense of such action promptly
after notice of commencement of the action, or (iii) such Indemnified Party or
Indemnified Parties shall have been advised that a conflict-of-interest would
arise with counsel representing them and the Company or any of the Subsidiary
Guarantors (in which case the Company or the Subsidiary Guarantors shall not
have the right to direct the defense of such action on behalf of the
Indemnified Party or Indemnified Parties); provided, however, that unless there
exists a conflict among Indemnified Parties hereunder, the Company or the
Subsidiary Guarantors shall only be liable for the legal fees and expenses of
one firm of attorneys (in addition to any local counsel) for all Indemnified
Parties
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and that all such fees and expenses shall be reimbursed by the Company and the
Subsidiary Guarantors as they are incurred (regardless of whether it is
ultimately determined that such Indemnified Party or Indemnified Parties are
not entitled to indemnification hereunder). The Company and the Subsidiary
Guarantors shall be liable for any settlement of any such action or proceeding
effected with the Company's prior written consent, which consent shall not be
unreasonably withheld, and such persons agree to indemnify and hold harmless
each of the Indemnified Parties from and against any loss, claim, damage,
expense or liability by reason of any settlement of any action effected with
the consent of the Company. Notwithstanding the foregoing sentence, if at any
time an Indemnified Party has requested an indemnifying party to reimburse the
Indemnified Party for fees and expenses of counsel as contemplated by the
second sentence of this paragraph, the indemnifying party agrees that it shall
be liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 10 business days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the Indemnified Party in
accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for reasonable fees and expenses of counsel, an indemnifying
party shall not be liable for any settlement of the nature contemplated by
clause (ii) of the first paragraph of this Section 8(a) effected without its
consent if such indemnifying party, prior to the date of settlement, (i)
reimburses such indemnified party in accordance with such request to the extent
such indemnifying party considers such request to be reasonable and (ii)
provides written notice in reasonable detail to the indemnified party of the
reasons such indemnifying party considers the unpaid balance unreasonable.
Such indemnifying party shall be liable for all costs and expenses of the
indemnifying party in seeking to recover such unpaid balance if a court of
competent jurisdiction (or an arbitrator, if such matter is submitted to
arbitration) finds such balance to be reasonable.
No indemnifying party shall, without the prior written consent of the
Indemnified Party, settle or compromise or consent to the entry of judgment in
or otherwise seek to terminate any pending or threatened action, claim,
litigation or proceeding in respect of which indemnity could have been sought
hereunder (whether or not any Indemnified Party is a party thereto), unless
such settlement includes an unconditional release of such Indemnified Party
from all liability on claims that are the subject matter of such action, claim,
litigation or proceeding.
(b) The Holders of Transfer Restricted Securities jointly agree to
indemnify and hold harmless the Company, the Subsidiary Guarantors and each
person, if any, who controls (within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act) the Company or any Subsidiary Guarantor and the
respective officers, directors, partners, employees, representatives and agents
of the Company, the Subsidiary Guarantors or any such controlling person, to
the same extent as the foregoing indemnity from the Company provided in Section
8(a) above, the Subsidiary Guarantors to the Indemnified Parties but only with
respect to claims and actions based on information relating to the Indemnified
Parties furnished in writing by or on behalf of such Indemnified Party
specifically for use in any Registration Statement or Prospectus (and any
amendment or supplement thereto).
(c) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 8(a) or (b) (other than by reason of exceptions provided in Section
8(a) or (b) above) in respect of any losses, claims, damages, liabilities,
actions or judgments referred to herein, then each indemnifying party, in lieu
of indemnifying such indemnified party, shall
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contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities, actions and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Subsidiary Guarantors, on the one hand, and the Holders, on the
other hand, from their sale of the Transfer Restricted Securities or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law
or if the indemnified party failed to give the notice required under Section
8(a) above, 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, the Subsidiary Guarantors, on the one hand, and the Holders, on
the other hand, in connection with the statements or omissions that resulted in
such losses, claims, damages, liabilities, actions or judgments, as well as any
other relevant equitable considerations. The relative fault of the Company and
the Subsidiary Guarantors, on the one hand, and the Holders, 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 the
Subsidiary Guarantors, on the one hand, or the Holders, on the other hand, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company, the Subsidiary Guarantors and each Holder of a Transfer
Restricted Security agree that it would not be just and equitable if
contribution pursuant to this Section 8(c) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities, actions or judgments referred to in
the immediately preceding paragraph shall be deemed to include any legal or
other expenses incurred by such indemnified party in connection with
investigating, preparing to defend or defending any such action or claim.
Notwithstanding the provisions of this Section 8(c), none of the Holders shall
be required to contribute, in the aggregate, any amount in excess of the amount
by which the total discounts and commissions received by it with respect to the
Original Notes exceeds the amount of any damages that such Holder has otherwise
been required to pay by reason of such untrue statement or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(d) In any proceeding relating to any Registration Statement or
Prospectus (or any supplement or amendment thereto), each party against whom
contribution may be sought under this Section 8 hereby consents to the
jurisdiction of any court having jurisdiction over any other contributing
party, agrees that process issuing from such court may be served upon him or it
by any other contributing party and consents to the service of such process and
agrees that any other contributing party may join him or it as an additional
defendant in any such proceeding in which such other contributing party is a
party.
(e) The indemnity and contribution agreements contained in this
Section 8 are in addition to any liability that the indemnifying persons may
otherwise have to the indemnified persons referred to above.
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SECTION 9. RULE 144A
The Company hereby agrees with each Holder, for so long as any
Transfer Restricted Securities remain outstanding, to make available to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities from such Holder or beneficial owner, the information required by
Rule 144A(d)(4) under the Act in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided, that such investment bankers and managers must be
reasonably satisfactory to the Company.
SECTION 12. MISCELLANEOUS
(a) Remedies. The Company and each of the Subsidiary Guarantors
agree that monetary damages (including the liquidated damages contemplated
hereby) would not be adequate compensation for any loss incurred by reason of a
breach by it of the provisions of this Agreement and hereby agree to waive the
defense in any action for specific performance that a remedy at law would be
adequate.
(b) No Inconsistent Agreements. The Company shall not, and shall
cause the Subsidiary Guarantor not to, on or after the date of this Agreement
enter into any agreement with respect to its securities that is inconsistent
with the rights granted to the Holders in this Agreement or otherwise conflicts
with the provisions hereof. Except as identified to you in an officers'
certificate of the Company separately delivered, neither the Company nor the
Subsidiary Guarantors has previously entered into any agreement granting any
registration rights with respect to its securities to any Person. The rights
granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's securities
under any agreement in effect on the date hereof.
(c) Adjustments Affecting the Notes. The Company shall not take
any action, or permit any change to occur, with respect to the Notes that would
materially and adversely affect the ability of the Holders to Consummate any
Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be
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given unless the Company has obtained the written consent of Holders of a
majority of the outstanding principal amount of Transfer Restricted Securities.
Notwithstanding the foregoing, a waiver or consent to departure from the
provisions hereof that relates exclusively to the rights of Holders whose
securities are being tendered pursuant to the Exchange Offer and that does not
affect directly or indirectly the rights of other Holders whose securities are
not being tendered pursuant to such Exchange Offer may be given by the Holders
of a majority of the outstanding principal amount of Transfer Restricted
Securities being tendered or registered.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on
the records of the Registrar (as defined in the Indenture)
under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to the Company, to:
▇▇▇▇▇▇ Drilling Company
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇;
with a copy to:
T. ▇▇▇▇ ▇▇▇▇▇, Esq.
▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt 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 giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities and Series A/B
Notes; provided, however, that this Agreement shall not inure to the benefit of
or be binding upon a successor or assign of a Holder unless and to the extent
such successor or assign acquired Transfer Restricted Securities or Series A/B
Notes, as applicable, from such Holder.
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(g) 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.
(h) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICT OF LAW RULES THEREOF.
(j) 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.
(k) Entire Agreement. This Agreement together with the other
Operative Documents (as defined in the Purchase Agreement) is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein with respect to the registration rights granted by the
Company with respect to the Transfer Restricted Securities and the Series A/B
Notes. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
[signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
Very truly yours,
THE COMPANY:
▇▇▇▇▇▇ Drilling Company
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President of Finance
and Chief Financial Officer
By: /s/ I. E. ▇▇▇▇▇▇▇, Jr.
-----------------------------------------------------
(for each of the above-named Subsidiaries of the
Issuer, which are Subsidiary Guarantors)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Treasurer
(for the above-named Subsidiary of the
Issuer, which is a Subsidiary Guarantor)
SUBSIDIARY GUARANTORS:
▇▇▇▇▇▇ Drilling Company of Oklahoma Incorporated
▇▇▇▇▇▇ Drilling Company Limited (Nevada)
▇▇▇▇▇▇ Drilling Company Limited (Oklahoma)
Choctaw International Rig Corp.
▇▇▇▇▇▇ Drilling Company of New Guinea, Inc.
▇▇▇▇▇▇ Drilling Company North America, Inc.
▇▇▇▇▇ Systems Engineering, Inc.
DGH, Inc.
▇▇▇▇▇▇ Drilling Company International Limited
Mallard Bay Drilling, LLC
Parcan Limited
▇▇▇▇▇▇ Technology, LLC
▇▇▇▇▇▇ Technology, Inc.
▇▇▇▇▇▇ Drilling U.S.A. Ltd.
Hercules Offshore Corporation
Hercules Rig Corp.
▇▇▇▇▇▇ Drilling Offshore Company
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Accepted and Agreed to:▇▇▇▇▇▇▇▇▇ & Company, Inc.
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
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ANNEX I
SUBSIDIARY GUARANTORS
▇▇▇▇▇▇ Drilling Company of Oklahoma Incorporated
▇▇▇▇▇▇ Drilling Company Limited (Nevada)
▇▇▇▇▇▇ Drilling Company Limited (Oklahoma)
Choctaw International Rig Corp.
▇▇▇▇▇▇ Drilling Company of New Guinea, Inc.
▇▇▇▇▇▇ Drilling Company North America, Inc.
▇▇▇▇▇ Systems Engineering, Inc.
DGH, Inc.
▇▇▇▇▇▇ Drilling Company International Limited
Mallard Bay Drilling, LLC
Parcan Limited
▇▇▇▇▇▇ Technology, LLC
Quail Tools, LLP
▇▇▇▇▇▇ Technology, Inc.
▇▇▇▇▇▇ Drilling U.S.A. Ltd.
Hercules Offshore Corporation
Hercules Rig Corp.
▇▇▇▇▇▇ Drilling Offshore Company
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