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EXHIBIT 10.14
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement, dated as of October 25, 1995,
is entered into between CMS Enterprises Company, a Michigan corporation (herein
called "CMS Enterprises"), and CMS NOMECO Oil & Gas Co., a Michigan corporation
(herein called "CMS NOMECO").
WHEREAS, CMS Enterprises owns all of the issued and outstanding
shares of the common stock of CMS NOMECO ("Common Stock"), which have been or
will be converted into Common Stock, no par (such Common Stock being herein
collectively called the "Securities", which term shall also have the meaning
assigned thereto in Section 8(c) hereof);
NOW, THEREFORE, in consideration of the foregoing and in order to
specify certain provisions relating to the sale by means of domestic or foreign
public offerings of Securities owned by CMS Enterprises, the parties hereto
agree as follows:
Section 1. Registration and Listing Rights.
(a) Registration. If CMS Enterprises shall, at any time and
from time to time, request CMS NOMECO in writing to register under the
Securities Act of 1933 (the "Act") any Securities held by it (whether for
purposes of a public offering, an exchange offer or otherwise), CMS NOMECO
shall use reasonable efforts to cause the prompt registration of all Securities
specified in such request, and in connection therewith shall prepare and file
on such appropriate form as CMS NOMECO, in its reasonable discretion, shall
determine, a registration statement
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under the Act to effect such registration. If CMS Enterprises shall so
request, CMS NOMECO will register such Securities for offering on a delayed or
continuous basis pursuant to Rule 415 (or any successor rule or rules to
similar effect) under the Act. Notwithstanding the foregoing, CMS NOMECO shall
be entitled to postpone for a reasonable period of time, but not in excess of
90 calendar days, the filing of any registration statement otherwise required
to be prepared and filed by it if (i) CMS NOMECO is at such time conducting or
about to conduct an underwritten public offering of Securities for sale for its
account and determines that such offering would be materially adversely
affected by the registration so required and (ii) CMS NOMECO so notifies CMS
Enterprises within five days after CMS Enterprises so requests.
(b) Other Offer and Sale. If CMS Enterprises shall, at any
time and from time to time, request CMS NOMECO in writing to take such actions
as shall be necessary or appropriate to permit any Securities held by CMS
Enterprises to be publicly or privately offered and sold in compliance with the
securities laws or other relevant laws or regulations of any foreign
jurisdiction in which a principal securities market outside the United States
is located, CMS NOMECO shall use reasonable efforts to take such actions in any
such foreign jurisdiction (including listing such Securities on any foreign
securities exchange on which such listing is requested by CMS Enterprises) and
shall otherwise cooperate in a timely manner in such offering. Any request
under this paragraph (b) may be made separately or in conjunction with any
request under paragraph (a). Notwithstanding the foregoing, CMS NOMECO shall
be entitled to postpone for a reasonable period of time, but not in excess of
90 calendar days, the taking of any actions otherwise required under this
paragraph (b) if (i) CMS NOMECO is at
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such time conducting or about to conduct an underwritten public offering of
Securities for sale for its account and determines that such offering would be
materially adversely affected by the registration so required and (ii) CMS
NOMECO so notifies CMS Enterprises within 5 days after CMS Enterprises so
requests.
(c) Written Notice. Any request by CMS Enterprises pursuant
to paragraph (a) or (b) of this Section 1, shall (i) specify the number and
class of shares of Securities which CMS Enterprises intends to offer and sell,
(ii) express the intention of CMS Enterprises to offer or cause the offering of
such Securities, (iii) describe the nature or method of the proposed offer and
sale thereof and state whether such offer is intended to be made domestically
or abroad, or both, and, if abroad, the country or countries in which such
offer is intended to be made, (iv) specify any securities exchange (including
any foreign securities exchange in any principal securities market outside the
United States) or quotation system on which CMS Enterprises requests that such
Securities be listed, (v) contain the undertaking of CMS Enterprises to provide
all such information regarding its holdings and the proposed manner of
distribution thereof as may be required in order to permit CMS NOMECO to (A)
comply with all applicable laws and regulations, foreign or domestic, and all
requirements of the Securities and Exchange Commission (the "SEC"), any other
applicable United States or foreign regulatory or self-regulatory body and any
other body having jurisdiction and any securities exchange (including any
foreign securities exchange in any principal securities market outside the
United States) on which the Securities are to be listed, and (B) use reasonable
efforts to obtain acceleration of the effective date of any registration
statement filed in connection therewith, and (vi) in the case of an
underwritten public offering made domestically or abroad, or both, specify the
managing
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underwriter or underwriters of such Securities, which shall be selected by CMS
Enterprises; provided, however, that CMS Enterprises may, upon delivery of
written notice to CMS NOMECO, at any time prior to the effectiveness of any
such registration statement or commencement of any such offering not pursuant
to a registration statement, in its sole discretion and without the consent of
CMS NOMECO, abandon the proposed offering.
(d) Condition to Exercise of Rights. The obligations of CMS
NOMECO under paragraphs (a) and (b) of this Section 1 shall be subject to the
limitation that CMS NOMECO shall not be obligated to register, take other
specified actions with respect to, or cooperate in the offering of, Securities
upon the request of CMS Enterprises, unless the number of shares specified in
such request pursuant to Section 1(c)(i) shall be greater than the lesser of
(A) one million shares or (B) one percent of the total number of shares at the
time issued and outstanding. Notwithstanding the foregoing, the failure of CMS
Enterprises to own the minimum number of Securities referred to in the
preceding sentence at any time shall not affect the ability of CMS Enterprises
to exercise its rights under this Agreement at any subsequent time when CMS
Enterprises again owns such minimum number or percent.
(e) Incidental Registration. If CMS NOMECO shall, at any time
and from time to time, propose an underwritten offering for cash of any
Securities, whether pursuant to a registration statement under the Act or
otherwise, CMS NOMECO shall give written notice as promptly as practicable of
such proposed registration or offering to CMS Enterprises and shall use
reasonable efforts to include in such offering and, if such offering is
pursuant to a registration statement under the Act, in such registration, any
of the same class of such
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Securities held by CMS Enterprises as CMS Enterprises shall request within 20
calendar days after the giving of such notice, upon the same terms (including
the method of distribution) as such offering; provided, however, that (i) CMS
NOMECO shall not be required to give such notice or include any such Securities
in any offering pursuant to a registration statement filed on Form S-8 or Form
S-4 (or such other form or forms as shall be prescribed under the Act for the
same purposes), and (ii) CMS NOMECO may at any time prior to the effectiveness
of any such registration statement or commencement of any such offering not
pursuant to a registration statement, in its sole discretion and without the
consent of CMS Enterprises, abandon the proposed offering in which CMS
Enterprises had requested to participate. Notwithstanding the foregoing, CMS
NOMECO shall not be obligated to include such Securities in such offering if
CMS NOMECO is advised in writing by its managing underwriter or underwriters
(with a copy to CMS Enterprises within ten days after CMS Enterprises delivers
its request pursuant to this paragraph (e)) that such offering would in its or
their opinion be materially adversely affected by such inclusion; provided,
however, that CMS NOMECO shall in any case be obligated to include up to, at
CMS Enterprises' discretion, such number or amount of Securities in such
offering as such managing underwriter or underwriters shall determine will not
materially adversely affect such offering.
(f) Conversion of Other Securities. Should CMS Enterprises
offer any rights, warrants or other securities issued by it or any other person
that are convertible into or exercisable or exchangeable for any Securities,
CMS NOMECO's obligations under this Section 1 shall be applicable to such
Securities to be purchased upon such conversion, exercise or exchange.
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Section 2. Covenants of CMS NOMECO. In connection with any
offering of Securities pursuant to this Agreement, CMS NOMECO shall:
(a) furnish to CMS Enterprises such number of copies of any
prospectus (including any preliminary prospectus), registration
statement, offering memorandum or other offering document (including any
exhibits thereto or documents referred to therein) as CMS Enterprises
may reasonably request and a copy of any and all transmittal letters or
other correspondence with the SEC or any other governmental agency or
self-regulatory body or other body having jurisdiction (including any
domestic or foreign securities exchange) relating to such offering of
Securities;
(b) take such reasonable action as may be necessary to qualify
such Securities for offer and sale under such securities, "blue sky" or
similar laws of such jurisdictions (including any foreign country or
political subdivision thereof) as CMS Enterprises or any underwriter
shall request;
(c) enter into an underwriting agreement (or equivalent
document in any foreign jurisdiction) containing representations,
warranties, indemnities, contribution provisions and agreements then
customarily included by an issuer in underwriting agreements (or such
equivalent documents) in the form customarily used by the managing
underwriter and reasonably acceptable to CMS NOMECO and CMS Enterprises
with respect to secondary distributions;
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(d) at the closing, furnish unlegended certificates
representing ownership of the Securities being sold in such
denominations as shall be requested by CMS Enterprises or the managing
underwriter;
(e) instruct the transfer agent and registrar to release any
stop transfer orders with respect to the equity securities being sold;
(f) promptly inform CMS Enterprises (i) in the case of any
domestic offering of Securities in respect of which a registration
statement is filed under the Act, of the date on which such registration
statement or any post-effective amendment thereto becomes effective
(and, in the case of any offering abroad of Securities, of the date when
any required filing under the securities and other laws of such foreign
jurisdiction shall have been made and when the offering may be commenced
in accordance with such laws) and (ii) of any request by the SEC, any
securities exchange, government agency, self-regulatory body or other
body having jurisdiction for any amendment of or supplement to any
registration statement or preliminary prospectus or prospectus included
therein or any offering memorandum or other offering document relating
to such offering;
(g) upon any registration statement becoming effective
pursuant to any registration under the Act pursuant to this Agreement,
file any necessary amendments or supplements to such registration
statement and otherwise use reasonable efforts to keep such registration
statement effective for such period as CMS Enterprises shall request;
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(h) take such reasonable actions as may be necessary to have
such Securities listed on any securities exchange or quotation system on
which CMS Enterprises shall request such listing pursuant to the notice
delivered by CMS Enterprises under Section 1(c) hereof;
(i) promptly notify CMS Enterprises of the happening of any
event as a result of which any registration statement or any preliminary
prospectus or prospectus included therein or any offering memorandum or
other offering document includes an untrue statement of a material fact
or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of
the circumstances then existing, and prepare and furnish to CMS
Enterprises as many copies of a supplement to or amendment of such
offering document which shall correct such untrue statement or eliminate
such omission, as CMS Enterprises shall request;
(j) appoint any transfer agent, registrar, depository,
authentication agent or other agent as may be necessary or desirable or
as may be requested by CMS Enterprises; and
(k) take such actions as may be reasonably necessary and
execute and deliver such other documents as may be necessary to give
full effect to the rights of CMS Enterprises under this Agreement.
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Section 3. Expenses.
(a) All expenses incurred in complying with Section 1(a) or
(b) hereof, including, without limitation, all registration and filing fees
(including all expenses incident to any filing with the National Association of
Securities Dealers, Inc., or listing on any domestic or foreign securities
exchange), fees and expenses of complying with securities and blue sky laws
(including those of counsel satisfactory to CMS Enterprises retained to effect
such compliance) and printing expenses (collectively "Registration Expenses")
and any stamp, duty or transfer tax, incurred in connection with such
compliance, shall be paid by CMS Enterprises. Notwithstanding the foregoing,
(i) CMS Enterprises shall pay all underwriting discounts and commissions
relating to such compliance, and (ii) CMS NOMECO shall pay (x) the fees and
disbursements of its independent public accountants (including any such fees
and expenses incurred in performing any special audits required in connection
with any such offering and incurred in connection with the preparation of pro
forma financial statements and comfort letters for any such offering), (y)
transfer agents', trustees', fiscal agents', depositaries', and registrars'
fees and the fees of any other agent appointed in connection with such
offering, and (z) all security engraving and printing expenses, and (iii) CMS
Enterprises shall pay the fees and expenses of counsel for both CMS Enterprises
and CMS NOMECO relating to such compliance.
(b) All expenses incurred in complying with Section 1(e)
hereof, including, without limitation, any Registration Expenses, shall be paid
by CMS NOMECO, except that (i) CMS Enterprises shall pay all underwriting
discounts, commissions and expenses specifically
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attributable to the inclusion in the offering under said Section 1(e) of the
Securities being sold by CMS Enterprises and (ii) each party shall pay the fees
and expenses of its counsel.
Section 4. Indemnification.
(a) CMS NOMECO Indemnity. In the case of each offering
contemplated by this Agreement, CMS NOMECO shall indemnify and hold harmless
CMS Enterprises, its officers and directors, each underwriter of Securities so
offered and each person, if any, who controls CMS Enterprises or any such
underwriter within the meaning of Section 15 of the Act, and each person
affiliated with or retained by CMS Enterprises and who may be subject to
liability under any applicable securities laws, against any and all losses,
claims, damages or liabilities to which they or any of them may become subject
under the Act or any other statute or common law of the United States of
America or any other country, or otherwise, including any amount paid in
settlement of any litigation commenced or threatened, and shall promptly
reimburse them, as and when incurred, for any reasonable legal or other
expenses incurred by them in connection with defending any actions, insofar as
any such losses, claims, damages, liabilities or actions shall arise out of or
shall be based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement (or in any preliminary or
final prospectus included therein) or in any offering memorandum or other
offering document relating to the offering and sale of such Securities, or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading or
any violation or alleged violation by CMS NOMECO of the Act, any blue sky laws,
securities laws or other applicable laws of any state or country in which
Securities are offered and relating to
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action or inaction required of CMS NOMECO in connection with such offering;
provided, however, that the indemnification agreement contained in this Section
4(a) shall not apply to such losses, claims, damages, liabilities or actions if
such losses, claims, damages, liabilities or actions shall arise out of or
shall be based upon any such untrue statement or alleged untrue statement, or
any such omission or alleged omission, made in reliance upon and in conformity
with information concerning CMS Enterprises supplied or approved by CMS
Enterprises in writing for use in connection with the preparation of the
registration statement or any preliminary prospectus or final prospectus
contained in the registration statement, any offering memorandum or other
offering document, or any amendment thereof or supplement thereto.
(b) CMS Enterprises Indemnity. In the case of each offering
made pursuant to this Agreement, CMS Enterprises shall, in the same manner and
to the same extent as set forth in paragraph (a) of this Section 4, indemnify
and hold harmless CMS NOMECO and each person, if any, who controls CMS NOMECO
within the meaning of Section 15 of the Act, and each person affiliated with or
retained by CMS NOMECO and who may be subject to liability under any applicable
securities laws, its directors and those officers of CMS NOMECO who shall have
signed any registration statement, offering memorandum or other offering
document with respect to any statement in or omission from such registration
statement, any preliminary prospectus or final prospectus contained in such
registration statement, any offering memorandum or other offering document, or
any amendment thereof or supplement thereto, if such statement or omission
shall have been made in reliance upon and in conformity with information
concerning CMS Enterprises supplied or approved by CMS Enterprises in writing
for use in connection with the preparation of such registration statement, any
preliminary
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prospectus or final prospectus contained in such registration statement, any
offering memorandum or other offering document, or any amendment thereof or
supplement thereto.
(c) Procedure for Indemnification. Each party indemnified
under paragraph (a) or (b) of this Section 4, or under Section 8(f) hereof,
shall, promptly after receipt of notice of the commencement of any action
against such indemnified party in respect of which indemnity may be sought,
notify the indemnifying party in writing of the commencement thereof. The
omission of any indemnified party so to notify an indemnifying party of any
such action shall not relieve the indemnifying party from any liability in
respect of such action which it may have to such indemnified party on account
of the indemnity agreement contained in paragraph (a) or (b) of this Section 4,
or under Section 8(f) hereof, unless the indemnifying party was materially
prejudiced by such omission, and in no event shall relieve the indemnifying
party from any other liability which it may have to such indemnified party. In
case any such action shall be brought against any indemnified party and such
indemnified party shall notify an indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and,
to the extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory in any case to CMS Enterprises. If the indemnifying party so
assumes the defense thereof, it may not agree to any settlement of any such
action as the result of which any remedy or relief shall be applied to or
against the indemnified party, without the prior written consent of the
indemnified party. If the indemnifying party does not assume the defense
thereof, it shall be bound by any settlement to which the indemnified party
agrees, irrespective of whether the indemnifying party consents thereto. If
any settlement of any claim is effected by the indemnified party prior to
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commencement of any action relating thereto, the indemnifying party shall be
bound thereby only if it has consented in writing thereto. In any action
hereunder, the indemnified party shall continue to be entitled to participate
in the defense thereof, with counsel reasonably satisfactory to CMS
Enterprises, even if the indemnifying party has assumed the defense thereof,
and the indemnifying party shall be relieved of the obligation hereunder to
reimburse the indemnified party for the legal expenses and other costs thereof.
Section 5. Transfer of Rights.
(a) Subject to paragraph (b) below, the rights of CMS
Enterprises under this Agreement with respect to any Security may be
transferred to any one or more transferees of such Security. Any transfer of
registration rights pursuant to this Section 5 shall be effective only upon
receipt by CMS NOMECO of written notice from CMS Enterprises stating the name
and address of any transferee and identifying the Securities with respect to
which the rights under this Agreement are being transferred.
(b) The rights of a transferee under paragraph (a) above shall
be the same rights granted to CMS Enterprises under this Agreement, except such
transferee shall (i) only have the right to make one request under paragraph
(a) or (b) of Section 1, which may be a simultaneous request under paragraphs
(a) and (b) , and two requests under paragraph (e) of Section 1 and (ii) in the
case of a request under paragraph (a) or (b) of Section 1, be required to pay
all expenses that, under Section 3, would be required to be paid by CMS
Enterprises and in the case
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of a request under paragraph (e) of Section 1, be required to pay all expenses
that, under Section 3(b), would be required to be paid by CMS Enterprises.
Section 6. Termination of Obligations. Section 1 of this
Agreement shall terminate and cease to be of any force and effect in respect of
CMS Enterprises at such time as CMS Enterprises, and in respect of any assignee
of CMS Enterprises under Section 9(c) at such time as such assignee, shall
cease beneficially to own any Securities; provided, however, that such
termination shall not affect the rights of any transferee under Section 5.
Section 7. Representation and Warranties. As an inducement to
enter into this Agreement, each party represents to and agrees with the other
that:
(a) it is a corporation duly organized, validly existing in
good standing under the laws of the State of Michigan and has all
requisite corporate power to own, lease and operate its material
properties, to carry on its business as presently conducted and to carry
out the transactions contemplated by this Agreement;
(b) it has duly and validly taken all corporate action
necessary to authorize the execution, delivery.and performance of this
Agreement and the consummation of the transactions contemplated hereby;
(c) this Agreement has been duly executed and delivered by it
and constitutes its legal, valid and binding obligation enforceable in
accordance with its terms (subject, as
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to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
the enforcement of creditors' rights generally from time to time in
effect, and subject to application of general principles of equity); and
(d) none of the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby or the compliance
with any of the provisions of this Agreement will (i) conflict with or
result in a breach of any provision of its corporate charter or bylaws,
(ii) breach, violate or result in a default under any of the terms of
any material agreement or other material instrument or obligation to
which it is a party or by which it or any of its properties or assets
may be bound, or (iii) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to it or any of its properties or
assets.
Section 8. Certain Agreements and Definitions.
(a) Calculation of Amounts. For purposes of this Agreement,
the amount of any Securities outstanding at any time (and the amount of any
Securities then beneficially owned by CMS Enterprises or any other person)
shall be calculated on the basis of the information contained in CMS NOMECO's
most recent report filed with the SEC. For purposes of calculating the amount
of Securities outstanding at any time (and the amount of Securities then
beneficially owned by CMS Enterprises or any other person) all outstanding
securities convertible into or exchangeable for such Securities, including
outstanding securities that in the
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future will become so convertible or exchangeable, shall be deemed to have been
fully converted at such time.
(b) "Person"; "Affiliate". As used in this Agreement, the
term "person" shall mean any individual, partnership, corporation, trust or
other entity. As used in this Agreement, the term "affiliate" shall mean, with
respect to any specified person, any other person that directly, or indirectly
through one or more intermediaries, controls, or is controlled by, or is under
common control with, such specified person.
(c) "Securities". As used in this Agreement, the term
"Securities" shall include any capital stock of CMS NOMECO now owned or
hereafter acquired by CMS Enterprises, whether acquired in any transaction with
CMS NOMECO or another person, in any recapitalization of CMS NOMECO, as a
dividend or other distribution, as a result of any "split" or "reverse split",
upon conversion or exercise of another security of CMS NOMECO or any other
person, or otherwise.
(d) No Legend. No Security held or to be transferred by CMS
Enterprises shall bear any legend, nor shall CMS NOMECO cause or permit any
transfer agent or registrar appointed by CMS NOMECO with respect to such
Security to refuse or fail to effect a transfer or registration with respect to
such Security, provided that CMS Enterprises provides to CMS NOMECO a
certificate of an officer to CMS Enterprises in connection with such transfer
or registration to the effect that such transfer or registration is not in
violation of any applicable
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securities or other laws and that the security so transferred or registered is
thereafter free of securities law transfer restrictions.
(e) Stock Books. Except as otherwise provided by law for all
holders of securities, CMS NOMECO will not close its stock books or other
registries against the transfer of any Security held by CMS Enterprises.
(f) Securities Exchange Act of 1934. After the initial public
offering of the Common Stock, CMS NOMECO shall at all times timely file such
information, documents and reports as the SEC may require or prescribe under
the Securities Exchange Act of 1934 (the "Exchange Act") and shall provide CMS
Enterprises with two copies of each thereof. CMS NOMECO shall, whenever
requested by CMS Enterprises, notify CMS Enterprises in writing whether CMS
NOMECO has, as of the date specified by CMS Enterprises, complied with the
Exchange Act reporting requirements to which it is subject for such period to
such date as shall be specified by CMS Enterprises. CMS NOMECO acknowledges
and agrees that one of the purposes of the requirements contained in this
Section 8(f) is to enable CMS Enterprises to comply with the current public
information requirements contained in Paragraph (c) of Rule 144 under the Act
(or any corresponding rule hereafter in effect) should CMS Enterprises ever
wish to dispose of any Securities without registration under the Act in
reliance upon Rule 144. In addition, CMS NOMECO shall take such other measures
and file such other information, documents and reports as shall hereafter be
required by the SEC as a condition to the availability of Rule 144. CMS NOMECO
covenants, represents and warrants that all such information, documents and
reports filed with the SEC shall not contain any untrue statement
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of a material fact or fail to state therein a material fact required to be
stated therein or necessary to make the statements contained therein not
misleading, and CMS NOMECO shall indemnify and hold CMS Enterprises, its
officers and directors and each broker, dealer, underwriter or other person
acting for CMS Enterprises (and any controlling person of any of the foregoing)
harmless from and against any and all claims, liabilities, losses, damages,
expenses and judgments and shall promptly reimburse them, as and when incurred,
for any legal or other expenses incurred by them in connection with
investigating any claims and defending any actions insofar as such claims,
liabilities, losses, damages expenses and judgments arise out of or based upon
any breach of the foregoing covenants, representations or warranties. The
procedure for indemnification set forth in Section 4(c) hereof shall apply to
the indemnification provided under this Section 8(f).
(g) Listing. Once initially listed, CMS NOMECO shall maintain
in effect any listing of Securities on any securities exchange (domestic or
foreign) or quotation system, shall make all filings and take all other actions
required under the rules of such exchange or quotation system and any
applicable listing agreement, shall provide CMS Enterprises with two copies of
each such filing at the time at which such filing is made, and shall notify CMS
Enterprises of any proceeding or other action taken by such exchange, quotation
system or any other person which might have the effect of terminating or
otherwise changing the status of such listing, forthwith upon the occurrence
thereof.
(h) Limitation on Other Securities To Be Registered. In case
of any registration, offering or sale contemplated by paragraph (a) or (b) of
Section 1, CMS NOMECO shall not
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include in such registration, offering or sale any Securities other than those
beneficially owned by CMS Enterprises, and in case of any registration,
offering or sale contemplated by paragraph (e) of Section 1, CMS NOMECO shall
not include in such registration, offering or sale any Securities other than
those being offered by CMS NOMECO and CMS Enterprises.
(i) Filings; Press Releases. As far in advance as is
practicable of (but in any event no later than two business days before) (i)
the publication of any press release containing information material to CMS
NOMECO's stockholders or (ii) the filing of any document or report with the SEC
or with any securities exchange or quotation system, CMS NOMECO shall send a
reasonably final draft of such press release, document or report to CMS
Enterprises at the address set forth in Section 9(m) hereof. CMS Enterprises
shall have the right to request amendments, modifications or supplements to any
such release, document or report and CMS NOMECO shall not unreasonably withhold
its consent thereto. The obligations of CMS NOMECO under this Section 8(i)
shall terminate and cease to be of any force and effect at such time as CMS
Enterprises shall cease to beneficially own any Securities.
(j) Counsel. In any case where legal counsel is to be
employed to represent the parties for any purpose under this Agreement, CMS
Enterprises shall have the right to select such counsel. If in the judgment of
CMS Enterprises it would be appropriate to do so, CMS Enterprises may select
the same counsel to represent both parties in connection with any matter, and
CMS NOMECO hereby consents in advance to any such joint representation;
provided, however, that if any counsel selected for such joint representation
is of the opinion at any time that, in light of the circumstances then
existing, it would not be able to discharge
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its professional responsibilities properly in undertaking or in continuing such
joint representation, then CMS NOMECO shall select separate counsel to
represent itself, which counsel shall be reasonably satisfactory to CMS
Enterprises, in the matter. Except as otherwise specifically provided in
Section 4(b) hereof, CMS NOMECO shall be solely responsible for the fees and
expenses of any separate counsel so selected, and CMS Enterprises shall have no
responsibility or liability whatsoever with respect thereto. If the parties
use the same counsel, each of the parties shall be responsible for the portion
of the fees and expenses of such counsel determined by such counsel to be
allocable to each of the parties.
Section 9. Miscellaneous.
(a) Injunctions. Irreparable damage would occur in the event
that any of the provisions of this Agreement were not performed in accordance
with their specific terms or were otherwise breached. Therefore, the parties
hereto shall be entitled to an injunction or injunctions to prevent breaches of
the provisions of this Agreement and to enforce specifically the terms and
provisions hereof in any court having jurisdiction, such remedy being in
addition to any other remedy to which they may be entitled at law or in equity.
(b) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, void, or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms,
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provisions, covenants and restrictions without including any of such which may
be hereafter declared invalid, void or enforceable. In the event that any such
term, provision, covenant or restriction is so held to be invalid, void or
unenforceable, the parties hereto shall use their best efforts to find and
employ an alternative means to achieve the same or substantially the same
result as that contemplated by such term, provision, covenant or restriction.
(c) Assignment. Except in the case of a transaction as a
result of which CMS NOMECO ceases to be an affiliate of CMS Enterprises or
except as provided otherwise in Section 5 hereof, and except by operation of
law or in connection with the sale of all or substantially all the assets of a
party hereto, this Agreement shall not be assignable, in whole or in part,
directly or indirectly, by either party hereto without the prior written
consent of the other, and any attempt to assign any rights or obligations
arising under this Agreement without such consent shall be void ab initio;
provided, however, that the provisions of this Agreement shall be binding upon,
inure to the benefit of and be enforceable by the parties hereto (including,
solely for purposes of Sections 4 and 8(g) hereof, their officers and
directors) and their respective successors and permitted assigns. This
Agreement and all of CMS Enterprises' rights and obligations hereunder shall be
deemed to be automatically assigned to any person who acquires Securities in
connection with the transaction and who CMS NOMECO and CMS Enterprises are
affiliates of both before and after the transaction.
(d) Further Assurances. Subject to the provisions hereof, the
parties hereto shall make, execute, acknowledge and deliver such other
instruments and documents, and take all such other actions as may be reasonably
required in order to effectuate the purposes of this
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Agreement and to consummate the transactions contemplated hereby. Subject to
the provisions hereof, each of the parties shall, in connection with entering
into this Agreement, performing its obligations hereunder and taking any and
all actions relating hereto, comply with all applicable laws, regulations,
orders and decrees, obtain all required consents and approvals and make all
required filings with any governmental agency, other regulatory or
administrative agency, commission or similar authority and promptly provide the
other with all such information as the other may reasonably request in order to
be able to comply with the provisions of this sentence.
(e) Parties in Interest. Except as otherwise expressly set
forth herein, nothing in this Agreement expressed or implied is intended or
shall be construed to confer any right or benefit upon any person, firm or
corporation other than the parties and their respective permitted successors
and assigns.
(f) Waivers, Etc. No failure or delay on the part of the
parties in exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. No amendment, modification or waiver of any provision of this
Agreement nor consent to any departure by the parties therefrom shall in any
event be effective unless the same shall be in writing and signed by the chief
executive officer or the chief financial officer of each party in the case of
amendments or modifications, or by the chief executive officer or the chief
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financial officer of the waiving or consenting party, and then such waiver or
consent shall be effective only in the specific instance and for the purpose
for which given.
(g) Setoff. All payments to be made by either party under
this Agreement shall be made without setoff, counterclaim or withholding, all
of which are expressly waived.
(h) Changes of Law. If, due to any change in applicable law
or regulations or the interpretation thereof by any court of law or other
governing body having jurisdiction subsequent to the date of this Agreement,
performance of any provision of this Agreement or any transaction contemplated
hereby shall become impracticable or impossible, the parties hereto shall use
reasonable efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such provision.
(i) Confidentiality. Subject to any contrary requirement of
law and the right of each party to enforce its rights hereunder in any legal
action, each party shall keep strictly confidential and shall cause its
employees and agents to keep strictly confidential, any information which it or
any of its agents or employees may acquire pursuant to, or in the course of
performing its obligations under, any provision of this Agreement; provided,
however, that such obligation to maintain confidentiality shall not apply to
information which (x) at the time of disclosure was in the public domain not as
a result of acts by the receiving party, (y) was in the possession of the
receiving party at the time of disclosure, or (z) was required to be disclosed
by law.
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(j) Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to the transactions contemplated
hereby.
(k) Headings. Descriptive headings are for convenience only
and shall not control or affect the meaning or construction of any provision of
this Agreement.
(l) Counterparts. For the convenience of the parties, any
number of counterparts of this Agreement may be executed by the parties hereto,
and each such executed counterpart shall be, and shall be deemed to be, an
original instrument.
(m) Notices. All notices, consents, requests, instructions,
approvals and other communications provided for herein shall be validly given,
made or served, if in writing and delivered personally, by telegram or sent by
registered mail, postage prepaid to:
CMS Enterprises at:
Fairlane Plaza South, Suite 1100
330 Town Center Drive
Dearborn, MI 48126
with separate copies at such address to the attention of the
Chief Financial Officer and the Corporate Secretary
CMS NOMECO at:
One Jackson Square
P. O. Box 1150
Jackson, MI 49204
with separate copies at such address to the attention of the
Chief Financial Officer and the Corporate Secretary
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or to such other address as any party may, from time to time, designate in a
written notice given in a like manner. Any notice given under this Agreement
shall be deemed delivered when received at the appropriate address.
(m) Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Michigan
applicable to contracts made and to be performed therein.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed by their respective officers, each of whom is duly authorized,
all as of the date and year first above written.
CMS Enterprises Company
By:_____________________________________
Name:___________________________________
Title:__________________________________
CMS NOMECO Oil & Gas Co.
By:_____________________________________
Name:___________________________________
Title:__________________________________
Signature Page of Registration Rights Agreement
dated as of September __, 1995.
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