Exhibit 4.2
EXECUTION
VERSION
REGISTRATION RIGHTS
AGREEMENT
by and among
Continental Resources,
Inc.,
Banner Pipeline Company,
L.L.C.
and
Banc of America Securities
LLC
RBS Securities
Inc.
Wells Fargo Securities,
LLC
as representatives of the Initial
Purchasers
Dated as of September 23,
2009
REGISTRATION RIGHTS
AGREEMENT
This Registration Rights Agreement
(this “ Agreement ”) is made and entered into as
of September 23, 2009, by and among Continental Resources,
Inc., an Oklahoma corporation (the “ Company ”),
Banner Pipeline Company, L.L.C., an Oklahoma limited liability
company (the “ Guarantor ”), and Banc of America
Securities LLC, RBS Securities Inc. and Wells Fargo Securities,
LLC, as representatives of the initial purchasers listed on
Schedule A to the Purchase Agreement (each an “ Initial
Purchaser ” and, collectively, the “ Initial
Purchasers ”), each of whom has agreed to purchase the
Company’s 8.25% Senior Notes due 2019 (the “ Initial
Notes ”) fully and unconditionally guaranteed by the
Guarantor (the “ Guarantees ”) pursuant to the
Purchase Agreement (as defined below). The Initial Notes and the
Guarantees attached thereto are herein collectively referred to as
the “ Initial Securities .”
This Agreement is made pursuant to
the Purchase Agreement, dated as of September 18, 2009 (the
“ Purchase Agreement ”), by and among the
Company, the Guarantor and Banc of America Securities LLC, RBS
Securities Inc. and Wells Fargo Securities, LLC, as representatives
of the Initial Purchasers, (i) for the benefit of the Initial
Purchasers and (ii) for the benefit of the holders from time
to time of the Securities (as defined below) (including the Initial
Purchasers). In order to induce the Initial Purchasers to purchase
the Initial Securities, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution and
delivery of this Agreement is a condition to the obligations of the
Initial Purchasers set forth in Section 5(g) of the Purchase
Agreement.
The parties hereby agree as
follows:
S ECTION 1. Definitions. As used in this
Agreement, the following capitalized terms shall have the following
meanings:
Additional Interest
: As defined in Section 5.
Additional Interest Payment
Date :
With respect to the Initial
Securities, each Interest Payment Date.
Broker-Dealer:
Any broker or dealer registered
under the Exchange Act.
Business Day:
Any day other than a Saturday,
Sunday or U.S. federal holiday or a day on which banking
institutions or trust companies located in New York, New York are
authorized or obligated to be closed.
Closing Date:
The date of this
Agreement.
Commission:
The Securities and Exchange
Commission.
Consummate:
A registered Exchange Offer shall be
deemed “ Consummated ” for purposes of this
Agreement upon the occurrence of (i) the filing and
effectiveness under the Securities Act of the Exchange Offer
Registration Statement relating to the Exchange Securities to be
issued in the Exchange Offer, (ii) the maintenance of such
Registration Statement
continuously effective and the keeping of the
Exchange Offer open for a period not less than the minimum period
required pursuant to Section 3(b) hereof, and (iii) the
delivery by the Company to the Registrar under the Indenture of
Exchange Securities in the same aggregate principal amount as the
aggregate principal amount of Initial Securities that were validly
tendered by Holders thereof pursuant to the Exchange
Offer.
Exchange Act:
The Securities Exchange Act of 1934,
as amended, including the rules and regulations promulgated
thereunder.
Exchange Notes
: The 8.25% Senior Notes due 2019, the same series
under the Indenture as the Initial Notes, to be issued to Holders
in exchange for Transfer Restricted Securities pursuant to this
Agreement.
Exchange Offer
: An offer registered under the Securities Act by
the Company and the Guarantor pursuant to a Registration Statement
pursuant to which the Company and the Guarantor shall offer the
Holders of all outstanding Transfer Restricted Securities the
opportunity to exchange all such outstanding Transfer Restricted
Securities held by such Holders for Exchange Securities in the
aggregate principal amount equal to the aggregate principal amount
of the Transfer Restricted Securities tendered in such exchange
offer by such Holders and with terms that are identical in all
respects to the Transfer Restricted Securities (except that the
Exchange Securities will not contain terms with respect to the
interest rate step-up provision and transfer
restrictions).
Exchange Offer Registration
Statement: Any
Registration Statement relating to an Exchange Offer, including the
related Prospectus.
Exchange Securities:
The Exchange Notes and the
Guarantees attached thereto.
Exempt Resales:
The transactions in which the
Initial Purchasers propose to sell the Initial Securities to
certain “ qualified institutional buyers ,” as
such term is defined in Rule 144A under the Securities Act, and to
Persons in offshore transactions in reliance on Regulation
S.
FINRA: Financial Industry Regulatory Authority,
Inc.
Guarantees:
As defined in the Purchase
Agreement.
Holders : As defined in Section 2(b)
hereof.
Indemnified Holder
: As defined in Section 8(a)
hereof.
Indenture:
The Indenture, dated as of
September 23, 2009, among the Company, the Guarantor and
Wilmington Trust FSB, as trustee (the “ Trustee
”), pursuant to which the Securities are to be issued, as
such Indenture is amended or supplemented from time to time in
accordance with the terms thereof.
Initial Notes
: As defined in the preamble hereto, but only for
so long as such securities constitute Transfer Restricted
Securities.
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Initial Placement:
The issuance and sale by the
Company of the Initial Securities to the Initial Purchasers
pursuant to the Purchase Agreement.
Initial Purchasers:
As defined in the preamble
hereto.
Initial Securities:
As defined in the preamble
hereto.
Interest Payment Date:
As defined in the Indenture and the
Securities.
Person: An individual, partnership, limited liability
company, corporation, trust, unincorporated organization or other
legal entity, or a government or agency or political subdivision
thereof.
Prospectus
: The prospectus included in a Registration
Statement, as amended or supplemented by any prospectus supplement
and by all other amendments thereto, including post-effective
amendments, and all material incorporated by reference into such
prospectus.
Record Holder:
With respect to any Interest Payment
Date relating to the Securities on which Additional Interest is to
be paid, each Person who is a Holder of Securities on the record
date with respect to the Interest Payment Date on which such
Additional Interest Payment Date shall occur.
Registration Default:
As defined in Section 5
hereof.
Registration
Statement: Any Exchange
Offer Registration Statement or Shelf Registration Statement, which
is filed pursuant to the provisions of this Agreement, in each
case, including the Prospectus included therein, all amendments and
supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein.
Securities:
The Initial Securities and the
Exchange Securities.
Securities Act:
The Securities Act of 1933, as
amended, including the rules and regulations promulgated
thereunder.
Shelf Registration
Statement :
As defined in Section 4
hereof.
Trust Indenture Act:
The Trust Indenture Act of 1939,
including the rules and regulations promulgated thereunder, as in
effect on the date of the Indenture.
Transfer Restricted
Securities: Each
(i) Initial Security, until the earliest to occur of
(a) the date on which such Initial Security is exchanged in
the Exchange Offer for an Exchange Security and entitled to be
resold to the public by the Holder thereof without complying with
the prospectus delivery requirements of the Securities Act and
(b) the date on which such Initial Security has been
effectively registered under the Securities Act and disposed of in
accordance with a Shelf Registration Statement and
(ii) Exchange Security issued to a Broker-Dealer until the
date on which such Security has been distributed by a Broker-Dealer
pursuant to the “Plan of Distribution” contemplated by
the Exchange Offer Registration Statement (including delivery of
the Prospectus contained therein).
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Underwritten Registration or
Underwritten Offering : A
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
S ECTION 2. Securities Subject to this
Agreement.
(a) Transfer Restricted
Securities. The securities entitled to the benefits of this
Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer
Restricted Securities. A Person is deemed to be a holder of
Transfer Restricted Securities (each, a “ Holder
”) whenever such Person owns Transfer Restricted
Securities.
S ECTION 3. Registered Exchange
Offer.
(a) Unless the Exchange Offer shall
not be permissible under applicable law or Commission policy (after
the procedures set forth in Section 6(a) hereof have been
complied with), the Company and the Guarantor shall (i) file
with the Commission a Registration Statement with respect to a
registered offer to exchange the Initial Securities for Exchange
Securities under the Indenture in the same aggregate principal
amount as and with terms that shall be identical in all respects to
the Initial Securities (except that the Exchange Securities shall
not contain terms with respect to the interest rate step-up
provision and transfer restrictions), (ii) use their
commercially reasonable efforts to cause such Registration
Statement to become effective under the Securities Act,
(iii) in connection with the foregoing, file (A) all
pre-effective amendments to such Registration Statement as may be
necessary in order to cause such Registration Statement to become
effective, (B) if applicable, a post-effective amendment to
such Registration Statement pursuant to Rule 430A under the
Securities Act and (C) cause all necessary filings in
connection with the registration and qualification of the Exchange
Securities to be made under the state securities or blue sky laws
of such jurisdictions as are necessary to permit Consummation of
the Exchange Offer, and (iv) promptly after such Registration
Statement is declared effective, commence the Exchange Offer. The
Exchange Offer Registration Statement shall be on the appropriate
form permitting registration of the Exchange Securities to be
offered in exchange for the Transfer Restricted Securities and to
permit resales of Securities held by Broker-Dealers as contemplated
by Section 3(c) hereof.
(b) If an Exchange Offer
Registration Statement is required pursuant to Section 3(a)
above, the Company and the Guarantor shall cause the Exchange Offer
Registration Statement to be effective continuously and shall use
their commercially reasonable efforts to keep the Exchange Offer
open for not less than 20 Business Days (or longer if required by
applicable law) after the date notice of the Exchange Offer is
mailed to the Holders. The Company and the Guarantor shall cause
each Exchange Offer to comply with all applicable federal and state
securities laws. No securities other than the Securities shall be
included in the Exchange Offer Registration Statement. If an
Exchange Offer Registration Statement is required pursuant to
Section 3(a) above, the Company and the Guarantor shall use
their commercially reasonable efforts to Consummate the Exchange
Offer on or prior to the 400th calendar day following the Closing
Date.
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(c) The Company shall indicate in a
“Plan of Distribution” section contained in the
Prospectus forming a part of any Exchange Offer Registration
Statement that any Broker-Dealer who holds Initial Securities that
are Transfer Restricted Securities and that were acquired for its
own account as a result of market-making activities or other
trading activities (other than Transfer Restricted Securities
acquired directly from the Company), may exchange such Initial
Securities pursuant to the Exchange Offer; however, such
Broker-Dealer may be deemed to be an “ underwriter
” within the meaning of the Securities Act and must,
therefore, deliver a prospectus meeting the requirements of the
Securities Act in connection with any resales of the Exchange
Securities received by such Broker-Dealer in the Exchange Offer,
which prospectus delivery requirement may be satisfied by the
delivery by such Broker-Dealer of the Prospectus contained in the
Exchange Offer Registration Statement. Such “Plan of
Distribution” section shall also contain all other
information with respect to such resales by Broker-Dealers that the
Commission may require in order to permit such resales pursuant
thereto, but such “Plan of Distribution” shall not name
any such Broker-Dealer or disclose the amount of Securities held by
any such Broker-Dealer except to the extent required by the
Commission as a result of a change in policy after the date of this
Agreement.
If an Exchange Offer Registration
Statement is required pursuant to Section 3(a) above, the
Company and the Guarantor shall use their commercially reasonable
efforts to keep the Exchange Offer Registration Statement
continuously effective, supplemented and amended as required by the
provisions of Section 6(c) hereof to the extent necessary to
ensure that it is available for resales of Securities acquired by
Broker-Dealers for their own accounts as a result of market-making
activities or other trading activities, and to ensure that it
conforms with the requirements of this Agreement, the Securities
Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period ending on the earlier of
(i) 180 days from the date on which the Exchange Offer
Registration Statement is declared effective and (ii) the date
on which Broker-Dealers are no longer required to deliver a
prospectus in connection with market-making or other trading
activities.
The Company shall provide sufficient
copies of the latest version of such Prospectus to Broker-Dealers
promptly upon request at any time during such 180-day (or shorter
as provided in the foregoing sentence) period in order to
facilitate such resales.
S ECTION 4. Shelf Registration.
(a) Shelf Registration. If
(i) the Company and the Guarantor are not required to file an
Exchange Offer Registration Statement or to consummate the Exchange
Offer for the Initial Securities because the Exchange Offer is not
permitted by applicable law or Commission policy (after the
procedures set forth in Section 6(a) hereof have been complied
with), (ii) for any reason the Exchange Offer for the
Securities is not Consummated within 400 calendar days following
the Closing Date, or (iii) with respect to any Holder of
Transfer Restricted Securities (A) such Holder is prohibited
by applicable law or Commission policy from participating in the
Exchange Offer, or (B) such Holder may not resell the Exchange
Securities acquired by it in the Exchange Offer to the public
without delivering a prospectus and that the Prospectus contained
in the Exchange Offer Registration Statement is not appropriate or
available for such resales by such Holder, or (C) such Holder
is a Broker-Dealer and holds Initial Securities acquired directly
from the Company or one of its affiliates, then, upon such
Holder’s request, the Company and the Guarantor
shall
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(x) cause to be filed, at their
expense, a shelf registration statement pursuant to Rule 415 under
the Securities Act, which may be an amendment to the Exchange Offer
Registration Statement (in either event, the “ Shelf
Registration Statement ”) as promptly as practicable,
which Shelf Registration Statement shall provide for resales of all
Transfer Restricted Securities the Holders of which shall have
provided the information required pursuant to Section 4(b)
hereof; and
(y) use their commercially
reasonable efforts to cause such Shelf Registration Statement to be
declared effective (or become automatically effective) under the
Securities Act.
The Company and the Guarantor shall
keep any such Shelf Registration Statement continuously effective,
supplemented and amended as required by the provisions of Sections
6(b) and (c) hereof to the extent necessary to ensure that it
is available for resales of Securities by the Holders of Transfer
Restricted Securities entitled to the benefit of this
Section 4(a), and to ensure that it conforms with the
requirements of this Agreement, the Securities Act and the
policies, rules and regulations of the Commission as announced from
time to time, for a period of one year following the effective date
of such Shelf Registration Statement (or such shorter period that
will terminate when all the Securities covered by such Shelf
Registration Statement have been sold pursuant to such Shelf
Registration Statement).
(b) Provision by Holders of
Certain Information in Connection with the Shelf Registration
Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf
Registration Statement pursuant to this Agreement unless and until
such Holder furnishes to the Company in writing, within 20 Business
Days after receipt of a request therefor, such information as the
Company may reasonably request for use in connection with any Shelf
Registration Statement or Prospectus or preliminary Prospectus
included therein. Each Holder as to which any Shelf Registration
Statement is being effected agrees to furnish promptly to the
Company all information required to be disclosed in order to make
the information previously furnished to the Company by such Holder
not materially misleading.
S ECTION 5. Additional Interest. If
(a) the Exchange Offer is not consummated on or prior to the
400th calendar day following the Closing Date, (b) a Shelf
Registration Statement applicable to the Securities is not filed or
declared effective (or does not automatically become effective) on
or prior to the 400th calendar day following the Closing Date, or
(c) a Registration Statement applicable to the Securities is
declared effective (or automatically becomes effective) as required
but thereafter fails to remain effective or becomes unusable in
connection with resales for more than 30 calendar days (each such
event referred to in clauses (a) through (c) above, a
“ Registration Default ”), the Company hereby
agrees that the interest rate borne by the Transfer Restricted
Securities shall be increased by 1.0% per annum (“
Additional Interest ”) for the period of occurrence of
the Registration Default until the earlier of the consummation of
the Exchange Offer and such time as no Registration Default is in
effect. Following the cure of all Registration Defaults, Additional
Interest will cease to accrue and the interest rate on
the
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Securities will revert to the original rate;
provided , however , that, if after the date such
Additional Interest ceases to accrue, another Registration Default
occurs, Additional Interest will again commence accruing pursuant
to the foregoing provisions.
The Additional Interest set forth
above shall be the exclusive monetary remedy available to Holders
for each Registration Default.
All obligations of the Company and
the Guarantor set forth in the preceding paragraph that are
outstanding with respect to any Transfer Restricted Security at the
time such security ceases to be a Transfer Restricted Security
shall survive until such time as all such obligations with respect
to such Security shall have been satisfied in full.
S ECTION 6. Registration
Procedures.
(a) Exchange Offer Registration
Statement. In connection with each Exchange Offer, the Company
and the Guarantor shall comply with all of the provisions of
Section 6(c) hereof, shall use their commercially reasonable
efforts to effect such exchange to permit the sale of Transfer
Restricted Securities being sold in accordance with the intended
method or methods of distribution thereof, and shall comply with
all of the following provisions:
(i) If in the reasonable opinion of
counsel to the Company there is a question as to whether the
Exchange Offer is permitted by applicable law, the Company and the
Guarantor hereby agree to seek a no-action letter or other
favorable decision from the Commission allowing the Company and the
Guarantor to Consummate Exchange Offer for the Initial Securities.
The Company and the Guarantor each hereby agree to pursue the
issuance of such a decision to the Commission staff level but shall
not be required to take commercially unreasonable action to effect
a change of Commission policy. The Company and the Guarantor each
hereby agree, however, to (A) participate in telephonic
conferences with the Commission, (B) deliver to the Commission
staff an analysis prepared by counsel to the Company setting forth
the legal bases, if any, upon which such counsel has concluded that
such Exchange Offer should be permitted and (C) diligently
pursue a favorable resolution by the Commission staff of such
submission.
(ii) As a condition to its
participation in an Exchange Offer pursuant to the terms of this
Agreement, each Holder of Transfer Restricted Securities shall
furnish, upon the request of the Company, prior to the Consummation
thereof, a written representation to the Company (which may be
contained in the letter of transmittal contemplated by the Exchange
Offer Registration Statement) to the effect that (A) it is not
an affiliate of the Company, (B) it is acquiring the Exchange
Securities in its ordinary course of business and (C) at the
time of the commencement of the Exchange Offer, it has no
arrangement with any Person to participate in the distribution
(within the meaning of the Securities Act) of the Exchange
Securities to be issued in the Exchange Offer. In addition, all
such Holders of Transfer Restricted Securities shall otherwise
cooperate in the Company’s preparations for the Exchange
Offer. Each Holder will be required to acknowledge and agree that
any Broker-Dealer and any such Holder using the Exchange Offer to
participate in a distribution of the securities to be acquired in
the Exchange Offer (1) could not under Commission policy as in
effect on the date of this Agreement rely on the
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position of the Commission
enunciated in Morgan Stanley and Co., Inc. (available June 5,
1991) and Exxon Capital Holdings Corporation (available
May 13, 1988), as interpreted in the Commission’s letter
to Shearman & Sterling dated July 2, 1993, and
similar no-action letters (which may include any no-action letter
obtained pursuant to clause (i) above), and (2) must
comply with the registration and prospectus delivery requirements
of the Securities Act in connection with a secondary resale
transaction and that such a secondary resale transaction should be
covered by an effective registration statement containing the
selling security holder information required by Item 507 or
508, as applicable, of Regulation S-K if the resales are of
Exchange Securities obtained by such Holder in exchange for Initial
Securities acquired by such Holder directly from the
Company.
(b) Shelf Registration
Statement. In connection with the Shelf Registration Statement,
the Company and the Guarantor shall comply with all the provisions
of Section 6(c) hereof and shall use their commercially
reasonable efforts to effect such registration to permit the sale
of the Transfer Restricted Securities being sold in accordance with
the intended method or methods of distribution thereof, and
pursuant thereto the Company and the Guarantor will as
expeditiously as possible prepare and file with the Commission a
Registration Statement relating to the registration on any
appropriate form under the Securities Act, which form shall be
available for the sale of the Transfer Restricted Securities in
accordance with the intended method or methods of distribution
thereof.
(c) General Provisions. In
connection with any Registration Statement and any Prospectus
required by this Agreement to permit the sale or resale of Transfer
Restricted Securities (including, without limitation, any
Registration Statement and the related Prospectus required to
permit resales of Securities by Broker-Dealers), the Company and
the Guarantor shall:
(i) use its commercially reasonable
efforts to keep such Registration Statement continuously effective
and provide all requisite financial statements (including, if
required by the Securities Act or any regulation thereunder,
financial statements of the Guarantor) for the period specified in
Section 3 or 4 of this Agreement, as applicable; upon the
occurrence of any event that would cause any such Registration
Statement or the Prospectus contained therein (A) to contain a
material misstatement or omission or (B) not to be effective
and usable for resale of Transfer Restricted Securities during the
period required by this Agreement, the Company shall file promptly
an appropriate amendment to such Registration Statement, in the
case of clause (A), correcting any such misstatement or omission,
and, in the case of either clause (A) or (B), use its
commercially reasonable efforts to cause such amendment to be
declared effective and such Registration Statement and the related
Prospectus to become usable for their intended purposes as soon as
practicable thereafter;
(ii) prepare and file with the
Commission such amendments and post-effective amendments to such
Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period set
forth in Section 3 or 4 hereof, as applicable, or such shorter
period as will terminate when all Transfer Restricted Securities
covered by such Registration Statement have been sold; cause
the
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Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Securities Act, and to comply fully
with the applicable provisions of Rules 424, 430A and 430B under
the Securities Act in a timely manner; and comply with the
provisions of the Securities Act with respect to the disposition of
all securities covered by such Registration Statement during the
applicable period in accordance with the intended method or methods
of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if
any, and selling Holders promptly and, if requested by such
Persons, confirm such advice in writing, (A) when the
Prospectus or any prospectus supplement or post-effective amendment
has been filed, and, with respect to any Registration Statement or
any post-effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for amendments
to the Registration Statement or amendments or supplements to the
Prospectus or for additional information relating thereto,
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of such Registration Statement under
the Securities Act or of the suspension by any state securities
commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes, or
(D) of the existence of any fact or the happening of any event
that makes any statement of a material fact made in such
Registration Statement, the Prospectus, any amendment or supplement
thereto, or any document incorporated by referenc
