REGISTRATION RIGHTS AGREEMENT
Dated as of May 20, 1997
by and between
XCL LTD.
and
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
13.50% SENIOR SECURED NOTES DUE MAY 1, 2004
and
75,000 COMMON STOCK PURCHASE WARRANTS
TABLE OF CONTENTS
Page
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1. Definitions 1
2. Exchange Offer 6
3. Shelf Registration 10
4. Additional Interest 11
5. Notes Registration Procedures 12
6. Registration Expenses 20
7. Indemnification 21
8. Rules 144 and 144A 24
9. Underwritten Registrations of Registrable
Notes 24
10. Registration of Registrable Securities 25
11. Miscellaneous 27
(a) No Inconsistent Agreements 27
(b) Adjustments Affecting Registrable
Securities or Registrable Notes 28
(c) Amendments and Waivers 28
(d) Notices 28
(e) Successors and Assigns 29
(f) Counterparts 29
(g) Headings 29
(h) Governing Law 29
(i) Severability 30
(j) Notes Held by the Issuer or Its
Affiliates 30
(k) Third Party Beneficiaries 30
(1) Entire Agreement 30
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is
made and entered into as of May 20, 1997, by and between XCL
Ltd., a Delaware corporation (the "Company" or the
"Issuer"), and ▇▇▇▇▇▇▇▇▇ & Company, Inc. (the "Initial
Purchaser").
This Agreement is entered into in connection with the
Purchase Agreement, dated May 13, 1997, by and among the
Company, XCL-China Ltd., a Delaware corporation and wholly-
owned subsidiary of the Company ("XCL-China"), and the
Initial Purchaser (the "Purchase Agreement") which provides
for, among other things, the issuance and sale to the
Initial Purchaser of (i) 75,000 units (the "Units"), each
consisting of $1,000 principal amount of the Company's
13.50% Senior Secured Notes due May 1, 2004, Series A (the
"Notes"), and one warrant (collectively, the "Note
Warrants") to purchase 1,280 shares of common stock, par
value $0.01 per share, of the Company (the "Common Stock")
and (ii) 15,006 additional warrants to purchase 19,207,680
shares of Common Stock (the "Additional Warrants" and,
together with the Note Warrants, the "Warrants"). In order
to induce the Initial Purchaser to enter into the Purchase
Agreement, the Company has agreed to provide the
registration rights set forth in this Agreement for the
benefit of the Initial Purchaser and its direct and indirect
transferees and assigns. The execution and delivery of this
Agreement is a condition to the Initial Purchaser's
obligation to purchase the Units under the Purchase
Agreement. As security for the Notes, the Company is to
deposit the proceeds of the issuance of the Units into two
custodial accounts (collectively, the "Cash Collateral
Accounts"), with $14,625,000 (representing the aggregate
amount of interest due on the Notes through November 1,
1998) being deposited in one account (the "Capitalized
Interest Account") and $60,375,000 being deposited into the
other account (the "Principal Account") both to be
maintained by Fleet National Bank, as disbursement agent for
the Trustee (as defined in Section 1 below).
The parties hereby agree as follows:
1. Definitions.
As used in this Agreement, the term "day", unless
otherwise expressly provided, shall mean a calendar day and
following terms shall have the following meanings:
Additional Interest: See Section 4(a).
Additional Warrants: See the second introductory
paragraph to this Agreement.
Advice: See the last paragraph of Section 5.
Agreement: See the first introductory paragraph to
this Agreement.
Applicable Period: See Section 2(b).
Business Day: A day that is not a Saturday, a Sunday,
or a day on which banking institutions in New York, New York
or Hartford, Connecticut are required to be closed.
Capitalized Interest Account: See the second
introductory paragraph to this Agreement.
Cash Collateral Accounts : See the second introductory
paragraph to this Agreement.
Common Stock: See the second introductory paragraph to
this Agreement.
Company: See the first introductory paragraph to this
Agreement.
Effectiveness Date: The 150th day after the Trigger
Date.
Effectiveness Period: See Section 3(a).
Event Date: See Section 4(b).
Exchange Act: The Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC
promulgated thereunder.
Exchange Notes: See Section 2(a).
Exchange Offer: See Section 2(a).
Exchange Registration Statement: See Section 2(a).
Exercise Date: The date on which the Warrants are
first exercisable.
Filing Date: The 60th day after the Trigger Date.
Holder: Any registered holder of Registrable Notes or
Registrable Securities.
Indemnified Person: See Section 7(c).
Indemnifying Person: See Section 7(c).
Indenture: The Indenture, dated as of the Issue Date,
by and between the Company and Fleet National Bank, as
trustee, pursuant to which the Notes are being issued, as
amended or supplemented from time to time in accordance with
the terms thereof.
Initial Purchaser: See the first introductory
paragraph to this Agreement.
Initial Shelf Registration: See Section 3(a).
Inspectors: See Section 5(o).
Issue Date: The date on which the Units were sold to
the Initial Purchaser pursuant to the Purchase Agreement.
Issuer: See the first introductory paragraph to this
Agreement.
NASD: National Association of Securities Dealers, Inc.
Notes: See the second introductory paragraph to this
Agreement.
Notes Prospectus: The prospectus included in any Notes
Registration Statement (including, without limitation, any
prospectus subject to completion and a prospectus that
includes any information previously omitted from a
prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Notes covered by
such Notes Registration Statement, and all other amendments
and supplements to such prospectus, including post-effective
amendments, and all material incorporated by reference or
deemed to be incorporated by reference in such prospectus.
Notes Registration Statement: Any registration
statement of the Issuer (and any then existing Subsidiary
Guarantor) filed with the SEC under the Securities Act,
including, but not limited to, the Exchange Registration
Statement, that covers any of the Registrable Notes pursuant
to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all
exhibits, and all material incorporated by reference or
deemed to be incorporated by reference in such registration
statement.
Note Warrants: See the second introductory paragraph
to this Agreement.
Participant: See Section 7(a).
Participating Broker-Dealer: See Section 2(b).
Person: An individual, trustee, corporation,
partnership, limited liability company, joint stock company,
trust, unincorporated association, union, business
association, firm or other legal entity.
Piggy-Back Registration: See Section 10(a).
Principal Account: See the second introductory
paragraph to this Agreement.
Private Exchange: See Section 2(b).
Private Exchange Notes: See Section 2(b).
Prospectus: Any Notes Prospectus or Warrants
Prospectus.
Purchase Agreement: See the second introductory
paragraph to this Agreement.
Records: See Section 5(o).
Registrable Notes: Each Note upon original issuance
thereof and at all times subsequent thereto, each Exchange
Note as to which Section 2(c)(iv) hereof is applicable upon
original issuance thereof and at all times subsequent
thereto and each Private Exchange Note upon original
issuance thereof and at all times subsequent thereto, until,
in the case of any such Note, Exchange Note or Private
Exchange Note, as the case may be, the earliest to occur of
(i) a Notes Registration Statement (other than, with respect
to any Exchange Note as to which Section 2(c)(iv) hereof is
applicable, the Exchange Registration Statement) covering
such Note, Exchange Note or Private Exchange Note, as the
case may be, has been declared effective by the SEC and such
Note, Exchange Note or Private Exchange Note, as the case
may be, has been disposed of in accordance with such
effective Notes Registration Statement, (ii) such Note,
Exchange Note or Private Exchange Note, as the case may be,
is sold in compliance with Rule 144, (iii) in the case of
any Note, such Note has been exchanged pursuant to the
Exchange Offer for an Exchange Note or Exchange Notes which
may be resold without restriction under state and federal
securities laws, or (iv) such Note, Exchange Note or Private
Exchange Note, as the case may be, ceases to be outstanding
for purposes of the Indenture.
Registrable Securities: Any of (i) the Warrant Shares
(whether or not the related Warrants have been exercised)
and (ii) any other securities issued or issuable with
respect to any Warrant Shares by way of stock dividends or
stock splits or in connection with a combination of shares,
recapitalization, merger, consolidation or other
reorganization or otherwise. As to any particular
Registrable Securities, such securities shall cease to be
Registrable Securities when (i) a Warrants Registration
Statement with respect to the offering of such securities by
the Holder thereof shall have been declared effective under
the Securities Act and such securities shall have been
disposed of by such Holder pursuant to such Warrants
Registration Statement, (ii) such securities are eligible
for sale to the public pursuant to Rule 144(k) (or an
similar provision then in force, but not Rule 144A) or are
all otherwise eligible for sale under Rule 144 by such
Holder in the current calendar quarter, (iii) such
securities shall have been otherwise transferred by such
Holder and new certificates for such securities not bearing
a legend restricting further transfer shall have been
delivered by the Company or its transfer agent and
subsequent disposition of such securities shall not require
registration or qualification under the Securities Act or
any similar state law then in force or (iv) such securities
shall have ceased to be outstanding.
Registration Expenses: All expenses incident to the
Company's performance of or compliance with Section 10 of
this Agreement, including, without limitation, all SEC and
stock exchange or NASD registration and filing fees and
expenses, fees and expenses of compliance with securities or
blue sky laws (including, without limitation, reasonable
fees and disbursements of counsel for any underwriters in
connection with blue sky qualifications of the Registrable
Securities), preparing, printing, filing, duplicating and
distributing a Warrants Registration Statement and the
related Prospectus, the cost of printing stock certificates,
the cost and charges of any transfer agent, rating agency
fees, printing expenses, messenger, telephone and delivery
expenses, fees and disbursements of any counsel for the
Company and all independent certified public accountants,
the fees and disbursements of underwriters customarily paid
by issuers or sellers or securities (but not including any
underwriting discounts or commissions or transfer taxes, if
any, attributable to the sale of Registrable Securities by
Selling Holders), fees and expenses of one counsel for the
Selling Holders and other reasonable out-of-pocket expenses
of the Selling Holders.
Registration Statement: Any Notes Registration
Statement or Warrants Registration Statement.
Rule 144: Rule 144 promulgated under the Securities
Act, as such Rule may be amended from time to time, or any
similar rule (other than Rule 144A) or regulation hereafter
adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers
and sales by subsequent holders that are not affiliates of
an issuer of such securities being free of the registration
and prospectus delivery requirements of the Securities Act.
Rule 144A: Rule 144A promulgated under the Securities
Act, as such Rule may be amended from time to time, or any
similar rule (other than Rule 144) or regulation hereafter
adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities
Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as
amended, and the rules and regulations of the SEC
promulgated thereunder.
Selling Holder: A Holder who is selling Registrable
Securities in accordance with Section 10 hereof.
Shelf Notice: See Section 2(c).
Shelf Registration: See Section 3(b).
Subsequent Shelf Registration: See Section 3(b).
Subsidiary Guarantor: Each subsidiary of the Company
that guarantees the obligations of the Company under the
Notes and the Indenture.
TIA: The Trust Indenture Act of 1939, as amended.
Trigger Date: The date of disbursement to the Company
of funds in the Principal Account.
Trustee: The trustee under the Indenture and, if
existent, the trustee under any indenture governing the
Exchange Notes and Private Exchange Notes (if any).
Underwritten registration or underwritten offering: A
registration in which securities of one or more of the
issuers are sold to an underwriter for reoffering to the
public.
Units: See the second introductory paragraph to this
Agreement.
Warrants: See the second introductory paragraph to
this Agreement.
Warrants Prospectus: The prospectus included in any
Warrants Registration Statement (including, without
limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted
from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities
covered by such Warrants Registration Statement, and all
other amendments and supplements to such prospectus,
including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by
reference in such prospectus.
Warrants Registration Statement: Any registration
statement of the Company that covers any Warrant Shares
filed with the SEC under the Securities Act, including the
Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all
exhibits, and all material incorporated by reference or
deemed to be incorporated by reference in such registration
statement.
Warrant Shares: The shares of Common Stock issuable
upon exercise of the Warrants.
XCL-China: See the second introductory paragraph to
this Agreement.
2. Exchange Offer
(a) Provided that funds subject to the Principal
Account are disbursed to the Issuer, the Issuer agrees to
file (and to cause any then existing Subsidiary Guarantor to
file) with the SEC no later than the Filing Date, an offer
to exchange (the "Exchange Offer") any and all of the
Registrable Notes for a like aggregate principal amount of
debt securities of the Company, guaranteed by each such
Subsidiary Guarantor and secured by the same collateral as
the Notes, which are identical in all material respects to
the Notes (the "Exchange Notes") (and which are entitled to
the benefits of the Indenture or a trust indenture which is
identical in all material respects to the Indenture (other
than such changes to the Indenture or any such identical
trust indenture as are necessary to comply with any
requirements of the SEC to effect or maintain the
qualification thereof under the TIA) and which, in either
case, has been qualified under the TIA), except that the
Exchange Notes shall have been registered pursuant to an
effective Registration Statement under the Securities Act,
shall not provide for Additional Interest and shall contain
no restrictive legend thereon. The Exchange Offer shall be
registered under the Securities Act on the appropriate form
(the "Exchange Registration Statement") and shall comply
with all applicable tender offer rules and regulations under
the Exchange Act. The Issuer agrees to use its best efforts
to (x) cause the Exchange Registration Statement to be
declared effective under the Securities Act on or before the
Effectiveness Date; (y) keep the Exchange Offer open for at
least 30 calendar days (or longer if required by applicable
law) after the date that notice of the Exchange Offer is
mailed to Holders; and (z) consummate the Exchange Offer on
or prior to the 45th day following the date on which the
Exchange Registration Statement is declared effective. If
after such Exchange Registration Statement is initially
declared effective by the SEC, the Exchange Offer or the
issuance of the Exchange Notes thereunder is interfered with
by any stop order, injunction or other order or requirement
of the SEC or any other governmental agency or court, such
Exchange Registration Statement shall be deemed not to have
become effective for purposes of this Agreement. Each
Holder who participates in the Exchange Offer will be
required to represent (i) that any Exchange Notes received
by it will be acquired in the ordinary course of its
business, (ii) that at the time of the commencement of the
Exchange Offer such Holder has not entered into any
arrangement or understanding with any Person to participate
in the distribution (within the meaning of the Securities
Act) of the Exchange Notes in violation of the provisions of
the Securities Act, (iii) that such Holder is not an
affiliate of any of the Issuers within the meaning of the
Securities Act, (iv) if such Holder is not a broker-dealer,
that it is not engaged in, and does not intend to engage in,
the distribution of the Notes and (v) if such Holder is a
Participating Broker-Dealer, that it will deliver a
prospectus in connection with any resale of the Exchange
Notes. Upon consummation of the Exchange Offer in
accordance with this Section 2, the provisions of this
Agreement shall continue to apply, mutatis mutandis, solely
with respect to Registrable Notes that are Private Exchange
Notes and Exchange Notes held by Participating Broker-
Dealers, and the Issuers shall have no further obligation to
register Registrable Notes (other than Private Exchange
Notes and other than in respect of any Exchange Notes as to
which clause 2(c)(iv) hereof applies) pursuant to Section 3
of this Agreement.
(b) The Issuer shall include within the Notes
Prospectus contained in the Exchange Registration Statement
a Section entitled "Plan of Distribution," reasonably
acceptable to the Initial Purchaser, which shall contain a
summary statement of the positions taken or policies made by
the staff of the SEC with respect to the potential
"underwriter" status of any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the
Exchange Act) of Exchange Notes received by such broker-
dealer in the Exchange Offer for its own account in exchange
for Notes that were acquired by it as a result of market-
making or other trading activity (a "Participating Broker-
Dealer"), whether such positions or policies have been
publicly disseminated by the staff of the SEC or such
positions or policies, in the judgment of the Initial
Purchaser, represent the prevailing views of the staff of
the SEC. Such "Plan of Distribution" Section shall also
allow, to the extent permitted by applicable policies and
regulations of the SEC, the use of the Notes Prospectus by
all Persons subject to the prospectus delivery requirements
of the Securities Act, including, to the extent so
permitted, all Participating Broker-Dealers, and include a
statement describing the manner in which Participating
Broker-Dealers may resell the Exchange Notes.
The Issuer shall use its best efforts to keep the
Exchange Registration Statement effective and to amend and
supplement the Notes Prospectus contained therein, in order
to permit such Notes Prospectus to be lawfully delivered by
all Persons subject to the prospectus delivery requirements
of the Securities Act for such period of time as such
Persons must comply with such requirements in order to
resell the Exchange Notes (the "Applicable Period").
If, upon consummation of the Exchange Offer, the
Initial Purchaser holds any Notes acquired by it and having
the status of an unsold allotment in the initial
distribution, the Company (upon the request of such Initial
Purchaser) shall, simultaneously with the delivery of the
Exchange Notes in the Exchange Offer, issue and deliver to
the Initial Purchaser, in exchange (the "Private Exchange")
for the Notes held by the Initial Purchaser, a like
principal amount of debt securities of the Company,
guaranteed by any then existing Subsidiary Guarantor and
secured by the same collateral as the Exchange Notes, that
are identical in all material respects to the Exchange Notes
except for the existence of restrictions on transfer thereof
under the Securities Act and securities laws of the several
states of the U.S. (the "Private Exchange Notes") (and which
are issued pursuant to the same indenture as the Exchange
Notes); provided, however, the Issuer shall not be required
to effect such exchange if, in the written opinion of
counsel for the Issuer (a copy of which shall be delivered
to the Initial Purchaser and any Holder affected thereby),
such exchange cannot be effected without registration under
the Securities Act. The Private Exchange Notes shall bear
the same CUSIP number as the Exchange Notes, if permissible.
Interest on the Exchange Notes and the Private Exchange
Notes will accrue from (A) the later of (i) the last
interest payment date on which interest was paid on the
Notes surrendered in exchange therefor or (ii) if the Notes
are surrendered for exchange on a date in a period which
includes the record date for an interest payment date to
occur on or after the date of such exchange and as to which
interest will be paid, the date of such interest payment
date or (B) if no interest has been paid on the Notes, from
the Issue Date.
In connection with the Exchange Offer, the Issuer
shall:
(1) mail to each Holder a copy of the Notes
Prospectus forming part of the Exchange Registration
Statement, together with an appropriate letter of
transmittal and related documents;
(2) utilize the services of a depositary for
the Exchange Offer, which may be the Trustee or an
affiliate thereof;
(3) permit Holders to withdraw tendered
Registrable Notes at any time prior to the close of
business on the last business day on which the Exchange
Offer shall remain open; and
(4) otherwise comply in all material respects
with all applicable laws.
As soon as practicable after the close of the Exchange
Offer or the Private Exchange, as the case may be, the
Issuer shall:
(1) accept for exchange all Registrable Notes
validly tendered and not validly withdrawn pursuant to
the Exchange Offer or the Private Exchange, as the case
may be;
(2) deliver to the Trustee for cancellation
all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and
deliver promptly to each Holder tendering such
Registrable Notes, Exchange Notes or Private Exchange
Notes, as the case may be, equal in principal amount to
the Notes of such Holder so accepted for exchange.
The Exchange Offer and the Private Exchange shall be
subject to only the following conditions: (i) the Exchange
Offer or the Private Exchange, as the case may be, does not
violate applicable law or any applicable interpretation of
the staff of the SEC, (ii) no action or proceeding is
instituted or threatened in any court or by any governmental
agency which might materially impair the ability of the
Issuer to proceed with the Exchange Offer or the Private
Exchange and (iii) all governmental approvals have been
obtained, which approvals the Issuer deem necessary for the
consummation of the Exchange Offer or Private Exchange.
The Exchange Notes and the Private Exchange Notes may
be issued under (i) the Indenture or (ii) an indenture
identical in all material respects to the Indenture, which
in either event will provide that the Exchange Notes will
not be subject to the transfer restrictions set forth in the
Indenture and that the Exchange Notes, the Private Exchange
Notes and the Notes, if any, will be deemed one class of
security (subject to the provisions of the Indenture) and
entitled to participate in all the security granted by the
Company pursuant to the Security Documents and in any
Subsidiary Guarantee (as such terms are defined in the
Indenture) on an equal and ratable basis.
(c) If, (i) because of any change in law or in
currently prevailing interpretations of the staff of the
SEC, the Issuer (and any then existing Subsidiary Guarantor)
are not permitted to effect an Exchange Offer, (ii) the
Exchange Offer is not consummated within 180 days of the
Trigger Date, (iii) any holder of Private Exchange Notes so
requests in writing to the Issuer within 120 days after the
consummation of the Exchange Offer or (iv) in the case of
any Holder that participates in the Exchange Offer, such
Holder does not receive Exchange Notes on the date of the
exchange that may be sold without restriction under state
and federal securities laws (other than due solely to the
status of such Holder as an affiliate of the Issuer within
the meaning of the Securities Act) and so notifies the
Company within 60 days after such Holder first becomes aware
of such restrictions and providing a reasonable basis for
its conclusions, in the case of each of clauses (i)-(iv),
then the Issuer (and any then existing Subsidiary Guarantor)
shall promptly deliver to the Holders and the Trustee
written notice thereof (the "Shelf Notice") and shall file a
Shelf Registration pursuant to Section 3.
3. Shelf Registration
If a Shelf Notice is delivered as contemplated by
Section 2(c), then:
(a) Shelf Registration. The Issuer shall as
promptly as reasonably practicable file (and shall cause any
then existing Subsidiary Guarantor to file) with the SEC a
Notes Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the
Registrable Notes (the "Initial Shelf Registration"). If
the Issuer (and any then existing Subsidiary Guarantor)
shall have not yet filed the Exchange Registration
Statement, the Issuer shall use its best efforts to file
(and shall cause any then existing Subsidiary Guarantor to
file) with the SEC the Initial Shelf Registration on or
prior to the Filing Date and shall use its best efforts to
cause such Initial Shelf Registration to be declared
effective under the Securities Act on or prior to the
Effectiveness Date. Otherwise, the Issuer shall use its
best efforts to file (and shall cause any then existing
Subsidiary Guarantor to file) with the SEC the Initial Shelf
Registration within 30 days of the delivery of the Shelf
Notice and shall use its best efforts to cause such Shelf
Registration to be declared effective under the Securities
Act as promptly as practicable thereafter. The Initial
Shelf Registration shall be on Form S-l or another
appropriate form permitting registration of such Registrable
Notes for resale by Holders in the manner or manners
designated by them (including, without limitation, one or
more underwritten offerings). The Issuer shall not permit
any securities other than the Registrable Notes to be
included in any Shelf Registration (as defined below). The
Issuer shall use its best efforts to keep the Initial Shelf
Registration continuously effective under the Securities Act
until the date which is two years from the Issue Date or
such earlier date as may be then authorized under Rule
144(k) under the Securities Act (the "Effectiveness
Period"), or such shorter period ending when (i) all
Registrable Notes covered by the Initial Shelf Registration
have been sold in the manner set forth and as contemplated
in the Initial Shelf Registration or are otherwise eligible
for sale under Rule 144 by the Holders without restriction
by virtue of the operation of the volume limitations set
forth in such Rule or (ii) a Subsequent Shelf Registration
(as defined below) covering all of the Registrable Notes has
been declared effective under the Securities Act.
(b) Subsequent Shelf Registrations. If the Initial
Shelf Registration or any Subsequent Shelf Registration
ceases to be effective for any reason at any time during the
Effectiveness Period (other than because of the sale of all
of the securities registered thereunder), the Issuer shall
use its best efforts to obtain the prompt withdrawal of any
order suspending the effectiveness thereof, and in any event
shall within 45 days of such cessation of effectiveness
amend such Shelf Registration in a manner to obtain the
withdrawal of the order suspending the effectiveness
thereof, or file (and cause any then existing Subsidiary
Guarantor to file) an additional "shelf" Notes Registration
Statement pursuant to Rule 415 covering all of the
Registrable Notes (a "Subsequent Shelf Registration"). If a
Subsequent Shelf Registration is filed, the Issuer shall use
its best efforts to cause the Subsequent Shelf Registration
to be declared effective as soon as practicable after such
filing and to keep such Subsequent Shelf Registration
continuously effective for a period equal to the number of
days in the Effectiveness Period less the aggregate number
of days during which the Initial Shelf Registration or any
Subsequent Shelf Registrations was previously continuously
effective. As used herein the term "Shelf Registration"
means the Initial Shelf Registration and any Subsequent
Shelf Registration.
(c) Supplements and Amendments. The Issuer shall
promptly supplement and amend any Shelf Registration if
required by the rules, regulations or instructions
applicable to the registration form used for such Shelf
Registration, if required by the Securities Act, or if
reasonably requested by the Holders of a majority in
aggregate principal amount of the Registrable Notes covered
by such Shelf Registration or by any underwriter of such
Registrable Notes.
4. Additional Interest
(a) The Issuer and the Initial Purchaser agree that
the Holders of Registrable Notes will suffer damages if the
Issuer fails to fulfill its obligations under Section 2 or
Section 3 hereof and that it would not be feasible to
ascertain the extent of such damages with precision.
Accordingly, the Issuer, agrees to pay, as liquidated
damages, cash interest on the Notes ("Additional Interest")
under the circumstances and to the extent set forth below
(each of which shall be given independent effect):
(i) if the Exchange Registration Statement has
not been filed on or prior to the Filing Date, then
commencing on the day after the Filing Date, Additional
Interest shall accrue on the Notes over and above any
stated interest at a rate of 0.50% per annum of the
principal amount of such Notes for the first 90 days
immediately following the Filing Date, such Additional
Interest rate increasing by an additional 0.50% per
annum at the beginning of each subsequent 90-day
period;
(ii) if the Exchange Registration Statement is
not declared effective on or prior to the Effectiveness
Date, then commencing on the day after the
Effectiveness Date, Additional Interest shall accrue on
the Notes over and above any stated interest at a rate
of 0.50% per annum of the principal amount of such
Notes for the first 90 days immediately following the
day after the Effectiveness Date, such Additional
Interest rate increasing by an additional 0.50% per
annum at the beginning of each subsequent 90-day
period; and
(iii) if (A) the Issuer (and any then existing
Subsidiary Guarantor) have not exchanged Exchange Notes
for all Notes validly tendered in accordance with the
terms of the Exchange Offer on or prior to the 45th day
after the date on which the Exchange Registration
Statement is declared effective or (B) the Initial
Shelf Registration, if required to be filed hereunder,
is not declared effective on or prior to the
Effectiveness Date or (C) if applicable, a Shelf
Registration has been declared effective and such Shelf
Registration ceases to be effective at any time during
the Effectiveness Period, then Additional Interest
shall accrue on the Notes over and above any stated
interest at a rate of 0.50% per annum of the principal
amount of such Notes for the first 90 days commencing
on the (x) 45th day after the date on which the
Exchange Registration Statement is declared effective,
in the case of (A) or (B) above, or (y) the day such
Shelf Registration ceases to be effective in the case
of (C) above, such Additional Interest rate increasing
by an additional 0.50% per annum at the beginning of
each such subsequent 90-day period;
provided, however, that the Additional Interest rate on the
Notes may not exceed at any one time in the aggregate 2.00%
per annum; and provided further, that (1) upon the filing of
the Exchange Registration Statement (in the case of (i)
above), (2) upon the effectiveness of the Exchange
Registration Statement (in the case of (ii) above), or (3)
upon the exchange of Exchange Notes for all Notes tendered
(in the case of (iii)(A) above), upon the effectiveness of
the Initial Shelf Registration (in the case of (iii)(B)
above) or upon the effectiveness of a Shelf Registration
which had ceased to remain effective (in the case of
(iii)(C) above), Additional Interest on the Notes as a
result of such clause (or the relevant subclause thereof),
as the case may be, shall cease to accrue.
(b) The Issuer shall notify the Trustee within one
business day after each and every date on which an event
occurs in respect of which Additional Interest is required
to be paid (an "Event Date"). Any amounts of Additional
Interest due pursuant to (a)(i), (a)(ii) or (a)(iii) of this
Section 4 will be payable semi-annually, on the dates and in
the manner provided in the Indenture and whether or not any
cash interest would then be payable on such date, commencing
with the first such semi-annual date occurring after any
such Additional Interest commences to accrue. The amount of
Additional Interest will be determined by multiplying the
applicable Additional Interest rate by the principal amount
of the Notes, multiplied by a fraction, the numerator of
which is the number of days such Additional Interest rate
was applicable during such semi-annual period (determined on
the basis of a 360-day year comprised of twelve 30-day
months and, in the case of a partial month, the actual
number of days elapsed), and the denominator of which is
360.
5. Notes Registration Procedures
In connection with the filing of any Notes Registration
Statement pursuant to Section 2 or 3 hereof, the Issuer
shall effect such registrations to permit the sale of such
securities covered thereby in accordance with the intended
method or methods of disposition thereof, and pursuant
thereto and in connection with any Notes Registration
Statement filed by the Issuer hereunder, the Issuer shall:
(a) Prepare and file with the SEC prior to the
Filing Date, the Exchange Registration Statement or if
the Exchange Registration Statement is not filed
because of the circumstances contemplated by Section
2(c)(i), a Shelf Registration as prescribed by Section
2 or 3, and use its best efforts to cause each such
Notes Registration Statement to become effective and
remain effective as provided herein; provided that, if
(1) a Shelf Registration is filed pursuant to Section
3, or (2) a Notes Prospectus contained in an Exchange
Registration Statement filed pursuant to Section 2 is
required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, before
filing any Notes Registration Statement or Notes
Prospectus or any amendments or supplements thereto,
the Issuer shall, if requested, furnish to and afford
the Holders of the Registrable Notes to be registered
pursuant to such Shelf Registration or each such
Participating Broker-Dealer, as the case may be,
covered by such Notes Registration Statement, their
counsel and the managing underwriters, if any, a
reasonable opportunity to review copies of all such
documents (including copies of any documents to be
incorporated by reference therein and all exhibits
thereto) proposed to be filed (in each case at least
five business days prior to such filing). The Issuer
shall not file any such Notes Registration Statement or
Notes Prospectus or any amendments or supplements
thereto if the Holders of a majority in aggregate
principal amount of the Registrable Notes covered by
such Notes Registration Statement, or any such
Participating Broker-Dealer, as the case may be, their
counsel, or the managing underwriters, if any, shall
reasonably object.
(b) Prepare and file with the SEC such
amendments and post-effective amendments to each Shelf
Registration or Exchange Registration Statement, as the
case may be, as may be necessary to keep such Notes
Registration Statement continuously effective for the
Effectiveness Period or the Applicable Period, as the
case may be; cause the related Notes Prospectus to be
supplemented by any Prospectus supplement required by
applicable law, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in
force) promulgated under the Securities Act; and comply
with the provisions of the Securities Act and the
Exchange Act applicable to it with respect to the
disposition of all securities covered by such Notes
Registration Statement as so amended or in such Notes
Prospectus as so supplemented and with respect to the
subsequent resale of any securities being sold by a
Participating Broker-Dealer covered by any such
Prospectus. The Issuer shall be deemed not to have
used its best efforts to keep a Notes Registration
Statement effective during the Applicable Period if it
voluntarily takes any action that would result in
selling Holders of the Registrable Notes covered
thereby or Participating Broker-Dealers seeking to sell
Exchange Notes not being able to sell such Registrable
Notes or such Exchange Notes during that period unless
such action is required by applicable law or unless the
Issuer complies with this Agreement, including, without
limitation, the provisions of paragraph 5(k) hereof and
the last paragraph of this Section 5.
(c) If (1) a Shelf Registration is filed
pursuant to Section 3, or (2) a Notes Prospectus
contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under
the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable
Period from whom the Company has received written
notice that it will be a Participating Broker-Dealer in
the Exchange Offer, notify the selling Holders of
Registrable Notes, or each such Participating Broker-
Dealer, as the case may be, their counsel and the
managing underwriters, if any, promptly (but in any
event within two business days), (i) when a Notes
Prospectus or any Notes Prospectus supplement or post-
effective amendment has been filed, and, with respect
to a Notes Registration Statement or any post-effective
amendment, when the same has become effective
(including in such notice a written statement that any
Holder may, upon request, obtain, without charge, one
conformed copy of such Notes Registration Statement or
post-effective amendment including financial statements
and schedules, documents incorporated or deemed to be
incorporated by reference and exhibits), (ii) of the
issuance by the SEC of any stop order suspending the
effectiveness of a Notes Registration Statement or of
any order preventing or suspending the use of any Notes
Prospectus or the initiation of any proceedings for
that purpose, (iii) if at any time when a prospectus is
required by the Securities Act to be delivered in
connection with sales of the Registrable Notes the
representations and warranties of the Issuer contained
in any agreement (including any underwriting agreement)
contemplated by Section 5(n) hereof cease to be true
and correct, (iv) of the receipt by the Issuer of any
notification with respect to the suspension of the
qualification or exemption from qualification of a
Notes Registration Statement or any of the Registrable
Notes or the Exchange Notes to be sold by any
Participating Broker-Dealer for offer or sale in any
jurisdiction, or the initiation or threatening of any
proceeding for such purpose, (v) of the happening of
any event, the existence of any condition or any
information becoming known that makes any statement
made in such Notes Registration Statement or related
Notes Prospectus or any document incorporated or deemed
to be incorporated therein by reference untrue in any
material respect or that requires the making of any
changes in, or amendments or supplements to, such Notes
Registration Statement, Notes Prospectus or documents
so that, in the case of the Notes Registration
Statement, it will not contain any untrue statement of
a material fact or omit to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading, and that in the case
of the Notes Prospectus, it will not contain any untrue
statement of a material fact or omit to state any
material fact required to be stated therein or
necessary to make the statements therein, in light of
the circumstances under which they were made, not
misleading, and (vi) of any of the Issuer's reasonable
determination that a post-effective amendment to a
Notes Registration Statement would be appropriate.
(d) If (1) a Shelf Registration is filed
pursuant to Section 3, or (2) a Notes Prospectus
contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under
the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable
Period, use its best efforts to prevent the issuance of
any order suspending the effectiveness of a Notes
Registration Statement or of any order preventing or
suspending the use of a Notes Prospectus or suspending
the qualification (or exemption from qualification) of
any of the Registrable Notes or the Exchange Notes to
be sold by any Participating Broker-Dealer, for sale in
any jurisdiction, and, if any such order is issued, to
use its best efforts to obtain the withdrawal of any
such order at the earliest possible date.
(e) If a Shelf Registration is filed pursuant
to Section 3 and if requested by the managing
underwriters, if any, or the Holders of a majority in
aggregate principal amount of the Registrable Notes
being sold in connection with an underwritten offering,
(i) promptly as practicable incorporate in a prospectus
supplement or post-effective amendment such information
or revisions to information therein relating to such
underwriters or selling Holders as the managing
underwriters, if any, or such Holders or their counsel
reasonably request to be included or made therein and
(ii) make all required filings of such prospectus
supplement or such post-effective amendment as soon as
practicable after the Issuer has received notification
of the matters to be incorporated in such prospectus
supplement or post-effective amendment.
(f) If (1) a Shelf Registration is filed
pursuant to Section 3, or (2) a Notes Prospectus
contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under
the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable
Period, furnish to each selling Holder of Registrable
Notes and to each such Participating Broker-Dealer who
so requests and to counsel and each managing
underwriter, if any, without charge, one conformed copy
of the Notes Registration Statement or Notes
Registration Statements and each post-effective
amendment thereto, including financial statements and
schedules, and, if requested, all documents
incorporated or deemed to be incorporated therein by
reference and all exhibits.
(g) If (1) a Shelf Registration is filed
pursuant to Section 3, or (2) a Notes Prospectus
contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under
the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable
Period, deliver to each selling Holder of Registrable
Notes or each such Participating Broker-Dealer, as the
case may be, their respective counsel, and the
underwriters, if any, without charge, as many copies of
the Notes Prospectus and each amendment or supplement
thereto and any documents incorporated by reference
therein as such Persons may reasonably request; and,
subject to the last paragraph of this Section 5, the
Issuer hereby consents to the use of such Notes
Prospectus and each amendment or supplement thereto by
each of the selling Holders of Registrable Notes or
each such Participating Broker-Dealer, as the case may
be, and the underwriters or agents, if any, and dealers
(if any), in connection with the offering and sale of
the Registrable Notes covered by, or the sale by
Participating Broker-Dealers of the Exchange Notes
pursuant to, such Notes Prospectus and any amendment or
supplement thereto.
(h) Prior to any public offering of
Registrable Notes or any delivery of a Notes Prospectus
contained in the Exchange Registration Statement by any
Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, to use its best
efforts to register or qualify, and to cooperate with
the selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, the
underwriters, if any, and their respective counsel in
connection with the registration or qualification (or
exemption from such registration or qualification) of
such Registrable Notes or Exchange Notes, as the case
may be, for offer and sale under the securities or Blue
Sky laws of such jurisdictions within the United States
as any selling Holder, Participating Broker-Dealer, or
the managing underwriter or underwriters, if any,
reasonably request in writing; provided that where
Exchange Notes held by Participating Broker-Dealers or
Registrable Notes are offered other than through an
underwritten offering, the Issuer agrees to cause its
counsel to perform Blue Sky investigations and file any
registrations and qualifications required to be filed
pursuant to this Section 5(h); keep each such
registration or qualification (or exemption therefrom)
effective during the period such Notes Registration
Statement is required to be kept effective and do any
and all other acts or things reasonably necessary or
advisable to enable the disposition in such
jurisdictions of the Exchange Notes held by
Participating Broker-Dealers or the Registrable Notes
covered by the applicable Registration Statement;
provided that neither the Issuer nor any Subsidiary
Guarantor shall be required to (A) qualify generally to
do business in any jurisdiction where it is not then so
qualified, (B) take any action that would subject it to
general service of process in any such jurisdiction
where it is not then so subject or (C) subject itself
to taxation in excess of a nominal dollar amount in any
such jurisdiction where it is not then so subject.
(i) If a Shelf Registration is filed pursuant
to Section 3, cooperate with the selling Holders of
Registrable Notes and the managing underwriter or
underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing
Registrable Notes to be sold, which certificates shall
not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Company;
and enable such Registrable Notes to be in such
denominations and registered in such names as the
managing underwriter or underwriters, if any, or
Holders may reasonably request.
(j) Use its best efforts to cause the
Registrable Notes covered by any Notes Registration
Statement to be registered with or approved by such
governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or
the underwriters, if any, to consummate the disposition
of such Registrable Notes, except as may be required
solely as a consequence of the nature of such selling
Holder's business, in which case the Issuer will
cooperate in all reasonable respects with the filing of
such Notes Registration Statement and the granting of
such approvals.
(k) If (1) a Shelf Registration is filed
pursuant to Section 3, or (2) a Notes Prospectus
contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under
the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable
Period, upon the occurrence of any event contemplated
by paragraph 5(c)(v) or 5(c)(vi) hereof, as promptly as
practicable prepare and (subject to Section 5(a)
hereof) file with the SEC, at the expense of the
Issuer, a supplement or post-effective amendment to the
Notes Registration Statement or a supplement to the
related Notes Prospectus or any document incorporated
or deemed to be incorporated therein by reference, or
file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Notes
being sold thereunder or to the purchasers of the
Exchange Notes to whom such Notes Prospectus will be
delivered by a Participating Broker-Dealer, any such
Notes Prospectus will not contain an untrue statement
of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein, in light of the circumstances under
which they were made, not misleading.
(1) Use its best efforts to cause the
Registrable Notes covered by a Notes Registration
Statement to be rated with the appropriate rating
agencies, if so requested by the Holders of a majority
in aggregate principal amount of Registrable Notes
covered by such Notes Registration Statement or the
managing underwriter or underwriters, if any.
(m) Prior to the initial issuance of the
Exchange Notes, (i) provide the Trustee with one or
more certificates for the Registrable Notes in a form
eligible for deposit with The Depository Trust Company
and (ii) provide a CUSIP number for the Exchange Notes.
(n) In connection with an underwritten
offering of Registrable Notes pursuant to a Shelf
Registration, enter into an underwriting agreement as
is customary in underwritten offerings of debt
securities similar to the Notes and take all such other
actions as are reasonably requested by the managing
underwriter or underwriters in order to expedite or
facilitate the registration or the disposition of such
Registrable Notes and, in such connection, (i) make
such representations, warranties to, and covenants
with, the underwriters, with respect to the business of
the Issuer and its subsidiaries and the Notes
Registration Statement, Notes Prospectus and documents,
if any, incorporated or deemed to be incorporated by
reference therein, in each case, as are customarily
made by issuers to underwriters in underwritten
offerings of debt securities similar to the Notes, and
confirm the same in writing if and when requested; (ii)
obtain the opinion of counsel to the Issuer and updates
thereof in form and substance reasonably satisfactory
to the managing underwriter or underwriters, addressed
to the underwriters covering the matters customarily
covered in opinions requested in underwritten offerings
of debt securities similar to the Notes and such other
matters as may be reasonably requested by underwriters;
(iii) obtain copies of "cold comfort" letters and
updates thereof in form and substance reasonably
satisfactory to the managing underwriter or
underwriters from the independent certified public
accountants of the Issuer (and, if necessary, any other
independent certified public accountants of any
subsidiary of the Issuer or of any business acquired by
the Issuer for which financial statements and financial
data are, or are required to be, included in the Notes
Registration Statement), addressed to each of the
underwriters, such letters to be in customary form and
covering matters of the type customarily covered in
"cold comfort" letters in connection with underwritten
offerings of debt securities similar to the Notes and
such other matters as reasonably requested by the
managing underwriter or underwriters; and (iv) if an
underwriting agreement is entered into, the same shall
contain indemnification provisions and procedures no
less favorable than those set forth in Section 7 hereof
(or such other provisions and procedures acceptable to
Holders of a majority in aggregate principal amount of
Registrable Notes covered by such Notes Registration
Statement and the managing underwriter or underwriters
or agents) with respect to all parties to be
indemnified pursuant to said Section. The above shall
be done at each closing under such underwriting
agreement, or as and to the extent required thereunder.
(o) If (1) a Shelf Registration is filed
pursuant to Section 3, or (2) a Notes Prospectus
contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under
the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable
Period, make available for inspection by any selling
Holder of such Registrable Notes being sold, or each
such Participating Broker-Dealer, as the case may be,
any underwriter participating in any such disposition
of Registrable Notes, if any, and any attorney,
accountant or other agent retained by any such selling
Holder or each such Participating Broker-Dealer, as the
case may be, or underwriter (collectively, the
"Inspectors"), at the offices where normally kept,
during reasonable business hours, all financial and
other records and pertinent corporate documents of the
Issuers and their respective subsidiaries
(collectively, the "Records") as shall be reasonably
necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the officers,
directors and employees of the Issuer and its
subsidiaries to supply all information reasonably
requested by any such Inspector in connection with such
Notes Registration Statement. Such Records shall be
kept confidential by each Inspector and shall not be
disclosed by the Inspectors unless (i) the disclosure
of such Records is necessary to avoid or correct a
misstatement or omission in such Notes Registration
Statement, (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of
competent jurisdiction, (iii) the information in such
Records is public or has been made generally available
to the public other than as a result of a disclosure or
failure to safeguard by such Inspector or (iv)
disclosure of such information is, in the opinion of
counsel for any Inspector, necessary or advisable in
connection with any action, claim, suit or proceeding,
directly or indirectly, involving or potentially
involving such Inspector and arising out of, based
upon, related to, or involving this Agreement, or any
transactions contemplated hereby or arising hereunder.
Each selling Holder of such Registrable Notes and each
such Participating Broker-Dealer will be required to
agree that information obtained by it as a result of
such inspections shall be deemed confidential and shall
not be used by it as the basis for any market
transactions in the securities of the Issuers unless
and until such is made generally available to the
public. Each selling Holder of such Registrable Notes
and each such Participating Broker-Dealer will be
required to further agree that it will, upon learning
that disclosure of such Records is sought in a court of
competent jurisdiction, give notice to the Issuer and
allow the Issuer to undertake appropriate action to
prevent disclosure of the Records deemed confidential
at their expense.
(p) Provide an indenture trustee for the
Registrable Notes or the Exchange Notes, as the case
may be, and cause the Indenture or the trust indenture
provided for in Section 2(a), as the case may be, to be
qualified under the TIA not later than the effective
date of the Exchange Offer or the first Notes
Registration Statement relating to the Registrable
Notes; and in connection therewith, cooperate with the
trustee under any such indenture and the Holders of the
Registrable Notes, to effect such changes to such
indenture as may be required for such indenture to be
so qualified in accordance with the terms of the TIA;
and execute, and use its best efforts to cause such
trustee to execute, all documents as may be required to
effect such changes, and all other forms and documents
required to be filed with the SEC to enable such
indenture to be so qualified in a timely manner.
(q) Comply with all applicable rules and
regulations of the SEC and make generally available to
the securityholders of the Company earnings statements
satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar
rule promulgated under the Securities Act) no later
than 45 days after the end of any 12-month period (or
90 days after the end of any 12-month period if such
period is a fiscal year) (i) commencing at the end of
any fiscal quarter in which Registrable Notes are sold
to underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the
first day of the first fiscal quarter of the Company
after the effective date of a Notes Registration
Statement, which statements shall cover said 12-month
periods.
(r) Upon consummation of the Exchange Offer or
a Private Exchange, obtain an opinion of counsel to the
Issuer, in a form customary for underwritten
transactions, addressed to the Trustee for the benefit
of all Holders of Registrable Notes participating in
the Exchange Offer or the Private Exchange, as the case
may be, that the Exchange Notes or the Private Exchange
Notes, as the case may be, and the related indenture
constitute legally valid and binding obligations of the
Issuer, enforceable against the Issuer in accordance
with their respective terms subject to customary
exceptions and qualifications; provided that the Issuer
need not comply with this Section 5(r) if all Exchange
Notes and Private Notes are issued pursuant to the
Indenture.
(s) If the Exchange Offer or a Private
Exchange is to be consummated, upon delivery of the
Registrable Notes by Holders to the Issuer (or to such
other Person as directed by the Issuer) in exchange for
the Exchange Notes or the Private Exchange Notes, as
the case may be, the Issuer shall ▇▇▇▇, or caused to be
marked, on such Registrable Notes that such Registrable
Notes are being canceled in exchange for the Exchange
Notes or the Private Exchange Notes, as the case may
be; in no event shall such Registrable Notes be marked
as paid or otherwise satisfied.
(t) Cooperate with each seller of Registrable
Notes covered by any Notes Registration Statement and
each underwriter, if any, participating in the
disposition of such Registrable Notes and their
respective counsel in connection with any filings
required to be made with the NASD.
(u) Use its best efforts to take all other
steps reasonably necessary to effect the registration
of the Registrable Notes covered by a Notes
Registration Statement contemplated hereby.
The Issuer may require each seller of Registrable Notes
as to which any registration is being effected to furnish to
the Issuer such information regarding such seller and the
distribution of such Registrable Notes as the Issuers may,
from time to time, reasonably request. The Issuer may
exclude from such registration the Registrable Notes of any
seller who fails to furnish such information within a
reasonable time (which time in no event shall exceed 30
days) after receiving such request. Each seller as to which
any Shelf Registration is being effected agrees to furnish
promptly to the Issuer all information required to be
disclosed in order to make the information previously
furnished to the Issuer by such seller not materially
misleading.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by acquisition of such Registrable
Notes or Exchange Notes to be sold by such Participating
Broker-Dealer, as the case may be, that, upon receipt of any
notice from the Issuer of the happening of any event of the
kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or
5(c)(vi), such Holder will forthwith discontinue disposition
of such Registrable Notes covered by a Notes Registration
Statement and such Participating Broker-Dealer will
forthwith discontinue disposition of such Exchange Notes
pursuant to any Notes Prospectus and, in each case,
forthwith discontinue dissemination of such Prospectus until
such Holder's or Participating Broker-Dealer's receipt of
the copies of the supplemented or amended Notes Prospectus
contemplated by Section 5(k), or until it is advised in
writing (the "Advice") by the Issuer that the use of the
applicable Prospectus may be resumed, and has received
copies of any amendments or supplements thereto and, if so
directed by the Issuer, such Holder or Participating Broker-
Dealer, as the case may be, will deliver to the Issuer all
copies, other than permanent file copies, then in such
Holder's or Participating Broker-Dealer's possession, of the
Notes Prospectus covering such Registrable Securities
current at the time of the receipt of such notice. In the
event the Issuer shall give any such notice, the Applicable
Period shall be extended by the number of days during such
periods from and including the date of the giving of such
notice to and including the date when each Participating
Broker-Dealer shall have received (x) the copies of the
supplemented or amended Notes Prospectus contemplated by
Section 5(k) or (y) the Advice.
6. Registration Expenses
(a) All fees and expenses incident to the
performance of or compliance with this Agreement by the
Issuer (other than Registration Expenses, which are dealt
with exclusively in Section 10 hereof) shall be borne by the
Issuer, whether or not the Exchange Offer or a Shelf
Registration is filed or becomes effective, including,
without limitation, (i) all registration and filing fees
(including, without limitation, (A) fees with respect to
filings required to be made with the NASD in connection with
an underwritten offering and (B) fees and expenses of
compliance with state securities or Blue Sky laws as
provided in Section 5(h) hereof, (ii) printing expenses,
including, without limitation, expenses of printing
prospectuses if the printing of prospectuses is requested by
the managing underwriter or underwriters, if any, or by the
Holders of a majority in aggregate principal amount of the
Registrable Notes included in any Notes Registration
Statement or by any Participating Broker-Dealer during the
Applicable Period, as the case may be, (iii) reasonable
messenger, telephone and delivery expenses incurred in
connection with the Exchange Registration Statement and any
Shelf Registration, (iv) fees and disbursements of counsel
for the Issuer and reasonable fees and disbursements of
special counsel for the sellers of Registrable Notes
(subject to the provisions of Section 6(b)), (v) fees and
disbursements of all independent certified public
accountants referred to in Section 5(n)(iii) (including,
without limitation, the expenses of any special audit and
"cold comfort" letters required by or incident to such
performance), (vi) rating agency fees, (vii) Securities Act
liability insurance, if the Issuer desires such insurance,
(viii) fees and expenses of all other Persons retained by
the Issuers, (ix) internal expenses of the Issuer
(including, without limitation, all salaries and expenses of
officers and employees of the Issuer performing legal or
accounting duties), (x) the expense of any annual audit,
(xi) the fees and expenses incurred in connection with the
listing of the securities to be registered on any securities
exchange and (xii) the expenses relating to printing, word
processing and distributing all Registration Statements,
underwriting agreements, securities sales agreements,
indentures and any other documents necessary in order to
comply with this Agreement.
(b) In connection with any Shelf Registration
hereunder, the Issuer shall reimburse the Holders of the
Registrable Notes being registered in such registration for
the fees and disbursements, not to exceed $25,000, of not
more than one counsel (in addition to appropriate local
counsel) chosen by the Holders of a majority in aggregate
principal amount of the Registrable Notes to be included in
such Shelf Registration and other out-of-pocket expenses of
Holders of Registrable Notes incurred in connection with the
registration and sale of Registrable Notes.
7. Indemnification
(a) The Issuer agrees to indemnify and hold
harmless each Holder of Registrable Notes, each Holder of
Registrable Securities and each Participating Broker-Dealer
selling Exchange Notes during the Applicable Period, the
officers and directors of each such Person, and each Person,
if any, who controls any such Person within the meaning of
either Section 15 of the Securities Act or Section 20 of the
Exchange Act (each, a "Participant"), from and against any
and all losses, claims, damages and liabilities (including,
without limitation, the reasonable legal fees and other
reasonable expenses actually incurred in connection with any
suit, action or proceeding or any claim asserted) caused by,
arising out of or based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in any
Registration Statement (as amended or supplemented if the
Issuer shall have furnished any amendments or supplements
thereto) or caused by, arising out of or based upon any
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, or (ii) any untrue
statement or alleged untrue statement of a material fact
contained in any Prospectus (as amended or supplemented if
the Issuer shall have furnished any amendments or
supplements thereto) or caused by, arising out of or based
upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading, except insofar
as such losses, claims, damages or liabilities are caused by
any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with
information relating to any Participant furnished to the
Issuer in writing by or on behalf of such Participant
expressly for use therein; provided, however, that the
Company will not be liable if such untrue statement or
omission or alleged untrue statement or omission was
contained or made in any preliminary prospectus and
corrected in the Prospectus or any amendment or supplement
thereto and the Prospectus does not contain any other untrue
statement or omission or alleged untrue statement or
omission of a material fact that was the subject matter of
the related proceeding and any such loss, liability, claim,
damage or expense suffered or incurred by the Participants
resulted from any action, claim or suit by any Person who
purchased Registrable Securities, Registrable Notes or
Exchange Notes which are the subject thereof from such
Participant and it is established in the related proceeding
that such Participant failed to deliver or provide a copy of
the Prospectus (as amended or supplemented) to such Person
with or prior to the confirmation of the sale of such
Registrable Securities, Registrable Notes or Exchange Notes
sold to such Person if required by applicable law, unless
such failure to deliver or provide a copy of the Prospectus
(as amended or supplemented) was a result of noncompliance
by the Issuer with Section 5 of this Agreement.
(b) Each Participant agrees, severally and not
jointly, to indemnify and hold harmless the Issuer, its
directors and officers and each Person who controls the
Issuer within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Issuer to each Participant,
but only with reference to information relating to such
Participant furnished to the Issuer in writing by such
Participant expressly for use in any Registration Statement
or Prospectus, any amendment or supplement thereto, or any
preliminary prospectus. The liability of any Participant
under this paragraph shall in no event exceed the proceeds
received by such Participant from sales of Registrable
Securities, Registrable Notes or Exchange Notes giving rise
to such obligations.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand
shall be brought or asserted against any Person in respect
of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such Person (the "Indemnified
Person") shall promptly notify the Person against whom such
indemnity may be sought (the "Indemnifying Person") in
writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the
Indemnified Person and any others the Indemnifying Person
may reasonably designate in such proceeding and shall pay
the reasonable fees and expenses actually incurred by such
counsel related to such proceeding; provided, however, that
the failure to so notify the Indemnifying Person shall not
relieve it of any obligation or liability which it may have
hereunder or otherwise (unless and only to the extent that
such failure directly results in the loss or compromise of
any material rights or defenses by the Indemnifying Person
and the Indemnifying Person was not otherwise aware of such
action or claim). In any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but
the fees and expenses of such counsel shall be at the
expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have
mutually agreed in writing to the contrary, (ii) the
Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests
between them. It is understood that, unless there is a
conflict among Indemnified Persons, the Indemnifying Person
shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees
and expenses of more than one separate firm (in addition to
any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed promptly after
receipt of the invoice therefor as they are incurred. Any
such separate firm for the Participants and such control
Persons of Participants shall be designated in writing by
Participants who sold a majority in interest of the
securities sold by all such Participants and any such
separate firm for the Issuer, its directors, its officers
and such control Persons of the Issuer shall be designated
in writing by the Company. The Indemnifying Person shall
not be liable for any settlement of any proceeding effected
without its prior written consent, but if settled with such
consent or if there is a final non-appealable judgment for
the plaintiff for which the Indemnified Person is entitled
to indemnification pursuant to this Agreement, the
Indemnifying Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of
such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have
requested an Indemnifying Person to reimburse the
Indemnified Person for reasonable fees and expenses actually
incurred by counsel as contemplated by the third sentence of
this paragraph, the Indemnifying Person agrees that it shall
be liable for any settlement of any proceeding effected
without its prior written consent if (i) such settlement is
entered into more than 30 days after receipt by such
Indemnifying Person of the aforesaid request and (ii) such
Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to
the date of such settlement; provided, however, that the
Indemnifying Person shall not be liable for any settlement
effected without its consent pursuant to this sentence if
the Indemnifying Person is contesting, in good faith, the
request for reimbursement. No Indemnifying Person shall,
without the prior written consent of the Indemnified Person,
effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or
could have been a party and indemnity could have been sought
hereunder by such Indemnified Person, unless such settlement
(A) includes an unconditional release of such indemnified
Person, in form and substance satisfactory to such
Indemnified Person, from all liability on claims that are
the subject matter of such proceeding and (B) does not
include any statement as to an admission of fault,
culpability or failure to act by or on behalf of an
Indemnified Person.
(d) If the indemnification provided for in the
first and second paragraphs of this Section 7 is unavailable
(other than by reason of the exceptions specifically
provided therein) to, or insufficient to hold harmless, an
Indemnified Person in respect of any losses, claims, damages
or liabilities referred to therein, then each Indemnifying
Person under such paragraphs, in lieu of indemnifying such
Indemnified Person thereunder and in order to provide for
just and equitable contribution, shall contribute to the
amount paid or payable by such Indemnified Person as a
result of such losses, claims, damages or liabilities in
such proportion as is appropriate to reflect (i) the
relative benefits received by the Indemnifying Person or
Persons on the one hand and the Indemnified Person or
Persons on the other from the offering of the Registrable
Securities, Registrable Notes or Exchange Notes, as the case
may be, or (ii) if the allocation provided by the foregoing
clause (i) is not permitted by applicable law, not only such
relative benefits but also the relative fault of the
Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons on the other in connection
with the statements or omissions (or alleged statements or
omissions) that 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 the parties shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the
Issuers on the one hand or by the Participants or such other
Indemnified Person, as the case may be, on the other, such
Persons' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or
omission and any other equitable considerations appropriate
under the circumstances.
(e) The parties agree that it would not be just and
equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Participants
were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the
equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an
Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any reasonable legal or
other expenses actually incurred by such Indemnified Person
in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this
Section 7, in no event shall a Participant be required to
contribute any amount in excess of the amount by which
proceeds received by such Participant from sales of
Registrable Securities, Registrable Notes or Exchange Notes,
as the case may be, exceeds the amount of any damages that
such Participant has otherwise been required to pay by
reason of such untrue or alleged untrue statement or
omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such
fraudulent misrepresentation.
(f) The indemnity and contribution agreements
contained in this Section 7 will be in addition to any
liability which the Indemnifying Persons may otherwise have
to the Indemnified Persons referred to above.
8. Rules 144 and 144A
The Issuer covenants that it will file the reports
required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations adopted by the
SEC thereunder in a timely manner and, if at any time it is
not required to file such reports, it will, upon the request
of any Holder of Registrable Securities or Registrable
Notes, make publicly available other information so long as
necessary to permit sales pursuant to Rule 144 and Rule
144A. The Issuer further covenants, for so long as any
Registrable Securities or Registrable Notes remain
outstanding, to make available to any Holder or beneficial
owner thereof in connection with any sale thereof and any
prospective purchaser of such Registrable Securities or
Registrable Notes from such Holder or beneficial owner, the
information required by Rule 144A(d)(4) under the Securities
Act in order to permit resales of such Registrable
Securities or Registrable Notes pursuant to Rule 144A.
9. Underwritten Registrations of Registrable Notes
If any of the Registrable Notes covered by any Shelf
Registration is to be sold in an underwritten offering, the
investment banker or investment bankers and manager or
managers that will manage the offering will be selected by
the Holders of a majority in aggregate principal amount of
such Registrable Notes included in such offering and
reasonably acceptable to the Issuer.
No Holder of Registrable Notes may participate in any
underwritten registration hereunder unless such Holder (a)
agrees to sell such Holder's Registrable Notes on the basis
provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements and
(b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other
documents required under the terms of such underwriting
arrangements.
10. Registration of Registrable Securities
(a) Piggy-Back Registration of Registrable
Securities. If at any time after the Exercise Date the
Company proposes to file a registration statement under the
Securities Act with respect to an offering by the Company
for its own account or for the account of any holders of its
Common Stock (other than (i) a registration statement on
Form S-4 or S-8 (or any substitute form that may be adopted
by the SEC), (ii) a registration statement filed in
connection with an exchange offer or offering of securities
solely to the Company's existing securityholders or (iii)
any Notes Registration Statement), then the Company shall
give written notice of such proposed filing to the Holders
of Registrable Securities as soon as practicable (but in no
event fewer than 20 days before the anticipated filing
date), and such notice shall offer such Holders the
opportunity to register such number of Registrable
Securities as each Holder may request in writing within 20
days after receipt of such written notice from the Company
(which request shall specify the Registrable Securities
intended to be disposed of by such Selling Holder and the
intended method of distribution thereof) (a "Piggy-Back
Registration"). The Company shall use its best efforts to
keep such Piggy-Back Registration continuously effective
under the Securities Act until at least the earlier of (A)
an aggregate of 180 days after the effective date thereof or
(B) the consummation of the distribution by the Holders of
all of the Registrable Securities covered thereby. The
Company shall use its best efforts to cause the managing
underwriter or underwriters, if any, of such proposed
offering to permit the Registrable Securities requested to
be included in a Piggy-Back Registration to be included on
the same terms and conditions as any similar securities of
the Company or any other security holder included therein
and to permit the sale or other disposition of such
Registrable Securities in accordance with the intended
method of distribution thereof. Any Selling Holder shall
have the right to withdraw its request for inclusion of its
Registrable Securities in any Registration Statement
pursuant to this Section 10 by giving written notice to the
Company of its request to withdraw at any time prior to the
filing of such Registration Statement with the SEC. The
Company will pay all Registration Expenses in connection
with each registration of Registrable Securities requested
pursuant to this Section 10, and each Holder of Registrable
Securities shall pay all underwriting discounts and
commissions and transfer taxes, if any, relating to the sale
or disposition of such Holder's Registrable Securities
pursuant to a Piggy-Back Registration effected pursuant to
this Section 10.
No registration effected under this Section 10,
and no failure to effect a registration under this Section
10, shall relieve the Company of its obligation to effect a
registration upon the request of Holders of Registrable
Notes pursuant to Section 2 or 3 hereof, and no failure to
effect a registration under this Section 10 and to complete
the sale of securities registered thereunder in connection
therewith shall relieve the Company of any other obligation
under this Agreement.
(b) Priority in Piggy-Back Registration. In a
registration pursuant to this Section 10 involving an
underwritten offering, if the managing underwriter or
underwriters of such underwritten offering have informed, in
writing, the Company and the Selling Holders requesting
inclusion in such offering that in such underwriter's or
underwriters' opinion the total number of securities which
the Company, the Selling Holders and any other Persons
desiring to participate in such registration intend to
include in such offering is such as to adversely affect the
success of such offering, including the price at which such
securities can be sold, then the Company will be required to
include in such registration only the amount of securities
which it is so advised should be included in such
registration. In such event: (x) in cases initially
involving the registration for sale of securities for the
Company's own account, securities shall be registered in
such offering in the following order of priority: (i) first,
the securities which the Company proposes to register, (ii)
second, provided that no securities proposed to be
registered by the Company have been excluded from such
registration, the securities which have been requested to be
included in such registration by the Selling Holders and by
Persons entitled to exercise "piggy-back" registration
rights pursuant to contractual commitments to "piggy-back"
registration rights of the Company entered into prior to,
and in existence on, the date hereof (pro rata based on the
amount of securities sought to be registered by such
Persons), and (iii) third, provided that no securities
sought to be included by the Selling Holders or such Persons
have been excluded from such registration, the securities of
other Persons entitled to exercise "piggy-back" registration
rights pursuant to contractual commitments of the Company
entered into subsequent to the date hereof (pro rata based
on the amount of securities sought to be registered by such
Persons); and (y) in cases not initially involving the
registration for sale of securities for the Company's own
account, securities shall be registered in such offering in
the following order of priority: (i) first, the securities
of any Person whose exercise of a "demand" registration
right pursuant to a contractual commitment of the Company is
the basis for the registration, (ii) second, provided that
no securities of any Person whose exercise of a "demand"
registration right pursuant to a contractual commitment of
the Company is the basis for such registration have been
excluded from such registration, the securities requested to
be included in such registration by the Selling Holders
pursuant to this Agreement and by Persons entitled to
exercise "piggy-back" registration rights pursuant to
contractual commitments to "piggy-back" registration rights
of the Company entered into prior to, and in existence on,
the date hereof (pro rata based on the total amount of
securities sought to be included by such Persons), (iii)
third, provided that no securities sought to be included by
the Selling Holders or such Persons have been excluded from
such registration, securities of other Persons entitled to
exercise "piggy-back" registration rights pursuant to
contractual commitments entered into subsequent to the date
hereof (pro rata based on the amount of securities sought to
be registered by such Persons) and (iv) fourth, provided
that no securities sought to be included by other Persons
entitled to exercise "piggy-back" registration rights
pursuant to such contractual commitments have been excluded
from such registration, any securities which the Company
proposes to register.
(c) Suspension of Sales, etc. Subject to the next
sentence of this paragraph, the Company shall be entitled to
postpone, for a reasonable period of time, the effectiveness
of, or suspend the rights of any Holders to make sales
purchase to any Warrants Registration Statement otherwise
required to be prepared, filed and made and kept effective
by it under this Section 10; provided, however, that the
duration of such postponement or suspension may not exceed
the earlier to occur of (A) 15 days after the cessation of
the circumstances described in the next sentence of this
paragraph on which such postponement or suspension is based
or (B) 120 days after the date of the determination of the
Board of Directors referred to in the next sentence. Such
postponement or suspension may only be effected if the Board
of Directors of the Company determines in good faith that
the effectiveness of, or sales pursuant to, such Warrants
Registration Statement would materially impede, delay or
interfere with any financing, offer or sale of securities,
acquisition, corporate reorganization or other significant
transaction involving the Company or any of its affiliates
or require disclosure of material information which the
Company has a bona fide business purpose for preserving as
confidential. If the Company shall so postpone the
effectiveness of, or suspend the rights of any Holders to
make sales pursuant to, a Warrants Registration Statement,
it shall, as promptly as possible, notify any Selling
Holders of such determination, and the Selling Holders shall
(y) have the right, in the case of a postponement of the
effectiveness of a Warrants Registration Statement, upon the
affirmative vote of Selling Holders of not less than a
majority of the Registerable Securities to be included in
such Warrants Registration Statement, to withdraw the
request for registration by giving written notice to the
Company within 10 days after receipt of such notice or (z)
in the case of a suspension of the right to make sales,
receive an extension of the registration period referred to
in Section 10(a) hereof equal to the number of days of the
suspension.
(d) Exclusion of Registrable Securities. The
Company shall not be required by this Section 10 to include
Registrable Securities in a Piggy-Back Registration if (i)
in the written opinion of counsel to the Company, addressed
to the Holders of Registrable Securities and delivered to
them, the Holders of such Registrable Securities seeking
registration would be free to sell all such Registrable
Securities within the current calendar quarter without
registration under Rule 144, which opinion may be based in
part upon the representation by the Holders of such
Registrable Securities seeking registration, which
representation shall not be unreasonably withheld, that each
such Holder is not an affiliate of the Company within the
meaning of the Securities Act, and (ii) all requirements
under the Securities Act for effecting such sales are
satisfied at such time.
(e) Obligations of Selling Holders. The Company's
obligations under this Section 10 shall be subject to the
obligations of the Selling Holders, which the Selling
Holders acknowledge, to furnish all information and
materials and to take any and all actions as may be required
under applicable federal and state securities laws and
regulations to permit the Company to comply with all
applicable requirements of the SEC and to obtain any
acceleration of the effective date of a Warrants
Registration Statement.
(f) No Special Audit. The Company shall not be
obligated to cause any special audit to be undertaken in
connection with any Piggy-Back Registration unless such
audit is requested by the underwriters with respect to such
Piggy-Back Registration.
11. Miscellaneous
(a) No Inconsistent Agreements. The Issuer has not
entered, as of the date hereof, and the Issuer shall not
enter, after the date of this Agreement, into any agreement
with respect to any of its securities that is inconsistent
with the rights granted to the Holders of Registrable
Securities or Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof. The Issuer
has not entered and will not enter into any agreement with
respect to any of its securities which will grant to any
Person piggy-back rights with respect to a Notes
Registration Statement.
(b) Adjustments Affecting Registrable Securities or
Registrable Notes. The Company shall not, directly or
indirectly, take any action with respect to the Registrable
Securities or Registrable Notes as a class that would
adversely affect the ability of the Holders to include such
Registrable Securities or Registrable Notes in a
registration undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof
may not be given, otherwise than with the prior written
consent of (A) in circumstances that would adversely affect
any Holders of Registrable Securities or Registrable Notes,
the Holders of a majority of the Registrable Securities or
the Holders of not less than a majority in aggregate
principal amount of the then outstanding Registrable Notes,
as the case may be, and (B) in circumstances that would
adversely affect Participating Broker-Dealers, the
Participating Broker-Dealers holding not less than a
majority in aggregate principal amount of the Exchange Notes
held by all Participating Broker-Dealers; provided, however,
that Section 7 and this Section 11(c) may not be amended,
modified or supplemented without the prior written consent
of each Holder and each Participating Broker-Dealer
(including any Person who was a Holder or Participating
Broker-Dealer of Registrable Securities or Registrable Notes
or Exchange Notes, as the case may be, disposed of pursuant
to any Registration Statement). Notwithstanding the
foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to
the rights of Holders of Registrable Notes whose securities
are being tendered pursuant to the Exchange Offer or sold
pursuant to a Notes Registration Statement and that does not
directly or indirectly affect, impair, limit or compromise
the rights of other Holders of Registrable Notes may be
given by Holders of at least a majority in aggregate
principal amount of the Registrable Notes being tendered or
being sold by such Holders pursuant to such Notes
Registration Statement.
(d) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing
by hand-delivery, registered first-class mail, next-day air
courier or telecopier:
1. if to a Holder of Registrable Securities or
Registrable Notes or to any Participating Broker-
Dealer, at the most current address of such Holder or
Participating Broker-Dealer, as the case may be, set
forth on the records of the registrar of the Warrants
or the Notes, with a copy in like manner to the Initial
Purchaser as follows:
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
Two Houston Center
▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
2. if to the Initial Purchaser, at the address
specified in Section 11(d)(1);
3. if to the Issuer, as follows:
XCL Ltd.
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
All such notices and communications shall be deemed to
have been duly given: when delivered by hand, if personally
delivered; five business days after being deposited in the
United States mail, postage prepaid, if mailed, one business
day after being timely delivered to a next-day air courier
guaranteeing overnight delivery; and when receipt is
acknowledged by the addressee, if telecopied.
Copies of all such notices, demands or other
communications shall be concurrently delivered by the Person
giving the same to the Trustee under the Indenture at the
address specified in such Indenture.
(e) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors
and assigns of each of the parties hereto and the Holders;
provided, however, that the provisions of this Agreement
relating to registration rights shall not inure to the
benefit of or be binding upon a successor or assign of a
Holder unless such successor or assign holds Registrable
Securities or Registrable Notes.
(f) Counterparts. This Agreement may be executed
in any number of counterparts and by the parties hereto in
separate counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are
for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK. EACH OF THE PARTIES HERETO AGREES TO
SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE COMPETENT
COURTS OF THE STATE OF NEW YORK SITTING IN THE CITY OF NEW
YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT.
(i) Severability. If any term, provision, covenant
or restriction of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use
their best efforts to find and employ an alternative means
to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
(j) Notes Held by the Issuer or Its Affiliates.
Whenever the consent or approval of Holders of a specified
percentage of Registrable Securities or Registrable Notes is
required hereunder, Registrable Securities or Registrable
Notes, as the case may be, held by the Issuer or its
affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether
such consent or approval was given by the Holders of such
required percentage.
(k) Third Party Beneficiaries. Holders and
Participating Broker-Dealers are intended third party
beneficiaries of this Agreement and this Agreement may be
enforced by such Persons.
(1) Entire Agreement. This Agreement, together
with the Purchase Agreement, the Indenture and the Security
Documents, is intended by the parties as a final and
exclusive statement of the agreement and understanding of
the parties hereto in respect of the subject matter
contained herein and therein and any and all prior oral or
written agreements, representations, or warranties,
contracts, understandings, correspondence, conversations and
memoranda between the Initial Purchaser on the one hand and
the Issuer on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates,
predecessors in interest or successors in interest with
respect to the subject matter hereof and thereof are merged
herein and replaced hereby.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
XCL LTD.
By:__________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President,
General Counsel &
Secretary
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
By:___________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Senior Vice President
