EXHIBIT 4(j)
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is entered into this 9th day
of February 1994, between METLIFE SECURITY INSURANCE COMPANY OF
LOUISIANA ("MetLife Louisiana") and TESORO PETROLEUM CORPORATION
("Tesoro").
W I T N E S S E T H:
WHEREAS, there has been consummated on the date hereof a
recapitalization of Tesoro on the terms contemplated by the proxy
statement/prospectus/consent solicitation dated January 3, 1994;
WHEREAS, as a result of such recapitalization there may be issued
in the future in exchange for the $2.20 Cumulative Convertible
Preferred Stock of Tesoro held by MetLife Louisiana a new series of
$2.20 Cumulative Preferred Stock of Tesoro ("Preferred Stock"), and
there has also been issued to MetLife Louisiana an additional
1,900,075 shares of Common Stock, par value $.16 2/3 per share, of
Tesoro ("Common Stock");
WHEREAS, MetLife Louisiana and Tesoro have entered into an
Amended and Restated Memorandum of Understanding dated December 14,
1993 (the "Memorandum of Understanding"), which contemplates the
granting by Tesoro of certain registration rights with respect to the
shares of Preferred Stock MetLife Louisiana which may be issued in the
future and the shares of Common Stock owned on the date hereof, giving
effect to the recapitalization, and shares of Common Stock
subsequently acquired by MetLife Louisiana (such shares of Preferred
Stock and Common Stock collectively referred to as the "Stock"), and
MetLife Louisiana and Tesoro further desire to establish certain
obligations and conditions with respect to such registration rights;
NOW, THEREFORE, Tesoro and MetLife Louisiana agree as follows:
1. REGISTRATION RIGHTS. MetLife Louisiana shall have the
registration rights specified below:
(a) PRIMARY REGISTRATION RIGHTS. From the date of the
issuance of the Preferred Stock to December 31, 2009, MetLife
Louisiana shall have the right, subject to the conditions hereinafter
set forth, exercisable by written request (a "Request"), to cause
Tesoro to register for offering and sale under the Securities Act of
1933, as amended, or any successor statute (the "Act"), all or part of
the Stock. A Request shall specify the amount of Stock to be included
in the registration, the proposed manner in which such Stock is to be
sold, and, if the offering is to be underwritten, the identity of an
underwriter, if any, who will conduct the sale of such Stock in
conjunction with the co-managing or co-principal underwriters chosen
by Tesoro, such co-managing or co-principal underwriters to share any
management fee on an equal basis. For the purposes of this Agreement,
an underwritten offering includes both "best efforts" and "firm
commitment" underwritten offerings.
Upon receipt of a Request, Tesoro will, as promptly as is
reasonably possible, (i) notify MetLife Louisiana of the co-managing
or co-principal underwriter which Tesoro has selected to participate
in the offering, if such offering is to be underwritten, and (ii)
prepare, file and use best efforts to cause to become effective a
registration statement on any form promulgated by the Securities and
Exchange Commission (the "Commission") and selected by Tesoro which is
then available for use by Tesoro and which adequately causes the offer
and sale of the Stock, or the portion thereof requested to be
registered, to become registered under the Act.
(b) SECONDARY REGISTRATION RIGHTS. If at any time from the
date of the issuance of the Preferred Stock to December 31, 2009, and
from time to time, Tesoro shall decide to register securities for its
own account or if Tesoro shall be requested to register securities by
any of its securityholders, other than MetLife Louisiana, who hold or
are subsequently granted primary registration rights (the
"Securityholders") and any such offering is to be underwritten, it
will notify MetLife Louisiana in writing of such proposed underwriting
and registration at least ten (10) days prior to the filing of the
registration statement covering such securities. MetLife Louisiana
shall have the right, subject to the conditions hereinafter set forth,
and if the registration is being made at the request of any of the
Securityholders, to the rights of such Securityholders, upon written
notification (the "Notification") given within five (5) days after
receipt of Tesoro's written notification referred to in the preceding
sentence, to have the Stock, or the portion thereof so designated in
its written response, included in the underwriting and, in connection
therewith, in the registration statement to be filed with respect
thereto, and Tesoro will use reasonable efforts to cause the Stock or
the portion thereof so designated, to be so included; PROVIDED,
HOWEVER, that MetLife Louisiana may only request the inclusion of
Stock in such underwriting and registration statement to the extent
that the aggregate market value of such Stock on the date of the
Notification is equal to or less than the aggregate market value of
all securities to be registered, determined on the date of the
Notification, without taking into account any Stock. Tesoro
represents and warrants that no Securityholder, other than the
Securityholders disclosed in writing to MetLife Louisiana prior to the
execution of this Agreement, has been granted the right to prevent the
inclusion of Stock in any registration of Tesoro securities initiated
by such Securityholder (other than the exclusion of Stock in
accordance with the provisions of Section 3(c) of this Agreement) and
agrees that it will not grant any such right in any agreement which it
subsequently enters into.
2. REGARDING OFFERINGS INITIATED BY METLIFE LOUISIANA. If
MetLife Louisiana elects to have the Stock or a portion thereof
registered pursuant to Section 1(a) hereof in an underwritten
offering, Tesoro and any other Securityholders shall be permitted to
include in such underwriting, and in connection therewith, in the
registration statement to be filed with respect thereto, Tesoro
securities to be sold for their account. If, however, Tesoro or any
other Securityholder requests the inclusion of Tesoro securities in
such underwriting for their own account, and the lead co-managing or
lead co-principal underwriter selected by MetLife Louisiana shall
advise MetLife Louisiana that in its good
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faith judgment the inclusion of any Tesoro securities other than the
Stock, or the portion thereof which MetLife Louisiana has requested to
be registered, would make it impracticable to conduct an underwritten
offering at the price at which the Stock could be sold without such
inclusion, Tesoro and, subject to contract rights existing on the date
hereof, the Securityholders shall not be permitted to include in such
registration such Tesoro securities; PROVIDED, HOWEVER, that if the
managing or principal underwriter selected by MetLife Louisiana shall
advise MetLife Louisiana that in its good faith judgment a portion of
Tesoro securities requested to be included by Tesoro or such other
Securityholders could be included in the underwriting without making
it impracticable to conduct the underwritten offering at the price at
which the Stock could be sold without such inclusion, Tesoro and,
subject to contract rights existing on the date hereof, the
Securityholders, shall be permitted to include such Tesoro securities
in such underwriting pro rata to the extent so designated by such
underwriter.
3. GENERAL CONDITIONS TO TESORO'S OBLIGATIONS. The obligations
of Tesoro to register or to cause the registration of the Stock, as
set forth in Section 1 hereof, shall be subject to the following
conditions:
(a) PRIMARY REGISTRATION EXEMPTIONS. Tesoro shall not be
required to file any registration statement pursuant to Section 1(a)
hereof if:
(i) it has previously filed two registration statements
pursuant to Section 1(a) which have become effective;
(ii) there has previously become effective a registration
statement pursuant to Section 1(a) hereof during the twelve
calendar months preceding the calendar month in which MetLife
Louisiana makes a Request; or
(iii) the Act or any rules and regulations promulgated
thereunder by the Commission would require Tesoro to include
audited financial statements in such registration statement as of
a date subsequent to Tesoro's most recent annual audit, unless
MetLife Louisiana shall agree to pay any and all expenses which
Tesoro may incur in conducting any additional audit.
(b) SECONDARY REGISTRATION EXEMPTIONS. Tesoro shall not be
required to register the Stock or any portion thereof pursuant to
Section 1(b) hereof if Tesoro shall prepare and file a registration
statement (i) relating solely to securities to be issued by Tesoro in
connection with the acquisition of the stock or assets of another
corporation, or the merger or consolidation of another corporation by
or with Tesoro or any of its subsidiaries; (ii) relating solely to
securities to be issued upon the exercise of warrants or conversion of
convertible securities or which relate to employee benefit or stock
purchase plans; or (iii) on Form S-4 or any other form promulgated by
the Commission which at the time of such registration cannot be used
by Tesoro for the general registration of securities to be sold for
cash.
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(c) REGARDING OFFERINGS NOT INITIATED BY METLIFE LOUISIANA.
If MetLife Louisiana elects to have the Stock or a portion thereof
included in an underwriting referred to in Section 1(b) hereof, and
the lead managing or lead principal underwriter selected by Tesoro or
a Securityholder, as the case may be, shall advise Tesoro that in its
good faith judgment the inclusion of the Stock, or the portion thereof
which MetLife Louisiana has requested to be included, would make it
impracticable to conduct an underwritten offering at the price at
which the securities proposed to be sold in such underwriting other
than the Stock could be sold without such inclusion, Tesoro shall not
be required to use reasonable efforts to include or cause to be
included in such underwriting the Stock, or the portion thereof
requested to be included by MetLife Louisiana. If, however, the lead
managing or lead principal underwriter shall advise Tesoro that in its
good faith judgment a portion of the Stock or a portion of the portion
thereof requested to be included, could be included in the
underwriting without making it impracticable to conduct the
underwritten offering at the price at which the securities proposed to
be sold in such underwriting other than the Stock could be sold
without such inclusion, Tesoro shall use reasonable efforts to include
or cause to be included in such underwriting that portion of the Stock
or that portion of the portion thereof requested to be included by
MetLife Louisiana.
If, however, several Securityholders and MetLife Louisiana shall
request that Tesoro securities be included in an underwriting referred
to in Section 1(b) hereof and the lead managing or lead principal
underwriter selected by Tesoro or a Securityholder , as the case may
be, shall advise Tesoro that in its good faith judgment the inclusion
of all such securities requested to be registered by the
Securityholders and MetLife Louisiana would make it impracticable to
conduct an underwritten offering at the price at which the securities
proposed to be sold in such underwriting other than the securities re-
quested to be included by the Securityholders and MetLife Louisiana
could be sold without such inclusion, but the inclusion of a portion
of such securities would not make it so impracticable to conduct such
underwritten offering, Tesoro shall, subject to contract rights
existing on the date hereof, use its reasonable efforts to include or
cause to be included in such underwriting a portion of the Stock, or a
portion of the portion thereof requested to be included by MetLife
Louisiana, pro rata with all other securities requested to be included
in the underwriting by the Securityholders.
(d) LACK OF INFORMATION. Tesoro shall not be required to
register or cause the registration of the Stock or any portion thereof
pursuant to Section 1 hereof if MetLife Louisiana shall not promptly
supply Tesoro with any information which Tesoro may reasonably request
in order to permit the preparation, filing and effectiveness of a
registration statement in accordance with the Act and any rules and
regulation promulgated by the Commission thereunder.
4. BLUE SKY QUALIFICATIONS. In the event that any registration
statement relating to the Stock or any portion thereof is filed
pursuant to Section 1 hereof, Tesoro will use best efforts to qualify
the Stock or the portion thereof so registered for sale under the laws
of
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such jurisdictions as MetLife Louisiana may reasonably request and
will comply to the best of its ability with such laws so as to permit
such sales. Tesoro shall not be obligated, however, to qualify as a
foreign corporation or to file any general consent to service of
process under the laws of any such jurisdiction, except solely as to
matters related to the sale of the Stock, or subject itself to
taxation as doing business in any such jurisdiction. In addition,
Tesoro shall not be required to qualify the Stock or any portion
thereof in any jurisdiction where the Stock does not meet the
requirements of such jurisdiction.
5. UNDERWRITING AGREEMENTS. If MetLife Louisiana shall cause
Tesoro to file a registration statement pursuant to Section 1(a)
hereof in connection with an underwritten offering, Tesoro agrees to
negotiate in good faith its becoming a party to an underwriting
agreement, in a form reasonably satisfactory to Tesoro not
inconsistent with the provisions of this Agreement, with the
co-managing or co-principal underwriters selected by MetLife Louisiana or
Tesoro, it being understood that such co-managing or co-principal
underwriters will share any management fee on an equal basis.
If MetLife Louisiana shall elect to register the Stock, or any
portion thereof, pursuant to Section 1(b) hereof, MetLife Louisiana
agrees to utilize the services of the lead managing or lead principal
underwriter, selected by Tesoro or the Securityholders as the case may
be, and be bound by the underwriting discount as previously arranged
by Tesoro or the Securityholders, as the case may be, and to negotiate
in good faith its becoming a party to an underwriting agreement, in a
form reasonably satisfactory to the Securityholders not inconsistent
with the provisions of this Agreement, with the lead managing or lead
principal underwriter selected by Tesoro or the Securityholders, as
the case may be. If, however, the aggregate market value of the Stock
to be included by MetLife Louisiana in such underwriting is at least
one-third of the aggregate market value of all Tesoro securities to be
offered in such underwriting (in each case such market values to be
determined as of the date MetLife Louisiana notifies Tesoro that it
has elected to have such Stock included in such registration), MetLife
Louisiana shall have the right to appoint its own co-managing or
co-principal underwriter to participate in such underwriting along with
the lead managing or lead principal underwriter selected by Tesoro or
the Securityholders, as the case may be, it being understood that such
co-managing or co-principal underwriters will share any management fee
on an equal basis; PROVIDED that such appointment does not violate any
existing rights of such Securityholders or conflict with the
underwriting agreement between Tesoro or such Securityholders, as the
case may be, and the lead managing or lead principal underwriter
selected by Tesoro or such Securityholders, as the case may be.
6. EXPENSES. Tesoro shall bear all fees and expenses (including
MetLife Louisiana's reasonable counsel fees but excluding any
underwriting discounts and commissions and brokerage commissions
applicable to the Stock being sold by MetLife Louisiana, all of which
shall be paid by MetLife Louisiana, and excluding fees and expenses
customarily paid by underwriters) relating to two registration
statements, including amendments and supplements thereto, filed
pursuant to Section 1(a) hereof,
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which shall become effective, including, without limitation, all
federal and state registration and filing fees, printing expenses, and
fees and expenses of Tesoro's counsel. In addition, Tesoro shall bear
all increased fees and expenses of MetLife Louisiana (except any
underwriting discounts and commissions and brokerage fees applicable
to the Stock being sold by MetLife Louisiana, all of which shall be
paid by MetLife Louisiana) which result from any (i) delay request by
Tesoro pursuant to Section 7 hereof or any request by Tesoro that a
registration statement not become effective or (ii) suspension of an
offering pursuant to Section 8 hereof; provided that this shall not
apply to any loss or any expense incurred as a result of a reduction
in the price per share during such period. If MetLife Louisiana elects
to have the Stock or any portion thereof registered pursuant to
Section 1(b) hereof, it shall bear a pro rata portion of all
underwriting discounts and commissions and brokerage commissions which
relate to the Stock or the portion thereof so registered and no other
expenses.
7. DELAY OF REGISTRATION REQUEST. Notwithstanding Section 1
hereof and despite a Request, Tesoro shall not be required to file any
registration statement if at the time MetLife Louisiana makes a
Request, (i) Tesoro is making an offering pursuant to an effective
registration statement or is contemplating and diligently pursuing the
filing of a registration statement relating to securities to be
offered for its own account (other than any registration statement
which relates solely to shares of common stock issuable upon the
exercise of warrants or upon conversion of convertible securities or
which relates to employee benefit or stock purchase plans); PROVIDED,
HOWEVER, no such delay occasioned under this Section 7(i) shall exceed
90 days after the effective date of Tesoro's registration statement
(or 60 days after the effective date of Tesoro's registration
statement if Tesoro's offering shall be of debt securities with no
equity feature), or (ii) Tesoro shall furnish to MetLife Louisiana a
certificate signed by the chief executive officer of Tesoro stating
that, in the good faith judgment of the Board of Directors of Tesoro,
it would be detrimental to Tesoro for a registration statement to be
filed or to become effective as requested; PROVIDED, HOWEVER, no such
delay occasioned under this Section 7(ii) shall exceed 60 days.
8. PERIOD OF REGISTRATION. Tesoro shall use reasonable efforts
to keep any registration statement which becomes effective under the
provisions of Section 1(a) hereof effective for a period not exceeding
90 days if such registration statement was filed in connection with an
underwritten offering or 45 days if such registration statement was
filed in connection with a non-underwritten offering (after which
period Tesoro may withdraw such registration statement), and from time
to time during such period shall amend the registration statement or
amend or supplement the prospectus used in connection therewith to the
extent necessary in order to correct any untrue statement of a
material fact, or any omission to state a material fact necessary to
make statements therein, in the light of the circumstances existing
when such prospectus is delivered to a purchaser not misleading, or to
otherwise comply with application law so that statements contained in
such prospectus, as so amended or supplemented will not, in the light
of the circumstances then existing, be misleading, or so that such
prospectus will comply with
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such law. If, however, Tesoro shall take any action with respect to
the acquisition of the stock or assets of any business entity which
would require Tesoro to amend any prospectus included in a
registration statement which became effective under the provisions of
Section 1 hereof by including therein financial statements which
conform to the requirements of Regulation S-X promulgated by the
Commission, and if Tesoro believes, in the exercise of its reasonable
business judgment, that it is advisable that Tesoro proceed with such
acquisition prior to the completion of MetLife Louisiana's offering or
sale of the Stock, MetLife Louisiana agrees to suspend the offering or
sale of the Stock or any portion thereof for a period not to exceed 60
days so that Tesoro may prepare, at Tesoro's cost, such financial
statements; PROVIDED that, Tesoro uses its best efforts to prepare
such financial statements as promptly as possible; and FURTHER
PROVIDED that the 90 or 45 day period referred to in the first
sentence of this Section 8 shall be extended for a period equivalent
to such delay.
Tesoro shall furnish MetLife Louisiana with a draft of Part I of
any registration statement sufficiently in advance of its filing with
the Commission to provide MetLife Louisiana with a reasonable
opportunity for review and comment, which draft shall not be
materially different in content from Part I of the registration
statement as filed. Tesoro shall consider in good faith the comments
of MetLife Louisiana on Part I of any such registration statement. In
addition, Tesoro shall furnish to MetLife Louisiana, promptly after
the filing thereof, a copy of any registration statement as filed with
the Commission and any amendments thereto, including, if requested,
copies of any exhibits and consents filed therewith and of any
exhibits incorporated therein by reference. Tesoro shall also furnish
MetLife Louisiana with as many copies of any prospectuses (and of any
preliminary, amended or supplemented prospectuses) in connection with
such registration as MetLife Louisiana may reasonably request.
9. INDEMNIFICATION. Tesoro and MetLife Louisiana agree to
indemnify each other on the terms and condition set forth below:
(a) INDEMNIFICATION BY TESORO. Tesoro will indemnify and
hold harmless MetLife Louisiana and each underwriter involved in any
underwriting pursuant to this Agreement (including any broker or
dealer through whom the Stock may be sold) and each person, if any,
who controls MetLife Louisiana or such underwriter within the meaning
of Section 15 of the Act, from and against any and all losses, claims,
damages, expenses or liabilities, joint or several, to which they or
any of them may be subject under the Act or under any other statute or
at common law or otherwise, including the Blue Sky Laws of the various
jurisdictions, and except as hereinafter provided, will reimburse
MetLife Louisiana and each of such underwriters and each such
controlling person, if any, for any legal or other expenses reasonably
incurred by them or any of them in connection with investigating or
defending any actions whether or not resulting in any liability
insofar as such losses, claims, damages, expenses, liabilities or
actions arise out of or are based upon any alleged untrue statement of
a material fact, or the alleged omission to state a material fact
required to be stated therein or necessary in order to make the
statements
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therein not misleading, contained in any registration statement,
preliminary or amended preliminary prospectus or any prospectus (or
any registration statement or prospectus as from time to time amended
or supplemented by Tesoro) which Tesoro shall file pursuant to Section
1 hereof, unless such alleged untrue statement or omission was made in
such registration statement, preliminary or amended preliminary
prospectus (or any registration statement or prospectus as from time
to time amended or supplemented by Tesoro) in reliance upon and in
conformity with information furnished in writing to Tesoro by MetLife
Louisiana or any such underwriter. Promptly after receipt by MetLife
Louisiana or any such underwriter or any person controlling MetLife
Louisiana or such underwriter of notice of the commencement of any
such action (but in no event later than ten (10) days prior to time
any notice of appearance or any response thereto is required) in
respect of which indemnity may be sought against Tesoro, MetLife
Louisiana or such underwriter or such controlling person, as the case
may be, shall notify Tesoro in writing of the commencement thereof,
and, subject to the provisions hereinafter stated, Tesoro shall assume
the defense of such action (including the employment of counsel)
insofar as such action shall relate to any alleged liability in
respect of which indemnity may be sought against Tesoro. MetLife
Louisiana or any underwriter or any such controlling person shall have
the right to employ separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses of such
counsel shall not be at the expense of Tesoro unless the employment of
such counsel has been specifically authorized by it (which
authorization shall not be unreasonably withheld). Tesoro shall not be
liable to indemnify any person, as required by this Section 9(a), for
any settlement of any such action effected without its consent, nor
shall it be liable to indemnify any person for any losses, claims,
damages, expenses or liabilities whatsoever unless it shall be
notified of the commencement of any action within the time limits and
in the manner as set forth above.
(b) INDEMNIFICATION BY METLIFE LOUISIANA. MetLife Louisiana
will indemnify and hold harmless Tesoro, each of its directors and
officers who have signed the registration statement, each underwriter
involved in any underwriting pursuant to this Agreement (including any
broker or dealer through whom the Stock may be sold) and each person,
if any, who controls Tesoro or any such underwriter within the meaning
or Section 15 of the Act, from and against any and all losses, claims,
damages, expenses or liabilities, joint or several, to which they or
any of them may become subject under the Act or under any other
statute or at common law or otherwise, including the Blue Sky Laws of
the various jurisdictions, and, except as hereinafter provided, will
reimburse Tesoro, each such underwriter and each such director,
officer or controlling person for any legal or other expenses
reasonably incurred by them or any of them in connection with
investigating or defending any actions whether or not resulting in any
liability, insofar as such losses, claims, damages, expenses,
liabilities or actions arise out of or are based upon any alleged
untrue statement of a material fact, or an alleged omission to state
therein a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, contained in any
registration statement, any preliminary or amended preliminary
prospectus or in any prospectus (or any registration statement
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or prospectus as from time to time amended or supplemented by Tesoro)
which Tesoro shall file pursuant to Section 1 hereof, but only insofar
as any such alleged statement or omission was made in reliance upon
and in conformity with information furnished in writing to Tesoro by
MetLife Louisiana or any person who controls MetLife Louisiana within
Section 15 of the Act. Promptly after receipt of notice of the
commencement of any action in respect of which indemnity may be sought
against MetLife Louisiana (but in no event later than ten (10) days
prior to the time any notice of appearance or any response thereto is
required), Tesoro, such underwriter or such officer, director or
controlling person, shall notify MetLife Louisiana in writing of the
commencement thereof, and MetLife Louisiana shall, subject to the
provisions hereinafter stated, assume the defense of such action
(including the employment of counsel) insofar as such action shall
relate to any alleged liability in respect of which indemnity may be
sought against MetLife Louisiana. Tesoro and each such director,
officer or controlling person shall have the right to employ separate
counsel in any such action and to participate in the defense thereof,
but the fees and expenses of such counsel shall not be at the expense
of MetLife Louisiana unless the employment of such counsel has been
specifically authorized by it (which authorization shall not be
unreasonably withheld). MetLife Louisiana shall not be liable to
indemnify any person, as required by this Section 9(b), for any
settlement of any such action effected without MetLife Louisiana's
consent, nor shall it be liable to indemnify any person for any
losses, claims, damages, expenses or liabilities whatsoever unless it
shall be notified of the commencement of any action within the time
limits and in the manner set forth above.
(c) CONTRIBUTION. If the indemnification provided for in
this Section is unavailable to or insufficient to hold harmless an
indemnified party under subsection (a) or (b) above in respect of any
losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of
such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative
fault of Tesoro on the one hand and MetLife Louisiana on the other in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact
relates to information supplied by Tesoro on the one hand or MetLife
Louisiana on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission. Tesoro and MetLife Louisiana agree that it
would not be just and equitable if contributions pursuant to this
Subsection (c) were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this Subsection (c). The amount
paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof)
referred to above in this Subsection (c) shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. No person guilty of fraudulent
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misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
10. TERMINATION, AMENDMENTS, ASSIGNMENTS, NOTICES AND LISTING.
(a) TERMINATION. Any other provision of this Agreement
notwithstanding, this Agreement shall terminate in the event that the
shares of Stock become freely tradeable by MetLife Louisiana pursuant
to Rule 144(k) of the rules and regulations of the Commission under
the Act.
(b) AMENDMENTS. This Agreement may be amended only by a
written instrument signed by the parties hereto.
(c) ASSIGNMENT. The rights and obligations of MetLife
Louisiana under this Agreement shall be assignable to any person to
whom Stock has been transferred in accordance with the provisions of
Section 6 of the Memorandum of Understanding; PROVIDED, HOWEVER, that
each assignee shall execute and deliver to Tesoro an instrument,
reasonably satisfactory to Tesoro, by which such assignee assumes the
obligations of MetLife Louisiana under this Agreement with respect to
the Stock being transferred to such assignee. Upon such assignment,
MetLife Louisiana shall automatically be relieved of such obligations
so assumed by the assignee. If the rights and obligations of MetLife
Louisiana under this Agreement are assigned only in part, MetLife
Louisiana shall act as agent for the purposes of giving and receiving
notices with respect to the rights and obligations existing hereunder
for so long as MetLife Louisiana holds any Stock, and if MetLife
Louisiana no longer holds any Stock, such agent shall be the largest
holder of Stock as appearing on the books and records of Tesoro.
Tesoro shall be required to look only to MetLife Louisiana or such
other agent for the purpose of giving and receiving notices with
respect to such rights and obligations. Each assignee shall be liable
under Section 9(b) or any other provision of this Agreement only for
its own actions or omissions, and not for any actions or omissions by
any other assignee or MetLife Louisiana. Notwithstanding the number of
persons who shall be assignees, Tesoro shall in no case be required to
file more than the number of registration statements pursuant to
Section 1(a) thereof that is specified in Section 3(a)(i) hereof.
Subject to the foregoing, the respective rights under this Agreement
shall inure to the benefit of, and the respective obligations
hereunder shall become obligations of, the legal representatives,
successors and assignees of the parties hereto.
(d) NOTICES. Any notice to be given hereunder shall be
deemed sufficiently given when in writing and delivered to an officer
of Tesoro or MetLife Louisiana, transmitted by telecopier, or
deposited in the United States mail, postage prepaid and registered or
certified and addressed as set forth below in this Section 10(d) or to
such other address for a party as may be specified in a notice. Tested
telecopier notices shall be effective upon transmission and notices
delivered personally to an officer of MetLife
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Louisiana or Tesoro shall be effective upon receipt or upon rejection
by the party to whom addressed:
To Tesoro:
Tesoro Petroleum Corporation
8700 Tesoro Drive
San Antonio, Texas 78217
Attn: Chairman of the Board
To MetLife Louisiana:
MetLife Security Insurance Company of Louisiana
70 Eagle Rock Avenue
Eagle Rock Executive Offices
Second Floor
East Hanover, New Jersey 07936
Attn: Chairman of the Board
and
Metropolitan Life Insurance Company
200 Park Avenue
21st Floor
New York, NY 10166
Attn: Mr. Larry Galie
with a copy to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attn: Seth A. Kaplan
(e) LISTING. If, at any time, MetLife Louisiana shall
request, pursuant to Section 1(a) or 1(b) hereof, the registration of
any shares of Preferred Stock, Tesoro shall promptly prepare, file and
use reasonable efforts to cause to be approved an application for the
listing of such shares of Preferred Stock for trading on the New York
Stock Exchange, Inc.
(f) COUNTERPARTS. This Agreement may be executed
simultaneously in one or more counterparts, each of which shall be
deemed an original.
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(g) 1983 AGREEMENT. The parties hereto acknowledge that the
Registration Rights Agreement dated January 26, 1983 between Charter
Security Life Insurance Company, a New Jersey corporation, and Charter
Securities Life Insurance Company (New York), a New York corporation
(collectively, "Charter"), is still in full force and effect (it being
understood that the rights granted thereunder with respect to the
Preferred Stock are subject to the provisions of Section 6 of the
Memorandum of Understanding), MetLife Louisiana having all of the
rights of Charter thereunder, and shall survive until, and shall
expire upon, the issuance of the Preferred Stock.
11. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the substantive laws of the State of
Delaware, without giving effect to the conflicts or choice of law
provisions of Delaware or any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
METLIFE SECURITY INSURANCE COMPANY OF LOUISIANA
By: /S/ JAMES S. RUSSELL
James S. Russell, Vice-President
and Treasurer
TESORO PETROLEUM CORPORATION
By: /S/ BRUCE A. SMITH
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