EXHIBIT 10.1
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▇▇▇▇▇▇▇ PETROLEUM CORPORATION
9.90% SENIOR NOTES DUE 2009
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EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
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May 8, 2002
▇▇▇▇▇▇ Brothers
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇
Scotia Capital
TD Securities
As representatives of the several Purchasers
named in Schedule I to the Purchase Agreement
c/▇ ▇▇▇▇▇▇ Brothers
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇▇ Petroleum Corporation, a Canadian corporation (the
"Company"), proposes to issue and sell to the Purchasers (as defined herein)
upon the terms set forth in the Purchase Agreement (as defined herein) its 9.90%
Senior Notes due 2009, which are unconditionally guaranteed by the Company's
current subsidiaries and future restricted subsidiaries. As an inducement to the
Purchasers to enter into the Purchase Agreement and in satisfaction of a
condition to the obligations of the Purchasers thereunder, the Company agrees
with the Purchasers for the benefit of holders (as defined herein) from time to
time of the Registrable Securities (as defined herein) as follows:
1. CERTAIN DEFINITIONS. For purposes of this Exchange and
Registration Rights Agreement, the following terms shall have the
following respective meanings:
"BASE INTEREST" shall mean the interest that would otherwise
accrue on the Securities under the terms thereof and the Indenture, without
giving effect to the provisions of this Agreement.
The term "BROKER-DEALER" shall mean any broker or dealer
registered with the Commission under the Exchange Act.
"CLOSING DATE" shall mean the date on which the Securities are
initially issued.
"COMMISSION" shall mean the United States Securities and
Exchange Commission, or any other federal agency at the time administering the
Exchange Act or the Securities Act, whichever is the relevant statute for the
particular purpose.
"EFFECTIVE TIME," in the case of (i) an Exchange Registration,
shall mean the time and date as of which the Commission declares the Exchange
Registration Statement effective or as of which the Exchange Registration
Statement otherwise becomes effective and (ii) a
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Shelf Registration, shall mean the time and date as of which the Commission
declares the Shelf Registration Statement effective or as of which the Shelf
Registration Statement otherwise becomes effective.
"ELECTING HOLDER" shall mean any holder of Registrable
Securities that has returned a completed and signed Notice and Questionnaire to
the Company in accordance with Section 3(d)(ii) or 3(d)(iii) hereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
or any successor thereto, as the same shall be amended from time to time.
"EXCHANGE OFFER" shall have the meaning assigned thereto in
Section 2(a) hereof.
"EXCHANGE REGISTRATION" shall have the meaning assigned
thereto in Section 3(c) hereof.
"EXCHANGE REGISTRATION STATEMENT" shall have the meaning
assigned thereto in Section 2(a) hereof.
"EXCHANGE SECURITIES" shall have the meaning assigned thereto
in Section 2(a) hereof.
"Guarantors" shall have the meaning assigned thereto in the
Indenture.
The term "HOLDER" shall mean each of the Purchasers and other
persons who acquire Registrable Securities from time to time (including any
successors or assigns), in each case for so long as such person owns any
Registrable Securities.
"INDENTURE" shall mean the Indenture, dated as of May 8, 2002
between the Company, the Guarantors and The Bank of Nova Scotia Trust Company of
New York, as Trustee, as the same shall be amended from time to time.
"NOTICE AND QUESTIONNAIRE" means a Notice of Registration
Statement and Selling Security holder Questionnaire substantially in the form of
Exhibit A hereto.
The term "PERSON" shall mean a corporation, association,
partnership, organization, business, individual, government or political
subdivision thereof or governmental agency.
"PURCHASE AGREEMENT" shall mean the Purchase Agreement, dated
as of May 3, 2002 between the Purchasers, the Guarantors and the Company
relating to the Securities.
"PURCHASERS" shall mean the Purchasers named in Schedule I to
the Purchase Agreement.
"REGISTRABLE SECURITIES" shall mean the Securities; PROVIDED,
HOWEVER, that a Security shall cease to be a Registrable Security when (i) in
the circumstances contemplated by Section 2(a) hereof, the Security has been
exchanged for an Exchange Security in an Exchange Offer as contemplated in
Section 2(a) hereof (provided that any Exchange Security that, pursuant to the
last two sentences of Section 2(a), is included in a prospectus for use in
connection with resales by broker-dealers shall be deemed to be a Registrable
Security with
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respect to Sections 5, 6 and 9 until resale of such Registrable Security has
been effected within the 180-day period referred to in Section 2(a)(4)); (ii) in
the circumstances contemplated by Section 2(b) hereof, a Shelf Registration
Statement registering such Security under the Securities Act has been declared
or becomes effective and such Security has been sold or otherwise transferred by
the holder thereof pursuant to and in a manner contemplated by such effective
Shelf Registration Statement; (iii) such Security is sold pursuant to Rule 144
under circumstances in which any legend borne by such Security relating to
restrictions on transferability thereof, under the Securities Act or otherwise,
is removed by the Company or pursuant to the Indenture; (iv) such Security is
eligible to be sold pursuant to paragraph (k) of Rule 144; or (v) such Security
shall cease to be outstanding.
"REGISTRATION DEFAULT" shall have the meaning assigned thereto
in Section 2(c) hereof.
"REGISTRATION EXPENSES" shall have the meaning assigned
thereto in Section 4 hereof.
"RESALE PERIOD" shall have the meaning assigned thereto in
Section 2(a) hereof.
"RESTRICTED HOLDER" shall mean (i) a holder that is an
affiliate of the Company within the meaning of Rule 405, (ii) a holder who
acquires Exchange Securities outside the ordinary course of such holder's
business, (iii) a holder who has arrangements or understandings with any person
to participate in the Exchange Offer for the purpose of distributing Exchange
Securities and (iv) a holder that is a broker-dealer, but only with respect to
Exchange Securities received by such broker-dealer pursuant to an Exchange Offer
in exchange for Registrable Securities acquired by the broker-dealer directly
from the Company.
"RULE 144, " "RULE 405" and "RULE 415" shall mean, in each
case, such rule promulgated under the Securities Act (or any successor
provision), as the same shall be amended from time to time.
"SECURITIES" shall mean, collectively, the 9.90% Senior Notes
due 2009 of the Company to be issued and sold to the Purchasers, and securities
issued in exchange therefor or in lieu thereof pursuant to the Indenture. Each
Security is entitled to the benefit of the guarantees provided for in the
Indenture (the "Guarantees") and, unless the context otherwise requires, any
reference herein to a "Security," an "Exchange Security" or a "Registrable
Security" shall include a reference to the related Guarantees.
"SECURITIES ACT" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
"SHELF REGISTRATION" shall have the meaning assigned thereto
in Section 2(b) hereof.
"SHELF REGISTRATION STATEMENT" shall have the meaning assigned
thereto in Section 2(b) hereof.
"ADDITIONAL INTEREST" shall have the meaning assigned thereto
in Section 2(c) hereof.
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"TRUST INDENTURE ACT" shall mean the Trust Indenture Act of
1939, or any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to
a "Section" or "clause" refers to a Section or clause, as the case may be, of
this Exchange and Registration Rights Agreement, and the words "herein,"
"hereof" and "hereunder" and other words of similar import refer to this
Exchange and Registration Rights Agreement as a whole and not to any particular
Section or other subdivision.
2. REGISTRATION UNDER THE SECURITIES ACT.
(a) Except as set forth in Section 2(b) below, the Company agrees to
file under the Securities Act, as soon as practicable, but no later
than 90 days after the Closing Date, a registration statement relating
to an offer to exchange (such registration statement, the "Exchange
Registration Statement", and such offer, the "Exchange Offer") any and
all of the Securities for a like aggregate principal amount of debt
securities issued by the Company and guaranteed by the Guarantors,
which debt securities and guarantees are substantially identical to the
Securities and the related Guarantees, respectively (and are entitled
to the benefits of a trust indenture which is substantially identical
to the Indenture or is the Indenture and which has been qualified under
the Trust Indenture Act), except that they have been registered
pursuant to an effective registration statement under the Securities
Act and do not contain provisions for the additional interest
contemplated in Section 2(c) below (such new debt securities
hereinafter called "Exchange Securities"). The Company agrees to use
all commercially reasonable efforts to cause the Exchange Registration
Statement to become effective under the Securities Act as soon as
practicable, but no later than 180 days after the Closing Date. The
Exchange Offer will be registered under the Securities Act on the
appropriate form and will comply with all applicable tender offer rules
and regulations under the Exchange Act. The Company further agrees to
use all commercially reasonable efforts to commence and complete the
Exchange Offer promptly, but no later than 225 days after the issuance
of the Securities, hold the Exchange Offer open for at least 30 days
and exchange Securities for all Registrable Securities that have been
properly tendered and not withdrawn on or prior to the expiration of
the Exchange Offer. The Exchange Offer will be deemed to have been
"completed" only if the debt securities and related guarantees received
by holders other than Restricted Holders in the Exchange Offer for
Registrable Securities are, upon receipt, transferable by each such
holder without restriction under the Securities Act and the Exchange
Act and without material restrictions under the blue sky or securities
laws of a substantial majority of the States of the United States of
America. The Exchange Offer shall be deemed to have been completed upon
the earlier to occur of (i) the Company having exchanged the Exchange
Securities for all outstanding Registrable Securities pursuant to the
Exchange Offer and (ii) the Company having exchanged, pursuant to the
Exchange Offer, Exchange Securities for all Registrable Securities that
have been properly tendered and not withdrawn before the expiration of
the Exchange Offer, which shall be on a date that is at least 30 days
following the commencement of the Exchange Offer. The Company agrees
(x) to include in the Exchange Registration Statement a prospectus for
use in any resales by any holder of Exchange Securities that is a
broker-dealer and (y) to keep such Exchange Registration Statement
effective for a period (the "Resale Period") beginning when Exchange
Securities are first issued in the Exchange Offer and ending upon the
earlier of the expiration of the 180th day after the Exchange Offer has
been completed or such time as such broker-dealers no longer own any
Registrable Securities. With respect to such Exchange
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Registration Statement, such holders shall have the benefit of the
rights of indemnification and contribution set forth in Sections 6(a),
(c), (d) and (e) hereof.
(b) If (i) on or prior to the time the Exchange Offer is completed
existing Commission interpretations are changed such that the debt
securities or the related guarantees received by holders other than
Restricted Holders in the Exchange Offer for Registrable Securities are
not or would not be, upon receipt, transferable by each such holder
without restriction under the Securities Act, (ii) the Exchange Offer
has not been completed within 225 days following the Closing Date or
(iii) the Exchange Offer is not available to any holder of the
Securities, the Company shall, in lieu of (or, in the case of clause
(iii), in addition to) conducting the Exchange Offer contemplated by
Section 2(a), file under the Securities Act as soon as practicable, but
no later than the later of 60 days after the time such obligation to
file arises, a "shelf" registration statement providing for the
registration of, and the sale on a continuous or delayed basis by the
holders of, all of the Registrable Securities, pursuant to Rule 415 or
any similar rule that may be adopted by the Commission (such filing,
the "Shelf Registration" and such registration statement, the "Shelf
Registration Statement"). The Company agrees to use its commercially
reasonable efforts (x) to cause the Shelf Registration Statement to
become or be declared effective no later than 120 days after the time
such obligation to file arises and to keep such Shelf Registration
Statement continuously effective for a period ending on the earlier of
the second anniversary of the Effective Time or such time as there are
no longer any Registrable Securities outstanding, PROVIDED, HOWEVER,
that no holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement or to use the
prospectus forming a part thereof for resales of Registrable Securities
unless such holder is an Electing Holder, and (y) after the Effective
Time of the Shelf Registration Statement, promptly upon the request of
any holder of Registrable Securities that is not then an Electing
Holder, to take any action reasonably necessary to enable such holder
to use the prospectus forming a part thereof for resales of Registrable
Securities, including, without limitation, any action necessary to
identify such holder as a selling securityholder in the Shelf
Registration Statement, PROVIDED, HOWEVER, that nothing in this Clause
(y) shall relieve any such holder of the obligation to return a
completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(d)(iii) hereof prior to the use of such
prospectus for such purpose. The Company further agrees to supplement
or make amendments to the Shelf Registration Statement, as and when
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration
Statement or by the Securities Act or rules and regulations thereunder
for shelf registration, and the Company agrees to furnish to each
Electing Holder copies of any such supplement or amendment prior to its
being used or promptly following its filing with the Commission.
In the event that (i) the Company has not filed the Exchange Registration
Statement or Shelf Registration Statement on or before the date on which such
registration statement is required to be filed pursuant to Section 2(a) or 2(b),
respectively, or (ii) such Exchange Registration Statement or Shelf Registration
Statement has not become effective or been declared effective by the Commission
on or before the date on which such registration statement is required to become
or be declared effective pursuant to Section 2(a) or 2(b), respectively, or
(iii) the Exchange Offer has not been completed within 225 days after the
issuance of the Notes or (iv) any Exchange Registration Statement or Shelf
Registration Statement required by Section 2(a) or 2(b) hereof is filed and
declared effective but shall thereafter either be withdrawn by the Company or
shall become subject to an effective stop order issued pursuant to Section 8(d)
of the Securities Act suspending the effectiveness of such registration
statement (except as specifically permitted herein) without being succeeded
immediately by an additional registration
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statement filed and declared effective (each such event referred to in clauses
(i) through (iv), a "Registration Default" and each period during which a
Registration Default has occurred and is continuing, a "Registration Default
Period"), then, as liquidated damages for such Registration Default, subject to
the provisions of Section 9(b), additional interest ("Additional Interest"), in
addition to the Base Interest, shall accrue during the first 90-day period
immediately following the occurrence of the first Registration Default in an
amount equal to US$.05 per week per US$1,000 principal amount of notes held by
such Holder. The amount of the Additional Interest will increase by an
additional US$.05 per week per US$1,000 principal amount of notes with respect
to each subsequent 90-day period until all Registration Defaults have been
cured, up to a maximum amount of Additional Interest for all Registration
Defaults of US$.25 per week per US$1,000 principal amount of notes.
(c) The Company shall take, and shall cause the Guarantors to take,
all actions necessary or advisable to be taken by it to ensure that the
transactions contemplated herein are effected as so contemplated,
including all actions necessary or desirable to register the Guarantees
under the registration statement contemplated in Section 2(a) or 2(b)
hereof, as applicable.
(d) Any reference herein to a registration statement as of any time
shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time and any reference
herein to any post-effective amendment to a registration statement as
of any time shall be deemed to include any document incorporated, or
deemed to be incorporated, therein by reference as of such time.
3. REGISTRATION PROCEDURES.
If the Company files a registration statement pursuant to
Section 2(a) or Section 2(b), the following provisions shall apply:
(a) At the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, the Company shall qualify the
Indenture under the Trust Indenture Act of 1939.
(b) In the event that such qualification would require of a new
trustee under the Indenture, the Company shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Indenture.
(c) In connection with the Company's obligations with respect to the
registration of Exchange Securities as contemplated by Section 2(a)
(the "Exchange Registration"), if applicable, the Company shall, as
soon as practicable (or as otherwise specified):
(i) prepare and file with the Commission, as soon as
practicable but no later than 90 days after the Closing Date, an
Exchange Registration Statement on any form which may be utilized by
the Company and which shall permit the Exchange Offer and resales of
Exchange Securities by broker-dealers during the Resale Period to be
effected as contemplated by Section 2(a), and use its commercially
reasonable efforts to cause such Exchange Registration Statement to
become effective as soon as practicable thereafter, but no later
than 180 days after the Closing Date;
(ii) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Exchange
Registration Statement and the prospectus included therein as may be
necessary to effect and maintain the
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effectiveness of such Exchange Registration Statement for the
periods and purposes contemplated in Section 2(a) hereof and as may
be required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such
Exchange Registration Statement, and promptly provide each
broker-dealer holding Exchange Securities with such number of copies
of the prospectus included therein (as then amended or
supplemented), in conformity in all material respects with the
requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission thereunder, as such
broker-dealer reasonably may request prior to the expiration of the
Resale Period, for use in connection with resales of Exchange
Securities;
(iii) promptly notify each broker-dealer that has
requested or received copies of the prospectus included in such
registration statement, and confirm such advice in writing, (A) when
such Exchange Registration Statement or the prospectus included
therein or any prospectus amendment or supplement or post-effective
amendment has been filed, and, with respect to such Exchange
Registration Statement or any post-effective amendment, when the
same has become effective, (B) of any comments by the Commission and
by the blue sky or securities commissioner or regulator of any state
with respect thereto or any request by the Commission for amendments
or supplements to such Exchange Registration Statement or prospectus
or for additional information, (C) of the issuance by the Commission
of any stop order suspending the effectiveness of such Exchange
Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the representations
and warranties of the Company contemplated by Section 5 cease to be
true and correct in all material respects, (E) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Exchange Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose, or (F) at any time during the Resale Period when a
prospectus is required to be delivered under the Securities Act,
that such Exchange Registration Statement, prospectus, prospectus
amendment or supplement or post-effective amendment does not conform
in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder or contains 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 light of the circumstances then existing;
(iv) in the event that the Company would be required,
pursuant to Section 3(e)(iii)(F) above, to notify any broker-dealers
holding Exchange Securities, promptly prepare and furnish to each
such holder a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to
purchasers of such Exchange Securities during the Resale Period,
such prospectus shall conform in all material respects to the
applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder and 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 not misleading in light
of the circumstances then existing;
(v) use its commercially reasonable efforts to obtain
the withdrawal of any order suspending the effectiveness of such
Exchange Registration Statement or any post-effective amendment
thereto at the earliest practicable date;
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(vi) use its commercially reasonable efforts to (A)
register or qualify the Exchange Securities under the securities
laws or blue sky laws of such jurisdictions as are contemplated by
Section 2(a) no later than the commencement of the Exchange Offer,
(B) keep such registrations or qualifications in effect and comply
with such laws so as to permit the continuance of offers, sales and
dealings therein in such jurisdictions until the expiration of the
Resale Period and (C) take any and all other actions as may be
reasonably necessary or advisable to enable each broker-dealer
holding Exchange Securities to consummate the disposition thereof in
such jurisdictions; PROVIDED, HOWEVER, that neither the Company nor
the Guarantors shall be required for any such purpose to (1) qualify
as a foreign corporation in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of this
Section 3(c)(vi), (2) consent to general service of process in any
such jurisdiction or (3) make any changes to its certificate of
incorporation or by-laws or any agreement between it and its
stockholders;
(vii) use its commercially reasonable efforts to obtain
the consent or approval of each governmental agency or authority,
whether federal, state or local, which may be required to effect the
Exchange Registration, the Exchange Offer and the offering and sale
of Exchange Securities by broker-dealers during the Resale Period;
(viii) provide a CUSIP number for all Exchange
Securities, not later than the applicable Effective Time;
(ix) comply with all applicable rules and regulations
of the Commission, and make generally available to its security
holders as soon as practicable but no later than eighteen months
after the effective date of such Exchange Registration Statement, an
earning statement of the Company and its subsidiaries complying with
Section 11 (a) of the Securities Act (including, at the option of
the Company, Rule 158 thereunder).
(d) In connection with the Company's obligations with respect to the
Shelf Registration, if applicable, the Company shall, as soon as
practicable (or as otherwise specified):
(i) prepare and file with the Commission, as soon as
practicable but in any case within the time periods specified in
Section 2(b), a Shelf Registration Statement on any form which may
be utilized by the Company and which shall register all of the
Registrable Securities for resale by the holders thereof in
accordance with such method or methods of disposition as may be
specified by such of the holders as, from time to time, may be
Electing Holders and use its commercially reasonable efforts to
cause such Shelf Registration Statement to become effective as soon
as practicable but in any case within the time periods specified in
Section 2(b);
(ii) not less than 30 calendar days prior to the
Effective Time of the Shelf Registration Statement, mail the Notice
and Questionnaire to the holders of Registrable Securities; no
holder shall be entitled to be named as a selling securityholder in
the Shelf Registration Statement as of the Effective Time, and no
holder shall be entitled to use the prospectus forming a part
thereof for resales of Registrable Securities at any time, unless
such holder has returned a completed and signed Notice and
Questionnaire to the Company by the deadline for response set forth
therein; PROVIDED, HOWEVER, holders of Registrable Securities shall
have at least 20 calendar days from the date on which the Notice and
Questionnaire is first mailed to
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such holders to return a completed and signed Notice and
Questionnaire to the Company;
(iii) after the Effective Time of the Shelf
Registration Statement, upon the request of any holder of
Registrable Securities that is not then an Electing Holder, promptly
send a Notice and Questionnaire to such holder; PROVIDED that the
Company shall not be required to take any action to name such holder
as a selling securityholder in the Shelf Registration Statement or
to enable such holder to use the prospectus forming a part thereof
for resales of Registrable Securities until such holder has returned
a completed and signed Notice and Questionnaire to the Company;
(iv) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Shelf
Registration Statement and the prospectus included therein as may be
necessary to effect and maintain the effectiveness of such Shelf
Registration Statement for the period specified in Section 2(b)
hereof and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to the
form of such Shelf Registration Statement, and furnish to the
Electing Holders copies of any such supplement or amendment
simultaneously with or prior to its being used or filed with the
Commission;
(v) comply with the provisions of the Securities Act
with respect to the disposition of all of the Registrable Securities
covered by such Shelf Registration Statement in accordance with the
intended methods of disposition by the Electing Holders provided for
in such Shelf Registration Statement;
(vi) provide (A) the Electing Holders, (B) the
underwriters (which term, for purposes of this Exchange and
Registration Rights Agreement, shall include a person deemed to be
an underwriter within the meaning of Section 2(a)(11) of the
Securities Act), if any, thereof, (C) any sales or placement agent
therefor, (D) counsel for any such underwriter or agent and (E) not
more than one counsel for all the Electing Holders the opportunity
to participate in the preparation of such Shelf Registration
Statement, each prospectus included therein or filed with the
Commission and each amendment or supplement thereto;
(vii) for a reasonable period prior to the filing of
such Shelf Registration Statement, and throughout the period
specified in Section 2(b), make available at reasonable times at the
Company's principal place of business or such other reasonable place
for inspection by the persons referred to in Section 3(d)(vi) who
shall certify to the Company that they have a current intention to
sell the Registrable Securities pursuant to the Shelf Registration
such financial and other information and books and records of the
Company, and cause the officers, employees, counsel and independent
certified public accountants of the Company to respond to such
inquiries, as shall be reasonably necessary, in the judgment of the
respective counsel referred to in such Section, to conduct a
reasonable investigation within the meaning of Section 11 of the
Securities Act; PROVIDED, HOWEVER, that each such party shall be
required to maintain in confidence and not to disclose to any other
person any information or records reasonably designated by the
Company as being confidential, until such time as (A) such
information becomes a matter of public record (whether by virtue of
its inclusion in such registration statement or otherwise), or (B)
such person shall be required so to disclose such information
pursuant to a subpoena or order of any court or other governmental
agency or body having jurisdiction over the matter (subject to the
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requirements of such order, and only after such person shall have
given the Company prompt prior written notice of such requirement),
or (C) such information is required to be set forth in such Shelf
Registration Statement or the prospectus included therein or in an
amendment to such Shelf Registration Statement or an amendment or
supplement to such prospectus in order that such Shelf Registration
Statement, prospectus, amendment or supplement, as the case may be,
complies with applicable requirements of the federal securities laws
and the rules and regulations of the Commission and does not contain
an untrue statement of a material fact or omit to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing;
(viii) promptly notify each of the Electing Holders, any
sales or placement agent therefor and any underwriter thereof (which
notification may be made through any managing underwriter that is a
representative of such underwriter for such purpose) and confirm
such advice in writing, (A) when such Shelf Registration Statement
or the prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed, and, with
respect to such Shelf Registration Statement or any post-effective
amendment, when the same has become effective, (B) of any comments
by the Commission and by the blue sky or securities commissioner or
regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such Shelf Registration
Statement or prospectus or for additional information, (C) of the
issuance by the Commission of any stop order suspending the
effectiveness of such Shelf Registration Statement or the initiation
or threatening of any proceedings for that purpose, (D) if at any
time the representations and warranties of the Company contemplated
by Section 3(d)(xvii) or Section 5 cease to be true and correct in
all material respects, (E) of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, or (F)
if at any time when a prospectus is required to be delivered under
the Securities Act, that such Shelf Registration Statement,
prospectus, prospectus amendment or supplement or post-effective
amendment does not conform in all material respects to the
applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder or contains 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 light of
the circumstances then existing;
(ix) use its commercially reasonable efforts to obtain
the withdrawal of any order suspending the effectiveness of such
registration statement or any post-effective amendment thereto at
the earliest practicable date;
(x) if reasonably requested by any managing
underwriter or underwriters, any placement or sales agent or any
Electing Holder, promptly incorporate in a prospectus supplement or
post-effective amendment such information as is required by the
applicable rules and regulations of the Commission and as such
managing underwriter or underwriters, such agent or such Electing
Holder specifies should be included therein relating to the terms of
the sale of such Registrable Securities, including information with
respect to the principal amount of Registrable Securities being sold
by such Electing Holder or agent or to any underwriters, the name
and description of such Electing Holder, agent or underwriter, the
offering price of such Registrable Securities and any discount,
commission or other compensation payable in respect thereof, the
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purchase price being paid therefor by such underwriters and with
respect to any other terms of the offering of the Registrable
Securities to be sold by such Electing Holder or agent or to such
underwriters; and make all required filings of such prospectus
supplement or post-effective amendment promptly after notification
of the matters to be incorporated in such prospectus supplement or
post-effective amendment;
(xi) furnish to each Electing Holder, each placement
or sales agent, if any, therefor, each underwriter, if any, thereof
and the respective counsel referred to in Section 3(d)(vi) an
executed copy (or, in the case of an Electing Holder, a conformed
copy) of such Shelf Registration Statement, each such amendment and
supplement thereto (in each case including all exhibits thereto and
documents incorporated by reference therein (in the case of an
Electing Holder of Registrable Securities, upon request)) and such
number of copies of such Shelf Registration Statement (excluding
exhibits thereto and documents incorporated by reference therein
unless specifically so requested by such Electing Holder, agent or
underwriter, as the case may be) and of the prospectus included in
such Shelf Registration Statement (including each preliminary
prospectus and any summary prospectus), in conformity in all
material respects with the applicable requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder, and such other documents, as such Electing
Holder, agent, if any, and underwriter, if any, may reasonably
request in order to facilitate the offering and disposition of the
Registrable Securities owned by such Electing Holder, offered or
sold by such agent or underwritten by such underwriter and to permit
such Electing Holder, agent and underwriter to satisfy the
prospectus delivery requirements of the Securities Act; and the
Company hereby consents to the use of such prospectus (including
such preliminary and summary prospectus) and any amendment or
supplement thereto by each such Electing Holder and by any such
agent and underwriter, in each case in the form most recently
provided to such person by the Company, in connection with the
offering and sale of the Registrable Securities covered by the
prospectus (including such preliminary and summary prospectus) or
any supplement or amendment thereto;
(xii) use commercially reasonable efforts to (A)
register or qualify the Registrable Securities to be included in
such Shelf Registration Statement under such securities laws or blue
sky laws of such jurisdictions as any Electing Holder and each
placement or sales agent, if any, therefor and underwriter, if any,
thereof shall reasonably request, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit
the continuance of offers, sales and dealings therein in such
jurisdictions during the period the Shelf Registration is required
to remain effective under Section 2(b) above and for so long as may
be necessary to enable any such Electing Holder, agent or
underwriter to complete its distribution of Securities pursuant to
such Shelf Registration Statement and (C) take any and all other
actions as may be reasonably necessary or advisable to enable each
such Electing Holder, agent, if any, and underwriter, if any, to
consummate the disposition in such jurisdictions of such Registrable
Securities; PROVIDED, HOWEVER, that neither the Company nor the
Guarantors shall be required for any such purpose to (1) qualify as
a foreign corporation in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of this
Section 3(d)(xii), (2) consent to general service of process in any
such jurisdiction or (3) make any changes to its certificate of
incorporation or by-laws or any agreement between it and its
stockholders;
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(xiii) use its commercially reasonable efforts to obtain
the consent or approval of each governmental agency or authority,
whether federal, state or local, which may be required to effect the
Shelf Registration or the offering or sale in connection therewith
or to enable the selling holder or holders to offer, or to
consummate the disposition of, their Registrable Securities;
(xiv) Unless any Registrable Securities shall be in
book-entry only form, cooperate with the Electing Holders and the
managing underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to
be sold, which certificates, if so required by any securities
exchange upon which any Registrable Securities are listed, shall be
penned, lithographed or engraved, or produced by any combination of
such methods, on steel engraved borders, and which certificates
shall not bear any restrictive legends; and, in the case of an
underwritten offering, enable such Registrable Securities to be in
such denominations and registered in such names as the managing
underwriters may request at least two business days prior to any
sale of the Registrable Securities;
(xv) provide a CUSIP number for all Registrable
Securities, not later than the applicable Effective Time;
(xvi) enter into one or more underwriting agreements,
engagement letters, agency agreements, "best efforts" underwriting
agreements or similar agreements, as appropriate, including
customary provisions relating to indemnification and contribution,
and take such other actions in connection therewith as any Electing
Holders aggregating greater than 50% in aggregate principal amount
of the Registrable Securities at the time outstanding shall request
in order to expedite or facilitate the disposition of such
Registrable Securities;
(xvii) whether or not an agreement of the type referred
to in Section 3(d)(xvi) hereof is entered into and whether or not
any portion of the offering contemplated by the Shelf Registration
is an underwritten offering or is made through a placement or sales
agent or any other entity, (A) make such representations and
warranties to the Electing Holders and the placement or sales agent,
if any, therefor and the underwriters, if any, thereof in form,
substance and scope as are customarily made to such persons in
connection with an offering of debt securities pursuant to any
appropriate agreement or to a registration statement filed on the
form applicable to the Shelf Registration; (B) obtain an opinion of
counsel to the Company in customary form and covering such matters,
of the type customarily covered by such an opinion, as the managing
underwriters, if any, or as any Electing Holders of greater than 50%
in aggregate principal amount of the Registrable Securities at the
time outstanding may reasonably request, addressed to such Electing
Holder or Electing Holders and the placement or sales agent, if any,
therefor and the underwriters, if any, thereof and dated the
effective date of such Shelf Registration Statement (and if such
Shelf Registration Statement contemplates an underwritten offering
of a part or all of the Registrable Securities, dated the date of
the closing under the underwriting agreement relating thereto) (it
being agreed that the matters to be covered by such opinion shall
include the due incorporation and good standing of the Company and
its subsidiaries; the qualification of the Company and its
subsidiaries to transact business as foreign corporations; the due
authorization, execution and delivery of the relevant agreement of
the type referred to in Section 3(d)(xvi) hereof; the due
authorization, execution, authentication and issuance, and the
validity and enforceability, of the Securities; the
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absence of material legal or governmental proceedings involving the
Company; the absence of a breach by the Company or any of its
subsidiaries of, or a default under, material agreements binding
upon the Company or any subsidiary of the Company; the absence of
governmental approvals required to be obtained in connection with
the Shelf Registration, the offering and sale of the Registrable
Securities, this Exchange and Registration Rights Agreement or any
agreement of the type referred to in Section 3(d)(xvi) hereof,
except such approvals as may be required under state securities or
blue sky laws; the material compliance as to form of such Shelf
Registration Statement and any documents incorporated by reference
therein and of the Indenture with the requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder, respectively; and, as of the date of the
opinion and of the Shelf Registration Statement or most recent
post-effective amendment thereto, as the case may be, the absence
from such Shelf Registration Statement and the prospectus included
therein, as then amended or supplemented, and from the documents
incorporated by reference therein (in each case other than the
financial statements and other financial information and reserve and
related information contained therein) of an untrue statement of a
material fact or the omission to state therein a material fact
necessary to make the statements therein not misleading (in the case
of such documents, in the light of the circumstances existing at the
time that such documents were filed with the Commission under the
Exchange Act)); (C) obtain a "cold comfort" letter or letters from
the independent certified public accountants of the Company
addressed to the selling Electing Holders, the placement or sales
agent, if any, therefor or the underwriters, if any, thereof, dated
(i) the effective date of such Shelf Registration Statement and (ii)
the date of any prospectus supplement to the prospectus included in
such Shelf Registration Statement or post-effective amendment to
such Shelf Registration Statement which includes unaudited or
audited financial statements as of a date or for a period subsequent
to that of the latest such statements included in such prospectus
(and, if such Shelf Registration Statement contemplates an
underwritten offering pursuant to any prospectus supplement to the
prospectus included in such Shelf Registration Statement or
post-effective amendment to such Shelf Registration Statement which
includes unaudited or audited financial statements as of a date or
for a period subsequent to that of the latest such statements
included in such prospectus, dated the date of the closing under the
underwriting agreement relating thereto), such letter or letters to
be in customary form and covering such matters of the type
customarily covered by letters of such type; (D) deliver such
documents and certificates, including officers' certificates, as may
be customary or as may be reasonably requested by any Electing
Holders of greater than 50% in aggregate principal amount of the
Registrable Securities at the time outstanding or the placement or
sales agent, if any, therefor and the managing underwriters, if any,
thereof to evidence the accuracy of the representations and
warranties made pursuant to clause (A) above or those contained in
Section 5(a) hereof and the compliance with or satisfaction of any
agreements or conditions contained in the underwriting agreement or
other agreement entered into by the Company or the Guarantors; and
(E) undertake such obligations relating to expense reimbursement,
indemnification and contribution as are provided in Section 6
hereof;
(xviii) notify in writing each holder of Registrable
Securities of any proposal by the Company to amend or waive any
provision of this Exchange and Registration Rights Agreement
pursuant to Section 9(h) hereof and of any amendment or waiver
effected pursuant thereto, each of which notices shall contain the
text of the amendment or waiver proposed or effected, as the case
may be;
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(xix) in the event that any broker-dealer registered
under the Exchange Act shall underwrite any Registrable Securities
or participate as a member of an underwriting syndicate or selling
group or "assist in the distribution" (within the meaning of the
Conduct Rules (the "Conduct Rules") of the National Association of
Securities Dealers, Inc. ("NASD") or any successor thereto, as
amended from time to time) thereof, whether as a holder of such
Registrable Securities or as an underwriter, a placement or sales
agent or a broker or dealer in respect thereof, or otherwise, assist
such broker-dealer in complying with the requirements of such
Conduct Rules, including by (A) if such Conduct Rules shall so
require, engaging a "qualified independent underwriter" (as defined
in such Conduct Rules) to participate in the preparation of the
Shelf Registration Statement relating to such Registrable
Securities, to exercise usual standards of due diligence in respect
thereto and, if any portion of the offering contemplated by such
Shelf Registration Statement is an underwritten offering or is made
through a placement or sales agent, to recommend the yield of such
Registrable Securities, (B) indemnifying any such qualified
independent underwriter to the extent of the indemnification of
underwriters provided in Section 6 hereof (or to such other
customary extent as may be requested by such underwriter), and (C)
providing such information to such broker-dealer as may be required
in order for such broker-dealer to comply with the requirements of
the Conduct Rules; and
(xx) comply with all applicable rules and regulations
of the Commission, and make generally available to its
securityholders as soon as practicable but in any event not later
than eighteen months after the effective date of such Shelf
Registration Statement, an earning statement of the Company and its
subsidiaries complying with Section 11 (a) of the Securities Act
(including, at the option of the Company, Rule 158 thereunder).
(e) In the event that the Company would be required, pursuant to
Section 3(d)(viii)(F) above, to notify the Electing Holders, the
placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof, the Company shall without delay prepare
and furnish to each of the Electing Holders, to each placement or sales
agent, if any, and to each such underwriter, if any, a reasonable
number of copies of a prospectus supplemented or amended so that, as
thereafter delivered to purchasers of Registrable Securities, such
prospectus shall conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder and 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 not misleading in light of the circumstances then
existing. Each Electing Holder agrees that upon receipt of any notice
from the Company pursuant to Section 3(d)(viii)(F) hereof, such
Electing Holder shall forthwith discontinue the disposition of
Registrable Securities pursuant to the Shelf Registration Statement
applicable to such Registrable Securities until such Electing Holder
shall have received copies of such amended or supplemented prospectus,
and if so directed by the Company, such Electing Holder shall deliver
to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such Electing Holder's possession of the
prospectus covering such Registrable Securities at the time of receipt
of such notice.
(f) In the event of a Shelf Registration, in addition to the
information required to be provided by each Electing Holder in its
Notice Questionnaire, the Company may require such Electing Holder to
furnish to the Company such additional information regarding such
Electing Holder and such Electing Holder's intended method of
distribution of Registrable
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Securities as may be required in order to comply with the Securities
Act. Each such Electing Holder agrees to notify the Company as promptly
as practicable of any inaccuracy or change in information previously
furnished by such Electing Holder to the Company or of the occurrence
of any event in either case as a result of which any prospectus
relating to such Shelf Registration contains or would contain an untrue
statement of a material fact regarding such Electing Holder or such
Electing Holder's intended method of disposition of such Registrable
Securities or omits to state any material fact regarding such Electing
Holder or such Electing Holder's intended method of disposition of such
Registrable Securities required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances then existing, and promptly to 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 such electing Holder or the disposition of
such Registrable Securities, 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 light of the
circumstances then existing.
(g) Until the expiration of two years after the Closing Date, the
Company will not, and will not permit any of its "affiliates" (as
defined in Rule 144) to, resell any of the Securities that have been
reacquired by any of them except pursuant to an effective registration
statement under the Securities Act.
4. REGISTRATION EXPENSES.
The Company agrees to bear and to pay or cause to be paid
promptly all expenses incident to the Company's performance of or compliance
with this Exchange and Registration Rights Agreement, including (a) all
Commission and any NASD registration, filing and review fees and expenses
including fees and disbursements of counsel for the placement or sales agent or
underwriters in connection with such registration, filing and review, (b) all
fees and expenses in connection with the qualification of the Securities for
offering and sale under the State securities and blue sky laws referred to in
Section 3(d)(xii) hereof and determination of their eligibility for investment
under the laws of such jurisdictions as any managing underwriters or the
Electing Holders may designate, including any fees and disbursements of counsel
for the Electing Holders or underwriters in connection with such qualification
and determination, (c) all expenses relating to the preparation, printing,
production, distribution and reproduction of each registration statement
required to be filed hereunder, each prospectus included therein or prepared for
distribution pursuant hereto, each amendment or supplement to the foregoing, the
expenses of preparing the Securities for delivery and the expenses of printing
or producing any underwriting agreements, agreements among underwriters, selling
agreements and blue sky or legal investment memoranda and all other documents in
connection with the offering, sale or delivery of Securities to be disposed of
(including certificates representing the Securities), (d) messenger, telephone
and delivery expenses relating to the offering, sale or delivery of Securities
and the preparation of documents referred in clause (c) above, (e) fees and
expenses of the Trustee under the Indenture, any agent of the Trustee and any
counsel for the Trustee of any collateral agent or custodian, (f) internal
expenses (including all salaries and expenses of the Company's officers and
employees performing legal or accounting duties), (g) fees, disbursements and
expenses of counsel and independent certified public accountants of the Company
(including the expenses of any opinions or "cold comfort" letters required by or
incident to such performance and compliance), (h) fees, disbursements and
expenses of any "qualified independent underwriter" engaged pursuant to Section
3(d)(xix) hereof, (i) fees, disbursements and expenses of one counsel for the
Electing Holders retained in connection with a Shelf Registration, as selected
by the Electing Holders of at least a majority in aggregate
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principal amount of the Registrable Securities held by Electing Holders (which
counsel shall be reasonably satisfactory to the Company), (j) any fees charged
by securities rating services for rating the Securities, and (k) fees, expenses
and disbursements of any other persons, including special experts, retained by
the Company in connection with such registration (collectively, the
"Registration Expenses"). To the extent that any Registration Expenses are
incurred, assumed or paid by any holder of Registrable Securities or any
placement or sales agent therefor or underwriter 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.
Notwithstanding the foregoing, the holders of the Registrable Securities being
registered shall pay all agency fees and commissions and underwriting discounts
and commissions attributable to the sale of such Registrable Securities and the
fees and disbursements of any counsel or other advisors or experts retained by
such holders (severally or jointly), other than the counsel and experts
specifically referred to above.
5. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to, and agrees with, each
Purchaser and each of the holders from time to time of Registrable Securities
that:
(a) Each registration statement covering Registrable Securities and
each prospectus (including any preliminary or summary prospectus)
contained therein or furnished pursuant to Section 3(d) or Section 3(c)
hereof and any further amendments or supplements to any such
registration statement or prospectus, when it becomes effective or is
filed with the Commission, as the case may be, and, in the case of an
underwritten offering of Registrable Securities, at the time of the
closing under the underwriting agreement relating thereto, will conform
in all material respects to the requirements of the Securities Act and
the Trust Indenture Act and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and at all
times subsequent to the Effective Time when a prospectus would be
required to be delivered under the Securities Act, other than from (i)
such time as a notice has been given to holders of Registrable
Securities pursuant to Section 3(d)(viii)(F) or Section 3(c)(iii)(F)
hereof until (ii) such time as the Company furnishes an amended or
supplemented prospectus pursuant to Section 3(e) or Section 3(c)(iv)
hereof, each such registration statement, and each prospectus
(including any summary prospectus) contained therein or furnished
pursuant to Section 3(d) or Section 3(c) hereof, as then amended or
supplemented, will conform in all material respects to the requirements
of the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing; PROVIDED,
HOWEVER, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by a holder of
Registrable Securities expressly for use therein.
(b) Any documents incorporated by reference in any prospectus
referred to in Section 5(a) hereof, when they become or became
effective or are or were filed with the Commission, as the case may be,
will conform or conformed in all material respects to the requirements
of the Securities Act or the Exchange Act, as applicable, and none of
such documents will contain or contained an untrue statement of a
material fact or will omit or omitted to state a material fact required
to be stated therein or necessary to make
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the statements therein not misleading; PROVIDED, HOWEVER, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by a holder of Registrable
Securities expressly for use therein.
(c) The compliance by the Company with all of the provisions of this
Exchange and Registration Rights Agreement and the consummation of the
transactions herein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any subsidiary of the
Company is a party or by which the Company or any subsidiary of the
Company is bound or to which any of the property or assets of the
Company or any subsidiary of the Company is subject, nor will such
action result in any violation of the provisions of the certificate of
incorporation, as amended, or the by-laws of the Company or the
Guarantors or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company or
any subsidiary of the Company or any of their properties; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required
for the consummation by the Company and the Guarantors of the
transactions contemplated by this Exchange and Registration Rights
Agreement, except the registration under the Securities Act of the
Securities, qualification of the Indenture under the Trust Indenture
Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under State securities or blue sky
laws in connection with the offering and distribution of the
Securities.
(d) This Exchange and Registration Rights Agreement has been duly
authorized, executed and delivered by the Company.
6. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY and the Guarantors. The Company
and the Guarantors, jointly and severally, will indemnify and hold
harmless each of the holders of Registrable Securities included in an
Exchange Registration Statement, each of the Electing Holders of
Registrable Securities included in a Shelf Registration Statement and
each person who participates as a placement or sales agent or as an
underwriter in any offering or sale of such Registrable Securities
against any losses, claims, damages or liabilities, joint or several,
to which such holder, agent or underwriter may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Exchange Registration Statement or Shelf Registration
Statement, as the case may be, under which such Registrable Securities
were registered under the Securities Act, or any preliminary, final or
summary prospectus contained therein or furnished by the Company to any
such holder, Electing Holder, agent or underwriter, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
will reimburse such holder, such Electing Holder, such agent and such
underwriter for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such action or claim
as such expenses are incurred; PROVIDED, HOWEVER, that neither the
Company nor the Guarantor shall be liable to any such person in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such
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registration statement, or preliminary, final or summary prospectus, or
amendment or supplement thereto, in reliance upon and in conformity
with written information furnished to the Company by such person
expressly for use therein.
(b) INDEMNIFICATION BY THE HOLDERS AND ANY AGENTS AND UNDERWRITERS.
The Company may require, as a condition to including any Registrable
Securities in any registration statement filed pursuant to Section 2(b)
hereof and to entering into any underwriting agreement with respect
thereto, that the Company shall have received an undertaking reasonably
satisfactory to it from the Electing Holder of such Registrable
Securities and from each underwriter named in any such underwriting
agreement, severally and not jointly, to (i) indemnify and hold
harmless the Company, the Guarantors, and all other holders of
Registrable Securities, against any losses, claims, damages or
liabilities to which the Company, the Guarantors or such other holders
of Registrable Securities may become subject, under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities
(or actions 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, final or
summary prospectus contained therein or furnished by the Company to any
such Electing Holder, agent or underwriter, or any amendment or
supplement thereto, or arise out of or are based upon the 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 to the extent, but 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 such Electing Holder or underwriter
expressly for use therein, and (ii) reimburse the Company and the
Guarantors for any legal or other expenses reasonably incurred by the
Company and the Guarantors in connection with investigating or
defending any such action or claim as such expenses are incurred;
PROVIDED, HOWEVER, that no such Electing Holder shall be required to
undertake liability to any person under this Section 6(b) for any
amounts in excess of the dollar amount of the proceeds to be received
by such Electing Holder from the sale of such Electing Holder's
Registrable Securities pursuant to such registration.
(c) NOTICES 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, such indemnified party shall, if a claim in
respect thereof is to be made against an indemnifying party pursuant to
the indemnification provisions of or contemplated by this Section 6,
notify such indemnifying party in writing of the commencement of such
action; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified
party otherwise than under the indemnification provisions of or
contemplated by Section 6(a) or 6(b) hereof. In case any such action
shall be brought against any indemnified party and it shall notify an
indemnifying party of the commencement thereof, such indemnifying party
shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying
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 expenses of other counsel or any other expenses, in each
case subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of investigation.
No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent
to the
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entry of any judgment with respect to, any pending or threatened action
or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or
claim and (ii) does not include a statement as to, or an admission of
fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) CONTRIBUTION. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) are unavailable to or
insufficient to hold harmless an indemnified party in respect of any
losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of
such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative
fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), 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
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 parties hereto agree that it would not
be just and equitable if contributions pursuant to this Section 6(d)
were determined by pro rata allocation (even if the holders or any
agents or underwriters or all of them were treated as one entity for
such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in this Section
6(d). The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or
other fees or expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6(d), no holder shall be
required to contribute any amount in excess of the amount by which the
dollar amount of the proceeds received by such holder from the sale of
any Registrable Securities (after deducting any fees, discounts and
commissions applicable thereto) exceeds the amount of any damages which
such holder has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission, and no
underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such underwriter has
otherwise been required to pay by reason of such untrue or all untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11 (f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The holders'
and any underwriters' obligations in this Section 6(d) to contribute
shall be several in proportion to the principal amount of Registrable
Securities registered or under-written, as the case may be, by them and
not joint.
(e) The obligations of the Company and the Guarantors under this
Section 6 shall be in addition to any liability which the Company or
the Guarantors may otherwise have and shall extend, upon the same terms
and conditions, to each officer, director and partner of each holder,
agent and underwriter and each person, if any, who controls any holder,
agent or
19
EXECUTION COPY
underwriter within the meaning of the Securities Act; and the
obligations of the holders and any agents or underwriters contemplated
by this Section 6 shall be in addition to any liability which the
respective holder, agent or underwriter may otherwise have and shall
extent, upon the same terms and conditions, to each officer and
director of the Company or the Guarantors (including any person who,
with his consent, is named in any registration statement as about to
become a director of the Company or the Guarantors) and to each person,
if any, who controls the Company within the meaning of the Securities
Act.
7. UNDERWRITTEN OFFERINGS.
(a) SELECTION OF UNDERWRITERS. If any of the Registrable Securities
covered by the Shelf Registration are to be sold pursuant to an
underwritten offering, the managing underwriter or underwriters thereof
shall be designated by Electing Holders holding at least a majority in
aggregate principal amount of the Registrable Securities to be included
in such offering, provided that such designated managing underwriter or
underwriters is or are reasonably acceptable to the Company.
(b) PARTICIPATION BY HOLDERS. Each holder of Registrable Securities
hereby agrees with each other such holder that no such holder may
participate in any underwritten offering hereunder unless such holder
(i) agrees to sell such holder's Registrable Securities on the basis
provided in any underwriting arrangements approved by the persons
entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under
the terms of such underwriting arrangements.
8. RULE 144.
The Company covenants to the holders of Registrable Securities
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 the reports under section 13 and
15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted
by the Commission under the Securities Act) and the rules and regulations
adopted by the Commission thereunder, and shall take such further action as any
holder of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such holder to, sell Registrable Securities
without registration under the Securities Act within the 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 or successor rule or regulation
hereafter adopted by the Commission. Upon the request of any holder of
Registrable Securities in connection with that holder's sale pursuant to Rule
144, the Company shall deliver to such holder a written statement as to whether
it has complied with such requirements.
9. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant,
registration rights with respect to Registrable Securities or any other
securities which would be inconsistent with the terms contained in this
Exchange and Registration Rights Agreement.
(b) SPECIFIC PERFORMANCE. The parties hereto acknowledge that there
would be no adequate remedy at law if the Company fails to perform any
of its obligations hereunder and that the Purchasers and the holders
from time to time of the Registrable Securities may
20
EXECUTION COPY
be irreparably harmed by any such failure, and accordingly agree that
the Purchasers and such holders, in addition to any other remedy to
which they may be entitled at law or in equity, shall the entitled to
compel specific performance of the obligations of the Company under
this change and Registration Rights Agreement in accordance with the
terms and conditions of this Exchange and Registration Rights
Agreement, in any court of the United States or any State thereof
having jurisdiction.
(c) NOTICES. 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, if delivered personally
or by courier, or three days after being deposited in the mail
(registered or certified mail, postage prepaid, return receipt
requested) as follows: If to the Company, to it at ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ -
▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, and if to a holder,
to the address of such holder set forth in the security register or
other records of the Company, or to such other address as the Company
or any such holder may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be
effective only upon receipt.
(d) PARTIES IN INTEREST. All the terms and provisions of this
Exchange and Registration Rights Agreement shall be binding upon, shall
inure to the benefit of and shall be enforceable by the parties hereto
and the holders from time to time of the Registrable Securities and the
respective successors and assigns of the parties hereto and such
holders. In the event that any transferee of any holder of Registrable
Securities shall acquire Registrable Securities, in any manner, whether
by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be
deemed a beneficiary hereof for all purposes and such Registrable
Securities shall be held subject to all of the terms of this Exchange
and Registration Rights Agreement, and by taking and holding such
Registrable Securities such transferee shall be entitled to receive the
benefits of, and be conclusively deemed to have agreed to be bound by
all of the applicable terms and provisions of this Exchange and
Registration Rights Agreement. If the Company shall so request, any
such successor, assign or transferee shall agree in writing to acquire
and hold the Registrable Securities subject to all of the applicable
terms hereof.
(e) SURVIVAL. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this
Exchange and Registration Rights Agreement or made pursuant hereto
shall remain in full force and effect regardless of any investigation
(or statement as to the results thereof) made by or on behalf of any
holder of Registrable Securities, any director, officer or partner of
such holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and
shall survive delivery of and payment for the Registrable Securities
pursuant to the Purchase Agreement and the transfer and registration of
Registrable Securities by such holder and the consummation of an
Exchange Offer.
(f) GOVERNING LAW. THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
(g) HEADINGS. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement are
inserted for convenience only, do not constitute a part of this
Exchange and Registration Rights Agreement and shall not affect in any
way the meaning or interpretation of this Exchange and Registration
Rights Agreement.
21
EXECUTION COPY
(h) ENTIRE AGREEMENT; AMENDMENTS. This Exchange and Registration
Rights Agreement and the other writings referred to herein (including
the Indenture and the form of Securities) or delivered pursuant hereto
which form a part hereof contain the entire understanding of the
parties with respect to its subject matter. This Exchange and
Registration Rights Agreement supersedes all prior agreements and
understandings between the parties with respect to its subject matter.
This Exchange and Registration Rights Agreement may be amended and the
observance of any term of this Exchange and Registration Rights
Agreement may be waived (either generally or in a particular instance
and either retroactively or prospectively) only by a written instrument
duly executed by the Company and the holders of at least a majority in
aggregate principal amount of the Registrable Securities at the time
outstanding. Each holder of any Registrable Securities at the time or
thereafter outstanding shall be bound by any amendment or waiver
effected pursuant to this Section 9(h), whether or not any notice,
writing or marking indicating such amendment or waiver appears on such
Registrable Securities or is delivered to such holder.
(i) INSPECTION. For so long as this Exchange and Registration Rights
Agreement shall be in effect, this Exchange and Registration Rights
Agreement and a complete list of the names and addresses of all the
holders of Registrable Securities shall be made available for
inspection and copying on any business day by any holder of Registrable
Securities for proper purposes only (which shall include any purpose
related to the rights of the holders of Registrable Securities under
the Securities, the Indenture and this Agreement) at the offices of the
Company at the address thereof set forth in Section 9(c) above and at
the office of the Trustee under the Indenture.
(j) COUNTERPARTS. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all
such respective counterparts shall together constitute one and the same
instrument.
(k) Consent to Jurisdiction. Each party irrevocably agrees that any
legal suit, action or proceeding arising out of or based upon this
Agreement or the transactions contemplated hereby ("Related
Proceedings") may be instituted in the federal courts of the United
States of America located in the City of New York or the courts of the
State of New York in each case located in the Borough of Manhattan in
the City of New York (collectively, the "Specified Courts"), and
irrevocably submits to the exclusive jurisdiction (except for
proceedings instituted in regard to the enforcement of a judgment of
any such court (a "Related Judgment"), as to which such jurisdiction is
non-exclusive) of such courts in any such suit, action or proceeding.
The parties further agree that service of any process, summons, notice
or document by mail to such party's address set forth above shall be
effective service of process for any lawsuit, action or other
proceeding brought in any such court. The parties hereby irrevocably
and unconditionally waive any objection to the laying of venue of any
lawsuit, action or other proceeding in the Specified Courts, and hereby
further irrevocably and unconditionally waive and agree not to plead or
claim in any such court that any such lawsuit, action or other
proceeding brought in any such court has been brought in an
inconvenient forum. Each party not located in the United States hereby
irrevocably appoints CT Corporation System, which currently maintains a
New York City office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America, as its agent to receive service
of process or other legal summons for purposes of any such action or
proceeding that may be instituted in any state or federal court in the
City and State of New York.
22
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If the foregoing is in accordance with your understanding,
please sign and return to us one for the Company, the Guarantors and each of the
Representatives plus one for each counsel counterparts hereof, and upon the
acceptance hereof by you, on behalf of each of the Purchasers, this letter and
such acceptance hereof shall constitute a binding agreement between each of the
Purchasers, the Guarantors and the Company. It is understood that your
acceptance of this letter on behalf of each of the Purchasers is pursuant to the
authority set forth in a form of Agreement among Purchasers, the form of which
shall be submitted to the Company for examination upon request, but without
warranty on your part as to the authority of the signers thereof.
Very truly yours,
▇▇▇▇▇▇▇ PETROLEUM CORPORATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
HORNET ENERGY LTD.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
867791 ALBERTA LTD.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
99776 ALBERTA LTD.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
▇▇▇▇▇▇▇ Petroleum by its managing partner,
▇▇▇▇▇▇▇ Petroleum Corporation
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
23
EXECUTION COPY
Accepted as of the date hereof:
▇▇▇▇▇▇ Brothers
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇
Scotia Capital
TD Securities
By: ▇▇▇▇▇▇ Brothers Inc. on behalf of the Purchasers
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
24
L&W DRAFT OF MAY 7, 2002 EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
EXHIBIT A
▇▇▇▇▇▇▇ Petroleum Corporation
INSTRUCTION TO DTC PARTICIPANTS
-------------------------------
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE]*
------------------------------
The Depository Trust Company ("DTC") has identified you as a DTC Participant
through which beneficial interests in the ▇▇▇▇▇▇▇ Petroleum Corporation (the
"Company") 9.90% Senior Notes due 2009 (the "Securities") are held.
The Company is in the process of registering the Securities under the Securities
Act of 1933 for resale by the beneficial owners thereof. In order to have their
Securities included in the registration statement, beneficial owners must
complete and return the enclosed Notice of Registration Statement and Selling
Securityholder Questionnaire.
IT IS IMPORTANT THAT BENEFICIAL OWNERS OF THE SECURITIES RECEIVE A COPY OF THE
ENCLOSED MATERIALS AS SOON AS POSSIBLE as their rights to have the Securities
included in the registration statement depend upon their returning the Notice
and Questionnaire by _____________, 2002. Please forward a copy of the enclosed
documents to each beneficial owner that holds interests in the Securities
through you. If you require more copies of the enclosed materials or have any
questions pertaining to this matter, please contact ▇▇▇▇▇▇▇ Petroleum
Corporation, Suite 3100, ▇▇▇ - ▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇.
----------
* Not less than 28 calendar days from date of mailing.
A-1
L&W DRAFT OF MAY 7, 2002 EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
▇▇▇▇▇▇▇ Petroleum Corporation
Notice of Registration Statement
and
SELLING SECURITYHOLDER QUESTIONNAIRE
------------------------------------
(Date)
Reference is hereby made to the Exchange and Registration Rights Agreement (the
"Exchange and Registration Rights Agreement") between ▇▇▇▇▇▇▇ Petroleum
Corporation (the "Company") and the Purchasers named therein. Pursuant to the
Exchange and Registration Rights Agreement, the Company has filed with the
United States Securities and Exchange Commission (the "Commission") a
registration statement on Form ___ (the "Shelf Registration Statement") for the
registration and resale under Rule 415 of the Securities Act of 1933, as amended
(the "Securities Act"), of the Company's 9.90% Senior Notes due 2009 (the
"Securities"). A copy of the Exchange and Registration Rights Agreement is
attached hereto. All capitalized terms not otherwise defined herein shall have
the meanings ascribed thereto in the Exchange and Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined below) is entitled
to have the Registrable Securities beneficially owned by it included in the
Shelf Registration Statement. In order to have Registrable Securities included
in the Shelf Registration Statement, this Notice of Registration Statement and
Selling Securityholder Questionnaire ("Notice and Questionnaire") must be
completed, executed and delivered to the Company's counsel at the address set
forth herein for receipt ON OR BEFORE _________________. Beneficial owners of
Registrable Securities who do not complete, execute and return this Notice and
Questionnaire by such date (i) will not be named as selling securityholders in
the Shelf Registration Statement and (ii) may not use the Prospectus forming a
part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and related Prospectus. Accordingly, holders
and beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Shelf Registration Statement and
related Prospectus.
The term "REGISTRABLE SECURITIES" is defined in the Exchange and Registration
Rights Agreement.
A-2
L&W DRAFT OF MAY 7, 2002 EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable Securities
hereby elects to include in the Shelf Registration Statement the Registrable
Securities beneficially owned by it and listed below in Item (3). The
undersigned, by signing and returning this Notice and Questionnaire, agrees to
be bound with respect to such Registrable Securities by the terms and conditions
of this Notice and Questionnaire and the Exchange and Registration Rights
Agreement, including, without limitation, Section 6 of the Exchange and
Registration Rights Agreement, as if the undersigned Selling Securityholder were
an original party thereto.
Upon a sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
and Trustee the Notice of Transfer set forth in Appendix A to the Prospectus and
as Exhibit B to the Exchange and Registration Rights Agreement.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
A-3
L&W DRAFT OF MAY 7, 2002 EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
QUESTIONNAIRE
(1): (a) Full Legal Name of Selling Securityholder:
--------------------------------------------------------------
(b) Full Legal Name of Registered Holder (if not the same as in
(a) above) of Registrable Securities Listed in Item (3) below:
--------------------------------------------------------------
(c) Full Legal Name of DTC Participant (if applicable and if not
the same as (b) above) Through Which Registrable Securities
Listed in Item (3) below are Held:
--------------------------------------------------------------
(2) Address for Notices to Selling Securityholder:
---------------------------------
---------------------------------
---------------------------------
---------------------------------
Telephone: ---------------------------------
Fax: ---------------------------------
Contact Person: ---------------------------------
(3) Beneficial Ownership of Securities:
EXCEPT AS SET FORTH BELOW IN THIS ITEM (3), THE UNDERSIGNED
DOES NOT BENEFICIALLY OWN ANY SECURITIES.
(a) Principal amount of Registrable Securities beneficially owned:
______________ CUSIP No(s). of such Registrable
Securities:_____________________________
(b) Principal amount of Securities other than Registrable
Securities beneficially owned: _________________ CUSIP No(s).
of such other Securities:_____________________________________
(c) Principal amount of Registrable Securities which the
undersigned wishes to be included in the Shelf Registration
Statement:________________________________ CUSIP No(s). of
such Registrable Securities to be included in the Shelf
Registration Statement:_______________________________________
(4) Beneficial Ownership of Other Securities of the Company:
EXCEPT AS SET FORTH BELOW IN THIS ITEM (4), THE UNDERSIGNED
SELLING SECURITYHOLDER IS NOT THE BENEFICIAL OR REGISTERED
OWNER OF ANY OTHER SECURITIES OF THE COMPANY, OTHER THAN THE
SECURITIES LISTED ABOVE IN ITEM (3).
State any exceptions here:
A-4
L&W DRAFT OF MAY 7, 2002 EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
(5) Relationships with the Company:
EXCEPT AS SET FORTH BELOW, NEITHER THE SELLING SECURITYHOLDER
NOR ANY OF ITS AFFILIATES, OFFICERS, DIRECTORS OR PRINCIPAL
EQUITY HOLDERS (5% OR MORE) HAS HELD ANY POSITION OR OFFICE OR
HAS HAD ANY OTHER MATERIAL RELATIONSHIP WITH THE COMPANY (OR
ITS PREDECESSORS OR AFFILIATES) DURING THE PAST THREE YEARS.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling
Securityholder intends to distribute the Registrable
Securities listed above in Item (3) only as follows (if at
all): Such Registrable Securities may be sold from time to
time directly by the undersigned Selling Securityholder or,
alternatively, through underwriters, broker-dealers or agents.
Such Registrable Securities may be sold in one or more
transactions at fixed prices, at prevailing market prices at
the time of sale, at varying prices determined at the time of
sale, or at negotiated prices. Such sales may be effected in
transactions (which may involve crosses or block transactions)
(i) on any national securities exchange or quotation service
on which the Registered Securities may be listed or quoted at
the time of sale, (ii) in the over-the-counter market, (iii)
in transactions otherwise than on such exchanges or services
or in the over-the-counter market, or (iv) through the writing
of options. In connection with sales of the Registrable
Securities or otherwise the Selling Securityholder may enter
into hedging transactions with broker-dealers, which may in
turn engage in short sales of the Registrable Securities in
the course of hedging the positions they assume. The Selling
Securityholder may also sell Registrable Securities short and
deliver Registrable Securities to close out such short
positions, or loan or pledge Registrable Securities to
broker-dealers that in turn may sell such securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
In the event that the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Company, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling
A-5
L&W DRAFT OF MAY 7, 2002 EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
Securityholder understands that such information will be relied upon by the
Company in connection with the preparation of the Shelf Registration Statement
and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section 3(d) of
the Exchange and Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Securityholder agrees to promptly notify the Company of any inaccuracies
or changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Exchange and Registration
Rights Agreement shall be made in writing, by hand-delivery, first-class mail,
or air courier guaranteeing overnight delivery as follows:
(i) To the Company:
▇▇▇▇▇▇▇ Petroleum Corporation
Suite 3300
425 - 1st Street Avenue S.W.
Calgary, Alberta, Canada T2P 3L8
(ii) With a copy to:
Fraser, ▇▇▇▇▇▇ Casgrain LLP
30th Floor
▇▇▇ -▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Company and the
Selling Securityholder (with respect to the Registrable Securities beneficially
owned by such Selling Securityholder and listed in Item (3) above. This
Agreement shall be governed in all respects by the laws of the State of New
York.
A-6
L&W DRAFT OF MAY 7, 2002 EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated: _____________________
-------------------------------------------------------------------
SELLING SECURITYHOLDER
(Print/type full legal name of beneficial owner of
Registrable Securities)
By:
----------------------------------------------------------------
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE ________________ TO THE COMPANY'S COUNSEL AT:
Fraser, ▇▇▇▇▇▇ Casgrain LLP
30th Floor
▇▇▇ -▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇
A-7
L&W DRAFT OF MAY 7, 2002 EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
EXHIBIT B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
The Bank of Nova Scotia Trust Company of New York
▇▇▇▇▇▇▇ Petroleum Corporation
▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Trust Company of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
Attention: Trust Officer
Re: ▇▇▇▇▇▇▇ Petroleum Corporation (the "Company")
9.90% Senior Notes due 2009
---------------------------------------------
Dear Sirs:
Please be advised that _____________________________ has transferred $__________
aggregate principal amount of the above-referenced Notes pursuant to an
effective Registration Statement on Form ___ (File No. 333- _______) filed by
the Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Notes is named as a "Selling Holder" in the Prospectus
dated May 3, 2002 or in supplements thereto, and that the aggregate principal
amount of the Notes transferred are the Notes listed in such Prospectus opposite
such owner's name.
Dated:
Very truly yours,
------------------------------
(Name)
By:
------------------------------
(Authorized Signature)
B-1
