Exhibit 4.3
Registration Rights Agreement
ENCORE ACQUISITION COMPANY
6.0% Senior Subordinated Notes due
2015
unconditionally guaranteed as to the
payment of principal, premium,
if any, and interest by
Encore Operating, L.P.
EAP Operating, Inc.
EAP Properties, Inc.
EAP Energy, Inc.
EAP Energy Services, L.P.
Encore Operating Louisiana, LLC
Registration Rights
Agreement
July 13, 2005
Credit Suisse First Boston
LLC
Eleven Madison Avenue
New York, New York 10010
Ladies and Gentlemen:
Encore
Acquisition Company, a Delaware corporation (the
“Company”), proposes to issue and sell to the Purchaser
(as defined herein) upon the terms set forth in the Purchase
Agreement (as defined herein) its 6.0% Senior Subordinated Notes
due 2015 , which are unconditionally guaranteed by Encore
Operating, L.P., a Texas limited partnership, EAP Operating, Inc.,
a Delaware corporation, EAP Properties, Inc., a Delaware
corporation, EAP Energy, Inc., a Delaware corporation, EAP Energy
Services, L.P , a Texas limited partnership, and Encore Operating
Louisiana, LLC, a Delaware limited liability company. As an
inducement to the Purchaser to enter into the Purchase Agreement
and in satisfaction of a condition to the obligations of the
Purchaser thereunder, the Company agrees with the Purchaser for the
benefit of holders (as defined herein) from time to time of the
Registrable Securities (as defined herein) as follows:
1. Certain Definitions . For purposes of this
Registration Rights Agreement, the following terms shall have the
following respective meanings: “Additional
Interest” shall have the meaning assigned thereto in
Section 2(c) hereof.
“Base
Interest” shall mean the interest that would otherwise
accrue on the Securities under the terms thereof and the Indenture,
without giving effect to the provisions of this
Agreement.
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Registration Rights Agreement
The term
“broker-dealer” shall mean any broker or dealer
registered with the Commission under the Exchange Act.
“Closing
Date” shall mean the date on which the Securities are
initially issued.
“Commission” shall mean the United States
Securities and Exchange Commission, or any other federal agency at
the time administering the Exchange Act or the Securities Act,
whichever is the relevant statute for the particular
purpose.
“Effective Time,” in the case of (i) an
Exchange Registration, shall mean the time and date as of which the
Commission declares the Exchange Offer Registration Statement
effective or as of which the Exchange Offer Registration Statement
otherwise becomes effective and (ii) a Shelf Registration,
shall mean the time and date as of which the Commission declares
the Shelf Registration Statement effective or as of which the Shelf
Registration Statement otherwise becomes effective.
”
Electing Holder ” shall mean any holder of Registrable
Securities that has returned a completed and signed Notice and
Questionnaire to the Company in accordance with
Section 3(d)(ii) or 3(d)(iv) hereof.
“Exchange Act” shall mean the Securities
Exchange Act of 1934, or any successor thereto, as the same shall
be amended from time to time.
“Exchange Offer” shall have the meaning assigned
thereto in Section 2(a) hereof.
“Exchange Offer Registration Statement” shall
have the meaning assigned thereto in Section 2(a)
hereof.
“Exchange Registration” shall have the meaning
assigned thereto in Section 3(c) hereof.
“Exchange Securities” shall have the meaning
assigned thereto in Section 2(a) hereof.
The term
“holder” shall mean each of the Purchaser and
other persons who acquire Registrable Securities from time to time
(including any successors or assigns), in each case for so long as
such person owns any Registrable Securities.
“Indenture” shall mean the Indenture, dated as
of July 13, 2005, among the Company, the Subsidiary Guarantors
and Wells Fargo Bank, National Association, as Trustee, as the same
shall be amended from time to time.
” Notice
and Questionnaire ” means a Notice of Registration
Statement and Selling Securityholder Questionnaire substantially in
the form of Exhibit A hereto.
The term
“person” shall mean a corporation, association,
partnership, organization, business, individual, government or
political subdivision thereof or governmental agency.
“Purchase Agreement” shall mean the Purchase
Agreement, dated as of June 30, 2005, among the Purchaser, the
Subsidiary Guarantors and the Company relating to the
Securities.
“Purchaser” shall mean the Purchaser named in
the Purchase Agreement.
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Registration Rights Agreement
“Registrable Securities” shall mean the
Securities; provided, however, that a Security shall cease
to be a Registrable Security when (i) in the circumstances
contemplated by Section 2(a), the Security has been exchanged for
an Exchange Security in an Exchange Offer as contemplated in
Section 2(a) ( provided that any Exchange Security that,
pursuant to the last two sentences of Section 2(a), is
included in a prospectus for use in connection with resales by
broker-dealers shall be deemed to be a Registrable Security with
respect to Sections 5, 6 and 9 until resale of such
Registrable Security has been effected within the period referred
to in Section 2(a)); (ii) in the circumstances
contemplated by Section 2(b), a Shelf Registration Statement
registering such Security under the Securities Act has been
declared or becomes effective and such Security has been sold or
otherwise transferred by the holder thereof pursuant to and in a
manner contemplated by such effective Shelf Registration Statement;
(iii) such Security is sold pursuant to Rule 144 under
circumstances in which any legend borne by such Security relating
to restrictions on transferability thereof, under the Securities
Act or otherwise, is removed by the Company or pursuant to the
Indenture; (iv) such Security is eligible to be sold pursuant
to paragraph (k) of Rule 144; or (v) such Security
shall cease to be outstanding.
“Registration Default” shall have the meaning
assigned thereto in Section 2(c) hereof.
“Registration Expenses” shall have the meaning
assigned thereto in Section 4 hereof.
“Resale
Period” shall have the meaning assigned thereto in
Section 2(a) hereof.
“Restricted Holder” shall mean (i) a holder
that is an affiliate of the Company within the meaning of
Rule 405, (ii) a holder who acquires Exchange Securities
outside the ordinary course of such holder’s business,
(iii) a holder who has arrangements or understandings with any
person to participate in the Exchange Offer for the purpose of
distributing Exchange Securities and (iv) a holder that is a
broker-dealer, but only with respect to Exchange Securities
received by such broker-dealer pursuant to an Exchange Offer in
exchange for Registrable Securities acquired by the broker-dealer
directly from the Company.
“Rule 144,” “Rule 405” and
“Rule 415” shall mean, in each case, such rule
promulgated under the Securities Act (or any successor provision),
as the same shall be amended from time to time.
“Securities” shall mean, collectively, the 6.0%
Senior Subordinated Notes due 2015 of the Company to be issued and
sold to the Purchaser, and securities issued in exchange therefor
or in lieu thereof pursuant to the Indenture. Each Security is
entitled to the benefit of each subsidiary guaranty by each
Subsidiary Guarantor provided for in the Indenture (the
“Subsidiary Guaranties”) and, unless the context
otherwise requires, any reference herein to a
“Security,” an “Exchange Security” or a
“Registrable Security” shall include a reference to the
Subsidiary Guaranties.
“Securities Act” shall mean the Securities Act
of 1933, or any successor thereto, as the same shall be amended
from time to time.
“Shelf
Registration” shall have the meaning assigned thereto in
Section 2(b) hereof.
“Shelf
Registration Suspension” shall have the meaning assigned
thereto in Section 3(i) hereof.
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Registration Rights Agreement
“Shelf
Registration Statement” shall have the meaning assigned
thereto in Section 2(b) hereof.
“Subsidiary Guarantor” shall mean each
Subsidiary (as such term is defined in the Indenture) of the
Company that executes the Indenture as a guarantor on the date of
issue of the Securities and each other Subsidiary of the Company
that thereafter guarantees the Securities pursuant to the terms of
the Indenture, in each case unless and until such Subsidiary is
released from its obligations under its Subsidiary Guaranty
pursuant to the terms of the Indenture. As of the issue date, the
Subsidiary Guarantors are EAP Energy, Inc., EAP Energy Services,
L.P., EAP Operating, Inc., EAP Properties, Inc., Encore Operating,
L.P and Encore Operating Louisiana, LLC.
“Suspension Notice” shall have the meaning
assigned thereto in Section 3(i) hereof.
“Trust
Indenture Act” shall mean the Trust Indenture Act of
1939, or any successor thereto, and the rules, regulations and
forms promulgated thereunder, all as the same shall be amended from
time to time.
Unless
the context otherwise requires, any reference herein to a
“Section” or “clause” refers to a Section
or clause, as the case may be, of this Registration Rights
Agreement, and the words “herein,” “hereof”
and “hereunder” and other words of similar import refer
to this Registration Rights Agreement as a whole and not to any
particular Section or other subdivision.
2. Registration Under the Securities Act .
(a) Except as set
forth in Section 2(b) below, the Company agrees to file under the
Securities Act, no later than 90 days after the Closing Date,
a registration statement relating to an offer to exchange (such
registration statement, the “Exchange Offer Registration
Statement”, and such offer, the “Exchange Offer”)
any and all of the Securities for a like aggregate principal amount
of debt securities issued by the Company and guaranteed by the
Subsidiary Guarantors, which debt securities and subsidiary
guaranties are substantially identical to the Securities (and are
entitled to the benefits of a trust indenture which is
substantially identical to the Indenture or is the Indenture and
which has been qualified under the Trust Indenture Act), except
that they have been registered pursuant to an effective
registration statement under the Securities Act and do not contain
provisions for the additional interest contemplated in Section 2(c)
below (such new debt securities hereinafter called “Exchange
Securities”). The Company agrees to use its reasonable best
efforts to cause the Exchange Offer Registration Statement to
become effective under the Securities Act no later than
180 days after the Closing Date. The Exchange Offer will be
registered under the Securities Act on the appropriate form and
will comply with all applicable tender offer rules and regulations
under the Exchange Act. The Company further agrees to use its
reasonable best efforts to commence and complete the Exchange Offer
as soon as practicable after such registration statement has become
effective, hold the Exchange Offer open for at least 30 days
and exchange the Exchange Securities for all Registrable Securities
that may legally be exchanged in the Exchange Offer and that have
been properly tendered and not withdrawn on or prior to the
expiration of the Exchange Offer. The Exchange Offer will be deemed
to have been “completed” only if the debt securities
and subsidiary guaranties received by holders other than Restricted
Holders in the Exchange Offer for Registrable Securities are, upon
receipt, transferable by each such holder without restriction under
the Securities Act (except for the requirement to deliver a
prospectus included in the Exchange Offer Registration Statement
applicable to resales by
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Registration Rights Agreement
broker-dealers of Exchange Securities received
by them pursuant to the Exchange Offer in exchange for Securities
other than those acquired by such broker-dealers directly from the
Company) and the Exchange Act and without material restrictions
under the blue sky or securities laws of a substantial majority of
the States of the United States of America. The Exchange Offer
shall be deemed to have been completed upon the earlier to occur of
(i) the Company having exchanged the Exchange Securities for
all outstanding Registrable Securities pursuant to the Exchange
Offer and (ii) the Company having exchanged, pursuant to the
Exchange Offer, Exchange Securities for all Registrable Securities
that may legally be exchanged in the Exchange Offer and that have
been properly tendered and not withdrawn before the expiration of
the Exchange Offer, which shall be on a date that is at least
30 days following the commencement of the Exchange Offer. The
Company agrees (x) (other than resales by broker-dealers of
Exchange Securities received by them pursuant to the Exchange Offer
in exchange for Securities acquired by them directly from the
Company) to include in the Exchange Offer Registration Statement a
prospectus for use in any resales by any holder of Exchange
Securities that is a broker-dealer and (y) to keep such
Exchange Offer Registration Statement effective, and to amend and
supplement the prospectus contained therein as necessary, for a
period (the “Resale Period”) beginning when Exchange
Securities are first issued in the Exchange Offer and ending upon
the earlier of the expiration of the 180th day after the Exchange
Offer has been completed or such time as such broker-dealers no
longer own any Registrable Securities (or for such longer period if
extended pursuant to the terms of this Agreement). With respect to
such Exchange Offer Registration Statement, such holders shall have
the benefit of the rights of indemnification and contribution set
forth in Sections 6(a), (c), (d) and (e) hereof. If,
upon consummation of the Exchange Offer, any Purchaser holds
Securities acquired as part of its initial distribution, the
Company, simultaneously with the delivery of the Exchange
Securities pursuant to the Exchange Offer, shall issue and deliver
to such Purchaser, upon written request of such Purchaser, in
exchange for the Securities held by such Purchaser, a like
principal amount of debt securities of the Company issued under the
Indenture and identical in all material respects to the Securities
(the “Private Exchange Securities”).
(b) Subject to
Section 3(i), if (i) on or prior to the time the Exchange
Offer is completed existing Commission interpretations are changed
such that the debt securities or the Subsidiary Guaranties received
by holders other than Restricted Holders in the Exchange Offer for
Registrable Securities are not or would not be, upon receipt,
transferable by each such holder without restriction under the
Securities Act (except for the requirement to deliver a prospectus
included in the Exchange Offer Registration Statement applicable to
resales by broker-dealers of Exchange Securities received by them
pursuant to the Exchange Offer in exchange for Securities other
than those acquired by such broker-dealers directly from the
Company), (ii) the Exchange Offer has not been completed
within 220 days following the Closing Date, (iii) any
Purchaser so requests with respect to the Securities not eligible
to be exchanged for Exchange Securities in the Exchange Offer and
held by it following consummation of the Exchange Offer or
(iv) the Exchange Offer is not available to any holder of the
Securities (other than a broker-dealer participating in the
Exchange Offer), the Company shall, in lieu of (or, in the case of
clause (iii) or (iv), in addition to) conducting the Exchange
Offer contemplated by Section 2(a), file under the Securities
Act no later than the later of 75 days after the time such
obligation to file arises, a “shelf” registration
statement providing for the registration of, and the sale on a
continuous or delayed basis by the holders of, all of the
Registrable Securities, pursuant to Rule 415 or any similar
rule that may be adopted by the Commission (such filing, the
“Shelf Registration” and such registration statement,
the “Shelf Registration Statement”). The Company agrees
to use its reasonable best efforts (x) to cause the Shelf
Registration Statement to become or be
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Registration Rights Agreement
declared effective (a) in the case of
clause (i) above, no later than 180 days after the
Closing Date, and (b) in the case of clause (ii),
(iii) or (iv) above, no later than 75 days after the
date such Shelf Registration Statement is filed; and, subject to
Section 3(i), to keep such Shelf Registration Statement
continuously effective for a period ending on the earlier of the
second anniversary of the Effective Time (or for such longer period
if extended pursuant to the terms of this Agreement) or such time
as there are no longer any Registrable Securities outstanding;
provided , however , that no holder shall be entitled
to be named as a selling securityholder in the Shelf Registration
Statement or to use the prospectus forming a part thereof for
resales of Registrable Securities unless such holder agrees in
writing to be bound by all of the provisions of this Agreement and
such holder is an Electing Holder, and (y) after the Effective
Time of the Shelf Registration Statement, promptly upon the request
of any holder of Registrable Securities that is not then an
Electing Holder, to take any action reasonably necessary to enable
such holder to use the prospectus forming a part thereof for
resales of Registrable Securities, including, without limitation,
any action necessary to identify such holder as a selling
securityholder in the Shelf Registration Statement; provided,
however, that nothing in this Clause (y) shall relieve any
such holder of the obligation to return a completed and signed
Notice and Questionnaire to the Company in accordance with Section
3(d)(iii) hereof. The Company further agrees to supplement or make
amendments to the Shelf Registration Statement, as and when
required by the rules, regulations or instructions applicable to
the registration form used by the Company for such Shelf
Registration Statement or by the Securities Act or rules and
regulations thereunder for shelf registration, and the Company
agrees to furnish to each Electing Holder copies of any such
supplement or amendment prior to its being used or promptly
following its filing with the Commission.
(c) In the event
that (i) the Company has not filed the Exchange Offer
Registration Statement or Shelf Registration Statement on or before
the date on which such registration statement is required to be
filed pursuant to Section 2(a) or 2(b), respectively, or
(ii) such Exchange Offer Registration Statement or Shelf
Registration Statement has not become effective or been declared
effective by the Commission on or before the date on which such
registration statement is required to become or be declared
effective pursuant to Section 2(a) or 2(b), respectively, or
(iii) the Exchange Offer has not been completed on or before
the 40 th
day after the initial effective date
of the Exchange Offer Registration Statement relating to the
Exchange Offer (if the Exchange Offer is then required to be made)
or (iv) any Shelf Registration Suspension exceeds the number
of days permitted for such suspension under Section 3(i), or
(v) any Exchange Offer Registration Statement or Shelf
Registration Statement required by Section 2(a) or 2(b) hereof is
filed and declared effective but shall thereafter either be
withdrawn by the Company or shall become subject to an effective
stop order issued pursuant to Section 8(d) of the Securities Act
suspending the effectiveness of such registration statement (except
as specifically permitted herein) without being succeeded as
promptly as practicable by an additional registration statement
filed and declared effective (each such event referred to in
clauses (i) through (v), a “Registration Default”
and each period during which a Registration Default has occurred
and is continuing, a “Registration Default Period”),
then, as liquidated damages for such Registration Default, subject
to the provisions of Section 9(b), additional interest
(“Additional Interest”), in addition to the Base
Interest, shall accrue at a per annum rate of 0.25% for the first
90 days of the Registration Default Period, at a per annum
rate of 0.50% for the second 90 days of the Registration
Default Period, at a per annum rate of 0.75% for the third
90 days of the Registration Default Period and at a per annum
rate of 1.0% thereafter for the remaining portion of the
Registration Default Period.
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Registration Rights Agreement
(d) The Company
shall take, and shall cause the Subsidiary Guarantors to take, all
actions reasonably necessary or advisable to be taken by it to
ensure that the transactions contemplated herein are effected as so
contemplated.
(e) Any reference
herein to a registration statement as of any time shall be deemed
to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time and any reference herein to
any post-effective amendment to a registration statement as of any
time shall be deemed to include any document incorporated, or
deemed to be incorporated, therein by reference as of such
time.
3. Registration Procedures .
If
the Company files a registration statement pursuant to Section 2(a)
or Section 2(b), the following provisions shall
apply:
(a) At or before
the Effective Time of the Exchange Offer or the Shelf Registration,
as the case may be, the Company shall qualify the Indenture under
the Trust Indenture Act of 1939.
(b) In the event
that such qualification would require 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.
(c) In connection
with the Company’s obligations with respect to the
registration of Exchange Securities as contemplated by Section 2(a)
(the “Exchange Registration”), if applicable, the
Company shall:
(i) prepare and
file with the Commission no later than 90 days after the
Closing Date, an Exchange Offer Registration Statement on any form
which may be utilized by the Company and which shall permit the
Exchange Offer and resales of Exchange Securities by broker-dealers
during the Resale Period to be effected as contemplated by
Section 2(a), and use its reasonable best efforts to cause
such Exchange Offer Registration Statement to become effective no
later than 180 days after the Closing Date;
(ii) as soon as
practicable prepare and file with the Commission such amendments
and supplements to such Exchange Offer Registration Statement and
the prospectus included therein as may be necessary to effect and
maintain the effectiveness of such Exchange Offer Registration
Statement for the periods and purposes contemplated in Section 2(a)
hereof and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to
the form of such Exchange Offer Registration Statement, and
promptly provide each broker-dealer holding Exchange Securities
with such number of copies of the prospectus included therein (as
then amended or supplemented), in conformity in all material
respects with the requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder, as such broker-dealer reasonably may request prior to
the expiration of the Resale Period, for use in connection with
resales of Exchange Securities;
(iii) furnish to
each Purchaser, prior to the filing thereof with the Commission, a
copy of the Exchange Offer Registration Statement and each
amendment and each supplement, if any, and, in the event a
Purchaser is participating in the Exchange
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Registration Rights Agreement
Offer,
the Company shall use its reasonable best efforts to reflect in
each such document, when so filed with the Commission, such
comments as such Purchaser may reasonably request in writing to the
Company or its counsel, and, if requested by a Purchaser in writing
to the Company or its counsel, include the information required by
Items 507 and 508 of Regulation S-K under the Securities Act,
as applicable, and such other items as may be required by the
Securities Act;
(iv) promptly
notify each Purchaser, each holder and each broker-dealer that has
requested copies of the prospectus included in such registration
statement and notified the Company in writing that it will be a
broker-dealer participating in the Exchange Offer, and confirm such
notice in writing, (A) when such Exchange Offer Registration
Statement or the prospectus included therein or any prospectus
amendment or supplement or post-effective amendment has been filed,
and, with respect to such Exchange Offer Registration Statement or
any post-effective amendment, when the same has become effective,
(B) of any comments made to the Company or its counsel by the
Commission and by the blue sky or securities commissioner or
regulator of any state with respect thereto or any request made to
the Company or its counsel by the Commission for amendments or
supplements to such Exchange Offer Registration Statement or
prospectus or for additional information, (C) of the issuance
by the Commission of any stop order suspending the effectiveness of
such Exchange Offer Registration Statement or the initiation or
threatening of any proceedings for that purpose, (D) if at any
time the Company becomes aware that the representations and
warranties of the Company contemplated by Section 5 cease to
be true and correct in all material respects, (E) of the
receipt by the Company or its legal counsel of any notification
with respect to the suspension of the qualification of the Exchange
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, or (F) at any
time during the Resale Period when a prospectus is required to be
delivered under the Securities Act, that such Exchange Offer
Registration Statement, prospectus, prospectus amendment or
supplement or post-effective amendment does not conform in all
material respects to the applicable requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of
the Commission thereunder or contains an untrue statement of a
material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(v) in the event
that the Company would be required, pursuant to Section 3(c)(iv)(F)
above, to notify any Purchaser, holder or broker-dealers holding
Exchange Securities, without unreasonable delay prepare and furnish
to each such holder a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to
purchasers of such Exchange Securities during the Resale Period,
such prospectus shall conform in all material respects to the
applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder and shall not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in light
of the circumstances then existing; and in the event the Purchaser,
the holder or the broker dealer must suspend the use of such
prospectus, the period of effectiveness of the Exchange Offer
Registration Statement provided for in 2(a) shall each be extended
by the number of days from and including the date of giving of such
notice to and
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Registration Rights Agreement
including the date the holders of the Securities
shall have received such amended or supplemented
prospectus;
(vi) deliver to
each Purchaser, each broker-dealer participating in such Exchange
Offer and any other holder who so requests and any other persons
required to deliver a prospectus following the Registered Exchange
Offer, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendments thereto,
including financial statements and, if requested, all exhibits
thereto, and 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;
(vii) use its
reasonable best efforts to obtain the withdrawal of any order
suspending the effectiveness of such Exchange Offer Registration
Statement or any post-effective amendment thereto at the earliest
practicable date;
(viii) use its
reasonable best efforts to (A) register or qualify the
Exchange Securities under the securities laws or blue sky laws of
such jurisdictions as are contemplated by Section 2(a) no later
than the commencement of the Exchange Offer, (B) keep such
registrations or qualifications in effect and comply with such laws
so as to permit the continuance of offers, sales and dealings
therein in such jurisdictions until the expiration of the Resale
Period and (C) take any and all other actions as may be
reasonably necessary or advisable to enable each broker-dealer
holding Exchange Securities to consummate the disposition thereof
in such jurisdictions; provided, however, that neither the
Company nor any Subsidiary Guarantor shall be required for any such
purpose to (1) qualify as a foreign corporation in any
jurisdiction wherein it would not otherwise be required to qualify
but for the requirements of this Section 3(c)(viii),
(2) consent to general service of process in any such
jurisdiction or (3) make any changes to its certificate of
incorporation or by-laws or any agreement between it and its
stockholders, partners or members, as the case may be;
(ix) use its
reasonable best efforts to obtain the consent or approval of each
governmental agency or authority, whether federal, state or local,
which may be required to effect the Exchange Registration, the
Exchange Offer and the offering and sale of Exchange Securities by
broker-dealers during the Resale Period;
(x) provide a
CUSIP number for all Exchange Securities, not later than the
applicable Effective Time;
(xi) 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
(xii) comply with
all applicable rules and regulations of the Commission, and make
generally available to its securityholders (or otherwise provide in
accordance with Section 11(a) of the Securities Act) as soon as
practicable but 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 fiscal
quarter commencing after the effective date of the Registration
Statement, an earning statement of the Company covering such
12-month period and complying with Section 11(a) of the Securities
Act (including, at the option of the Company, Rule 158
thereunder).
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Registration Rights Agreement
(d) In connection
with the Company’s obligations with respect to the Shelf
Registration, if applicable, the Company shall, subject to
Section 3(i):
(i) prepare and
file with the Commission within the time periods specified in
Section 2(b), a Shelf Registration Statement on any form which
may be utilized by the Company and which shall register all of the
Registrable Securities for resale by the holders thereof in
accordance with such method or methods of disposition as may be
specified by such of the holders as, from time to time, may be
Electing Holders and use its reasonable best efforts to cause such
Shelf Registration Statement to become effective within the time
periods specified in Section 2(b);
(ii) not less than
30 calendar days prior to the Effective Time of the Shelf
Registration Statement, mail the Notice and Questionnaire to the
holders of Registrable Securities; no holder shall be entitled to
be named as a selling securityholder in the Shelf Registration
Statement as of the Effective Time, and no holder shall be entitled
to use the prospectus forming a part thereof for resales of
Registrable Securities at any time, unless such holder has returned
a completed and signed Notice and Questionnaire to the Company by
the deadline for response set forth therein; provided,
however , holders of Registrable Securities shall have at least
28 calendar days from the date on which the Notice and
Questionnaire is first mailed to such holders to return a completed
and signed Notice and Questionnaire to the Company;
(iii) furnish to
each Purchaser and any other holder who so requests in writing,
prior to the filing thereof with the Commission, a copy of the
Shelf Registration Statement and each amendment and each
supplement, if any, and, in the event a Purchaser is participating
in the Shelf Registration Offer, the Company shall use its
reasonable best efforts to reflect in each such document, when so
filed with the Commission, such comments as such Purchaser may
reasonably request in writing to the Company or its
counsel;
(iv) after the
Effective Time of the Shelf Registration Statement, upon the
request of any holder of Registrable Securities that is not then an
Electing Holder, promptly send a Notice and Questionnaire to such
holder; provided that the Company shall not be required to
take any action to name such holder as a selling securityholder in
the Shelf Registration Statement or to enable such holder to use
the prospectus forming a part thereof for resales of Registrable
Securities until such holder has returned a completed and signed
Notice and Questionnaire to the Company;
(v) as soon as
practicable prepare and file with the Commission such amendments
and supplements to such Shelf Registration Statement and the
prospectus included therein as may be necessary to effect and
maintain the effectiveness of such Shelf Registration Statement for
the period specified in Section 2(b) hereof and as may be required
by the applicable rules and regulations of the Commission and the
instructions applicable to the form of such Shelf Registration
Statement, and furnish to the Electing Holders copies of any such
supplement or amendment simultaneously with or prior to its being
used or filed with the Commission;
(vi) comply with
the provisions of the Securities Act with respect to the
disposition of all of the Registrable Securities covered by such
Shelf Registration
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Registration Rights Agreement
Statement in accordance with the intended
methods of disposition by the Electing Holders provided for in such
Shelf Registration Statement;
(vii) provide
(A) the Electing Holders, (B) the underwriters (which
term, for purposes of this Registration Rights Agreement, shall
include a person deemed to be an underwriter within the meaning of
Section 2(a)(11) of the Securities Act), if any, thereof,
(C) any sales or placement agent therefor, (D) not more
than one counsel for any such underwriter or agent and (E) not
more than one counsel for all the Electing Holders the opportunity
to participate in the preparation of such Shelf Registration
Statement, each prospectus included therein or filed with the
Commission and each amendment or supplement thereto;
(viii) for a
reasonable period prior to the filing of such Shelf Registration
Statement, and throughout the period specified in
Section 2(b), make available at reasonable times at the
Company’s principal place of business or such other
reasonable place for inspection by the persons referred to in
Section 3(d)(vii) who shall certify to the Company that they
have a current intention to sell the Registrable Securities
pursuant to the Shelf Registration such financial and other
information and books and records of the Company, and cause the
officers, employees, counsel and independent certified public
accountants of the Company to respond to such inquiries, as shall
be reasonably necessary, in the judgment of the respective counsel
referred to in such Section, to conduct a reasonable investigation
within the meaning of Section 11 of the Securities Act;
provided, however, that each such party shall be required to
maintain in confidence and not to disclose to any other person any
information or records reasonably designated by the Company as
being confidential, until such time as (A) such information
becomes a matter of public record (whether by virtue of its
inclusion in such registration statement or otherwise, but not
because of disclosure, unauthorized by the Company or its
representatives, by such person or its representatives), or
(B) such person shall be required so to disclose such
information pursuant to a subpoena or order of any court or other
governmental agency or body having jurisdiction over the matter
(subject to the requirements of such order, and only after such
person shall have given the Company prompt prior written notice of
such requirement), or (C) such information is required to be
set forth in such Shelf Registration Statement or the prospectus
included therein or in an amendment to such Shelf Registration
Statement or an amendment or supplement to such prospectus in order
that such Shelf Registration Statement, prospectus, amendment or
supplement, as the case may be, complies with applicable
requirements of the federal securities laws and the rules and
regulations of the Commission and does not contain an untrue
statement of a material fact or omit to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances
then existing;
(ix) promptly
notify each of the Electing Holders, any sales or placement agent
therefor and any underwriter thereof (which notification may be
made through any managing underwriter that is a representative of
such underwriter for such purpose) and confirm such advice in
writing, (A) when such Shelf Registration Statement or the
prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed, and, with
respect to such Shelf Registration Statement or any post-effective
amendment, when the same has become effective, (B) of any
comments made to the Company or its counsel by the
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Registration Rights Agreement
Commission and by the blue sky or securities
commissioner or regulator of any state with respect thereto or any
request made to the Company or its counsel by the Commission for
amendments or supplements to such Shelf Registration Statement or
prospectus or for additional information, (C) of the issuance
by the Commission of any stop order suspending the effectiveness of
such Shelf Registration Statement or the initiation or threatening
of any proceedings for that purpose, (D) if at any time the
Company becomes aware that the representations and warranties of
the Company contemplated by Section 3(d)(xviii) or Section 5
cease to be true and correct in all material respects, (E) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Registrable Securities for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, or (F) if at any time when a
prospectus is required to be delivered under the Securities Act,
that such Shelf Registration Statement, prospectus, prospectus
amendment or supplement or post-effective amendment does not
conform in all material respects to the applicable requirements of
the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder or contains an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then
existing;
(x) use its
reasonable best efforts to obtain the withdrawal of any order
suspending the effectiveness of such registration statement or any
post-effective amendment thereto at the earliest practicable
date;
(xi) if requested
by any managing underwriter or underwriters, any placement or sales
agent or any Electing Holder, promptly incorporate in a prospectus
supplement or post-effective amendment such information as is
required by the applicable rules and regulations of the Commission
and as such managing underwriter or underwriters, such agent or
such Electing Holder reasonably specifies should be included
therein relating to the terms of the sale of such Registrable
Securities, including information with respect to the principal
amount of Registrable Securities being sold by such Electing Holder
or agent or to any underwriters, the name and description of such
Electing Holder, agent or underwriter, the offering price of such
Registrable Securities and any discount, commission or other
compensation payable in respect thereof, the purchase price being
paid therefor by such underwriters and with respect to any other
terms of the offering of the Registrable Securities to be sold by
such Electing Holder or agent or to such underwriters; and make all
required filings of such prospectus supplement or post-effective
amendment promptly after notification of the matters to be
incorporated in such prospectus supplement or post-effective
amendment;
(xii) furnish to
each Electing Holder, each placement or sales agent, if any,
therefor, each underwriter, if any, thereof and the respective
counsel referred to in Section 3(d)(vii) an executed copy (or,
in the case of an Electing Holder, a conformed copy) of such Shelf
Registration Statement, each such amendment and supplement thereto
(in each case including all exhibits thereto (in the case of an
Electing Holder of Registrable Securities, upon request) and
documents incorporated by reference therein) and such number of
copies of such Shelf Registration Statement (excluding exhibits
thereto and documents incorporated by reference therein unless
specifically so requested by such Electing Holder, agent or
underwriter, as the case may be) and of the prospectus included in
such Shelf
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Registration Rights Agreement
Registration Statement (including each
preliminary prospectus and any summary prospectus), in conformity
in all material respects with the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission there
