PETROHAWK ENERGY
CORPORATION
10
1
/ 2 %
SENIOR NOTES DUE 2014
REGISTRATION RIGHTS
AGREEMENT
J.P. MORGAN 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 MORGAN SECURITIES
INC.
NATIXIS BLEICHROEDER
INC.
CITIGROUP GLOBAL MARKETS
INC.
BBVA SECURITIES,
INC.
PIPER JAFFRAY &
CO.
c/o: J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Petrohawk
Energy Corporation, a Delaware corporation (the “
Issuer ”), proposes to issue and sell to J.P. Morgan
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 Morgan Securities Inc.,
Natixis Bleichroeder Inc., Citigroup Global Markets Inc., BBVA
Securities, Inc. and Piper Jaffray & 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 10 1 / 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
5
(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
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