Registration Rights Agreement
by and between
Stone Energy Corporation
Banc of America Securities LLC,
June 28, 2006
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the Agreement) is made and entered into this 28th dayof June, 2006, among Stone Energy Corporation, a Delaware corporation (the Company), and Bancof America Securities LLC (the Initial Purchaser).
This Agreement is made pursuant to the Purchase Agreement, dated June 23, 2006, among theCompany and the Initial Purchaser (the Purchase Agreement), which provides for the sale by theCompany to the Initial Purchaser of an aggregate of $225.0 million principal amount of theCompanys Senior Floating Rate Notes due 2010 (the Securities). In order to induce the InitialPurchaser to enter into the Purchase Agreement, the Company has agreed to provide to the InitialPurchaser and their direct and indirect transferees the registration rights set forth in thisAgreement. The execution of this Agreement is a condition to the closing under the PurchaseAgreement.
In consideration of the foregoing, the parties hereto agree as follows:
As used in this Agreement, the following capitalized defined terms shall have the followingmeanings:
1933 Act shall mean the Securities Act of 1933, as amended from time totime.
1934 Act shall mean the Securities Exchange Act of l934, as amended fromtime to time.
Closing Date shall mean the Closing Time as defined in the PurchaseAgreement.
Company shall have the meaning set forth in the preamble and shall alsoinclude the Companys successors.
Depositary shall mean The Depository Trust Company, or any other depositaryappointed by the Company, provided, however, that such depositary must have an address inthe Borough of Manhattan, in The City of New York.
Exchange Offer shall mean the exchange offer by the Company of ExchangeSecurities for Registrable Securities pursuant to Section 2.1 hereof.
Exchange Offer Registration shall mean a registration under the 1933 Acteffected pursuant to Section 2.1 hereof.
Exchange Offer Registration Statement shall mean an exchange offerregistration statement on Form S-4 (or, if applicable, on another appropriate form or on
any successorform used for substantially the same transactions), and all amendments and supplements tosuch registration statement, including the Prospectus contained therein, all exhibitsthereto and all documents incorporated by reference therein.
Exchange Period shall have the meaning set forth in Section 2.1(b) hereof.
Exchange Securities shall mean the Senior Floating Rate Notes due 2010,issued by the Company under the Indenture containing terms identical to the Securities inall material respects (except for references to certain interest rate provisions,restrictions on transfers and restrictive legends), to be offered to Holders of Securitiesin exchange for Registrable Securities pursuant to the Exchange Offer.
Holder shall mean the Initial Purchaser, for so long as it owns anyRegistrable Securities, and each of its successors, assigns and direct and indirecttransferees who become registered owners of Registrable Securities under the Indenture andeach Participating Broker-Dealer that holds Exchange Securities for so long as suchParticipating Broker-Dealer is required to deliver a prospectus meeting the requirements ofthe 1933 Act in connection with any resale of such Exchange Securities.
Indenture shall mean the Indenture relating to the Securities, dated as ofJune 28, 2006, between the Company and JPMorgan Chase Bank, National Association, astrustee, as the same may be amended, supplemented, waived or otherwise modified from timeto time in accordance with the terms thereof.
Initial Purchaser shall have the meaning set forth in the preamble.
Issuer Free Writing Prospectus shall have the meaning set forth in Section2.6 hereof.
Majority Holders shall mean the Holders of a majority of the aggregateprincipal amount of Outstanding (as defined in the Indenture) Registrable Securities;provided that whenever the consent or approval of Holders of a specified percentageof Registrable Securities is required hereunder, Registrable Securities held by the Companyand other obligors on the Securities or any Affiliate (as defined in the Indenture) of theCompany shall be disregarded in determining whether such consent or approval was given bythe Holders of such required percentage amount.
Participating Broker-Dealer shall mean Banc of America Securities LLC, andany other broker-dealer which makes a market in the Securities and exchanges RegistrableSecurities in the Exchange Offer for Exchange Securities.
Person shall mean an individual, partnership (general or limited),corporation, limited liability company, trust or unincorporated organization, or agovernment or agency or political subdivision thereof.
Private Exchange shall have the meaning set forth in Section 2.1 hereof.
Private Exchange Securities shall have the meaning set forth in Section 2.1hereof.
Prospectus shall mean the prospectus included in a Registration Statement,including any preliminary prospectus, and any such prospectus as amended or supplemented byany prospectus supplement, including any such prospectus supplement with respect to theterms of the offering of any portion of the Registrable Securities covered by a ShelfRegistration Statement, and all other amendments and supplements to a prospectus, includingpost-effective amendments, and in each case including all material incorporated byreference therein.
Purchase Agreement shall have the meaning set forth in the preamble.
Registrable Securities shall mean the Securities and, if issued, the PrivateExchange Securities; provided, however, that the Securities and, if issued, the PrivateExchange Securities, shall cease to be Registrable Securities when (i) a RegistrationStatement with respect to such Securities shall have been declared effective under the 1933Act and such Securities shall have been disposed of pursuant to such RegistrationStatement, (ii) such Securities have been sold to the public pursuant to Rule l44 (or anysimilar provision then in force, but not Rule 144A) under the 1933 Act, (iii) suchSecurities shall have ceased to be outstanding or (iv) the Exchange Offer is consummated(except in the case of Securities purchased from the Company which may not be exchanged inthe Exchange Offer).
Registration Expenses shall mean any and all expenses incident toperformance of or compliance by the Company with this Agreement, including withoutlimitation: (i) all SEC, stock exchange or National Association of Securities Dealers,Inc. (the NASD) registration and filing fees, including, if applicable, the fees andexpenses of any qualified independent underwriter (and its counsel) that is required tobe retained by any Holder of Registrable Securities in accordance with the rules andregulations of the NASD, (ii) all fees and expenses incurred in connection with compliancewith state securities or blue sky laws and compliance with the rules of the NASD (includingreasonable fees and disbursements of one counsel for any underwriters or Holders inconnection with blue sky qualification of any of the Exchange Securities or RegistrableSecurities and any filings with the NASD), (iii) all expenses of any Persons in preparingor assisting in preparing, word processing, printing and distributing any RegistrationStatement, any Prospectus, any amendments or supplements thereto, any underwritingagreements, securities sales agreements and other related documents, (iv) all fees andexpenses incurred in connection with the listing, if any, of any of the RegistrableSecurities on any securities exchange or exchanges, (v) all rating agency fees, (vi) thefees and disbursements of counsel for the Company and of the independent public accountantsof the Company, including the expenses of any special audits or cold comfort letters required by or incident to suchperformance and compliance, (vii) the
fees and expenses of the Trustee, and any escrowagent or custodian, (viii) in the case of a Shelf Registration, the reasonable fees anddisbursements of special counsel representing the Holders of Registrable Securities and(ix) any fees and disbursements of the underwriters customarily required to be paid byissuers or sellers of securities and the fees and expenses of any special experts retainedby the Company in connection with any Registration Statement, but excluding underwritingdiscounts and commissions and transfer taxes, if any, relating to the sale or dispositionof Registrable Securities by a Holder.
Registration Statement shall mean any registration statement of the Companywhich covers any of the Exchange Securities or Registrable Securities pursuant to theprovisions of this Agreement, and all amendments and supplements to any such RegistrationStatement, including post-effective amendments, in each case including the Prospectuscontained therein, all exhibits thereto and all material incorporated by reference therein.
SEC shall mean the Securities and Exchange Commission or any successoragency or government body performing the functions currently performed by the United StatesSecurities and Exchange Commission.
Shelf Registration shall mean a registration effected pursuant to Section2.2 hereof.
Shelf Registration Statement shall mean a shelf registration statement ofthe Company pursuant to the provisions of Section 2.2 of this Agreement which covers all ofthe Registrable Securities or all of the Private Exchange Securities on an appropriate formunder Rule 415 under the 1933 Act, or any successor or similar rule that may be adopted bythe SEC, and all amendments and supplements to such registration statement, includingpost-effective amendments, in each case including the Prospectus contained therein, allexhibits thereto and all material incorporated by reference therein.
Trustee shall mean the trustee with respect to the Securities under theIndenture.
2. Registration Under the 1933 Act.
2.1 Exchange Offer. The Company shall, for the benefit of the Holders, at theCompanys cost, (A) prepare and, as soon as practicable but not later than 360 days following theClosing Date, file with the SEC an Exchange Offer Registration Statement on an appropriate formunder the 1933 Act with respect to a proposed Exchange Offer and the issuance and delivery to theHolders, in exchange for the Registrable Securities (other than Private Exchange Securities), ofa like principal amount of Exchange Securities, (B) use commercially reasonable efforts to causethe Exchange Offer Registration Statement to be declared effective under the 1933 Act within 180days after the filing of the Registration Statement, (C) use commerciallyreasonable efforts to keep the Exchange Offer Registration Statement effective until the closingof the Exchange Offer and (D) use commercially
reasonable efforts to cause the Exchange Offer tobe completed within 210 days after the filing of the Registration Statement. The ExchangeSecurities will be issued under the Indenture. Upon the effectiveness of the Exchange OfferRegistration Statement, the Company shall commence the Exchange Offer, it being the objective ofsuch Exchange Offer to enable each Holder eligible and electing to exchange RegistrableSecurities for Exchange Securities (assuming that such Holder (a) is not an affiliate of theCompany within the meaning of Rule 405 under the 1933 Act, (b) is not a broker-dealer tenderingRegistrable Securities acquired directly from the Company for its own account, (c) has acquiredor will acquire the Exchange Securities in the ordinary course of such Holders business and (d)has no arrangements or understandings with any Person to participate in the Exchange Offer forthe purpose of distributing the Exchange Securities) to transfer such Exchange Securities fromand after their receipt without any limitations or restrictions under the 1933 Act and understate securities or blue sky laws.
In connection with the Exchange Offer, the Company shall:
(a) mail as promptly as practicable to each Holder a copy of the Prospectus forming part ofthe Exchange Offer Registration Statement, together with an appropriate letter of transmittal andrelated documents;
(b) keep the Exchange Offer open for acceptance for a period of not less than 20 businessdays after the date notice thereof is mailed to the Holders (or longer if required by applicablelaw) (such period referred to herein as the Exchange Period);
(c) utilize the services of the Depositary for the Exchange Offer;
(d) permit Holders to withdraw tendered Registrable Securities at any time prior to 5:00p.m. (Eastern Time), on the last business day of the Exchange Period, pursuant to theinstructions in the letter of transmittal;
(e) notify each Holder that any Registrable Security not tendered will remain outstandingand continue to accrue interest, but will not retain any rights under this Agreement (except inthe case of the Initial Purchaser and Participating Broker-Dealers as provided herein); and
(f) otherwise comply in all respects with all applicable laws relating to the ExchangeOffer.
If, prior to consummation of the Exchange Offer, the Initial Purchaser holds any Securitiesacquired by it and having the status of an unsold allotment in the initial distribution, theCompany upon the written request of the Initial Purchaser shall, simultaneously with the deliveryof the Exchange Securities in the Exchange Offer, issue and deliver to the Initial Purchaser inexchange (the Private Exchange) for the Securities held by the Initial Purchaser, alike principal amount of debt securities of the Company on a senior subordinated basis, that
areidentical (except that such securities shall bear appropriate transfer restrictions) to theExchange Securities (the Private Exchange Securities).
The Exchange Securities and the Private Exchange Securities shall be issued under (i) theIndenture or (ii) an indenture identical in all material respects to the Indenture and which, ineither case, has been qualified under the Trust Indenture Act of 1939, as amended (the TIA), oris exempt from such qualification and shall provide that the Exchange Securities shall not besubject to the transfer restrictions set forth in the Indenture but that the Private ExchangeSecurities shall be subject to such transfer restrictions. The Indenture or such indenture shallprovide that the Exchange Securities, the Private Exchange Securities and the Securities shallvote and consent together on all matters as one class and that none of the Exchange Securities,the Private Exchange Securities or the Securities will have the right to vote or consent as aseparate class on any matter. The Private Exchange Securities shall be of the same series as andthe Company shall use all commercially reasonable efforts to have the Private Exchange Securitiesbear the same CUSIP number as the Exchange Securities.
As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, asthe case may be, the Company shall:
(i) accept for exchange all Registrable Securities duly tendered and notvalidly withdrawn pursuant to the Exchange Offer in accordance with the terms of theExchange Offer Registration Statement and the letter of transmittal which shall bean exhibit thereto;
(ii) accept for exchange all Securities properly tendered pursuant to thePrivate Exchange;
(iii) deliver to the Trustee for cancellation all Registrable Securities soaccepted for exchange; and
(iv) cause the Trustee promptly to authenticate and deliver ExchangeSecurities or Private Exchange Securities, as the case may be, to each Holder ofRegistrable Securities so accepted for exchange in a principal amount equal to theprincipal amount of the Registrable Securities of such Holder so accepted forexchange.
Interest on each Exchange Security and Private Exchange Security will accrue from the lastdate on which interest was paid on the Registrable Securities surrendered in exchange thereforor, if no interest has been paid on the Registrable Securities, from the date of originalissuance. The Exchange Offer and the Private Exchange shall not be subject to any conditions,other than (i) that the Exchange Offer or the Private Exchange, or the making of any exchange bya Holder, does not violate applicable law or any applicable interpretation of the staff of theSEC, (ii) the due tendering of Registrable Securities in accordance with theExchange Offer and the Private Exchange, (iii) that each Holder of Registrable Securitiesexchanged in the Exchange Offer shall have represented that: (A) it is not an affiliate (as
defined in Rule 405 under the 1933 Act) of the Company; (B) all Exchange Securities to bereceived by it shall be acquired in the ordinary course of its business; (C) at the time of theconsummation of the Exchange Offer it shall have no arrangement or understanding with any personto participate in the distribution (within the meaning of the 1933 Act) of the ExchangeSecurities; and (D) if such Holder is a Participating Broker-Dealer, it will receive ExchangeSecurities for its own account in exchange for Registrable Securities that were acquired as aresult of market-making activities or other trading activities and that it will deliver aprospectus in connection with any resale of such Exchange Securities; and such Holder shall havemade such other representations as may be reasonably necessary under applicable SEC rules,regulations or interpretations to render the use of Form S-4 or other appropriate form under the1933 Act available and (iv) that no action or proceeding shall have been instituted or threatenedin any court or by or before any governmental agency with respect to the Exchange Offer or thePrivate Exchange which, in the Companys judgment, would reasonably be expected to impair theability of the Company to proceed with the Exchange Offer or the Private Exchange. The Companyshall inform the Initial Purchaser of the names and addresses of the Holders to whom the ExchangeOffer is made, and the Initial Purchaser shall have the right to contact such Holders andotherwise facilitate the tender of Registrable Securities in the Exchange Offer.
2.2 Shelf Registration. (i) If, because of any changes in law, SEC rules orregulations or applicable interpretations thereof by the staff of the SEC, the Company is notpermitted to effect the Exchange Offer as contemplated by Section 2.1 hereof, (ii) if for anyother reason the Exchange Offer Registration Statement is not declared effective within 180 daysfollowing the filing of the Exchange Offer Registration Statement or the Exchange Offer is notconsummated within 210 days after the filing of the Exchange Offer Registration Statement, (iii)upon the request the Initial Purchaser with respect to Registrable Securities held by the InitialPurchaser that are not eligible to be exchanged for Exchange Securities in the Exchange Offer or(iv) if a Holder is not permitted by applicable law to participate in the Exchange Offer orelects to participate in the Exchange Offer but does not receive fully tradeable ExchangeSecurities pursuant to the Exchange Offer, then in case of each of clauses (i) through (iv) theCompany shall, at its cost:
(a) as promptly as practicable, file with the SEC, and thereafter shall usecommercially reasonable efforts to cause to be declared effective as promptly aspracticable but no later than 180 days after the filing of the Exchange OfferRegistration Statement, a Shelf Registration Statement relating to the offer andsale of the Registrable Securities by the Holders from time to time in accordancewith the methods of distribution elected by the Majority Holders participating inthe Shelf Registration and set forth in such Shelf Registration Statement.
(b) use commercially reasonable efforts to keep the Shelf RegistrationStatement continuously effective in order to permit the Prospectus forming partthereof to be usable by Holders for a period of two years from the date of theoriginal issue of the Securities, or for such shorter period that will terminatewhen all Registrable Securities covered by the Shelf Registration Statement havebeen sold pursuant to the Shelf Registration Statement or cease to be outstanding or
otherwise to be Registrable Securities (the Effectiveness Period); provided,however, that the Effectiveness Period in respect of the Shelf RegistrationStatement shall be extended to the extent required to permit dealers to comply withthe applicable prospectus delivery requirements under the 1933 Act and as otherwiseprovided herein.
(c) notwithstanding any other provisions hereof, use commercially reasonableefforts to ensure that (i) any Shelf Registration Statement and any amendmentthereto and any Prospectus forming part thereof and any supplement thereto compliesin all material respects with the 1933 Act and the rules and regulations thereunder,(ii) any Shelf Registration Statement and any amendment thereto does not, when itbecomes effective, contain an untrue statement of a material fact or omit to state amaterial fact required to be stated therein or necessary to make the statementstherein not misleading and (iii) any Prospectus forming part of any ShelfRegistration Statement, and any supplement to such Prospectus (as amended orsupplemented from time to time), does not include an untrue statement of a materialfact or omit to state a material fact necessary in order to make the statementstherein, in light of the circumstances under which they were made, not misleading.
The Company shall not permit any securities other than Registrable Securities to be includedin the Shelf Registration Statement. The Company further agrees, if necessary, to supplement oramend the Shelf Registration Statement, as required by Section 3(b) below, and to furnish to theHolders of Registrable Securities copies of any such supplement or amendment promptly after itsbeing used or filed with the SEC. Notwithstanding the foregoing, this Section 2.2 shall notapply if the Company determines, in its reasonable judgment, upon advice of counsel, that thecontinued effectiveness and usability of such Registration Statement would (i) require thedisclosure of material information, which the Company has a bona fide business reason forpreserving as confidential, or (ii) interfere with any financing, acquisition, corporatereorganization or other material transaction involving the Company or any of its Affiliates (asdefined in the rules and regulations adopted under the Exchange Act); provided, however, that thefailure to keep the Registration Statement effective and usable for offer and sales ofRegistrable Securities for such reasons shall last no longer than 30 days in any 12-month period(whereafter Additional Interest (pursuant to Section 2.5) shall accrue and be payable), so longas the Company promptly thereafter complies with the requirements of Section 3(j) hereof, ifapplicable. Any such period during which the Company fails to keep the Registration Statementeffective and usable for offers and sales of Registrable Securities is referred to as aSuspension Period. A Suspension Period shall commence on and include the date that the Companygives notice that the Registration Statement is no longer effective or the Prospectus includedtherein is no longer usable for offers and sales of Registrable Securities and shall end on theearlier to occur of (i) date when each seller of Registrable Securities covered by suchRegistrationStatement either receives the copies of the supplemented or amended Prospectus contemplated bySection 3(j) hereof or is advised in writing by the Company that use of the Prospectus may beresumed and (ii) the expiration of
the 30 days in any 12-month period during which one or moreSuspension Periods has been in effect.
2.3 Expenses. The Company shall pay all Registration Expenses in connection withthe registration pursuant to Section 2.1 or 2.2. Each Holder shall pay all underwritingdiscounts and commissions and transfer taxes, if any, relating to the sale or disposition of suchHolders Registrable Securities pursuant to the Shelf Registration Statement.
2.4. Effectiveness. An Exchange Offer Registration Statement pursuant to Section 2.1hereof or a Shelf Registration Statement pursuant to Section 2.2 hereof will not be deemed to havebecome effective unless it has been declared effective by the SEC; provided, however, that if,after it has been declared effective, the offering of Registrable Securities pursuant to anExchange Offer Registration Statement or a Shelf Registration Statement is interfered with by anystop order, injunction or other order or requirement of the SEC or any other governmental agency orcourt, such Registration Statement will be deemed not to have become effective during the period ofsuch interference, until the offering of Registrable Securities pursuant to such RegistrationStatement may legally resume.
2.5 Interest. The Indenture executed in connection with the Securities will providethat in the event that (a) the Exchange Offer Registration Statement is not filed with the SEC onor prior to the 360th calendar day following the date of original issue of theSecurities, (b) the Exchange Offer Registration Statement or a Shelf Registration Statement, ifapplicable, has not been declared effective on or prior to the 180th calendar dayfollowing the filing of the Exchange Offer Registration Statement or (c) the Exchange Offer is notcompleted on or prior to the 210th calendar day following the filing of the ExchangeOffer Registration Statement (each such event referred to in clauses (a) through (c) above, aRegistration Default), the interest rate borne by the Securities shall be increased (AdditionalInterest) by one-quarter of one percent per annum upon the occurrence of each RegistrationDefault, which rate will increase by one quarter of one percent each 90-day period that suchAdditional Interest continues to accrue under any such circumstance, provided that the maximumaggregate increase in the interest rate will in no event exceed one percent (1%) per annum. Uponthe cure of all Registration Defaults the accrual of Additional Interest will cease and theinterest rate will revert to the original rate.
If the Shelf Registration Statement is declared effective but thereafter becomes unusable bythe Holders for any reason, for more than 30 consecutive days, then the interest rate borne bythe Securities will be increased by 0.25% per annum of the principal amount of the Securities forthe first 90-day period (or portion thereof) beginning on the 31st such date that suchShelf Registration Statement ceases to be usable, which rate shall be increased by an additional0.25% per annum of the principal amount of the Securities at the beginning of each subsequent90-day period, provided that the maximum aggregate increase in the interest rate will in no eventexceed one percent (1%) per annum. Any amounts payable under this paragraph shall also be deemedAdditional Interest for purposes of this Agreement. Upon the ShelfRegistration Statement once again becoming usable, the interest rate borne by the Securities willbe reduced to the original interest rate if the Company is otherwise in
compliance with thisAgreement at such time. Additional Interest shall be computed based on the actual number of dayselapsed in each 90-day period in which the Shelf Registration Statement is unusable.
The Company shall notify the Trustee within three business days after each and every date onwhich an event occurs in respect of which Additional Interest is required to be paid (an EventDate). Additional Interest shall be paid by depositing with the Trustee, in trust, for thebenefit of the Holders of Registrable Securities, on or before the applicable semiannual interestpayment date, immediately available funds in sums sufficient to pay the Additional Interest thendue. The Additional Interest due shall be payable on each interest payment date to the recordHolder of Securities entitled to receive the interest payment to be paid on such date as setforth in the Indenture. Each obligation to pay Additional Interest shall be deemed to accruefrom and including the day following the applicable Event Date.
2.6 Issuer Free Writing Prospectuses. The Company represents that any Issuer FreeWriting Prospectus will not include any information that conflicts with the information containedin the Shelf Registration Statement or the Prospectus and, any Issuer Free Writing Prospectus,when taken together with the information in the Shelf Registration Statement and the Prospectus,will not include any untrue statement of a material fact or omit to state any material factnecessary in order to make the statements therein, in light of the circumstances under which theywere made, not misleading.
3. Registration Procedures.
In connection with the obligations of the Company with respect to Registration Statementspursuant to Sections 2.1 and 2.2 hereof, the Company shall:
(a) prepare and file with the SEC a Registration Statement, within the relevant time periodspecified in Section 2, on the appropriate form under the 1933 Act, which form (i) shall beselected by the Company, (ii) shall, in the case of a Shelf Registration, be available for thesale of the Registrable Securities by the selling Holders thereof, (iii) shall comply as to formin all material respects with the requirements of the applicable form and include or incorporateby reference all financial statements required by the SEC to be filed therewith or incorporatedby reference therein, and (iv) shall comply in all respects with the requirements of RegulationS-T under the 1933 Act, and use commercially reasonable efforts to cause such RegistrationStatement to become effective and remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective amendments to eachRegistration Statement as may be necessary under applicable law to keep such RegistrationStatement effective for the applicable period; and cause each Prospectus to be supplemented byany required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (orany similar provision then in force) under the 1933 Act and comply with the provisions of the1933 Act, the 1934 Act and the rules and regulations thereunderapplicable to them with respect to the disposition of all securities covered by each Registration
Statement during the applicable period in accordance with the intended method or methods ofdistribution by the selling Holders thereof (including sales by any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of Registrable Securities,promptly after filing, that a Shelf Registration Statement with respect to the RegistrableSecurities has been filed and advising such Holders that the distribution of RegistrableSecurities will be made in accordance with the method selected by the Majority Holdersparticipating in the Shelf Registration; (ii) furnish to each Holder of Registrable Securitiesand to each underwriter of an underwritten offering of Registrable Securities, if any, withoutcharge, as many copies of each Prospectus, including each preliminary Prospectus, and anyamendment or supplement thereto and such other documents as such Holder or underwriter mayreasonably request, including financial statements and schedules, in order to facilitate thepublic sale or other disposition of the Registrable Securities; and (iii) hereby consent to theuse of the Prospectus or any amendment or supplement thereto by each of the selling Holders ofRegistrable Securities in connection with the offering and sale of the Registrable Securitiescovered by the Prospectus or any amendment or supplement thereto;
(d) use commercially reasonable efforts to register or qualify the Registrable Securitiesunder all applicable state securities or blue sky laws of such jurisdictions as any Holder ofRegistrable Securities covered by a Registration Statement and each underwriter of anunderwritten offering of Registrable Securities shall reasonably request by the time theapplicable Registration Statement is declared effective by the SEC, and do any and all other actsand things which may be reasonably necessary or advisable to enable each such Holder andunderwriter to consummate the disposition in each such jurisdiction of such RegistrableSecurities owned by such Holder; provided, however, that the Company shall not be required to (i)qualify as a foreign corporation or as a dealer in securities in any jurisdiction where it wouldnot otherwise be required to qualify but for this Section 3(d), or (ii) take any action whichwould subject it to general service of process or taxation in any such jurisdiction where it isnot then so subject;
(e) notify promptly each Holder of Registrable Securities under a Shelf Registration or anyParticipating Broker-Dealer who has notified the Company that it is utilizing the Exchange OfferRegistration Statement as provided in paragraph (f) below and, if requested by such Holder orParticipating Broker-Dealer, confirm such advice in writing promptly (i) when a RegistrationStatement has become effective and when any post-effective amendments and supplements theretobecome effective, (ii) of any request by the SEC or any state securities authority forpost-effective amendments and supplements to a Registration Statement and Prospectus or foradditional information after the Registration Statement has become effective, (iii) of theissuance by the SEC or any state securities authority of any stop order suspending theeffectiveness of a Registration Statement or the initiation of any proceedings for that purpose,(iv) in the case of a Shelf Registration, if, between the effective date of a RegistrationStatement and the closing of any sale of Registrable Securities covered thereby, therepresentations and warranties of the Company contained in any underwriting agreement, securitiessales agreementor other similar agreement, if any, relating to the offering cease to be true and correct in allmaterial respects, (v) of the happening of any event or the
discovery of any facts during theperiod a Shelf Registration Statement is effective which makes any statement made in suchRegistration Statement or the related Prospectus untrue in any material respect or which requiresthe making of any changes in such Registration Statement or Prospectus in order to make thestatements therein not misleading, (vi) of the receipt by the Company of any notification withrespect to the suspension of the qualification of the Registrable Securities or the ExchangeSecurities, as the case may be, for sale in any jurisdiction or the initiation or threatening ofany proceeding for such purpose and (vii) of any determination by the Company that apost-effective amendment to such Registration Statement would be appropriate;
(f) in the case of the Exchange Offer Registration Statement (i) include in the ExchangeOffer Registration Statement a section entitled Plan of Distribution which shall contain asummary statement of the positions taken or policies made by the staff of the SEC with respect tothe potential underwriter status of any broker-dealer that holds Registrable Securitiesacquired for its own account as a result of market-making activities or other trading activitiesand that will be the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) ofExchange Securities to be received by such broker-dealer in the Exchange Offer, whether suchpositions or policies have been publicly disseminated by the staff of the SEC or such positionsor policies represent the prevailing views of the staff of the SEC, including a statement thatany such broker-dealer who receives Exchange Securities for Registrable Securities pursuant tothe Exchange Offer may be deemed a statutory underwriter and must deliver a prospectus meetingthe requirements of the 1933 Act in connection with any resale of such Exchange Securities, (ii)furnish to each Participating Broker-Dealer who has delivered to the Company the notice referredto in Section 3(e), without charge, as many copies of each Prospectus included in the ExchangeOffer Registration Statement, including any preliminary prospectus, and any amendment orsupplement thereto, as such Participating Broker-Dealer may reasonably request, (iii) herebyconsent to the use of the Prospectus forming part of the Exchange Offer Registration Statement orany amendment or supplement thereto, by any Person subject to the prospectus deliveryrequirements of the SEC, including all Participating Broker-Dealers, in connection with the saleor transfer of the Exchange Securities covered by the Prospectus or any amendment or supplementthereto, and (iv) include in the transmittal letter or similar documentation to be executed by anexchange offeree in order to participate in the Exchange Offer (x) the following provision:
If the exchange offeree is a broker-dealer holding Registrable Securities acquiredfor its own account as a result of market-making activities or other tradingactivities, it will deliver a prospectus meeting the requirements of the 1933 Act inconnection with any resale of Exchange Securities received in respect of suchRegistrable Securities pursuant to the Exchange Offer; and
(y) a statement to the effect that by a broker-dealer making the acknowledgment described inclause (x) and by delivering a Prospectus in connection with the exchange of RegistrableSecurities, the broker-dealer will not be deemed to admit that it is an underwriter within themeaning of the 1933 Act;
(g) make every reasonable effort to obtain the withdrawal of any order suspending theeffectiveness of a Registration Statement at the earliest possible moment;
(h) in the case of a Shelf Registration, furnish to each Holder of Registrable Securitiesand each underwriter, if any, without charge, at least one conformed copy of each RegistrationStatement and any post-effective amendment thereto, including financial statements and schedules(without documents incorporated therein by reference and all exhibits thereto, unless requested);
(i) in the case of a Shelf Registration, cooperate with the selling Holders of RegistrableSecurities to facilitate the timely preparation and delivery of certificates representingRegistrable Securities to be sold and not bearing any restrictive legends; and enable suchRegistrable Securities to be in such denominations (consistent with the provisions of theIndenture) and registered in such names as the selling Holders or the underwriters, if any, mayreasonably request at least three business days prior to the closing of any sale of RegistrableSecurities;
(j) in the case of a Shelf Registration, upon the occurrence of any event or the discoveryof any facts, each as contemplated by Sections 3(e)(v) and 3(e)(vi) hereof, as promptly aspracticable after the occurrence of such an event, use commercially reasonable efforts to preparea supplement or post-effective amendment to the Registration Statement or the related Prospectusor any document incorporated therein by reference or file any other required document so that, asthereafter delivered to the purchasers of the Registrable Securities or ParticipatingBroker-Dealers, such Prospectus will not contain at the time of such delivery any untruestatement of a material fact or omit to state a material fact necessary to make the statementstherein, in light of the circumstances under which they were made, not misleading or will remainso qualified. At such time as such public disclosure is otherwise made or the Company determinesthat such disclosure is not necessary, in each case to correct any misstatement of a materialfact or to include any omitted material fact, the Company agrees promptly to notify each Holderof such determination and to furnish each Holder such number of copies of the Prospectus asamended or supplemented, as such Holder may reasonably request;
(k) obtain a CUSIP number for all Exchange Securities, Private Exchange Securities orRegistrable Securities, as the case may be, not later than the effective date of a RegistrationStatement, and provide the Trustee with printed certificates for the Exchange Securities, PrivateExchange Securities or the Registrable Securities, as the case may be, in a form eligible fordeposit with the Depositary;
(l) (i) cause the Indenture to be qualified under the Trust Indenture Act of 1939 (theTIA) in connection with the registration of the Exchange Securities or Registrable Securities,as the case may be, (ii) cooperate with the Trustee and the Holders to effect suchchanges to the Indenture as may be required for the Indenture to be so qualified in accordancewith the terms of the TIA and (iii) execute, and use commercially reasonable efforts to cause theTrustee to execute, all documents as may be required to effect such changes, and all other
formsand documents required to be filed with the SEC to enable the Indenture to be so qualified in atimely manner;
(m) in the case of a Shelf Registration, enter into customary and appropriate agreements(including underwriting agreements) and take all other customary and appropriate actions in orderto expedite or facilitate the disposition of such Registrable Securities in such manner as theMajority Holders elect and may reasonably request (including an underwritten offering) and insuch connection whether or not an underwriting agreement is entered into and whether or not theregistration is an underwritten registration:
(i) make such representations and warranties to the Holders of suchRegistrable Securities and the underwriters, if any, in form, substance and scope asare customarily made by issuers to underwriters in similar underwritten offerings asmay be reasonably requested by them;
(ii) obtain opinions of counsel to the Company and updates thereof (whichcounsel and opinions (in form, scope and substance) shall be reasonably satisfactoryto the managing underwriters, if any, and the holders of a majority in principalamount of the Registrable Securities being sold) addressed to each selling Holderand the underwriters, if any, covering the matters customarily covered in opinionsrequested in sales of securities or underwritten offerings and such other matters asmay be reasonably requested by such Holders and underwriters;
(iii) obtain cold comfort letters and updates thereof from the Companysindependent certified public accountants (and, if necessary, any other independentcertified public accountants of any subsidiary of the Company or of any businessacquired by the Company for which financial statements are, or are required to be,included in the Registration Statement) addressed to the underwriters, if any, anduse commercially reasonable efforts to have such letter addressed to the sellingHolders of Registrable Securities (to the extent consistent with Statement onAuditing Standards No. 72 of the American Institute of Certified Public Accounts),such letters to be in customary form and covering matters of the type customarilycovered in cold comfort letters to underwriters in connection with similarunderwritten offerings;
(iv) enter into a securities sales agreement with the Holders and an agent ofthe Holders providing for, among other things, the appointment of such agent for theselling Holders for the purpose of soliciting purchases of Registrable Securities,which agreement shall be in form, substance and scope customary for similarofferings;
(v) if an underwriting agreement is entered into, cause the same to set forthindemnification provisions and procedures substantially equivalent to theindemnification provisions and procedures set forth in Section 4 hereof with
respectto the underwriters and all other parties to be indemnified pursuant to said Sectionor, at the request of any underwriters, in the form customarily provided to suchunderwriters in similar types of transactions; and
(vi) deliver such documents and certificates as may be reasonably requestedand as are customarily delivered in similar offerings to the Holders of a majorityin principal amount of the Registrable Securities being sold and the managingunderwriters, if any.
The above shall be done at (i) the effectiveness of such Registration Statement (and eachpost-effective amendment thereto) and (ii) each closing under any underwriting or similaragreement as and to the extent required thereunder;
(n) in the case of a Shelf Registration or if a Prospectus is required to be delivered byany Participating Broker-Dealer in the case of an Exchange Offer, make available for inspectionby representatives of the Holders of the Registrable Securities, any underwriters participatingin any disposition pursuant to a Shelf Registration Statement, any Participating Broker-Dealerand any counsel or accountant retained by any of the foregoing, all financial and other records,pertinent corporate documents and properties of the Company reasonably requested by any suchpersons, and cause the respective officers, directors, employees, and any other agents of theCompany to supply all information reasonably requested by any such representative, underwriter,special counsel or accountant in connection with a Registration Statement, and make suchrepresentatives of the Company available for discussion of such documents as shall be reasonablyrequested by the Initial Purchaser;
(o) in the case of a Shelf Registration, a reasonable time prior to filing any ShelfRegistration Statement, any Prospectus forming a part thereof, any amendment to such ShelfRegistration Statement or amendment or supplement to such Prospectus, provide copies of suchdocument to the Holders of Registrable Securities, to the Initial Purchaser, to counsel for theHolders and to the underwriter or underwriters of an underwritten offering of RegistrableSecurities, if any, make such changes in any such document prior to the filing thereof as theInitial Purchaser, the counsel to the Holders or the underwriter or underwriters reasonablyrequest and not file any such document in a form to which the Majority Holders, the InitialPurchaser on behalf of the Holders of Registrable Securities, counsel for the Holders ofRegistrable Securities or any underwriter shall not have previously been advised and furnished acopy of or to which the Majority Holders, the Initial Purchaser of behalf of the Holders ofRegistrable Securities, counsel to the Holders of Registrable Securities or any underwriter shallreasonably object within two business days after receipt thereof, and make the representatives ofthe Company available for discussion of such document as shall be reasonably requested by theHolders of Registrable Securities, the Initial Purchaser on behalf of such Holders, counsel forthe Holders of Registrable Securities or any underwriter and provide copies of any commentletters received from the SEC or any other request by the SEC or any state securities authorityfor amendments or supplements to a Registration Statement and Prospectus or for additionalinformation.
(p) in the case of a Shelf Registration, use commercially reasonable efforts to cause allRegistrable Securities to be listed on any securities exchange on which similar debt securitiesissued by the Company are then listed if requested by the Majority Holders, or if requested bythe underwriter or underwriters of an underwritten offering of Registrable Securities, if any;
(q) in the case of a Shelf Registration, use commercially reasonable efforts to cause theRegistrable Securities to be rated by the appropriate rating agencies, if so requested by theMajority Holders, or if requested by the underwriter or underwriters of an underwritten offeringof Registrable Securities, if any;
(r) otherwise comply with all applicable rules and regulations of the SEC and make availableto its security holders, as soon as reasonably practicable, an earnings statement covering atleast 12 months which shall satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158thereunder; and
(s) cooperate and assist in any filings required to be made with the NASD and, in the caseof a Shelf Registration, in the performance of any due diligence investigation by any underwriterand its counsel (including any qualified independent underwriter that is required to beretained in accordance with the rules and regulations of the NASD).
If following the date hereof there has been a change in SEC policy with respect to exchangeoffers such as the Exchange Offer, such that in the opinion of counsel to the Company or theHolders there is a substantial question as to whether the Exchange Offer is permitted by applicablefederal law, the Company hereby agrees to seek a no-action letter or other favorable decision fromthe SEC allowing the Company to consummate an Exchange Offer for the Notes. The Company herebyagrees to pursue the issuance of such a decision to the SEC staff level and diligently pursuing aresolution (which need not be favorable) by the SEC staff.
In the case of a Shelf Registration Statement, the Company may (as a condition to suchHolders participation in the Shelf Registration) require each Holder of Registrable Securitiesto furnish to the Company such information regarding the Holder and the proposed distribution bysuch Holder of such Registrable Securities as the Company may from time to time reasonablyrequest in writing.
In the case of a Shelf Registration Statement, each Holder agrees that, upon receipt of anynotice from the Company of the happening of any event or the discovery of any facts, each of thekind described in Section 3(e)(v) hereof, such Holder will forthwith discontinue disposition ofRegistrable Securities pursuant to a Registration Statement until such Holders receipt of thecopies of the supplemented or amended Prospectus contemplated by Section 3(j) hereof, and, if sodirected by the Company, such Holder will deliver to theCompany (at its expense) all copies in such Holders possession, other than copies in permanentfiles then in such Holders possession, of the Prospectus covering such Registrable Securitiescurrent at the time of receipt of such notice.
If any of the Registrable Securities covered by any Shelf Registration Statement are to besold in an underwritten offering, the underwriter or underwriters and manager or managers thatwill manage such offering will be selected by the Majority Holders of such Registrable Securitiesincluded in such offering and shall be acceptable to the Company. No Holder of RegistrableSecurities may participate in any underwritten registration hereunder unless such Holder (a)agrees to sell such Holders Registrable Securities on the basis provided in any underwritingarrangements approved by the persons entitled hereunder to approve such arrangements and (b)completes and executes all questionnaires, powers of attorney, indemnities, underwritingagreements and other documents required under the terms of such underwriting arrangements.
4. Indemnification; Contribution.
(a) The Company agrees to indemnify and hold harmless the Initial Purchaser, each Holder, eachParticipating Broker-Dealer, each Person who participates as an underwriter (any such Person beingan Underwriter) and each Person, if any, who controls any Holder or Underwriter within themeaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, asincurred, arising out of any untrue statement or alleged untrue statement of a materialfact contained in any Registration Statement (or any amendment or supplement thereto)pursuant to which Exchange Securities or Registrable Securities were registered under the1933 Act, including all documents incorporated therein by reference, or the omission oralleged omission therefrom of a material fact required to be stated therein or necessary tomake the statements therein not misleading, or arising out of any untrue statement oralleged untrue statement of a material fact contained in any Prospectus (or any amendmentor supplement thereto) or any Issuer Free Writing Prospectus (or any amendment orsupplement thereto), the omission or alleged omission therefrom of a materialfact necessary in order to make the statements therein, in the light of the circumstancesunder which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, asincurred, to the extent of the aggregate amount paid in settlement of any litigation, orany investigation or proceeding by any governmental agency or body, commenced orthreatened, or of any claim whatsoever based upon any such untrue statement or omission, orany such alleged untrue statement or omission; provided that (subject to Section 4(d)below) any such settlement is effected with the written consent of the Company;
(iii) against any and all expense whatsoever, as incurred (including the fees anddisbursements of counsel chosen by any indemnified party), reasonably incurred ininvestigating, preparing or defending against any litigation, or any investigation orproceeding by any governmental agency or body, commenced or threatened, or any claimwhatsoever based upon any such untrue statement or omission, or any such alleged
untruestatement or omission, to the extent that any such expense is not paid under subparagraph(i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss, liability, claim,damage or expense to the extent arising out of any untrue statement or omission or alleged untruestatement or omission made in reliance upon and in conformity with written information furnishedto the Company by the Holder or Underwriter expressly for use in a Registration Statement (or anyamendment or supplement thereto) or any Prospectus (or any amendment or supplement thereto);provided further, that the Company shall not be liable under the indemnity agreement in thissubsection (a) with respect to any Registration Statement or Prospectus to the extent that anysuch loss, claim, damage, liability or expense results from the fact that such Underwriter soldSecurities to a person as to whom there was not sent or given, at or prior to the writtenconfirmation of such sale, a copy of the effective Registration Statement or final Prospectus, asthen amended or supplemented, if the Company has previously furnished copies thereof insufficient quantity to such Underwriter and sufficiently in advance of such confirmation of saleto allow for distribution by such time and the loss, claim, damage, liability or expense resultsfrom an untrue statement or omission of a material fact contained in or omitted from theRegistration Statement or Prospectus which was corrected in the effective Registration Statementor final Prospectus, as then amended or supplemented, and such correction would have cured thedefect giving rise to such loss, claim, damage, liability or expense.
(b) Each Holder severally, but not jointly, agrees to indemnify and hold harmless theCompany, the Initial Purchaser, each Underwriter and the other selling Holders, and each of theirrespective directors and officers, and each Person, if any, who controls the Company, the InitialPurchaser, any Underwriter or any other selling Holder within the meaning of Section 15 of the1933 Act or Section 20 of the 1934 Act, against any and all loss, liability, claim, damage andexpense described in the indemnity contained in Section 4(a) hereof, as incurred, but only withrespect to untrue statements or omissions, or alleged untrue statements or omissions, made in theShelf Registration Statement (or any amendment or supplement thereto) or any Prospectus includedtherein (or any amendment or supplement thereto) in reliance upon and in conformity with writteninformation with respect to such Holder furnished to the Company by such Holder expressly for usein the Shelf Registration Statement (or any amendment or supplement thereto) or such Prospectus(or any amendment or supplement thereto); provided, however, that no such Holder shall be liablefor any claims hereunder in excess of the amount of net proceeds received by such Holder from thesale of Registrable Securities pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give written notice as promptly as reasonably practicableto each indemnifying party of any action or proceeding commenced against it in respect of whichindemnity may be sought hereunder, but failure so to notify an indemnifying party shall notrelieve such indemnifying party from any liability hereunder to the extent it is not materiallyprejudiced as a result thereof and in any event shall not relieve it from any liability which itmay have otherwise than on account of this indemnity agreement. An indemnifying party shall beentitled to appoint counsel of the indemnifying partys choice at the
indemnifying partysexpense to represent the indemnified party in any action for which indemnification is sought (inwhich case the indemnifying party shall not thereafter be responsible for the fees and expensesof any separate counsel retained by the indemnified party or parties except as set forth below);provided, however, that such counsel shall be satisfactory to the indemnified party.Notwithstanding the foregoing, the indemnified party shall have the right to employ its owncounsel in any such action and the indemnifying party shall bear the reasonable fees anddisbursements of such separate counsel, which shall be reimbursed promptly after receipt of abill therefore, if: (i) the employment of such counsel shall have been specifically authorizedin writing by the indemnifying party, (ii) the indemnifying party shall have failed to assume thedefense and employ counsel to represent the indemnified party within a reasonable time but nolater than 7 days after notice of the institution of such action or (iii) the named parties toany such action (including any impleaded parties) include both such indemnified party and theindemnifying party and such indemnified party shall have been advised by such counsel that theremay be one or more legal defenses available to it which are different from or additional to thoseavailable to the indemnifying party. In no event shall the indemnifying parties be liable forfees and expenses of more than one counsel (in addition to any local counsel), which firm shallbe designated in writing by the indemnified parties, separate from their own counsel for allindemnified parties in connection with any one action or separate but similar or related actionsin the same jurisdiction arising out of the same general allegations or circumstances. Noindemnifying party shall, without the prior written consent of the indemnified parties (whichconsent shall not be unreasonably withheld or delayed), settle or compromise or consent to theentry of any judgment with respect to any litigation, or any investigation or proceeding by anygovernmental agency or body, commenced or threatened, or any claim whatsoever in respect of whichindemnification or contribution is being sought under this Section 4(e) hereof (whether or notthe indemnified parties are actual or potential parties thereto), unless such settlement,compromise or consent (i) includes an unconditional release of each indemnified party from allliability arising out of such litigation, investigation, proceeding or claim and (ii) does notinclude a statement as to or an admission of fault, culpability or a failure to act by or onbehalf of any indemnified party. Except as provided below in Section 4(d), no indemnified partyshall, without the prior written consent of the indemnifying parties (which consent shall not beunreasonably withheld or delayed), settle or compromise or consent to the entry of any judgmentwith respect to any litigation, or any investigation or proceeding by an governmental agency orbody, commenced or threatened, or any claim whatsoever in respect of which indemnification orcontribution is being sought under this Section 4 (whether or not the indemnified parties areactual or potential parties thereto).
(d) If at any time an indemnified party shall have requested an indemnifying party toreimburse the indemnified party for fees and expenses of counsel, such indemnifying party agreesthat it shall be liable for any settlement of the nature contemplated by Section 4(a)(ii)effected without its written consent if (i) such settlement is entered into more than 45 daysafter receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying partyshall have received written notice of the terms of such settlement at least 30 days prior to suchsettlement being entered into and (iii) such indemnifying party shall not have reimbursed suchindemnified party in accordance with such request for fees and expenses of counsel prior to thedate of such settlement.
(e) If the indemnification provided for in this Section 4 is for any reason unavailable to orinsufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims,damages or expenses referred to therein, then each indemnifying party shall contribute to theaggregate amount of such losses, liabilities, claims, damages and expenses incurred by suchindemnified party, as incurred, in such proportion as is appropriate to reflect the relative faultof the Company on the one hand and the Holders and the Initial Purchaser on the other hand inconnection with the statements or omissions which resulted in such losses, liabilities, claims,damages or expenses, as well as any other relevant equitable considerations.
The relative fault of the Company on the one hand and the Holders and the Initial Purchaser onthe other hand shall be determined by reference to, among other things, whether any such untrue oralleged untrue statement of a material fact or omission or alleged omission to state a materialfact relates to information supplied by the Company, the Holders or the Initial Purchaser and theparties relative intent, knowledge, access to information and opportunity to correct or preventsuch statement or omission.
The Company, the Holders and the Initial Purchaser agree that it would not be just andequitable if contribution pursuant to this Section 4 were determined by pro rata allocation or byany other method of allocation which does not take account of the equitable considerations referredto above in this Section 4. The aggregate amount of losses, liabilities, claims, damages andexpenses incurred by an indemnified party and referred to above in this Section 4 shall be deemedto include any legal or other expenses reasonably incurred by such indemnified party ininvestigating, preparing or defending against any litigation, or any investigation or proceeding byany governmental agency or body, commenced or threatened, or any claim whatsoever based upon anysuch untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 4, the Initial Purchaser shall not be requiredto contribute any amount in excess of the amount by which the total price at which the Securitiessold by it were offered exceeds the amount of any damages which the Initial Purchaser has otherwisebeen required to pay by reason of such untrue or alleged untrue statement or omission or allegedomission.
No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the1933 Act) shall be entitled to contribution from any Person who was not guilty of such fraudulentmisrepresentation.
For purposes of this Section 4, each Person, if any, who controls the Initial Purchaser orHolder within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall havethe same rights to contribution as the Initial Purchaser or Holder, and each director of theCompany, and each Person, if any, who controls the Company within the meaning of Section 15 ofthe 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as theCompany. The Initial Purchasers obligation to contribute pursuant to this Section 4 are severalin proportion to the principal amount of Securities set forth opposite their respective names inSchedule A to the Purchase Agreement and not joint.
5.1 Rule 144 and Rule 144A. For so long as the Company is subject to the reportingrequirements of Section 13 or 15 of the 1934 Act, the Company covenants that it will file thereports required to be filed by it under the 1933 Act and Section 13(a) or 15(d) of the 1934 Actand the rules and regulations adopted by the SEC thereunder. If the Company ceases to be sorequired to file such reports, the Company covenants that it will upon the request of any Holderof Registrable Securities (a) make publicly available such information as is necessary to permitsales pursuant to Rule 144 under the 1933 Act, and (b) deliver such information to a prospectivepurchaser as is necessary to permit sales pursuant to Rule 144A under the 1933 Act and it willtake such further action as any Holder of Registrable Securities may reasonably request. Uponthe reasonable request of any Holder of Registrable Securities, the Company will deliver to suchHolder a written statement as to whether it has complied with such reporting requirements.
5.2 No Inconsistent Agreements. The Company has not entered into and the Companywill not after the date of this Agreement enter into any agreement which is inconsistent with therights granted to the Holders of Registrable Securities in this Agreement or otherwise conflictswith the provisions hereof. The rights granted to the Holders hereunder do not and will not forthe term of this Agreement in any way conflict with the rights granted to the holders of theCompanys other issued and outstanding securities under any such agreements.
5.3 Amendments and Waivers. The provisions of this Agreement, including theprovisions of this sentence, may not be amended, modified or supplemented, and waivers orconsents to departures from the provisions hereof may not be given unless the Company hasobtained the written consent of Holders of at least a majority in aggregate principal amount ofthe outstanding Registrable Securities affected by such amendment, modification, supplement,waiver or departure.
5.4 Notices. All notices and other communications provided for or permittedhereunder shall be made in writing by hand delivery, registered first-class mail, telex,telecopier, or any courier guaranteeing overnight delivery (a) if to a Holder, at the mostcurrent address given by such Holder to the Company by means of a notice given in accordance withthe provisions of this Section 5.4, which address initially is the address set forth in thePurchaseAgreement with respect to the Initial Purchaser; and (b) if to the Company, initially at theCompanys address set forth in the Purchase Agreement, and thereafter at such other address ofwhich notice is given in accordance with the provisions of this Section 5.4.
All such notices and communications shall be deemed to have been duly given: at the timedelivered by hand, if personally delivered; two business days after being deposited in the mail,postage prepaid, if mailed; when answered back, if telexed; when receipt is acknowledged, iftelecopied; and on the next business day if timely delivered to an air courier guaranteeingovernight delivery.
Copies of all such notices, demands, or other communications shall be concurrently deliveredby the person giving the same to the Trustee under the Indenture, at the address specified insuch Indenture.
5.5 Successor and Assigns. This Agreement shall inure to the benefit of and bebinding upon the successors, assigns and transferees of each of the parties, including, withoutlimitation and without the need for an express assignment, subsequent Holders; providedthat nothing herein shall be deemed to permit any assignment, transfer or other disposition ofRegistrable Securities in violation of the terms of the Purchase Agreement or the Indenture. Ifany transferee of any Holder shall acquire Registrable Securities, in any manner, whether byoperation of law or otherwise, such Registrable Securities shall be held subject to all of theterms of this Agreement, and by taking and holding such Registrable Securities such person shallbe conclusively deemed to have agreed to be bound by and to perform all of the terms andprovisions of this Agreement, including the restrictions on resale set forth in this Agreementand, if applicable, the Purchase Agreement, and the Indenture, and such person shall be entitledto receive the benefits hereof.
5.6 Third Party Beneficiaries. The Initial Purchaser (even if the Initial Purchaseris not a Holder of Registrable Securities) shall be third party beneficiaries to the agreementsmade hereunder between the Company, on the one hand, and the Holders, on the other hand, andshall have the right to enforce such agreements directly to the extent they deem such enforcementnecessary or advisable to protect their rights or the rights of Holders hereunder. Each Holderof Registrable Securities shall be a third party beneficiary to the agreements made hereunderbetween the Company, on the one hand, and the Initial Purchaser, on the other hand, and shallhave the right to enforce such agreements directly to the extent it deems such enforcementnecessary or advisable to protect its rights hereunder.
5.7. Specific Enforcement. Without limiting the remedies available to the InitialPurchaser and the Holders, the Company acknowledges that any failure by the Company to complywith its obligations under Sections 2.1 and 2.2 hereof may result in material irreparable injuryto the Initial Purchaser or the Holders for which there is no adequate remedy at law, that itwould not be possible to measure damages for such injuries precisely and that, in the event ofany such failure, the Initial Purchaser or any Holder may obtain such relief as may be requiredto specifically enforce the Companys obligations under Sections 2.1 and 2.2 hereof.
5.8 Counterparts. This Agreement may be executed in any number of counterpartsand by the parties hereto in separate counterparts, each of which when so executed shall bedeemed to be an original and all of which taken together shall constitute one and the sameagreement.
5.9 Headings. The headings in this Agreement are for convenience of reference onlyand shall not limit or otherwise affect the meaning hereof.
5.10 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCEWITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWSTHEREOF TO THE EXTENT THAT APPLICATION THEREOF WOULD PROVIDE FOR THE APPLICATION OF THESUBSTANTIVE LAWS OF ANOTHER JURISDICTION.
5.11 Severability. In the event that any one or more of the provisions containedherein, or the application thereof in any circumstance, is held invalid, illegal orunenforceable, the validity, legality and enforceability of any such provision in every otherrespect and of the remaining provisions contained herein shall not be affected or impairedthereby.
5.12 Entire Agreement. This Agreement represents the entire agreement among theparties hereto with respect to the subject matter hereof and supercedes and replaces any and allprior agreements and understandings, whether oral or written, with respect thereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first writtenabove.
|STONE ENERGY CORPORATION|
||By:||/s/ J. Kent Pierret|
||Name: J. Kent Pierret|
||Title: Senior Vice President Chief Accounting Officer and Treasurer|
Agreed and accepted as
of the date first above
of the date first above
|BANC OF AMERICA SECURITIES LLC|
|/s/ Lex Maultsby|
||Name: Lex Maultsby|
||Title: Managing Director|