PETROHAWK ENERGY CORPORATION 101/2% SENIOR NOTES DUE 2014 REGISTRATION RIGHTS AGREEMENT
Exhibit
4.2
Execution Version
$600,000,000
PETROHAWK ENERGY CORPORATION
101/2% SENIOR NOTES DUE 2014
January 27, 2009
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
BNP PARIBAS SECURITIES CORP.
WACHOVIA CAPITAL MARKETS, LLC
BANC OF AMERICA SECURITIES LLC
BMO CAPITAL MARKETS CORP.
BARCLAYS CAPITAL INC.
FORTIS SECURITIES LLC
CALYON SECURITIES (USA) INC.
RBC CAPITAL MARKETS CORPORATION
CAPITAL ONE SOUTHCOAST, INC.
WEDBUSH ▇▇▇▇▇▇ SECURITIES INC.
NATIXIS BLEICHROEDER INC.
CITIGROUP GLOBAL MARKETS INC.
BBVA SECURITIES, INC.
▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
c/o: ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
BNP PARIBAS SECURITIES CORP.
WACHOVIA CAPITAL MARKETS, LLC
BANC OF AMERICA SECURITIES LLC
BMO CAPITAL MARKETS CORP.
BARCLAYS CAPITAL INC.
FORTIS SECURITIES LLC
CALYON SECURITIES (USA) INC.
RBC CAPITAL MARKETS CORPORATION
CAPITAL ONE SOUTHCOAST, INC.
WEDBUSH ▇▇▇▇▇▇ SECURITIES INC.
NATIXIS BLEICHROEDER INC.
CITIGROUP GLOBAL MARKETS INC.
BBVA SECURITIES, INC.
▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
c/o: ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Petrohawk Energy Corporation, a Delaware corporation (the “Issuer”), proposes to issue and
sell to ▇.▇. ▇▇▇▇▇▇ Securities Inc., BNP Paribas Securities Corp., Wachovia Capital Markets, LLC,
Banc of America Securities LLC, BMO Capital Markets Corp., Barclays Capital Inc., Fortis Securities
LLC, Calyon Securities (USA) Inc., RBC Capital Markets Corporation, Capital One Southcoast, Inc.,
Wedbush ▇▇▇▇▇▇ Securities Inc., Natixis Bleichroeder Inc., Citigroup Global Markets Inc., BBVA
Securities, Inc. and ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. (collectively, the “Initial Purchasers”), upon the terms
set forth in a purchase agreement dated January 22, 2009 (the “Purchase Agreement”), $600,000,000
aggregate principal amount of its 101/2% Senior Notes due 2014 (the “Initial Securities”) to be
unconditionally guaranteed (the “Guarantees”) by certain of the Issuer’s subsidiaries who are
signatories hereto as guarantors (collectively, the “Guarantors” and together with the Issuer, the
“Company”). The Initial Securities will be issued pursuant to an Indenture, dated as of
January 27, 2009 (the “Indenture”), among the Issuer, the Guarantors named therein and U.S. Bank
National Association (the “Trustee”). As an inducement to the Initial Purchasers, the Company
agrees with the Initial Purchasers, for the benefit of the holders of the Initial Securities
(including, without limitation, the Initial Purchasers), the Exchange Securities (as defined below)
and the Private Exchange Securities (as defined below) (collectively, the “Holders”), as follows:
1. Registered Exchange Offer. The Company shall, at its own cost, prepare and, not later than
90 days after (or if the 90th day is not a business day, the first business day thereafter) the
date of original issue of the Initial Securities (the “Issue Date”), file with the Securities and
Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration
Statement”) on an appropriate form under the Securities Act of 1933, as amended (the “Securities
Act”), with respect to a proposed offer (the “Registered Exchange Offer”) to the Holders of
Transfer Restricted Securities (as defined in Section 6(d) hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered
Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a
like aggregate principal amount of debt securities (the “Exchange
Securities”) of the Company issued under the Indenture and identical in all material respects to the Initial Securities (except
for the transfer restrictions relating to the Initial Securities and the provisions relating to the
matters described in Section 6(d) hereof) that would be registered under the Securities Act. The
Company shall use its reasonable best efforts to cause such Exchange Offer Registration Statement
to be declared effective under the Securities Act within 270 days (or if the 270th day is not a
business day, the first business day thereafter) after the Issue Date and shall keep the Registered
Exchange Offer open for not less than 20 business days (or longer, if required by applicable law)
after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being
called the “Exchange Offer Registration Period”).
If the Company commences the Registered Exchange Offer, the Company will be entitled to close
the Registered Exchange Offer 20 business days after the commencement thereof provided that the
Company has accepted all the Initial Securities theretofore validly tendered, and not withdrawn, in
accordance with the terms of the Registered Exchange Offer.
Following the declaration of the effectiveness of the Exchange Offer Registration Statement,
the Company shall promptly commence the Registered Exchange Offer, it being the objective of such
Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to
exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an
affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities
in the ordinary course of such Holder’s business and has no arrangements or understanding with any
person to participate in the distribution of the Exchange Securities and is not prohibited by any
law or policy of the Commission from participating in the Registered Exchange Offer) to trade such
Exchange Securities from and after their receipt without any limitations or restrictions under the
Securities Act and without material restrictions under the securities laws of the several states of
the United States; provided, however, that the Exchanging Dealers (as defined below) will be
required to deliver a prospectus in connection with resales of Exchange Securities.
The Company acknowledges that, pursuant to current interpretations by the Commission’s staff
of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each
Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own
account as a result of market making activities or other trading activities, for Exchange
Securities (an “Exchanging Dealer”), is required to deliver a prospectus containing the information
set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the “Exchange
Offer Procedures” section and the “Purpose of the Exchange Offer” section, and (c) Annex C
hereto in the “Plan of Distribution” section of such prospectus in connection with a sale of any
such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange
Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities acquired in exchange
for Initial Securities constituting any portion of an unsold allotment is required to deliver a
prospectus containing the information required by Items 507 or 508 of Regulation S-K under the
Securities Act, as applicable, in connection with such sale.
The Company shall use its reasonable best efforts to keep the Exchange Offer Registration
Statement effective and to amend and supplement the prospectus contained therein, in order to
permit such 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 Securities; provided, however, that (i) in the case
where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging
Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which
all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them
(unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make
such prospectus and any amendment or supplement thereto, available to any broker-dealer for use in
connection with any resale of any Exchange Securities for a period of not less than 180 days after
the consummation of the Registered Exchange Offer.
If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial
Securities acquired by it as part of its initial distribution, the Company, simultaneously with the
delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial
Purchaser upon the written request of such Initial Purchaser, in exchange (the “Private Exchange”)
for the Initial Securities held by such Initial Purchaser, a like principal amount of debt
securities of the Company issued under the Indenture and
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identical in all material respects (including the existence of restrictions on transfer under the Securities Act and the securities
laws of the several states of the United States, but excluding provisions relating to the matters
described in Section 6 hereof) to the Initial Securities (the “Private Exchange Securities”). The
Initial Securities, the Exchange Securities and the Private Exchange Securities are herein
collectively called the “Securities.”
In connection with the Registered Exchange Offer, the Company shall:
(a) deliver to each Holder a copy of the prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate Letter of Transmittal and related
documents;
(b) keep the Registered Exchange Offer open for not less than 20 business days (or
longer, if required by applicable law) after the date notice thereof is mailed to the
Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer, which may
be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of
business, New York time, on the last business day on which the Registered Exchange Offer
shall remain open; and
(e) otherwise comply with all applicable laws.
As soon as practicable after the close of the Registered Exchange Offer or the Private
Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not withdrawn pursuant
to the Registered Exchange Offer and the Private Exchange; and
(y) cause the Trustee to deliver promptly to each Holder of the Initial Securities,
Exchange Securities or Private Exchange Securities, as the case may be, equal in principal
amount to the Initial Securities of such Holder so accepted for exchange.
The Indenture will provide that the Exchange Securities will not be subject to the transfer
restrictions set forth in the Indenture and that all the Securities will vote and consent together
on all matters as one class and that none of the Securities will have the right to vote or consent
as a class separate from one another on any matter.
Interest on each Exchange Security and Private Exchange Security issued pursuant to the
Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment
date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if
no interest has been paid on the Initial Securities, from the Issue Date.
Each Holder participating in the Registered Exchange Offer shall be required to represent to
the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange
Securities received by such Holder will be acquired in the ordinary course of its business,
(ii) such Holder has no arrangements or understanding with any person to participate in the
distribution of the Securities or the Exchange Securities within the meaning of the Securities Act,
(iii) such Holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the
Company or if it is an affiliate, such Holder will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable, (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
Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange
Securities for its own account in exchange for Initial Securities that were acquired as a result of
market-making activities or other trading activities and that it
will be required to acknowledge that it will deliver a prospectus in connection with any
resale of such Exchange Securities.
Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange
Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and
any supplement thereto comply in all material respects with the Securities Act and the rules and
regulations thereunder, (ii) any
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Exchange Offer Registration Statement and any amendment thereto do
not, when they become effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and
any supplement to such prospectus, do not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading.
2. Shelf Registration. If, (i) because of any change in law or in applicable interpretations
thereof by the staff of the Commission, the Company is not permitted to effect a Registered
Exchange Offer, as contemplated by Section 1 hereof, (ii) the Registered Exchange Offer is not
consummated within 310 days of the Issue Date, (iii) any Initial Purchaser so requests with respect
to the Initial Securities (or the Private Exchange Securities) not eligible to be exchanged for
Exchange Securities in the Registered Exchange Offer and held by it following consummation of the
Registered Exchange Offer or (iv) any Holder (other than an Exchanging Dealer) is not eligible to
participate in the Registered Exchange Offer or, in the case of any Holder (other than an
Exchanging Dealer) that participates in the Registered Exchange Offer, such Holder does not receive
freely tradeable Exchange Securities on the date of the exchange, the Company shall take the
following actions:
(a) The Company shall, at its cost, as promptly as practicable (but in no event more
than 30 days after so required or requested pursuant to this Section 2) file with the
Commission and thereafter shall use its reasonable best efforts to cause to be declared
effective (unless it becomes effective automatically upon filing) a registration statement
(the “Shelf Registration Statement” and, together with the Exchange Offer Registration
Statement, a “Registration Statement”) on an appropriate form under the Securities Act
relating to the offer and sale of the Transfer Restricted Securities by the Holders thereof
from time to time in accordance with the methods of distribution set forth in the Shelf
Registration Statement and Rule 415 under the Securities Act (hereinafter, the “Shelf
Registration”) on or prior to the 270th day following the Issue Date in the case of clause
(i) above and on or prior to the 180th day after the date on which the Shelf Registration
Statement is required to be filed in the case of clauses (ii), (iii) and (iv) above;
provided, however, that no Holder (other than an Initial Purchaser) shall be entitled to
have the Securities held by it covered by such Shelf Registration Statement unless such
Holder agrees in writing to be bound by all the provisions of this Agreement applicable to
such Holder.
(b) The Company shall use its reasonable best efforts to keep the Shelf Registration
Statement continuously effective, in order to permit the prospectus included therein to be
lawfully delivered by the Holders of the relevant Securities, for a period of two years (or
for such longer period if extended pursuant to Section 3(j) below) from the date of its
effectiveness or such shorter period that will terminate when all the Securities covered by
the Shelf Registration Statement (i) have been sold pursuant thereto or (ii) may be sold
without any limitations by non-affiliates of the Company under clause (d)(1)(i) of Rule 144
under the Securities Act, or any successor rule thereof, provided, however, that the six
month period shall be replaced with one year) (the “Shelf Registration Period”). The
Company shall be deemed not to have used its reasonable best efforts to keep the Shelf
Registration Statement effective during the Shelf Registration Period if it voluntarily
takes any action that would result in Holders of Securities covered thereby not being able
to offer and sell such Securities during that period, unless such action is required by
applicable law.
(c) Notwithstanding any other provisions of this Agreement to the contrary, the Company
shall cause (i) the Shelf Registration Statement and any amendment thereto and any related
prospectus and any supplement thereto, as of the effective date of the Shelf Registration
Statement, amendment or supplement, to comply in all material respects with the Securities
Act and the rules and regulations thereunder, (ii) the Shelf Registration Statement and any amendment thereto not to
contain any untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein not misleading and
(iii) the prospectus related to the Shelf Registration Statement, and any supplement to such
prospectus, not to include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading.
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3. Registration Procedures. In connection with any Shelf Registration contemplated by
Section 2 hereof and, to the extent applicable, any Registered Exchange Offer contemplated by
Section 1 hereof, the following provisions shall apply:
(a) The Company shall (i) furnish to each Initial Purchaser, prior to the filing
thereof with the Commission, a copy of the Registration Statement and each amendment thereof
and each supplement, if any, to the prospectus included therein and, in the event that an
Initial Purchaser (with respect to any portion of an unsold allotment from the original
offering) is participating in the Registered Exchange Offer or the Shelf Registration
Statement, the Company shall use its reasonable best efforts to reflect in each such
document, when so filed with the Commission, such comments as such Initial Purchaser
reasonably may propose; (ii) include the information set forth in Annex A hereto on
the cover, in Annex B hereto in the “Exchange Offer Procedures” section and the
“Purpose of the Exchange Offer” section and in Annex C hereto in the “Plan of
Distribution” section of the prospectus forming a part of the Exchange Offer Registration
Statement and include the information set forth in Annex D hereto in the Letter of
Transmittal delivered pursuant to the Registered Exchange Offer; (iii) if requested by an
Initial Purchaser, include the information required by Items 507 or 508 of Regulation S-K
under the Securities Act, as applicable, in the prospectus forming a part of the Exchange
Offer Registration Statement; (iv) include within the prospectus contained in the Exchange
Offer Registration Statement a section entitled “Plan of Distribution,” reasonably
acceptable to the Initial Purchasers, which shall contain a summary statement of the
positions taken or policies made by the staff of the Commission with respect to the
potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined
in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of
Exchange Securities received by such broker-dealer in the Registered Exchange Offer (a
“Participating Broker-Dealer”), whether such positions or policies have been publicly
disseminated by the staff of the Commission or such positions or policies, in the reasonable
judgment of the Initial Purchasers based upon advice of counsel (which may be in-house
counsel), represent the prevailing views of the staff of the Commission; and (v) in the case
of a Shelf Registration Statement, include in the prospectus included in the Shelf
Registration Statement (or, if permitted by Commission Rule 430B(b), in a prospectus
supplement that becomes a part thereof pursuant to Commission Rule 430B(f)) that is
delivered to any Holder pursuant to Section 3(d) and (f), the names of the Holders, who
propose to sell Securities pursuant to the Shelf Registration Statement, as selling
securityholders.
(b) The Company shall give written notice to the Initial Purchasers, the Holders of the
Securities proposed to be sold under the Shelf Registration Statement and any Participating
Broker-Dealer from whom the Company has received prior written notice that it will be a
Participating Broker-Dealer in the Registered Exchange Offer (which notice pursuant to
clauses (ii)-(v) hereof shall be accompanied by an instruction to suspend the use of the
prospectus until the requisite changes have been made):
(i) when the Registration Statement or any amendment thereto has been filed with
the Commission and when the Registration Statement or any post-effective amendment
thereto has become effective;
(ii) of any request by the Commission for amendments or supplements to the
Registration Statement or the prospectus included therein or for additional information;
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings for
that purpose, of the issuance by the Commission of a notification of objection to the use of the form on which the
Registration Statement has been filed, and of the happening of any event that causes the
Company to become an “ineligible issuer,” as defined in Commission Rule 405;
(iv) of the receipt by the Company or its legal counsel of any notification with
respect to the suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose; and
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(v) of the happening of any event that requires the Company to make changes in the
Registration Statement or the prospectus in order that the Registration Statement or the
prospectus do not contain an untrue statement of a material fact nor omit to state a
material fact required to be stated therein or necessary to make the statements therein
(in the case of the prospectus, in light of the circumstances under which they were
made) not misleading.
(c) The Company shall make every reasonable effort to obtain the withdrawal at the
earliest possible time, of any order suspending the effectiveness of the Registration
Statement.
(d) The Company shall furnish to each Holder of Securities included within the coverage
of the Shelf Registration, without charge, at least one copy of the Shelf Registration
Statement and any post-effective amendment or supplement thereto, including financial
statements and schedules, and, if the Holder so requests in writing, all exhibits thereto
(including those, if any, incorporated by reference). The Company shall not, without the
prior consent of the Initial Purchasers, make any offer relating to the Securities that
would constitute a “free writing prospectus,” as defined in Commission Rule 405.
(e) The Company shall deliver to each Initial Purchaser, and to any other Holder who so
requests, without charge, at least one copy of the Exchange Offer Registration Statement and
any post-effective amendment thereto, including financial statements and schedules, and, if
any Initial Purchaser or any such Holder requests, all exhibits thereto (including those
incorporated by reference).
(f) The Company shall, during the Shelf Registration Period, deliver to each Holder of
Securities included within the coverage of the Shelf Registration, without charge, as many
copies of the prospectus (including each preliminary prospectus) included in the Shelf
Registration Statement and any amendment or supplement thereto as such person may reasonably
request. The Company consents, subject to the provisions of this Agreement, to the use of
the prospectus or any amendment or supplement thereto by each of the selling Holders of the
Securities in connection with the offering and sale of the Securities covered by the
prospectus, or any amendment or supplement thereto, included in the Shelf Registration
Statement.
(g) The Company shall deliver to each Initial Purchaser, any Exchanging Dealer, any
Participating Broker-Dealer and such other persons required to deliver a prospectus
following the Registered Exchange Offer, without charge, as many copies of the final
prospectus included in the Exchange Offer Registration Statement and any amendment or
supplement thereto as such persons may reasonably request. The Company consents, subject to
the provisions of this Agreement, to the use of the prospectus or any amendment or
supplement thereto by any Initial Purchaser, if necessary, any Participating Broker-Dealer
and such other persons required to deliver a prospectus following the Registered Exchange
Offer in connection with the offering and sale of the Exchange Securities covered by the
prospectus, or any amendment or supplement thereto, included in such Exchange Offer
Registration Statement.
(h) Prior to any public offering of the Securities, pursuant to any Registration
Statement, the Company shall register or qualify or cooperate with the Holders of the
Securities included therein and their respective counsel in connection with the registration
or qualification of the Securities for offer and sale under the securities or “blue sky”
laws of such states of the United States as any Holder of the Securities reasonably requests
in writing and do any and all other acts or things reasonably necessary or advisable to
enable the offer and sale in such jurisdictions of the Securities covered by such
Registration Statement; provided, however, that the Company shall not be required to (i) qualify
generally to do business in any jurisdiction where it is not then so qualified or (ii) take
any action which would subject it to general service of process or to taxation in any
jurisdiction where it is not then so subject.
(i) To the extent the Securities are not in book-entry form, the Company shall
cooperate with the Holders of the Securities to facilitate the timely preparation and
delivery of certificates representing the Securities to be sold pursuant to any Registration
Statement free of any restrictive legends and in such denominations and registered in such
names as the Holders may request a reasonable period of time prior to sales of the
Securities pursuant to such Registration Statement.
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(j) Upon the occurrence of any event contemplated by clauses (ii) through (v) of
Section 3(b) above during the period for which the Company is required to maintain an
effective Registration Statement, the Company shall promptly prepare and file a
post-effective amendment to the Registration Statement or a supplement to the related
prospectus and any other required document so that, as thereafter delivered to Holders of
the Securities or purchasers of Securities, the prospectus will not contain an 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. If the Company notifies the Initial Purchasers, the
Holders of the Securities and any known Participating Broker-Dealer in accordance with
clauses (ii) through (v) of Section 3(b) above to suspend the use of the prospectus until
the requisite changes to the prospectus have been made, then the Initial Purchasers, the
Holders of the Securities and any such Participating Broker-Dealers shall suspend use of
such prospectus, and the period of effectiveness of the Shelf Registration Statement
provided for in Section 2(b) above and the Exchange Offer Registration Statement provided
for in Section 1 above shall each be extended by the number of days from and including the
date of the giving of such notice to and including the date when the Initial Purchasers, the
Holders of the Securities and any known Participating Broker-Dealer shall have received such
amended or supplemented prospectus pursuant to this Section 3(j). During the period during
which the Company is required to maintain an effective Shelf Registration Statement pursuant
to this Agreement, the Company will prior to the three-year expiration of that Shelf
Registration Statement file, and use its reasonable best efforts to cause to be declared
effective (unless it becomes effective automatically upon filing) within a period that
avoids any interruption in the ability of Holders of Securities covered by the expiring
Shelf Registration Statement to make registered dispositions, a new registration statement
relating to the Securities, which shall be deemed the “Shelf Registration Statement” for
purposes of this Agreement.
(k) Not later than the effective date of the applicable Registration Statement, the
Company will provide a CUSIP number for the Initial Securities, the Exchange Securities or
the Private Exchange Securities, as the case may be, and provide the Trustee with
certificates for the Initial Securities, the Exchange Securities or the Private Exchange
Securities, as the case may be, in a form eligible for deposit with The Depository Trust
Company.
(l) The Company will comply with all rules and regulations of the Commission to the
extent and so long as they are applicable to the Registered Exchange Offer or the Shelf
Registration and will make generally available to its security holders (or otherwise provide
in accordance with Section 11(a) of the Securities Act) an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of a
12-month period (or 90 days, if such period is a fiscal year) beginning with the first month
of the Company’s first fiscal quarter commencing after the effective date of the
Registration Statement, which statement shall cover such 12-month period.
(m) The Company shall cause the Indenture to be qualified under the Trust Indenture Act
of 1939, as amended, in a timely manner and containing such changes, if any, as shall be
necessary for such qualification. In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Indenture.
(n) The Company may require each Holder of Securities to be sold pursuant to the Shelf
Registration Statement to furnish to the Company such information regarding the Holder and
the distribution of the Securities as the Company may from time to time reasonably require
for inclusion in the Shelf Registration Statement, and the Company may exclude from such
registration the Securities of any Holder that unreasonably fails to furnish such
information within a reasonable time after receiving such request.
(o) The Company shall enter into such customary agreements (including, if requested, an
underwriting agreement in customary form) and take all such other action, if any, as any
Holder of the Securities shall reasonably request in order to facilitate the disposition of
the Securities pursuant to any Shelf Registration.
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(p) In the case of any Shelf Registration, the Company shall (i) make reasonably
available for inspection by the Holders of the Securities, any underwriter participating in
any disposition pursuant to the Shelf Registration Statement and any attorney, accountant or
other agent retained by the Holders of the Securities or any such underwriter all relevant
financial and other records, pertinent corporate documents and properties of the Company and
(ii) cause the Company’s officers, directors, employees, accountants and auditors to supply
all relevant information reasonably requested by the Holders of the Securities or any such
underwriter, attorney, accountant or agent in connection with the Shelf Registration
Statement, in each case, as shall be reasonably necessary to enable such persons, to conduct
a reasonable investigation within the meaning of Section 11 of the Securities Act; provided,
however, that the foregoing inspection and information gathering shall be coordinated on
behalf of the Initial Purchasers by you and on behalf of the other parties, by one counsel
designated by and on behalf of such other parties as described in Section 4 hereof; provided
further, however, that any information that is designated in writing by the Company, in good
faith, as confidential at the time of delivery of such information shall be kept
confidential by the Holders or any such underwriter, attorney, accountant or other agent,
unless such disclosure is made in connection with a court proceeding or required by law, or
such information is or becomes available to the public generally or through a third party
without, to the knowledge of any recipient of confidential information, an accompanying
obligation of confidentiality or is independently developed.
(q) In the case of any Shelf Registration, the Company, if requested by any Holder of
the Securities covered thereby, shall cause (i) its counsel to deliver an opinion and
updates thereof relating to the Securities in customary form addressed to such Holders and
the managing underwriters, if any, thereof and dated, in the case of the initial opinion,
the effective date of such Shelf Registration Statement (it being agreed that the matters to
be covered by such opinion shall include, without limitation, the due incorporation or
organization and good standing of the Company and its subsidiaries; the qualification of the
Company and its subsidiaries to transact business as foreign corporations or other business
entities; the due authorization, execution and delivery of the relevant agreement of the
type referred to in Section 3(o) hereof; the due authorization, execution, authentication
and issuance, and the validity and enforceability, of the applicable Securities; the absence
of material legal or governmental proceedings involving the Company and its subsidiaries;
the absence of governmental approvals required to be obtained in connection with the Shelf
Registration Statement, the offering and sale of the applicable Securities, or any agreement
of the type referred to in Section 3(o) hereof; the compliance as to form of such Shelf
Registration Statement and any documents incorporated by reference therein and of the
Indenture with the requirements of the Securities Act and the Trust Indenture Act,
respectively; and (A) as of the date of the opinion and as of the effective date of the
Shelf Registration Statement or most recent post-effective amendment thereto, as the case
may be, the absence from such Shelf Registration Statement and the prospectus included
therein, as then amended or supplemented, and from any documents incorporated by reference
therein and (B) as of an applicable time identified by such Holders or managing
underwriters, the absence from such prospectus taken together with any other documents
identified by such Holders or managing underwriters, in the case of (A) and (B), of an
untrue statement of a material fact or the omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading (in
the case of any such incorporated documents, in the light of the circumstances existing at the time that such documents were filed with the
Commission under the Exchange Act)); (ii) its officers to execute and deliver all customary
documents and certificates and updates thereof requested by any underwriters of the
applicable Securities and (iii) its independent public accountants and the independent
public accountants with respect to any other entity for which financial information is
provided in the Shelf Registration Statement to provide to the selling Holders of the
applicable Securities and any underwriter therefor a comfort letter in customary form and
covering matters of the type customarily covered in comfort letters in connection with
primary underwritten offerings, subject to receipt of appropriate documentation as
contemplated, and only if permitted, by Statement of Auditing Standards No. 72.
(r) In the case of the Registered Exchange Offer, if requested by any Initial Purchaser
or any known Participating Broker-Dealer, the Company shall cause (i) its counsel to deliver
to such Initial Purchaser or such Participating Broker-Dealer signed opinions in the form
set forth in Sections 7(c), 7(d), 7(r), and 7(s) of the Purchase Agreement with such changes
as are customary in connection with the preparation of a Registration Statement and (ii) its
independent public accountants and the independent public accountants
8
with respect to any other entity for which financial information is provided in the
Registration Statement to deliver to such Initial Purchaser or such Participating
Broker-Dealer a comfort letter, in customary form, meeting the requirements as to the
substance thereof as set forth in Section 7(f) and 7(g) of the Purchase Agreement, with
appropriate date changes.
(s) If a Registered Exchange Offer or a Private Exchange is to be consummated, upon
delivery of the Initial Securities by Holders to the Company (or to such other Person as
directed by the Company) in exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be, the Company shall mark, or cause to be marked, on the
Initial Securities so exchanged that such Initial Securities are being canceled in exchange
for the Exchange Securities or the Private Exchange Securities, as the case may be; in no
event shall the Initial Securities be marked as paid or otherwise satisfied.
(t) The Company will use its reasonable best efforts to (a) if the Initial Securities
have been rated prior to the initial sale of such Initial Securities, confirm such ratings
will apply to the Securities covered by a Shelf Registration Statement, or (b) if the
Initial Securities were not previously rated, cause the Securities covered by a Shelf
Registration Statement to be rated with the appropriate rating agencies, but in each case
only if so requested by Holders of a majority in aggregate principal amount of Securities
covered by such Registration Statement, or by the managing underwriters, if any.
(u) In the event that any broker-dealer registered under the Exchange Act shall
underwrite any Securities or participate as a member of an underwriting syndicate or selling
group or “assist in the distribution” (within the meaning of the Conduct Rules (the “Rules”)
of the Financial Industry Regulatory Authority (“FINRA”)) thereof, whether as a Holder of
such Securities or as an underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, the Company will assist such broker-dealer in complying with
the requirements of such Rules, including, without limitation, by (i) if such Rules,
including Rule 2720, shall so require, engaging a “qualified independent underwriter” (as
defined in Rule 2720) to participate in the preparation of the Registration Statement
relating to such Securities, to exercise usual standards of due diligence in respect thereto
and, if any portion of the offering contemplated by such Registration Statement is an
underwritten offering or is made through a placement or sales agent, to recommend the yield
of such Securities, (ii) indemnifying any such qualified independent underwriter to the
extent of the indemnification of underwriters provided in Section 5 hereof and (iii)
providing such information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Rules.
(v) The Company shall use its reasonable best efforts to take all other steps necessary
to effect the registration of the Securities covered by a Registration Statement
contemplated hereby.
4. Registration Expenses. The Company shall bear all fees and expenses incurred in connection
with the performance of its obligations under Sections 1 through 3 hereof (including the reasonable
fees and expenses, if any, of counsel for the Initial Purchasers incurred in connection with the
Registered Exchange Offer), whether or not the Registered Exchange Offer or a Shelf Registration is
filed or becomes effective, and, in the event of a Shelf Registration, shall bear or reimburse the
Holders of the Securities covered thereby for the reasonable fees and disbursements of one firm of
counsel designated by the Holders of a majority in principal amount of the Initial Securities
covered thereby to act as counsel for the Holders of the Initial Securities in connection
therewith. Each Holder shall be responsible for paying all underwriting discounts and commissions,
if any, relating to the sale or disposition of such Holder’s Securities pursuant to a Shelf
Registration Statement.
5. Indemnification.
(a) The Company and each of the Guarantors, jointly and severally, agree to indemnify
and hold harmless each Holder of the Securities, any Participating Broker-Dealer and each
person, if any, who controls such Holder or such Participating Broker-Dealer within the
meaning of the Securities Act or the Exchange Act (each Holder, any Participating
Broker-Dealer and such controlling persons are referred to collectively as the “Indemnified
Parties”) from and against any losses, claims, damages or liabilities, joint or several, or
any actions in respect thereof (including, but not limited to, any losses, claims, damages,
9
liabilities or actions relating to purchases and sales of the Securities) to which each
Indemnified Party may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages, liabilities or actions arise out of or
are based upon any untrue statement or alleged untrue statement of a material fact contained
in a Registration Statement or prospectus or in any amendment or supplement thereto or in
any preliminary prospectus or “issuer free writing prospectus,” as defined in Commission
Rule 433 (“Issuer FWP”), relating to a Shelf Registration, or arise out of, or are based
upon, the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and shall
reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss, claim, damage,
liability or action in respect thereof; provided, however, that the Company and each
Guarantor will not be liable in any such case to the extent that such loss, claim, damage or
liability arises out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in a Registration Statement or prospectus or in any
amendment or supplement thereto or in any preliminary prospectus or Issuer FWP relating to a
Shelf Registration in reliance upon and in conformity with written information pertaining to
such ▇▇▇▇▇▇ and furnished to the Company by or on behalf of such Holder specifically for
inclusion therein.
(b) Each Holder of the Securities, severally and not jointly, will indemnify and hold
harmless the Company and each Guarantor, their directors and officers and each person, if
any, who controls the Company or such Guarantor within the meaning of the Securities Act or
the Exchange Act from and against any losses, claims, damages or liabilities or any actions
in respect thereof, to which the Company or any such Guarantor, their directors and officers
or any such controlling person may become subject under the Securities Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages, liabilities or actions arise out of
or are based upon any untrue statement or alleged untrue statement of a material fact
contained in a Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus or Issuer FWP relating to a Shelf Registration, or
arise out of or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement or omission or
alleged untrue statement or omission was made in reliance upon and in conformity with
written information pertaining to such Holder and furnished to the Company by or on behalf
of such Holder specifically for inclusion therein; and, subject to the limitation set forth
immediately preceding this clause, shall reimburse, as incurred, the Company or any such
Guarantor, their directors and officers or any such controlling person for any legal or
other expenses reasonably incurred by the Company or any such Guarantor, their directors and
officers or any such controlling person in connection with investigating or defending any
loss, claim, damage, liability or action in respect thereof. This indemnity agreement will
be in addition to any liability that such Holder may otherwise have to the Company, any
Guarantor, their directors and officers or any such controlling person.
(c) Promptly after receipt by an indemnified party under this Section 5 of notice of
the commencement of any action or proceeding (including a governmental investigation), such
indemnified party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 5, notify the indemnifying party of the commencement thereof; but
the failure to notify the indemnifying party shall not relieve the indemnifying party from
any liability that it may have under subsection (a) or (b) above except to the extent that
it has been materially prejudiced (through the forfeiture of substantive rights or defenses)
by such failure; and provided further that the failure to notify the indemnifying party
shall not relieve it from any liability that it may have to an indemnified party otherwise
than under subsection (a) or (b) above. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its election so to
assume the defense thereof the indemnifying party will not be liable to such indemnified
party under this Section 5 for any legal or other
expenses, other than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof. No indemnifying party shall,
without the prior written consent of the
10
indemnified party, effect any settlement of any pending or threatened action in respect of
which any indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement (i) includes an
unconditional release of such indemnified party from all liability on any claims that are
the subject matter of such action, and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) If the indemnification provided for in this Section 5 is unavailable or
insufficient to hold harmless an indemnified party under subsections (a) or (b) above, then
each indemnifying party shall contribute to the amount paid or payable by such indemnified
party as a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to in subsection (a) or (b) above (i) in such proportion as is appropriate
to reflect the relative benefits received by the indemnifying party or parties on the one
hand and the indemnified party on the other from the exchange of the Securities, pursuant to
the Registered Exchange Offer, or (ii) if the allocation provided by the foregoing clause
(i) is not permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on the other in
connection with the 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
Company and the Guarantors on the one hand or such Holder or such other indemnified party,
as the case may be, on the other, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission. The amount
paid by an indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this subsection (d).
Notwithstanding any other provision of this Section 5(d), the Holders of the Securities
shall not be required to contribute any amount in excess of the amount by which the net
proceeds received by such Holders from the sale of the Securities pursuant to a Registration
Statement exceeds the amount of damages which such Holders have 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. For purposes of this subsection (d), each person, if any, who
controls such indemnified party within the meaning of the Securities Act or the Exchange Act
shall have the same rights to contribution as such indemnified party and each person, if
any, who controls the Company or any Guarantor within the meaning of the Securities Act or
the Exchange Act shall have the same rights to contribution as the Company and the
Guarantors.
(e) The agreements contained in this Section 5 shall survive the sale of the Securities
pursuant to a Registration Statement and shall remain in full force and effect, regardless
of any termination or cancellation of this Agreement or any investigation made by or on
behalf of any indemnified party.
6. Additional Interest Under Certain Circumstances.
(a) Additional interest (the “Additional Interest”) with respect to the Initial
Securities shall be assessed as follows if any of the following events occur (each such
event in clauses (i) through (vi) below a “Registration Default”):
(i) If an Exchange Offer Registration Statement is not filed with the Commission on
or prior to the 90th day after the Issue Date;
(ii) If an Exchange Offer Registration Statement or, if required pursuant to
Section 2(a)(i) above, a Shelf Registration Statement has not been declared effective by
the Commission (or become effective automatically) on or prior to the 270th day after
the Issue Date;
11
(iii) If the Registered Exchange Offer has not been consummated on or before the
40th day after the Exchange Offer Registration Statement is declared effective;
(iv) If obligated to file the Shelf Registration Statement pursuant to pursuant to
Section 2 above, the Company fails to file the Shelf Registration Statement with the
Commission on or prior to the 30th day after the date (the “Shelf Filing Date”) on which
the obligation to file a Shelf Registration Statement arises;
(v) If obligated to file a Shelf Registration Statement pursuant to Sections
2(a)(ii-iv) above, the Shelf Registration Statement is not declared effective on or
prior to the 180th day after the Shelf Filing Date; or
(vi) If after either the Exchange Offer Registration Statement or the Shelf
Registration Statement is declared (or becomes automatically) effective (A) such
Registration Statement thereafter ceases to be effective during the periods specified in
Sections 1 and 2, as applicable; or (B) such Registration Statement or the related
prospectus ceases to be usable (except as permitted in subsection (b)) in connection
with resales of Transfer Restricted Securities during the periods specified herein
because either (1) any event occurs as a result of which the related prospectus forming
part of such Registration Statement would include any untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein in the
light of the circumstances under which they were made not misleading, (2) it shall be
necessary to amend such Registration Statement or supplement the related prospectus, to
comply with the Securities Act or the Exchange Act or the respective rules thereunder,
or (3) such Registration Statement is a Shelf Registration Statement that has expired
before a replacement Shelf Registration Statement has become effective.
Additional Interest shall accrue on the Initial Securities over and above the interest
set forth in the title of the Securities from and including the date on which any such
Registration Default shall occur to but excluding the date on which all such Registration
Defaults have been cured. In the event such Registration Defaults are not previously cured,
all Registration Defaults shall be cured on the date that each Security is no longer a
Transfer Restricted Security. The rate of the Additional Interest will be 0.50% per year
for the first 90-day period immediately following the occurrence of a Registration Default,
and such rate will increase by an additional 0.50% per year with respect to each subsequent
90-day period until all Registration Defaults have been cured, up to a maximum Additional
Interest rate of 1.50% per year. The Issuer will pay such Additional Interest on regular
interest payment dates. Such Additional Interest will be in addition to any other interest
payable from time to time with respect to the Notes and the Exchange Securities. The
Company will not be required to pay Additional Interest for more than one Registration
Default at any given time. Following the cure of all Registration Defaults, the accrual of
Additional Interest will cease and the interest rate will revert to the original rate,
10.5%.
(b) A Registration Default referred to in Section 6(a)(vi)(B) hereof shall be deemed
not to have occurred and be continuing in relation to a Shelf Registration Statement or the
related prospectus if (i) such Registration Default has occurred solely as a result of (x)
the filing of a post-effective amendment to such Shelf Registration Statement to incorporate
annual audited financial information with respect to the Company where such post-effective
amendment is not yet effective and needs to be declared effective to permit Holders to use
the related prospectus or (y) other material events, with respect to the Company that would
need to be described in such Shelf Registration Statement or the related prospectus and (ii)
in the case of clause (y), the Company is proceeding promptly and in good faith to amend or
supplement such Shelf Registration Statement and related prospectus to describe such events;
provided, however, that in any case if such Registration Default occurs for a continuous
period in excess of 60 days, Additional Interest shall be payable in accordance with the
above paragraph from the day such Registration Default would have been deemed to occur but
for this Section 6(b) until such Registration Default is cured.
(c) Any amounts of Additional Interest due pursuant to Section 6(a) above will be
payable in cash on the regular interest payment dates with respect to the Initial
Securities. The amount of Additional Interest will be determined by multiplying the
applicable Additional Interest rate by the principal amount of the
12
Initial Securities, multiplied by a fraction, the numerator of which is the number of days
such Additional Interest rate was applicable during such period (determined on the basis of
a 360-day year comprised of twelve 30-day months), and the denominator of which is 360.
(d) “Transfer Restricted Securities” means each Security until (i) the date on which
such Transfer Restricted Security has been exchanged by a person other than a broker-dealer
for a freely transferable Exchange Security in the Registered Exchange Offer, (ii) following
the exchange by a broker-dealer in the Registered Exchange Offer of an Initial Security for
an Exchange Security, the date on which such Exchange Security is sold to a purchaser who
receives from such broker-dealer on or prior to the date of such sale a copy of the
prospectus contained in the Exchange Offer Registration Statement, (iii) the date on which
such Initial Security has been effectively registered under the Securities Act and disposed
of in accordance with the Shelf Registration Statement or (iv) the date on which such
Initial Securities are distributed to the public pursuant to Rule 144 under the Securities
Act or are saleable by non-affiliates of the Company pursuant to Rule 144(d)(l)(i) under the
Securities Act, provided, however, that the six month period shall be replaced with one
year.
7. Rules 144 and 144A. The Company shall use its reasonable best efforts to file the reports
required to be filed by it under the Securities Act and the Exchange Act in a timely manner and, if
at any time the Company is not required to file such reports, it will, upon the request of any
Holder of Initial Securities, make publicly available other information so long as necessary to
permit sales of their securities pursuant to Rules 144 and 144A. The Company covenants that it
will take such further action as any Holder of Initial Securities may reasonably request, all to
the extent required from time to time to enable such Holder to sell Initial Securities without
registration under the Securities Act within the limitation of the exemptions provided by Rules 144
and 144A (including the requirements of Rule 144A(d)(4)). The Company will provide a copy of this
Agreement to prospective purchasers of Initial Securities identified to the Company by the Initial
Purchasers upon request. Upon the request of any Holder of Initial Securities, the Company shall
deliver to such Holder a written statement as to whether it has complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to require the Company to
register any of its securities pursuant to the Exchange Act.
8. Underwritten Registrations. If any of the Transfer Restricted Securities covered by any
Shelf Registration are to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will administer the offering will be selected by the Holders
of a majority in aggregate principal amount of such Transfer Restricted Securities to be included
in such offering.
No person may participate in any underwritten registration hereunder unless such person (i)
agrees to sell such person’s Transfer Restricted Securities on the basis reasonably provided in any
underwriting arrangements approved by the persons entitled hereunder to approve such arrangements
and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such underwriting
arrangements.
9. Miscellaneous.
(a) 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, except by the Company and the written consent of the Holders of a majority
in principal amount of (or, in the case of any Additional Interest, all) the Securities
affected by such amendment, modification, supplement, waiver or consent.
(b) Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand delivery, first-class mail, facsimile transmission, or air
courier that guarantees overnight delivery:
(i) if to a Holder of the Securities, at the most current address given by such
Holder to the Company.
13
(ii) if to the Initial Purchasers:
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.
2300 First City Tower
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
2300 First City Tower
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(iii) if to the Company:
Petrohawk Energy Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executive Vice President and General Counsel
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executive Vice President and General Counsel
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇
All such notices and communications shall be deemed to have been duly given: at the
time delivered by hand, if personally delivered; three business days after being deposited
in the mail, postage prepaid, if mailed; when receipt is acknowledged by recipient’s
facsimile machine operator, if sent by facsimile transmission; and on the day delivered, if
sent by overnight air courier guaranteeing next day delivery.
Unless otherwise indicated, all references herein to “days” are to calendar days.
(c) No Inconsistent Agreements. The Company has not, as of the date hereof, entered
into, nor shall it, on or after the date hereof, enter into, any agreement with respect to
its securities that is inconsistent with the rights granted to the Holders herein or
otherwise conflicts with the provisions hereof.
(d) Successors and Assigns. This Agreement shall be binding upon the Issuer, the
Guarantors and their respective successors and assigns.
(e) 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.
(f) Headings. The headings in this Agreement are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.
14
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
(h) Severability. If any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be affected or impaired thereby.
(i) Securities Held by the Company. Whenever the consent or approval of Holders of a
specified percentage of principal amount of Securities is required hereunder, Securities
held by the Company or its affiliates (other than subsequent Holders of Securities if such
subsequent Holders are deemed to be affiliates solely by reason of their holdings of such
Securities) shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
(j) Submission to Jurisdiction. By the execution and delivery of this Agreement, the
Issuer and each Guarantor submit to the nonexclusive jurisdiction of any competent federal
or state court in the City and State of New York in any suit or proceeding arising out of or
relating to this Agreement or brought under federal or state securities laws.
[Signature pages follow.]
15
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Issuer a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement among the several Initial Purchasers, the Issuer and the Guarantors
in accordance with its terms.
| Very truly yours, | ||||||||
| Petrohawk Energy Corporation | ||||||||
| By | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| Title: | Executive Vice President — General Counsel & Secretary |
|||||||
| Petrohawk Operating Company | ||||||||
| By | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| Title: | Executive Vice President — General Counsel & Secretary |
|||||||
| P-H Energy, LLC | ||||||||
| By | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| Title: | Executive Vice President — General Counsel & Secretary |
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| Hawk Field Services, LLC | ||||||||
| By | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| Title: | Executive Vice President — General Counsel & Secretary |
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Signature Page to the Registration Rights Agreement
| Petrohawk Properties, LP | ||||||||
| By: | P-H Energy, LLC, its General Partner | |||||||
| By | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| Title: | Executive Vice President — General Counsel & Secretary |
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| Winwell Resources, L.L.C. | ||||||||
| By | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| Title: | Executive Vice President — General Counsel & Secretary |
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| WSF, Inc. | ||||||||
| By | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| Title: | Executive Vice President — General Counsel & Secretary |
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| KCS Resources, LLC | ||||||||
| By | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| Title: | Executive Vice President — General Counsel & Secretary |
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| KCS Energy Services, Inc. | ||||||||
| By | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| Title: | Executive Vice President — General Counsel & Secretary |
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Signature Page to the Registration Rights Agreement
| Medallion California Properties Company | ||||||||
| By | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| Title: | Executive Vice President — General Counsel & Secretary |
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| Proliq, Inc. | ||||||||
| By | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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| Title: | Executive Vice President — General Counsel & Secretary |
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| One TEC, LLC | ||||||||
| By | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| Title: | Executive Vice President — General Counsel & Secretary |
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| One TEC Operating, LLC | ||||||||
| By | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| Title: | Executive Vice President — General Counsel & Secretary |
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| Bison Ranch LLC | ||||||||
| By | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||
| Title: | Executive Vice President — General Counsel & Secretary |
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Signature Page to the Registration Rights Agreement
| Petrohawk Holdings LLC | ||||||
| By | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| Title: | Executive Vice President — General Counsel & Secretary |
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| HK Energy Marketing, LLC | ||||||
| By | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| Title: | Secretary | |||||
Signature Page to the Registration Rights Agreement
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
BNP PARIBAS SECURITIES CORP.
WACHOVIA CAPITAL MARKETS, LLC
BANC OF AMERICA SECURITIES LLC
BMO CAPITAL MARKETS CORP.
BARCLAYS CAPITAL INC.
FORTIS SECURITIES LLC
CALYON SECURITIES (USA) INC.
RBC CAPITAL MARKETS CORPORATION
CAPITAL ONE SOUTHCOAST, INC.
WEDBUSH ▇▇▇▇▇▇ SECURITIES INC.
NATIXIS BLEICHROEDER INC.
CITIGROUP GLOBAL MARKETS INC.
BBVA SECURITIES, INC.
▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
BNP PARIBAS SECURITIES CORP.
WACHOVIA CAPITAL MARKETS, LLC
BANC OF AMERICA SECURITIES LLC
BMO CAPITAL MARKETS CORP.
BARCLAYS CAPITAL INC.
FORTIS SECURITIES LLC
CALYON SECURITIES (USA) INC.
RBC CAPITAL MARKETS CORPORATION
CAPITAL ONE SOUTHCOAST, INC.
WEDBUSH ▇▇▇▇▇▇ SECURITIES INC.
NATIXIS BLEICHROEDER INC.
CITIGROUP GLOBAL MARKETS INC.
BBVA SECURITIES, INC.
▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
By: ▇.▇. ▇▇▇▇▇▇ Securities Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Executive Director
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Executive Director
Signature Page to the Registration Rights Agreement
ANNEX A
Each broker-dealer that receives Exchange Securities for its own account pursuant to the
Registered Exchange Offer must acknowledge that it will deliver a prospectus in connection with any
resale of such Exchange Securities. The Letter of Transmittal states that by so acknowledging and
by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter”
within the meaning of the Securities Act. This Prospectus, as it may be amended or supplemented
from time to time, may be used by a broker-dealer in connection with resales of Exchange Securities
received in exchange for Initial Securities where such Initial Securities were acquired by such
broker-dealer as a result of market-making activities or other trading activities. The Company has
agreed that, for a period of 180 days after the consummation of the Registered Exchange Offer, it
will make this Prospectus available to any broker-dealer for use in connection with any such
resale. See “Plan of Distribution.”
Annex A
ANNEX B
Each broker-dealer that receives Exchange Securities for its own account in exchange for
Securities, where such Initial Securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities, must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. See “Plan of Distribution.”
Annex B
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own account pursuant to the
Registered Exchange Offer must acknowledge that it will deliver a prospectus in connection with any
resale of such Exchange Securities. This Prospectus, as it may be amended or supplemented from
time to time, may be used by a broker-dealer in connection with resales of Exchange Securities
received in exchange for Initial Securities where such Initial Securities were acquired as a result
of market-making activities or other trading activities. The Company has agreed that, for a period
of 180 days after the consummation of the Registered Exchange Offer, it will make this prospectus,
as amended or supplemented, available to any broker-dealer for use in connection with any such
resale. In addition, until , 200 (90 days after the consummation of the
Registered Exchange Offer), all dealers effecting transactions in the Exchange Securities may be
required to deliver a prospectus.
The Company will not receive any proceeds from any sale of Exchange Securities by
broker-dealers. Exchange Securities received by broker-dealers for their own account pursuant to
the Exchange Offer may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of options on the Exchange
Securities or a combination of such methods of resale, at market prices prevailing at the time of
resale, at prices related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may receive compensation
in the form of commissions or concessions from any such broker-dealer or the purchasers of any such
Exchange Securities. Any broker-dealer that resells Exchange Securities that were received by it
for its own account pursuant to the Exchange Offer and any broker or dealer that participates in a
distribution of such Exchange Securities may be deemed to be an “underwriter” within the meaning of
the Securities Act and any profit on any such resale of Exchange Securities and any commission or
concessions received by any such persons may be deemed to be underwriting compensation under the
Securities Act. The Letter of Transmittal states that, by acknowledging that it will deliver and
by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter”
within the meaning of the Securities Act.
For a period of 180 days after the consummation of the Registered Exchange Offer, the Company
will promptly send additional copies of this Prospectus and any amendment or supplement to this
Prospectus to any broker-dealer that requests such documents as provided in the Letter of
Transmittal. The Company has agreed to pay all expenses incident to the Exchange Offer (including
the expenses of one counsel for the Holders of the Securities) other than commissions or
concessions of any brokers or dealers and will indemnify the Holders of the Securities (including
any broker-dealers) against certain liabilities, including liabilities under the Securities Act.
Annex C
ANNEX D
| o | CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO. |
| Name: | ||||||
| Address: | ||||||
If the undersigned is not a broker-dealer, the undersigned represents that it is not engaged in,
and does not intend to engage in, a distribution of Exchange Securities. If the undersigned is a
broker-dealer that will receive Exchange Securities for its own account in exchange for Initial
Securities that were acquired as a result of market-making activities or other trading activities,
it acknowledges that it will deliver a prospectus in connection with any resale of such Exchange
Securities; however, by so acknowledging and by delivering a prospectus, the undersigned will not
be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.
Annex D