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EXHIBIT 4.5
EXECUTION COPY
SHARE ACQUISITION AND REGISTRATION RIGHTS AGREEMENT
THIS SHARE ACQUISITION AND REGISTRATION RIGHTS AGREEMENT (this
"AGREEMENT") is entered into as of July 31, 2007 by and between
Pacific Energy
Resources Ltd., a Delaware corporation (the "COMPANY"), and Forest
Oil
Corporation, a New York corporation ("HOLDER").
RECITALS
A. The Company and the Holder are parties to an Asset Sales
Agreement
dated as of May 24, 2007, as amended by a First Amendment to Asset
Sales
Agreement dated as of July 31, 2007 ("ASA"), and a Membership
Interest Purchase
Agreement dated as of May 24, 2007, as amended by a First Amendment
to
Membership Interest Purchase Agreement dated as of July 31, 2007
("MIPA").
B. Pursuant to the ASA and the MIPA, as a portion of the
consideration
for the Membership Interests (as defined in the MIPA) and certain
Assets (as
defined in the ASA), the Holder will acquire up to 10,000,000
shares of Common
Stock of the Company. The shares of Common Stock acquired by the
Holder pursuant
to the ASA and the MIPA are referred to herein as the "SHARES."
C. The Shares, when issued pursuant to the ASA and the MIPA, will
be
issued without registration under the 1933 Act (as defined below)
and,
therefore, the resale thereof by the Holder of any Shares will be
subject to
restrictions under the 1933 Act.
D. The obligation of the Holder to acquire and the Company to issue
the
Shares under the ASA and the MIPA is subject to the condition that
the Company
and the Holder enter into this Agreement concurrently with the
issuance of the
Shares to provide for (i) certain representations by the parties
with respect to
the issuance of the Shares by the Company and their acquisition by
the Holder
and (ii) registration rights with respect to the Shares in
accordance with the
terms and conditions set forth in this Agreement.
AGREEMENT
In consideration of the mutual covenants and agreements set
forth
herein, and for good and valuable consideration, the receipt and
sufficiency of
which are hereby acknowledged, the parties hereto agree as
follows:
1 DEFINITIONS. For purposes of this Agreement, the following terms
have the
meanings specified with respect thereto below:
"1933 ACT" means the Securities Act of 1933, as amended, and the
rules
and regulations of the Commission thereunder, all as the same shall
be in effect
at the time.
"1934 ACT" means the Securities Exchange Act of 1934, as amended,
and
the rules and regulations of the Commission thereunder, all as the
same shall be
in effect at the time.
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"COMMISSION" means the Securities and Exchange Commission or any
other
federal agency at the time administering the 1933 Act.
"COMMON STOCK" means the common stock, $0.001 par value, of the
Company.
"COMPANY" has the meaning set forth in the preamble of this
Agreement.
"HOLDER(S)" means Forest Oil Corporation, a New York corporation,
and
any permitted transferee of Registrable Securities.
"INDEMNIFIED PARTY" has the meaning specified in SECTION 4.3.
"INDEMNIFYING PARTY" has the meaning specified in SECTION 4.3.
"INSPECTORS" has the meaning specified in SECTION 3.1.8.
"MAXIMUM NUMBERS OF SHARES" has the meaning specified in SECTION
2.2.
"OTHER SHAREHOLDER" means any holder of shares of Common Stock
or
securities convertible into or entitling the holder thereof to
purchase Common
Stock who has Piggyback Registration rights which have been granted
by the
Company; collectively, two or more such shareholders shall be
referred to as
"OTHER SHAREHOLDERS."
"PIGGYBACK REGISTRATION" has the meaning specified in SECTION
2.1.2.
"PURCHASE AGREEMENT" has the meaning set forth in the recitals to
this
Agreement.
"RECORDS" has the meaning specified in SECTION 3.1.8.
"REGISTRABLE SECURITIES" means, collectively, the Shares and
any
securities issued or issuable upon any stock dividend, stock
split,
recapitalization, merger, consolidation or similar event with
respect to the
Shares. As to any particular Registrable Securities, such
securities shall cease
to be Registrable Securities when (i) a registration statement
covering such
securities shall have become effective under the 1933 Act and such
securities
shall have been disposed of in accordance with such registration
statement, (ii)
such securities shall have been distributed to the public pursuant
to Rule 144
or Rule 144A (or any successor provisions) under the 1933 Act, or
(iii) such
securities shall have ceased to be outstanding.
"SHARES" has the meaning set forth in the recitals of this
Agreement.
"UNDERWRITER" means a securities dealer who purchases any
Registrable
Securities as principal in an underwritten offering and not as part
of such
dealer's market-making activities.
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2 REGISTRATION RIGHTS.
2.1 PIGGYBACK RIGHTS. If at any time after the date hereof, the
Company
proposes to file a registration statement under the 1933 Act with
respect to an
offering of equity securities, or securities convertible or
exchangeable into
equity securities, by the Company for its own account other than a
registration
statement (i) on Form S-4 or S-8 (or any substitute or successor
form that may
be adopted by the Commission), (ii) filed in connection with any
employee stock
option or other benefit plan, (iii) for an exchange offer or
offering of
securities solely to the Company's existing shareholders, or (iv)
for a dividend
reinvestment plan, then the Company shall:
(a) give written notice of such proposed filing to the Holder
as soon as practicable but in no event less than 20 days before
the
anticipated filing date, which notice shall describe the amount
and
type of securities to be included in such offering, the
intended
method(s) of distribution, and the name of the proposed
managing
Underwriter or Underwriters, if any, of the offering; and
(b) offer in such notice to the Holder the opportunity to
register such number of shares of Registrable Securities as the
Holder
may request in writing within 10 days following receipt of such
notice
(a "PIGGYBACK REGISTRATION"). The Company shall cause such
Registrable
Securities to be included in such registration and shall use
its
reasonable best efforts to cause the managing Underwriter or
Underwriters of a proposed underwritten offering to permit the
Registrable Securities requested to be included in a Piggyback
Registration on the same terms and conditions as any similar
securities
of the Company and to permit the sale or other disposition of
such
Registrable Securities in accordance with the intended method
of
distribution thereof.
2.2 REDUCTION OF OFFERING. If the managing Underwriter or
Underwriters
for a Piggyback Registration that is to be an underwritten offering
advises the
Company, the Holder and any Other Shareholders requesting inclusion
in the
Piggyback Registration, in writing, that the dollar amount or
number of shares
of Registrable Securities and other shares of Common Stock to be
included in the
offering exceeds the maximum dollar amount or number that can be
sold in such
offering without adversely affecting the proposed offering price,
the timing,
the distribution method or the probability of success of such
offering ("MAXIMUM
NUMBER OF SHARES"), then the Company shall include in such
registration: (i)
first, the shares of Common Stock or other securities that the
Company proposes
to sell which can be sold without exceeding the Maximum Number of
Shares; and
(ii) second, to the extent the Maximum Number of Shares has not
been reached
under the foregoing clause (i), the Registrable Securities as to
which
registration has been requested by the Holder pursuant to its
Piggyback
Registration rights and other shares of Common Stock requested to
be included by
Other Shareholders pursuant to their registration rights (and pro
rata among
them based on the number of shares requested to be registered
except to the
extent the Company is contractually obligated to use another
allocation method
pursuant to an agreement in effect on the date hereof) which can be
sold without
exceeding the Maximum Number of Shares.
2.3 WITHDRAWAL. The Holder may elect to withdraw its request
for
inclusion of its Registrable Securities in any Piggyback
Registration by giving
written notice to the Company of its request to withdraw prior to
the
effectiveness of the registration statement. The Company may also
elect to
withdraw a registration statement including shares being registered
pursuant to
the Holder's Piggyback Registration rights at any time prior to
the
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effectiveness of the registration statement. Notwithstanding any
such
withdrawal, the Company shall pay all expenses incurred by the
Holder in
connection with such Piggyback Registration as provided in SECTION
3.3.
2.4 RULE 144 REPORTING. With a view to making available the
benefits of
certain rules and regulations of the Commission that may permit the
sale of the
Registrable Securities to the public without registration, the
Company agrees to
use its commercially reasonable efforts to:
(a) Make and keep public information regarding the Company
available, as those terms are understood and defined in Rule 144
under
the Securities Act, at all times from and after the date hereof;
and
(b) File with the Commission in a timely manner all reports
and other documents required of the Company under the Exchange Act
at
all times from and after the date the Company first becomes subject
to
the reporting requirements of the Exchange Act.
2.5 TRANSFER OR ASSIGNMENT OF REGISTRATION RIGHTS. The rights to
cause
the Company to register Registrable Securities granted to the
Purchasers by the
Company under this Article II may be transferred or assigned by
Holder to one or
more transferee(s) or assignee(s) of such Registrable Securities;
provided,
however, that each such transferee (i) acquires no less than
1,000,000 shares of
Registrable Securities and (ii) assumes in writing responsibility
for its
portion of the obligations of Holder under this Agreement.
2.6 LIMITATION ON SUBSEQUENT REGISTRATION RIGHTS. From and after
the
date hereof, the Company shall not, without the prior written
consent of the
Holders holding a majority of the outstanding Registrable
Securities, enter into
any agreement with any current or future holder of any securities
of the Company
that would allow such current or future holder to require the
Company to include
securities in any registration statement filed by the Company on a
basis other
than pari passu with, or subject to priority in favor of, the
Registrable
Securities.
3 REGISTRATION PROCEDURES.
3.1 FILINGS; INFORMATION. If and whenever the Company is required
to
effect the registration of any Registrable Securities under the
1933 Act
pursuant to SECTION 2.1, the Company shall use its reasonable best
efforts to
effect the registration of such Registrable Securities as
expeditiously as
practicable, and in connection with any such request:
3.1.1 FILING REGISTRATION STATEMENT. The Company shall, as
expeditiously as reasonably possible, prepare and file with the
Commission a registration statement on any form for which the
Company
then qualifies or which counsel for the Company shall deem
appropriate
and which form shall be available for the sale of the
Registrable
Securities to be registered thereunder in accordance with the
intended
method of distribution thereof, and subject to SECTION 2.3, use
its
reasonable best efforts to cause such filed registration statement
to
become and remain effective.
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3.1.2 COPIES. The Company shall, prior to filing a
registration statement or prospectus or any amendment or
supplement
thereto, furnish without charge to the Holder, copies of such
registration statement as proposed to be filed, each amendment
and
supplement to such registration statement (in each case including
all
exhibits thereto and documents incorporated by reference therein
if
requested by the Holder), the prospectus included in such
registration
statement (including each preliminary prospectus), and such
other
documents as the Holder may request in order to facilitate the
disposition of the Registrable Securities owned by the Holder.
3.1.3 AMENDMENTS AND SUPPLEMENTS. The Company shall prepare
and file with the Commission such amendments, including
post-effective
amendments, and supplements to such registration statement and
the
prospectus used in connection therewith as may be necessary to
keep
such registration statement effective and in compliance with
the
provisions of the 1933 Act until all Registrable Securities have
been
disposed of in accordance with the intended methods of disposition
set
forth in such registration statement (which period shall not exceed
the
sum of nine months plus any period during which any such
disposition is
interfered with by any stop order, injunction or other order or
requirement of the Commission or any governmental agency or court)
or
such securities have been withdrawn.
3.1.4 NOTIFICATION. After the filing of the registration
statement, the Company shall promptly, and in no event more than
two
Business Days, notify the Holder, and confirm such advice in
writing,
(i) when such registration statement becomes effective, (ii) when
any
post-effective amendment to such registration statement becomes
effective, (iii) of any stop order issued or threatened by the
Commission (and the Company shall take all actions required to
prevent
the entry of such stop order or to remove it if entered) and (iv)
of
any request by the Commission for any amendment or supplement to
such
registration statement or any prospectus relating thereto or
for
additional information or of the occurrence of an event requiring
the
preparation of a supplement or amendment to such prospectus so
that, as
thereafter delivered to the purchasers of the Registrable
Securities
covered by the Registration Statement, such 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 not misleading and promptly make available to the Holder
any
such supplement or amendment; except that before filing with
the
Commission a registration statement or prospectus or any amendment
or
supplement thereto, including documents incorporated by reference,
the
Company shall furnish to the Holder and to legal counsel
representing
the Holder, copies of all such documents proposed to be filed
sufficiently in advance of filing to provide the Holder,
Underwriters
and legal counsel with a reasonable opportunity to review such
documents and comment thereon, and the Company shall reflect in
any
registration statement or prospectus or amendment or supplement
thereto
such comments as the Holder or legal counsel representing the
Holder
may propose on a timely basis with regard to the selling
security
holder information relating to the Holder; provided, however, that
the
Company shall make the final decision as to the form and content
of
each such document.
3.1.5 STATE SECURITIES LAWS COMPLIANCE. The Company shall use
its reasonable best efforts to (i) register or qualify the
Registrable
Securities covered by the registration statement under such
securities
or blue sky laws of such jurisdictions in the United States as
the
Holder (in light of the Holder's intended plan of distribution)
reasonably requests and (ii) cause the Registrable Securities
covered
by the registration statement to be registered with or approved by
such
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other governmental agencies or authorities in the United States as
may
be necessary by virtue of the business and operations of the
Company to
enable the Holder to consummate the disposition of the
Registrable
Securities owned by the Holder in those jurisdictions;
provided,
however, that the Company shall not be required to qualify
generally to
do business in any jurisdiction where it would not otherwise be
required to qualify but for this SECTION 3.1.5, or subject itself
to
taxation in any such jurisdiction.
3.1.6 AGREEMENTS FOR DISPOSITION. The Company shall enter into
customary agreements (including, if applicable, an underwriting
agreement in customary form) and take such other actions as are
reasonably required in order to expedite or facilitate the
disposition
of such Registrable Securities. The Holder may, at its option,
require
that any or all of the representations, warranties and covenants of
the
Company in any underwriting agreement to or for the benefit of
any
Underwriters also be made to and for the benefit of the Holder.
The
Holder shall not be required to make any representations or
warranties
in the underwriting agreement except with respect to its
organization,
good standing, authority, title to Registrable Securities, lack
of
conflict of such sale with its material agreements and
organizational
documents, and with respect to written information relating to
the
Holder that the Holder has furnished expressly for inclusion in
such
registration statement.
3.1.7 COOPERATION. The Chief Executive Officer and President
of the Company, the Chief Financial Officer of the Company, any
Senior
Vice President of the Company and other members of the management
of
the Company shall cooperate fully in any offering of
Registrable
Securities hereunder, which cooperation shall include, without
limitation, the preparation of the Registration Statement and all
other
offering materials and related documents, and participation in
meetings
with Underwriters, attorneys, accountants and potential
investors.
3.1.8 RECORDS. The Company shall make available for inspection
by the Holder, any Underwriter participating in any disposition
pursuant to such registration statement and any attorney,
accountant or
other professional retained by the Holder or any Underwriter
(collectively, the "INSPECTORS"), all financial and other
records,
pertinent corporate documents and properties of the Company
(collectively, the "RECORDS"), as shall be necessary to enable them
to
exercise their due diligence responsibility, and cause the
Company's
officers, directors and employees to supply all information
requested
by any Inspectors in connection with such registration
statement,
provided that such inspection and information gathering shall
be
accomplished in a manner compliant with Regulation FD
(including
execution of appropriate confidentiality agreements) and, to
the
greatest extent possible, be coordinated by one counsel designated
by
and on behalf of the Holder and other parties.
3.1.9 OPINIONS AND COMFORT LETTERS. The Company shall furnish
to the Holder a signed counterpart, addressed to the Holder, of (i)
any
opinion of counsel to the Company delivered to any Underwriter and
(ii)
any comfort letter from the Company's independent public
accountants
delivered to any Underwriter. If no legal opinion is delivered to
any
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Underwriter, the Company shall furnish to the Holder, at any time
that
the Holder elects to use a prospectus, an officer's certification
to
the effect that the registration statement containing such
prospectus
has been declared effective and that to such officer's knowledge
no
stop order is in effect.
3.1.10 EARNINGS STATEMENT. The Company shall comply with all
applicable rules and regulations of the Commission and the 1933
Act,
and make available to its shareholders, as soon as practicable,
an
earnings statement covering a period of 12 months, beginning
within
three months after the effective date of the registration
statement,
which earnings statement shall satisfy the provisions of Section
11(a)
of the 1933 Act and Rule 158 thereunder.
3.1.11 LISTING. The Company shall use its reasonable best
efforts to cause all Registrable Securities registered pursuant to
this
Agreement to be listed on such exchanges or otherwise designated
for
trading in the same manner as similar securities issued by the
Company
are then listed or design
