Exhibit 4.17
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FORM OF REGISTRATION RIGHTS AGREEMENT
between
STATIA TERMINALS GROUP N.V.
and
STATIA TERMINALS HOLDINGS N.V.
Dated as of April [ ], 1999
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REGISTRATION RIGHTS AGREEMENT, dated as of April __, 1999, by
and among STATIA TERMINALS GROUP N.V., a Netherlands Antilles corporation (the
"Company") and STATIA TERMINALS HOLDINGS N.V., a Netherlands Antilles
corporation ("Statia Holdings").
RECITALS
WHEREAS, Statia Holdings has been formed to hold all of the
issued and outstanding Class B Common Shares (the "Subordinated Shares"), Class
C Common Shares (the "Incentive Rights") and any Class A Common Shares issued
upon conversion of the Subordinated Shares (the "Common Shares" and, together
with the Subordinated Shares and the Incentive Rights, the "Shares") of the
Company held by the shareholders of Statia Holdings upon the closing of the
offering of 7,600,000 Common Shares by the Company;
WHEREAS, Statia Holdings may, from time to time, distribute
the Shares to the holders of its capital stock and Statia Holdings and the
holders of its capital stock have entered into a Stockholders Agreement, dated
the date hereof, pursuant to which such stockholders agreed that upon such
distribution, they will automatically assume the rights and obligations of a
Stockholder under this Agreement; and
WHEREAS, the Company has agreed to provide Statia Holdings and
the holders of capital stock of Statia Holdings with certain registration rights
as set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants
herein set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
Section 1. Definitions. The following terms, as used in this
Agreement, shall have the meanings set forth below:
"Authorized Stockholder" shall mean each of the following:
(a) Statia Holdings so long as it holds any Common Shares
or Subordinated Shares;
(b) Castle Harlan Partners II, L.P., a Delaware limited
partnership ("CHP") if (i) Statia Holdings has
distributed any Common Shares or Subordinated Shares
to CHP or to any CHP Affiliate, (ii) CHP or CHP
Affiliates, either directly or through their pro rata
interest in the Shares held by Holdings, hold at
least 35% of the Shares contributed by CHP and CHP
Affiliates pursuant to the Stockholders Agreement by
and among Statia Holdings and its stockholders dated
the date hereof and (iii) CHP has not transferred its
rights hereunder to a CHP Designee;
(c) the CHP Designee; and
(d) the holders of a majority of the Shares held by
Statia Holdings on the date hereof, acting through a
Majority Representative.
"CHP Affiliate" shall mean (a) any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with CHP and (b) any officer, director, employee or agent of CHP or
affiliate of CHP.
"CHP Designee" shall mean any Person to whom CHP and/or its
affiliates transfers all or substantially all of the Shares held by CHP and its
affiliates on the date hereof and regarding which transfer CHP has notified the
Company in writing such notice to include a designation of the transferee as the
CHP Designee under this Agreement.
"Company" shall have the meaning set forth in the Preamble
hereof;
"Control" (including, with correlative meanings, the terms
"Controlling," "Controlled by" and "under common Control with"), as used with
respect to any Person, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by agreement or
otherwise;
"Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as amended;
"Final Prospectus" shall have the meaning set forth in Section
2.4(f)(i);
"Majority Representative" shall mean that Person appointed by
the holders of a majority of the Shares held by Statia Holdings on the date
hereof to exercise exclusively all rights of such holders under this Agreement
and with whom the Company shall be entitled to deal exclusively, and rely on any
act taken or any notice given by in respect of all such rights, including,
without limitation, the giving of all notices under this Agreement.
"Person" shall mean and include any individual, partnership,
joint venture, corporation, association, company, limited liability company,
joint-stock company, trust, unincorporated organization, government entity,
department or agency thereof, or any other entity;
"Recitals" shall mean the recitals of this Agreement;
"Registration Expenses" shall have the meaning set forth in
Section 2.4(e);
"SEC" shall mean United States Securities and Exchange
Commission;
"Securities Act" shall mean the United States Securities Act
of 1933, as amended;
"Shares" shall have the meaning set forth in the Recitals;
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"Stockholders" shall mean (a) Statia Holdings and (b) CHP and
any other person who shall, after the date hereof, acquire Shares from Statia
Holdings;
"Subordinated Shares" shall have the meaning set forth in the
Recitals.
Section 2. Registration Rights.
2.1 Registration Upon Request. If the Company shall be
requested in writing by an Authorized Shareholder (the "Initiating
Shareholder"), on one or more occasions, to effect the registration under the
Securities Act of all, or any part, of the Shares held by the Initiating
Shareholder (which request shall specify the aggregate number of Shares intended
to be offered and sold by the Initiating Stockholder, shall describe the nature
or method of the proposed offer and sale thereof and shall contain an
undertaking by the Initiating Stockholder to cooperate with the Company in order
to permit the Company to comply with all applicable requirements of the
Securities Act and the rules and regulations thereunder and to obtain
acceleration of the effective date of the registration statement), the Company
shall (a) promptly notify each other Shareholder, if applicable, of such
proposed registration, and (b) use its reasonable efforts to effect, as
expeditiously as possible, the registration on an appropriate form under the
Securities Act of the Shares which the Company has been requested to register by
the Initiating Shareholder and each other Stockholder who requested registration
by notice to the Company within fifteen (15) days of delivery of the Company's
notice (collectively, the "Selling Stockholders") subject to the limitations set
forth in Section 2.3(a).
2.2 Piggyback Registration.
(a) If the Company at any time proposes to register any of its
common shares or subordinated shares under the Securities Act (other than a
registration effected solely to implement an employee benefit plan, or a merger,
acquisition or exchange offer to which Rule 145 promulgated under the Securities
Act is applicable), whether or not for sale for its own account, the Company
shall give prompt written notice to the Stockholders of each such intended
registration by the Company and the Stockholders shall be entitled to request
that the Company include in any such registration any number of Shares then
owned by the Stockholders, subject to the limitations set forth in Section
2.3(a)).
(b) Upon the written request of any Stockholder made within
twenty (20) days after the giving by the Company of any such notice of intention
to register (which request shall specify the number of Shares intended to be
disposed of by the Stockholder), the Company shall use its reasonable efforts to
effect the registration under the Securities Act of all Shares which the Company
has been so requested to register by the Stockholder (subject to the
restrictions set forth in Section 2.3(a)); provided, however, that (i) if at any
time after giving written notice of its intention to register any securities and
prior to the effective date of the registration statement filed in connection
with such registration, the Company shall determine for any reason not to
register the common shares or subordinated shares it had originally proposed to
register, the Company may, at its election, give written notice of such
determination to such Stockholder and, thereupon, shall be relieved of its
obligation to register any Shares on behalf of the Stockholder in connection
with such registration (but not from its obligation to pay the Registration
Expenses
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(as hereinafter defined) in connection therewith), and (ii) if such registration
involves an underwritten offering, the Stockholder shall sell its Shares to the
underwriters selected by the Company on the same terms and conditions as apply
to the Company or, if the Company is not selling any common shares or
subordinated shares, to the other sellers of the Shares being registered.
2.3 General Provisions.
(a) If a registration pursuant to this Section 2 involves an
underwritten offering and the managing underwriter advises the Company in
writing that, in its opinion, the number of securities requested to be included
in such registration exceeds the number which can be sold in such offering,
then, (i) if the registration was initiated by the Company pursuant to Section
2.2(a) hereof, the Company shall include in such registration (A) first, the
securities the Company proposes to sell, and (B) second, the number of Shares
requested by each Stockholder to be included in such registration which, in the
opinion of such underwriters, can be sold, such amount to be allocated pro rata
among the Stockholders requesting registration in accordance with the number of
Shares owned by such Stockholder, and (ii) if the registration was initiated by
the Initiating Stockholder pursuant to Section 2.1 hereof, then the Company
shall include in such registration (A) first, the number of Shares requested by
each Stockholder (including the Initiating Stockholder) to be included in such
registration which in the opinion of such underwriters can be sold, such amount
to be allocated pro rata among the Stockholders requesting registration
(including the Initiating Stockholder) in accordance with the number of Shares
then owned or deemed owned by such Stockholder, and (B) second, the number of
common shares or subordinated shares requested by the Company to be included in
such registration.
(b) Each Stockholder shall furnish the Company such
information regarding the Stockholder and the distribution of its Shares as the
Company may from time to time reasonably request in writing in connection with
the registration statement (and the prospectus contained therein). Failure of a
prospective seller of Shares to furnish the information as described in this
Section 2.3(b) shall not affect the obligations of the Company under this
Section 2 to remaining sellers who furnish such information and agreements
unless, in the reasonable opinion of counsel to the Company or the underwriters,
such failure impairs or may impair the offering or the legality of the
registration statement or the underlying offering.
(c) The holders of Shares included in the registration will
not (until further notice) effect sales thereof after receipt of telegraphic or
written notice from the Board of Directors of the Company to suspend sales to
permit the Company to correct or update a registration statement or prospectus;
but the obligations of the Company with respect to maintaining any registration
statement current and effective shall be extended by a period of days equal to
the period such suspension is in effect unless (i) such extension would result
in the Company's inability to use the financial statements in the registration
statement initially filed pursuant to the Initiating Stockholder's request and
(ii) such correction or update did not result from the Company's acts or
failures to act.
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(d) The Company shall have the right to designate the managing
underwriter in any underwritten offering.
(e) All expenses incident to all registration and filing fees,
fees and expenses of compliance with securities or blue sky laws (including
reasonable fees and disbursements of counsel in connection with blue sky
qualifications of the Shares), rating agency fees, printing expenses, messenger
and delivery expenses, the fees and expenses incurred in connection with the
listing of the securities to be registered on securities exchanges or NASDAQ,
fees and disbursements of counsel for the Company and of one counsel per
jurisdiction to all of the Selling Stockholders (selected by the Stockholders
selling a majority of the shares sold by all of the Stockholders), fees and
expenses of the Company's independent certified public accountants, the
reasonable fees and expenses of any special experts retained by the Company in
connection with such registration and the fees and expenses of other persons
retained by the Company (all such expenses being herein called "Registration
Expenses") will be borne by the Company. Except as provided above, the Company
will not have any responsibility for any of the direct expenses of any
Stockholder incurred in connection with any registration hereunder, including,
without limitation, underwriting discounts or commissions attributable to the
sale of such Stockholder's Shares.
(f) (i) In connection with any registration of each
Stockholder's Shares pursuant to Sections 2.1 or 2.2 hereof, the Company agrees
to indemnify and hold harmless, to the fullest extent permitted by law, each
Stockholder, each agent, officer, director of such Stockholder and any person
Controlling such Stockholder, against all losses, claims, damages, liabilities
and expenses (including attorneys' fees and disbursements) caused by any untrue
or alleged untrue statement of a material fact contained in any registration
statement, prospectus or preliminary prospectus or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or any violation (or alleged
violation) by the Company of the Securities Act, the Exchange Act or state
securities laws or any rule or regulation promulgated under the Securities Act,
the Exchange Act or a state securities law, in each case applicable to the
Company, and will reimburse each such indemnitee for any legal and any other
fees and expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, provided, however,
that the Company will not be liable to any indemnitee hereunder in any such case
to the extent that any such claim, loss, damage or liability is caused by any
untrue statement or omission so made in strict conformity with written
information furnished to the Company by an instrument duly executed by such
indemnitee and stated to be specifically for use therein, and provided further
that the foregoing indemnity agreement is subject to the condition that, insofar
as it relates to any such untrue statement (or alleged untrue statement) or
omission (or alleged omission) made in the preliminary prospectus but eliminated
or remedied in the amended prospectus on file with the SEC at the time the
registration statement becomes effective or in the amended prospectus filed with
the SEC pursuant to Rule 424(b) (the "Final Prospectus"), such indemnity
agreement shall not inure to the benefit of any underwriter, or any indemnitee
if there is no underwriter, if a copy of the Final Prospectus was not furnished
to the person or entity asserting the loss, liability, claim or damage at or
prior to the time such furnishing is required by the Securities Act; provided,
further, that the indemnity agreement contained in this subsection 2.3(f)(i)
shall not apply to
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amounts paid in settlement of any such claim, loss, damage, liability or action
if such settlement is effected without the consent of the Company, which consent
shall not be unreasonably withheld.
(ii) In connection with any registration in which the
Stockholders are participating, each Stockholder agrees to indemnify and hold
harmless, to the full extent permitted by law, the Company, its directors and
officers and each person who controls the Company (within the meaning of the
Securities Act) and each other selling Stockholder, and in connection with an
underwritten offering, each underwriter and each person who controls the
underwriters (within the meaning of the Securities Act) against any losses,
claims, damages, liabilities and expenses caused by any untrue or alleged untrue
statement of a material fact contained in any registration statement, prospectus
or preliminary prospectus or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, to the extent, but only to the extent, that such untrue statement or
omission was made in reliance upon and in strict conformity with written
information (including, without limitation, written negative responses to
inquiries) furnished to the Company by an instrument duly executed by such
Stockholder and stated to be specifically for use in such prospectus, offering
circular or other document (or related registration statement, notification or
the like) or any amendment or supplement thereto; provided further that the
foregoing indemnity agreement is subject to the condition that, insofar as it
relates to any such untrue statement (or alleged untrue statement) or omission
(or alleged omission) made in the preliminary prospectus but eliminated or
remedied in the amended prospectus on file with the Commission at the time the
registration statement becomes effective or in the Final Prospectus, such
indemnity agreement shall not inure to the benefit of (A) the Company and (B)
any underwriter, if there is no underwriter, if a copy of the Final Prospectus
was not furnished to the person or entity asserting the loss, liability, claim
or damage at or prior to the time such furnishing is required by the Securities
Act; provided, further, that this indemnity shall not be deemed to relieve any
underwriter of any of its due diligence obligations; provided, further, that the
indemnity agreement contained in this subsection 2.3(f)(ii) shall not apply to
amounts paid in settlement of any such claim, loss, damage, liability or action
if such settlement is effected without the consent of the Stockholder or
underwriter, as the case may be, which consent shall not be unreasonably
withheld; and provided, further, that the obligations of such Stockholder shall
be limited to an amount equal to the net proceeds received by such Stockholder
from the sale of Shares in such offering as contemplated herein, unless such
claim, loss, damage, liability or action resulted from such Stockholder's
fraudulent misconduct.
(iii) Any person entitled to indemnification hereunder agrees
to give prompt written notice to the indemnifying party after the receipt by
such person of any written notice of the commencement of any action, suit,
proceeding or investigation or threat thereof made in writing for which such
person will claim indemnification or contribution pursuant to this Agreement
and, unless in the reasonable judgment of such indemnified party a conflict of
interest may exist between such indemnified party and the indemnifying party
with respect to such claim, permit the indemnifying party to assume the defense
of such claim with counsel reasonably satisfactory to such indemnified party. If
the indemnifying party is not entitled to, or elects not to, assume the defense
of a claim, it will not be obligated to pay the fees and expenses of more
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than one counsel with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim, in which event the indemnifying party shall be obligated to pay the fees
and expenses of such additional counsel or counsels. Notwithstanding anything to
the contrary contained in this subsection 2.3(f)(iii), the omission by any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under this subsection 2.3(f)(iii) except
to the extent that the omission results in a failure of actual notice to the
indemnifying party and such indemnifying party is damaged solely as a result of
the failure to give notice. No indemnifying party, in the defense of any such
claim or litigation, shall consent, except with the consent of each indemnified
party, to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such indemnified party of a release from all liability in respect to such
claim or litigation. The indemnifying party will not be subject to any liability
for any settlement made without its consent.
(iv) If the indemnification provided for in this Section
2.3(f) from the indemnifying party is unavailable to an indemnified party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and indemnified parties in connection with the actions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified parties shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information supplied by,
such indemnifying party or indemnified parties, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such action. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in Section 2.3(f)(iii), any legal
or other fees or expenses reasonably incurred by such party in connection with
any investigation or proceeding.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 2.3(f)(iv) were determined by
pro rata allocation or by any other method of allocation which does not take
into account the equitable considerations referred to in the immediately
preceding paragraph. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11 of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
If indemnification is available under this Section 2.3(f), the
indemnifying parties shall indemnify the indemnified party to the full extent
provided in Sections 2.3(f)(i) and 2.3(f)(ii) without regard to the relative
fault of said indemnifying party or indemnified party or any other equitable
consideration provided for in this Section 2.3(f)(iv).
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(v) The reimbursement required by this Section 2.3(f) shall be
made by periodic payments during the course of the investigation or defense, as
and when bills are received or expenses incurred.
The obligation of the Company under this Section 2.3(f) shall
survive the completion of any offering of securities in a registration statement
under this Section 2, or otherwise.
(g) For so long as the Company is subject to the reporting
requirements of either Section 13 or Section 15(d) of the Exchange Act, the
Company will timely file with the SEC such information as the SEC may require
under either of said Sections; and in such event, the Company shall use its best
efforts to take all action as may be required as a condition to the availability
of Rule 144 under the Securities Act (or any successor exemptive rule
hereinafter in effect) with respect to its common shares and subordinated
shares. The Company shall furnish to each Stockholder forthwith (i) a written
statement by the Company as to its compliance with the reporting requirements of
Rule 144, (ii) a copy of the most recent annual or quarterly report of the
Company as filed with the SEC, and (iii) such other reports and documents as the
Stockholders may reasonably request in availing itself of any rule or regulation
of the SEC allowing the Stockholders to sell any common shares and subordinated
shares without registration.
Section 3. Miscellaneous.
3.1 Expenses. Except as expressly provided otherwise in this
Agreement, the parties hereto shall pay all of their own expenses, relating to
the transactions contemplated by this Agreement, including, without limitation,
the fees and expenses of their respective counsel and financial advisers.
3.2 Applicable Law. This Agreement shall be governed by, and
construed and enforced in accordance with and subject to, the laws of the State
of New York applicable to agreements made and to be performed entirely within
such State.
3.3 Jurisdiction, Agents for Service of Process. Any judicial
proceeding brought against any of the parties to this Agreement on any dispute
arising out of this Agreement or any matter related hereto may be brought in the
courts of the State of New York, or the United States District Court for the
Southern District of New York, and, by execution and delivery of this Agreement,
each of the parties to this Agreement accepts to be bound by any judgment
rendered thereby in connection with this Agreement.
3.4 Notices. Notices and other communications provided for
herein shall be in writing in the English language, shall be delivered by hand
or overnight courier service of recognized standing or sent by telecopy or first
class mail, postage prepaid, shall be deemed given when and actually received
and shall be addressed in the case of each party as follows (telephone numbers
being included in the following information for informational purposes) or to
such other address as shall be specified by notice to each other party:
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(i) If to the Company, to
Statia Terminals Group N.V.
Tumble Down Dick Bay
Sint Eustatius
Netherlands Antilles
Attention: Jack R. Pine
(ii) If to Statia Holdings, to:
Statia Terminals Holdings N.V.
c/o Statia Terminals Group N.V.
Tumble Down Dick Bay
Sint Eustatius
Netherlands Antilles
Attention: Jack R. Pine
3.5 Entire Agreement. This Agreement, including the other
documents referred to herein which form a part hereof, contains the entire
understanding of the parties with respect to the subject matter hereof. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
3.6 Amendments and Waivers. The failure of any party to seek
redress for the violation of or to insist upon the strict performance of any
term of this Agreement shall not constitute a waiver of such term and such party
shall be entitled to enforce such term without regard to such forbearance. This
Agreement may be amended, each party hereto may take any action herein
prohibited or omit to take action herein required to be performed by it, and any
breach of or compliance with any term or provision herein may be waived only by
the written consent or written waiver of the Company and Statia Holdings. Such
consent or waiver shall be effective only in the specific instance and for the
specific purpose for which given.
3.7 Severability. If any term of this Agreement as applied to
any person or to any circumstance is prohibited, void, invalid or unenforceable
in any jurisdiction, such term shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or invalidity without in any way affecting any
other term of this Agreement or affecting the validity or enforceability of this
Agreement or of such provision in any other jurisdiction. The parties to this
Agreement shall in good faith agree on a modification of the prohibited, void,
invalid or unenforceable term which renders it valid, legal or enforceable (as
the case may be) and which as closely as possible reflects the original intent
of the parties.
3.8 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
3.9 Third Party Beneficiaries. Each party hereto intends that
this Agreement shall not benefit or create any right or cause of action in or on
behalf on any Person other than the
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parties hereto and any Person expressly entitled to indemnification or
contribution under Section 2.
3.10 Headings. The headings in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretations of the Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has caused its
name to be hereunto subscribed personally or by such party's officer thereunto
duly authorized, all as of the day and year first above written.
STATIA TERMINALS GROUP N.V.
By: __________________________________
Name:
Title:
By: __________________________________
Name:
Title:
STATIA TERMINALS HOLDINGS N.V.
By:___________________________________
Name:
Title:
By:__________________________________
Name:
Title:
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