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EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT dated as of March 14, 2000
(this "Agreement"), among POGO PRODUCING COMPANY, a Delaware corporation (the
"Company"), the persons listed on Schedule A hereto and any other person who
from time to time agrees to become a party to this Agreement in accordance with
the provisions hereof (each person listed on Schedule A and each such other
person who becomes a party hereto is referred to herein as a "Shareholder" and
collectively, the "Shareholders").
W I T N E S S E T H:
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as
of November 19, 2000 (the "Merger Agreement"), among the Company, NORIC
Corporation, a New York Corporation ("NORIC") and the Shareholders (as defined
in the Merger Agreement), the parties have agreed that NORIC would be acquired
by the Company through the merger of NORIC with and into the Company on the
terms set forth therein (the "Merger");
WHEREAS, pursuant to the Merger Agreement, upon consummation of
the Merger, the Shareholders will receive in exchange for their shares of common
stock of NORIC, shares of common stock, par value $1.00 per share, of the
Company ("Common Stock") which have been issued pursuant to one or more
exemptions from registration under the Securities Act of 1933, as amended (the
"Securities Act");
WHEREAS, the Shareholders and the Company desire to set forth
herein their agreement with respect to the registration rights, and certain
other related covenants, applicable to the shares of Common Stock to be issued
by the Company to the Shareholders upon consummation of the Merger; and
WHEREAS, pursuant to Section 12.02 of the Merger Agreement, the
Shareholders irrevocably appointed Goelet, LLC as the agent, proxy and
attorney-in-fact for the Shareholders to execute and deliver to the Company this
Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
obligations, covenants and agreements herein contained, the parties hereto agree
as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. Capitalized terms used herein and not
defined have the meanings assigned to such terms in the Merger Agreement. For
purposes of this Agreement, the following terms shall have the meanings set
forth below:
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"Commission" means the United States Securities and Exchange
Commission or any other similar or successor agency of the United States
government administering the Securities Act and the Exchange Act.
"Effective Time" has the meaning specified in the Merger
Agreement.
"Offering" means the registration of the Company's securities
under the Securities Act for sale to the public.
"Prospectus" means the prospectus included in any Registration
Statement, together with and including any amendment or supplement to such
prospectus, covering the Offering of any portion of the Registrable Securities
covered by a Registration Statement, and all material incorporated by reference
in such Prospectus.
"Public Offering" shall mean the offer of shares of Common Stock
or securities convertible into or exchangeable for Common Stock on a broadly
distributed basis, pursuant to a firm-commitment or best-efforts underwriting or
purchase arrangement.
"Registering Shareholder" shall mean any Shareholder that has
registered any Registrable Securities under any Registration Statement.
"Registrable Securities" means the Shares issued to the
Shareholders pursuant to the Merger and any other securities issued by the
Company to the Shareholders at any time after the closing of the Merger in
respect of the Shares (and in respect of the Common Stock generally) by means of
exchange, reclassification, dividend, distribution, split up, combination,
subdivision, recapitalization, merger, spin-off, reorganization or otherwise;
provided, however, that as to any Registrable Securities, such securities shall
cease to constitute the same for purposes of this Agreement if and when (i) a
registration statement with respect to the sale of such securities shall have
been declared effective by the Commission and such securities shall have been
sold pursuant thereto in accordance with the intended plan and method of
distribution therefor set forth in the Prospectus forming part of such
registration statement; (ii) such securities shall have been sold in compliance
with Rule 144 under the Securities Act; (iii) such securities may be resold
pursuant to Rule 144(k) under the Securities Act (or any successor provision) or
all of such Shareholder's Registrable Securities may be resold in a single
ninety (90) day period under Rule 144(e)(1)(i) of the Securities Act and do not
require qualification under any state securities or "blue sky" law then in
effect, or the use of an applicable exemption therefrom and, in each case, the
Company has notified the transfer agent for the Common Stock that any
restrictive legend on such Shares may be removed in connection with a transfer
thereof; or (iv) such securities cease to be issued and outstanding for any
reason.
"Registration Statement" means any registration statement filed
by the Company with the Commission covering Registrable Securities, including
the Prospectus, amendments and supplements to such Registration Statement,
including
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post-effective amendments, all exhibits, and all material incorporated by
reference or deemed to be incorporated by reference in such Registration
Statement.
"Shares" means the shares of Common Stock issued by the Company
to the Shareholders upon consummation of the Merger, any shares of stock or
other securities into which or for which such shares of Common Stock may be
changed, converted or exchanged after the Effective Time, and any other shares
or securities issued to the Shareholders after the Effective Time in respect of
such shares of Common Stock (or such shares of stock or other securities into
which or for which such shares are so changed, converted or exchanged) upon any
reclassification, stock combination, stock subdivision, stock dividend, share
exchange, merger, consolidation or similar transaction. The number of shares of
Common Stock issued by the Company to each Shareholder upon consummation of the
Merger is set forth on Schedule A annexed hereto.
"Shareholder Representative" has the meaning set forth in
Section 6.2 hereof.
ARTICLE II
REGISTRATION RIGHTS
2.1 Registration; Public Offering. (a) The Company shall
prepare and file, not later than 150 days after the Effective Time, a "shelf"
Registration Statement on Form S-3 (or other appropriate form) for an offering
to be made on a continuous basis pursuant to Rule 415 promulgated under the
Securities Act of such number of Registrable Securities then owned by the
Shareholders. The Company shall use its reasonable best efforts to cause the
Registration Statement to be declared effective no later than on the 181st
calendar day following the Effective Time. The Company will use its reasonable
best efforts to keep the Registration Statement continuously effective and
usable for the resale of the Registrable Securities under the Securities Act
until the earlier of (i) two (2) years from the Effective Time, (ii) the first
date upon which all the Registrable Securities covered by such shelf
Registration Statement have been sold pursuant to such shelf Registration
Statement or (iii) the first date upon which all the Registrable Securities
cease to be outstanding for any reason.
(b) If during the period from the 181st day following the
Effective Time through the second anniversary of the Effective Time, the
Shareholder Representative, upon the request of the Shareholders holding at
least 50% of the Registrable Securities, shall request the Company in writing (a
"Demand") to permit the use of the shelf Registration Statement for a Public
Offering of a specified number of Registrable Securities, the Company shall,
subject to the provisions of Section 3.1(b), use its reasonable best efforts to
take such action as may be necessary to enable the requesting shareholders to
effect a Public Offering of the Registrable Securities requested to be included
in the Public Offering; provided that the number of Registrable Securities
requested to be distributed pursuant to such Demand shall not be less than
4,000,000 and shall not exceed 7,000,000 and provided further that the number of
shares of Registrable Securities each Shareholder will be entitled to have
included in such Public Offering
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pursuant to this Section 2.1 shall be allocated among all Shareholders
requesting to participate in such Public Offering in proportion (as nearly as
practicable) to the amount of Registrable Securities owned by each requesting
Shareholder at the time of the Public Offering. Except as provided in Section
2.1(b), the manner of distribution for Registrable Securities included in the
shelf Registration Statement shall not include a Public Offering.
(c) In connection with any Demand under Section 2.1(b), the
Shareholder Representative shall enter into an underwriting agreement and other
ancillary agreements (such as a custody agreement) in customary form with the
underwriter or underwriters. The Shareholder Representative will select the lead
underwriter for such offering from the list of institutions set forth on
Schedule B hereto or their successors and the Company shall select the
co-manager for such offering from the institutions on such list or their
successors. No Shareholders shall be required to make any representations or
warranties to or agreements with the Company or the underwriters other than
representations, warranties or agreements regarding such Shareholder, the
Registrable Securities of such Shareholder and such Shareholder's intended
method of distribution and any other representations required by law or
reasonably required by the underwriter. If any Shareholder of Registrable
Securities disapproves the terms of the underwriting, such Shareholder may elect
to withdraw all its Registrable Securities by written notice to the Company, the
managing underwriter and the Shareholder Representative.
(d) In the event that, pursuant to Section 6.10 of the
Merger Agreement, the issuance of Purchaser Common Stock in the Merger is
registered under the Securities Act on Form S-4, the registration otherwise
required by this Section 2.1 may be accomplished by providing for the resales
required to be registered pursuant to this Section 2.1 in the prospectus
included in the Form S-4. In such event, (a) such prospectus may not be used for
resales until the 181st calendar day following the Effective Time and the use
thereof for resales thereafter shall otherwise be subject to the same terms and
conditions provided for herein, (b) no public resales may be made pursuant to
Rule 145(d) under the Securities Act, or otherwise (other than pursuant to a
Public Offering in which Shareholders participate under Section 2.4) until the
181st calendar day following the Effective Time, and (c) any public resales
pursuant to Rule 145(d) or otherwise during the twelve month period specified in
Section 2.6 (other than pursuant to a Public Offering requested pursuant Section
2.1 or in which Shareholders participate under Section 2.4) shall be subject to
the volume limitations specified in Section 2.6.
2.2 Limit on Demand. The Company shall not be required to
permit the use of the shelf Registration Statement to effect any Public Offering
pursuant to Section 2.1 after one Demand requested by the Shareholders pursuant
to Section 2.1 shall have been effected.
2.3 Effective Distribution. A Public Offering requested
pursuant to Section 2.1 shall not be deemed to be effected (a) if such Public
Offering is interfered with for any reason by any stop order, injunction or
other order or requirement of the
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Commission or any other governmental authority, or as a result of the initiation
of any proceeding for such a stop order by the Commission through no fault of
the Shareholders or the Shareholder Representative and the result of such
interference is to prevent the Shareholders from disposing of such Registrable
Securities proposed to be sold in accordance with the intended methods of
disposition, or (b) if the conditions to closing specified in the purchase
agreement or underwriting agreement entered into in connection with any
underwritten offering shall not be satisfied or waived with the consent of the
Shareholder Representative, other than as a result of any breach by the
Shareholder Representative or any underwriter of its obligations thereunder or
hereunder.
2.4 "Piggy-Back" Rights. If the Company proposes to register
any shares of Common Stock for itself or any of its stockholders (the "Existing
Holders") under the Securities Act on a Registration Statement on Form S-1, Form
S-2 or Form S-3 (or an equivalent general registration form then in effect) for
purposes of a Public Offering of such shares, the Company shall give written
notice of such proposal at least ten (10) business days before the anticipated
filing date, which notice shall include the intended method of distribution of
such shares, to the Shareholder Representative. Such notice shall specify at a
minimum the number of shares of Common Stock proposed to be registered, the
proposed filing date of such Registration Statement, any proposed means of
distribution of such shares and the proposed managing underwriter, if any.
Subject to Section 2.6, upon the written request of any Shareholder given within
five business days after the receipt of any such written notice by facsimile
confirmed by mail (which request shall specify the Registrable Securities
intended to be disposed of by such Shareholder), the Company will use its
commercially reasonable efforts to include in such Public Offering the
Registrable Securities referred to in the Shareholder's request; provided,
however, that any participation in such Public Offering by any Shareholder shall
be on substantially the same terms as the Company's (or its other stockholders')
participation therein; and provided further that the amount of Registrable
Securities to be included in any such Public Offering shall not exceed the
maximum number which the managing underwriter of such Public Offering considers
in its reasonable commercial judgment to be appropriate based on market
conditions and other relevant factors (the "Maximum Number"). The Shareholders
shall have the right to withdraw a request to include Registrable Securities in
any Public Offering pursuant to this Section 2.4 by giving written notice to the
Company of its election to withdraw such request at least two (2) business days
prior to the proposed effective date of such Registration Statement. In
connection with any exercise of rights under this Section 2.4, the registration
under the Securities Act of the Registrable Securities to be included therein
may be by means of the shelf Registration Statement filed pursuant to Section
2.1, rather than a separate registration statement filed to register the shares
to be sold for the account of the Company or any Existing Holders, so long as
the rights of the Shareholders to participate in the Public Offering being
effected under Section 2.4 are not thereby prejudiced or impaired in any
material respect.
2.5 Allocation of Securities Included in a Public Offering.
If the lead managing underwriter for any Public Offering to be effected pursuant
to Section 2.4 of
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this Agreement shall advise the Shareholder Representative in writing that the
number of shares of Common Stock sought to be included in such Public Offering
(including those sought to be offered by the Company and those sought to be
offered by the Shareholders) is more than the Maximum Number, the shares of
Common Stock to be included in such Public Offering shall be allocated pursuant
to the following procedures: first, the Company shall be entitled to include all
of the securities that it has proposed to include, and then, to the extent that
any other securities may be included without exceeding the Maximum Number, the
number of Registrable Securities that will be included in such Registration
Statement shall be allocated among all Shareholders requesting such registration
in proportion (as nearly as practicable) to the amount of Registrable Securities
owned by each requesting Shareholder at the time of filing the Registration
Statement.
2.6 Sale Restrictions. Other than pursuant to a Public
Offering requested pursuant to Section 2.1 or in which Shareholders participate
under Section 2.4, during the twelve (12) month period starting on the 181st day
following the Effective Time, the Shareholders shall not be permitted to sell,
pursuant to the shelf Registration Statement or pursuant to Rule 144, in the
aggregate, more than 1,000,000 Shares during any period of 90 consecutive days
of such twelve month period (the "90 Day Restriction Periods"). Each Shareholder
will be entitled to sell on any given day a number of shares equal to the number
of shares which such Shareholder has notified the Shareholder Representative
such Shareholder desires to sell, provided however, that if Shareholders desire
to sell more shares than is permitted by the limitation described above, then
each Shareholder desiring to sell Shares that day will have the number of shares
they may sell reduced pro rata based on the number of shares they requested to
sell.
2.7 Lock-Up Agreement. It shall be a condition to each
Shareholder's participation in any Public Offering pursuant to Section 2.1(b) or
Section 2.4, that such Shareholder agrees to execute and deliver to the
underwriter or underwriters for such offering a customary lock-up agreement in
form and substance reasonably satisfactory to the underwriter, providing for a
lock-up of the Registrable Securities of each such Shareholder for a period of
up to 90 days after the closing of the relevant offering.
ARTICLE III
OBLIGATIONS OF THE COMPANY
3.1 (a) The Company shall (i) prepare and file with the
Commission such amendments and supplements to such Registration Statement and
the Prospectus used in connection therewith as may be reasonably necessary to
make and to keep such Registration Statement effective and to comply with the
provisions of the Securities Act with respect to the sale or other disposition
of all securities proposed to be registered pursuant to such Registration
Statement for the period specified in that Section 2.1; and (ii) take all such
other action either necessary or desirable to permit the shares of Registrable
Securities held by the Shareholders to be registered and disposed of in
accordance with the method of disposition described herein.
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(b) Notwithstanding anything to the contrary contained
herein, the Company may, upon written notice to the Shareholders whose
Registrable Securities are included in the shelf Registration Statement filed
pursuant to Section 2.1, suspend such Shareholders' use of any prospectus which
is a part of the shelf Registration Statement if, in the reasonable judgment of
counsel to the Company, the Company possesses material nonpublic information,
including information concerning it or its business or affairs or information
concerning the pursuit of a merger, disposition or similar transaction, and the
Company determines in good faith that disclosure would have a material adverse
effect on the Company and its subsidiaries taken as a whole or would materially
adversely affect the ability to consummate such merger, disposition or similar
transaction; provided that the Company may not suspend any such sales for more
than an aggregate of sixty (60) consecutive days or for an aggregate of one
hundred twenty (120) days (a "Blackout Period") in any period of twelve (12)
consecutive months. Upon the termination of the condition described above, the
Company shall give prompt notice to the Shareholders whose Registrable
Securities are included in the shelf Registration Statement, and shall promptly
terminate any suspension of sales it has put into effect and shall take such
other actions to permit registered sales of Registrable Securities as
contemplated by this Agreement.
(c) In connection with any Registration Statement, the
following provisions shall apply:
(1) The Company shall furnish to the Shareholder
Representative, prior to the filing thereof with the Commission, a copy
of any Registration Statement, and each amendment thereof and each
amendment or supplement, if any, to the Prospectus included therein and
shall afford the Shareholder Representative, the managing underwriters,
and their respective counsel, if any, a reasonable opportunity within a
reasonable time period to review and comment on copies of all such
documents (including a reasonable opportunity to review copies of any
documents to be incorporated by reference therein and all exhibits
thereto) proposed to be filed.
(2) The Company shall take such action as may be necessary
so that: (i) any Registration Statement and any amendment thereto and
any Prospectus forming part thereof and any amendment or supplement
thereto (and each report or other document incorporated therein by
reference) complies in all material respects with the Securities Act and
the Exchange Act and the respective rules and regulations thereunder,
(ii) any Registration Statement and any amendment thereto does not, when
it becomes effective, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, and (iii) any Prospectus
forming part of any Registration Statement, and any amendment or
supplement to such Prospectus, does not include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
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(3) (A) The Company shall advise the Shareholders and the
Shareholder Representative and, if requested by the Shareholders and the
Shareholder Representative, confirm such advice in writing:
(i) when a Registration Statement and any amendment
thereto has been filed with the Commission and when the
Registration Statement or any post-effective amendment thereto
has become effective; and
(ii) of any request by the Commission for amendments
or supplements to the Registration Statement or the Prospectus
included therein or for additional information related thereto.
(B) The Company shall advise the Shareholders and the
Shareholder Representative and, if requested by any Shareholder or the
Shareholder Representative, confirm such advice in writing of:
(i) the issuance by the Commission of any stop order
suspending effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(ii) the receipt by the Company of any notification
with respect to the suspension of the qualification of the
securities included therein for sale in any jurisdiction or the
initiation of any proceeding for such purpose; and
(iii) the happening of any event that requires the
making of any changes in the Registration Statement or the
Prospectus so that, as of such date, the Registration Statement
and the Prospectus do not contain an untrue statement of a
material fact and do not omit to state a material fact required
to be stated therein or necessary to make the statements therein
(in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading (which
advice shall be accompanied by an instruction to suspend the use
of the Prospectus relating to such Registrable Securities until
the requisite changes have been made).
(4) The Company shall use its reasonable best efforts to
prevent the issuance, and if issued to obtain the withdrawal, of any
order suspending the effectiveness of the Registration Statement
relating to such Registrable Securities at the earliest possible time.
(5) The Company shall furnish to the Shareholders and the
Shareholder Representative with respect to the Registration Statement
relating to such Registrable Securities, without charge, such number of
copies of such Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and all reports,
other documents and exhibits
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(including those incorporated by reference) as the Shareholders and the
Shareholder Representative shall reasonably request.
(6) The Company shall furnish to the Shareholders and the
Shareholder Representative such number of copies of any Prospectus
(including any preliminary Prospectus and any amended or supplemented
Prospectus) relating to such Registrable Securities, in conformity with
the requirements of the Securities Act, as the Shareholders and the
Shareholder Representative may reasonably request in order to effect the
offering and sale of the shares of such Registrable Securities to be
offered and sold, but only while the Company shall be required under the
provisions hereof to cause the Registration Statement to remain
effective, and the Company consents (except during a Blackout Period or
event contemplated by Section 3.1(b)) to the use of the Prospectus or
any amendment or supplement thereto by the Shareholders in connection
with the offering and sale of the Registrable Securities covered by the
Prospectus or any amendment or supplement thereto.
(7) To the extent necessary in connection with any offering
of Registrable Securities pursuant to any Registration Statement, the
Company shall use its commercially reasonable efforts to register or
qualify the Registrable Securities covered by such Registration
Statement under the securities or blue sky laws of such states as the
Shareholder Representative shall reasonably request, maintain any such
registration or qualification current until the earlier of the sale of
the Registrable Securities so registered or ninety (90) calendar days
subsequent to the effective date of the Registration Statement, and do
any and all other acts and things either reasonably necessary or
advisable to enable any Shareholder to consummate the public sale or
other disposition of the Registrable Securities in jurisdictions where
such Shareholder desires to effect such sales or other disposition;
provided that the Company shall not be required to take any action that
would subject it to the general jurisdiction of the courts of any
jurisdiction in which it is not so subject or to qualify as a foreign
corporation in any jurisdiction where the Company is not so qualified.
(8) In connection with any offering of Registrable
Securities registered pursuant to this Agreement, the Company shall (x)
furnish the Shareholders, at the Company's expense, on a timely basis
with certificates free of any restrictive legends representing ownership
of the Registrable Securities being sold in such denominations and
registered in such names as the Shareholders shall request and (y)
instruct the transfer agent and registrar of the Registrable Securities
to release any stop transfer orders with respect to the Registrable
Securities.
(9) Upon the occurrence of any event contemplated by Section
3.1(c)(3)(B)(iii) above, the Company shall promptly prepare a
post-effective amendment to any Registration Statement or an amendment
or supplement to the related Prospectus or file any other required
document so that, as thereafter delivered to purchasers of the
Registrable Securities included therein,
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the Prospectus will not include an untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. If the Company notifies the Shareholders and the
Shareholder Representative of the occurrence of any Blackout Period or
any event contemplated by Section 3.1(b) above, the Shareholders shall
suspend the use of the Prospectus, for a period not to exceed sixty (60)
calendar days in accordance with Section 3.1(b), until the requisite
changes to the Prospectus have been made.
(10) The Company shall make generally available to its
security holders or otherwise provide in accordance with Section 11(a)
of the Securities Act as soon as practicable after the effective date of
the applicable Registration Statement an earnings statement satisfying
the provisions of Section 11(a) of the Securities Act.
(11) The Company shall, if requested, promptly include or
incorporate in a Prospectus supplement or post-effective amendment to a
Registration Statement, such information as the managing underwriters
administering an underwritten offering of the Registrable Securities
registered thereunder reasonably request to be included therein and to
which the Company does not reasonably object and shall make all required
filings of such Prospectus supplement or post-effective amendment as
soon as practicable after they are notified of the matters to be
included or incorporated in such Prospectus supplement or post-effective
amendment.
(12) If requested in connection with a Public Offering
pursuant to a Demand under Section 2.1(b), the Company shall enter into
an underwriting agreement with a nationally recognized investment
banking firm or firms selected as provided in Section 2.1(c) containing
representations, warranties, indemnities and agreements then customarily
included by an issuer in underwriting agreements with respect to
secondary underwritten distributions, and in connection therewith, if an
underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures substantially identical to
those set forth in Article V (or such other provisions and procedures
acceptable to the managing underwriters, if any) with respect to all
parties to be indemnified pursuant to Article V and take all such other
actions as are reasonably requested by the managing underwriters for
such underwritten offering in order to expedite or facilitate the
registration or the disposition of such Registrable Securities.
(13) In the event the Shareholder Representative proposes to
conduct an underwritten Public Offering pursuant to Section 2.1, then
the Company shall: (i) make reasonably available for inspection by the
Shareholder Representative and its counsel, any underwriter
participating in any distribution pursuant to such Registration
Statement, and any attorney, accountant or other agent retained by the
Shareholder Representative or any such underwriter, all relevant
financial and other records, pertinent corporate documents and
properties of the Company and
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its subsidiaries as shall be reasonably necessary to enable them to
conduct a "reasonable" investigation for purposes of Section 11(a) of
the Securities Act; (ii) cause the Company's officers, directors and
employees to make reasonably available for inspection all relevant
information reasonably requested by the Shareholder Representative or
any such underwriter, attorney, accountant or agent in connection with
any such Registration Statement, in each case, as is customary for
similar due diligence examinations; provided that any information that
is designated in writing by the Company, in good faith, as confidential
at the time of delivery of such information shall be kept confidential
by the Shareholder Representative, such underwriter, or any such,
attorney, accountant or agent, unless such disclosure is made in
connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a third
party without an accompanying obligation of confidentiality; (iii)
obtain opinions of counsel to the Company and updates thereof which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any, addressed to the
Shareholder Representative and the underwriters, if any, covering such
matters as are customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by the
Shareholder Representative and underwriters (it being agreed that the
matters to be covered by such opinion or written statement by such
counsel delivered in connection with such opinions shall include in
customary form, without limitation, as of the date of the opinion and as
of the effective date of the Registration Statement or most recent
post-effective amendment thereto, as the case may be, "negative
assurance" statements to the effect that nothing has come to the
attention of such counsel that leads them to believe such Registration
Statement and the Prospectus included therein, as then amended or
supplemented, including the documents incorporated by reference therein,
contain an untrue statement of a material fact or omit to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading); (iv) obtain "cold comfort" letters
and updates thereof from the independent public accountants of the
Company (and, if necessary, any other independent public accountants of
any subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required
to be, included in the Registration Statement), addressed to the
Shareholder Representative and the underwriters, if any, in customary
form and covering matters of the type customarily covered in "cold
comfort" letters in connection with primary underwritten offerings; and
(v) deliver such documents and certificates as may be reasonably
requested by the Shareholder Representative and the managing
underwriters, if any, and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company.
The foregoing actions set forth in clauses (iii), (iv) and (v) of this
Section 3.01(c)(13) shall be performed at each closing under any
underwritten offering to the extent required thereunder.
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(14) The Company will ensure that the Registrable Securities
are admitted for listing on the New York Stock Exchange or other stock
exchange or trading system on which the Shares primarily trade on or
prior to the 181st day after the Effective Time.
(15) The Company shall use its reasonable best efforts to
take all other steps reasonably necessary to effect the registration,
offering and sale of the Registrable Securities covered by a
Registration Statement contemplated hereby and enter into any other
customary agreements and take such other actions, including
participation of senior management in "roadshows" as are reasonably
required in order to expedite or facilitate the disposition of such
Registrable Securities in any underwritten offering contemplated hereby,
and the Company shall secure the participation of its senior management
for such purposes.
(d) With a view to making available the benefits of certain
rules and regulations of the Commission which may at any time permit the sale of
the Registrable Securities to the public without registration, the Company
agrees to:
(1) Make and keep public information available, as those
terms are understood and defined in and interpreted under Rule 144, at
all times;
(2) During the term of this Agreement, furnish to the
Shareholders and the Shareholder Representative upon request: (i) a
written statement by the Company as to its compliance with the reporting
requirements of Rule 144 or (ii) a copy of the most recent annual or
quarterly report of the Company.
ARTICLE IV
EXPENSES
4.1 Expenses Payable by the Company. Except as provided in
Section 4.2 below, all fees and expenses incident to the registration and sale
of Registrable Securities shall be borne by the Company whether or not a
Registration Statement is filed or becomes effective, including, without
limitation, (i) all registration, qualification and filing fees (including,
without limitation, (A) fees with respect to filings required to be made with
the New York Stock Exchange and (B) fees and expenses of compliance with state
securities or blue sky laws (including, without limitation, fees and
disbursements of counsel for the Company or the underwriters, or both, in
connection with blue sky qualifications of the Registrable Securities)), (ii)
messenger and delivery expenses, word processing, duplicating and printing
expenses (including, without limitation, expenses of printing certificates for
Registrable Securities in a form eligible for deposit with The Depository Trust
Company, printing preliminary Prospectuses, Prospectuses, Prospectus
supplements, including those delivered to or for the account of the Shareholders
and the Shareholder Representative as provided in this Agreement, (iii) fees and
disbursements of counsel for the Company, (iv) fees and disbursements of all
independent certified public accountants for the Company (including, without
limitation, the expenses of any "comfort letters" required by or incident to
such performance), (v) Securities Act liability
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insurance, if the Company so desires such insurance, (vi) all out-of-pocket
expenses of the Company (including, without limitation, expenses incurred by the
Company, its officers, directors, employees and agents performing legal or
accounting duties or preparing or participating in "roadshow" presentations or
of any public relations, investor relations or other consultants or advisors
retained by the Company in connection with any roadshow, including travel and
lodging expenses of such roadshows), and (vii) the fees and expenses incurred in
connection with the quotation or listing of shares of Common Stock on any
securities exchange or automated securities quotation system.
4.2 Expenses Payable by the Shareholders. Each Shareholder
shall pay all underwriting discounts and commissions or broker's commissions
incurred in connection with the sale or other disposition of Registrable
Securities for or on behalf of such Shareholder's account as well as the fees
and expenses of the Shareholder's counsel, the Shareholder Representative and
the Shareholder Representative's counsel.
ARTICLE V
INDEMNIFICATION
5.1 Indemnification by the Company. The Company shall
indemnify and hold harmless each of the Registering Shareholders and their
respective directors, trustees, officers, employees, agents, affiliates,
successors and assigns (each, a "Shareholder Indemnitee," and collectively, the
"Shareholder Indemnitees") from and against any and all losses, claims, damages,
liabilities, debts, obligations, monetary damages, judgements, fines, fees,
penalties, interest obligations, deficiencies, and expenses, interest, court
costs, reasonable costs of investigators, reasonable fees and expenses of
attorneys, accountants, financial advisors, engineers and other expenses, and
other expenses of litigation ("Losses") incurred or suffered in connection with,
and any amount paid in settlement of, any action, suit or proceeding or any
claim asserted to which any Shareholder Indemnitee may become subject under the
Securities Act, the Exchange Act or other federal or state securities law or
regulation, at common law or otherwise, insofar as such Losses arise out of,
result from or are based upon (a) any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or
Prospectus, or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, or (b)
any violation by the Company of the Securities Act or the Exchange Act, or other
federal or state securities law applicable to the Company and relating to any
action or inaction required of the Company in connection with such registration.
In addition, the Company will reimburse any Shareholder Indemnitee for any
reasonable investigation, legal or other expenses incurred by such Shareholder
Indemnitee in connection with investigating or defending any such Loss.
Notwithstanding anything herein to the contrary, the Company will not be liable
with respect to the portion of any such Loss that (i) arises out of, results
from or is based upon any alleged untrue statement or alleged omission made in
such Registration Statement, preliminary Prospectus, Prospectus, or amendment or
supplement thereto in reliance upon and in conformity with written information
furnished to the Company by the Shareholder Indemnitee specifically for use
therein or
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(ii) attributable to a Registering Shareholder's (A) use of a Prospectus after
being notified by the Company to suspend use thereof pursuant to Section 3.1(b)
or Section 3.1(c)(3)(B)(iii) above or (B) failure to deliver a final Prospectus
to the Person asserting any losses, claims, damages and liabilities and
judgments caused by any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus, or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, if such
material misstatement or omission or alleged material misstatement or omission
was cured in an amended or supplemented Prospectus prepared by the Company and
delivered to the Registering Shareholder at or prior to the time written
confirmation of sale to such Person was required to be made. The foregoing
indemnity will remain in full force and effect regardless of any investigation
made by or on behalf of the Registering Shareholder, and will survive the
transfer of such securities by the Registering Shareholder.
5.2 Indemnification by Registering Shareholders. If a
Registering Shareholder sells Registrable Securities under a Prospectus that is
part of a Registration Statement, such Registering Shareholder will, severally
and not jointly, indemnify and hold harmless the Company, any underwriter
participating in the distribution and their respective directors and officers
who signed such Registration Statement and each Person who controls the Company
(within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act) (each, a "Controlling Person") under the same circumstances as the
foregoing indemnity from the Company to the Registering Shareholders but only to
the extent that such Losses arise out of or are based upon any untrue or
allegedly untrue statement of a material fact or omission or alleged omission of
a material fact that was made in the Prospectus, the Registration Statement, or
any amendment or supplement thereto, in reliance upon and in conformity with
written information relating to a Registering Shareholder furnished to the
Company by such Registering Shareholder expressly for use therein. In no event
will the aggregate liability of a Registering Shareholder exceed the amount of
the net proceeds received by the Registering Shareholder upon the sale of the
Registrable Securities giving rise to such indemnification obligation. Such
indemnity will remain in full force and effect regardless of any investigation
made by or on behalf of the Company or such officer, director, employee or
Controlling Person, and will survive the transfer of such securities by the
Registering Shareholder.
5.3 Contribution. If the indemnification provided for in
Sections 5.1 or 5.2 is unavailable to an indemnified party or is insufficient to
hold such indemnified party harmless for any Losses in respect of which any such
Section would otherwise apply by its terms (other than by reason of exceptions
provided therein), then each applicable 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. Such contribution
will be in such proportion as is appropriate to reflect the relative fault of
the indemnifying party, on the one hand, and such indemnified party, on the
other hand, in connection with the actions, statements or omissions that
resulted in
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such Losses, as well as any other relevant equitable considerations. The
relative fault of such indemnifying party, on the one hand, and indemnified
party, on the other hand, will 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 taken or made by, or relates to information supplied by, such
indemnifying party or indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent any such
action, statement or omission. The amount paid or payable by a party as a result
of any such Losses will be deemed to include any investigation, legal or other
fees or expenses incurred by such party in connection with any investigation or
proceeding, to the extent such party would have been indemnified for such
expenses if the indemnification provided for in Sections 5.1 or 5.2 was
available to such party. In no event will the aggregate liability of a
Registering Shareholder exceed the amount of the net proceeds received by the
Registering Shareholder upon the sale of the Registrable Securities giving rise
to such indemnification obligation.
5.4 Conduct of Indemnification Proceedings. Any Person
entitled to indemnification hereunder will (a) give prompt notice to the
indemnifying party of any claim with respect to which it seeks indemnification,
and (b) permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party; provided that the
failure to give such notice shall not relieve an indemnifying party of liability
except to the extent it has been prejudiced as a result. Any Person entitled to
indemnification hereunder will have the right to employ separate counsel and to
participate in (but not control) the defense of such claim, but the fees and
expenses of such counsel will be at the expense of such Person and not of the
indemnifying party unless (x) the indemnifying party has agreed to pay such fees
or expenses, (y) the indemnifying party has failed to assume the defense of such
claim and employ counsel reasonably satisfactory to such Person within a
reasonable period of time pursuant to this Agreement, or (z) a conflict of
interest exists between such Person and the indemnifying party with respect to
such claims that would make such separate representation required under
applicable ethical rules. In the case of clause (z) above if the Person notifies
the indemnifying party in writing that such Person elects to employ separate
counsel at the expense of the indemnifying party, the indemnifying party will
not have the right to assume the defense of such claim on behalf of such Person.
If such defense is not assumed by the indemnifying party, the indemnifying party
will not be subject to any liability for any settlement made without its consent
(but such consent will not be unreasonably withheld). No indemnified party will
be required to consent to entry of any judgment or enter into any settlement
that does not include as an unconditional term the giving of a release, by all
claimants or plaintiffs, to such indemnified party from all liability with
respect to such claim or litigation. Any indemnifying party who is not entitled
to, or elects not to, assume the defense of a claim will not be obligated to pay
the fees and expenses of more than one counsel (other than required local
counsel) for all parties indemnified by such indemnifying party with respect to
such claim.
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5.5 Underwriting Agreement Controls. In the event of any
conflict between the indemnification and contribution terms as herein set forth
and as set forth in any underwriting agreement entered pursuant hereto, the
underwriting agreement shall control.
ARTICLE VI
OTHER AGREEMENTS
6.1 Rule 144. The Company shall file, on a timely basis, all
reports required to be filed by it under the Securities Act and the Exchange
Act, and will take such further action and provide such documents as the
Shareholders may reasonably request, all to the extent required from time to
time to enable the Shareholders to sell Registrable Securities without
registration under the Securities Act within the limitation of the conditions
provided by (i) Rule 144 under the Securities Act, as such rule may be amended
from time to time, or (ii) any similar rule or regulation hereafter adopted by
the Commission. Upon the request of a Shareholder, the Company will deliver to
the Shareholder a statement verifying that it has complied with such information
and requirements.
6.2 Shareholder Representative. (a) The Shareholders agree
to appoint one Person to act as their representative, attorney in fact and proxy
with respect to certain matters specified in this Agreement (the "Shareholder
Representative"). The parties have designated Goelet, LLC as the initial
Shareholder Representative. The Shareholder Representative may resign at any
time, and a Shareholder Representative may be removed at any time by the vote of
Shareholders who collectively own more than 50% of the Registrable Securities at
such time (the "Majority Holders"). In the event of the death, resignation or
removal of the Shareholder Representative, a new Shareholder Representative
shall be appointed by a vote of Majority Holders, such appointment to become
effective upon the written acceptance thereof by the new Shareholder
Representative. Any failure by the Majority Holders to appoint a new Shareholder
Representative upon the death, resignation or removal of the Shareholder
Representative shall not have the effect of releasing the Shareholders from any
liability under this Agreement.
(b) The Shareholder Representative shall have such powers
and authority as are necessary to carry out the functions assigned to the
Shareholder Representative under this Agreement; provided, however, that the
Shareholder Representative will have no obligation to act on behalf of the
Shareholders, except as expressly provided herein. The Shareholder
Representative will at all times be entitled to rely on any directions received
from the Majority Holders. The Shareholder Representative shall, at the expense
of the Shareholders, be entitled to engage such counsel, experts and other
agents and consultants as they shall deem necessary in connection with
exercising their powers and performing their function hereunder and (in the
absence of bad faith on the part of the Shareholder Representative) shall be
entitled to conclusively rely on the opinions and advice of such Persons.
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(c) The Shareholder Representative shall not be entitled to
any fee, commission or other compensation for the performance of its services
hereunder, but shall be entitled to the reimbursement by the Shareholders of all
his, her or its fees and expenses incurred as the Shareholder Representative
pursuant to Section 4.2 hereof. In connection with this Agreement, and any
instrument, agreement or document relating hereto or thereto, and in exercising
or failing to exercise all or any of the powers conferred upon the Shareholder
Representative hereunder, the Shareholder Representative shall incur no
responsibility whatsoever to any Shareholder by reason of any error in judgment
or other act or omission performed or omitted hereunder or any such other
agreement, instrument or document, excepting only responsibility for any act or
failure to act which represents willful misconduct. Each Shareholder shall
indemnify, pro rata based upon such holder's percentage interest, the
Shareholder Representative against all losses, damages, liabilities, claims,
obligations, costs and expenses, including reasonable attorneys', accountants'
and other experts' or consultant's fees and the amount of any judgment against
the Shareholder Representative, of any nature whatsoever, arising out of or in
connection with any claim, investigation, challenge, action or proceeding or in
connection with any appeal thereof, relating to the acts or omissions of the
Shareholder Representative hereunder. The foregoing indemnification shall not
apply in the event of any action or proceeding which finally adjudicates the
liability of the Shareholder Representative hereunder for his or her gross
negligence or willful misconduct. In the event of any indemnification hereunder,
upon written notice from Shareholder Representative to the Shareholders as to
the existence of a deficiency toward the payment of any such indemnification
amount, each such holder shall promptly deliver to the Shareholder
Representative full payment of his or her ratable share of the amount of such
deficiency, in accordance with such Shareholder's percentage interest. In no
event shall the Company be responsible for any reimbursement or indemnification
of the Shareholder Representative.
(d) All of the indemnities, immunities and powers granted to
the Shareholder Representative under this Agreement shall survive the
termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, each
Shareholder hereby acknowledges that the Company shall not have any
responsibility or obligation whatsoever to any such Shareholder or to any other
party with respect to or arising out of any actions taken or any inaction by the
Shareholder Representative.
(f) The Company shall have the right to rely conclusively
upon all instructions, requests, consents, elections and other actions taken or
omitted to be taken by the Shareholder Representative pursuant to this Agreement
and any instrument, agreement or document relating hereto, all of which actions
or omissions shall be legally binding upon all the Shareholders.
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ARTICLE VII
MISCELLANEOUS
7.1 Amendments; Waivers. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the Company and
the Shareholder Representative; provided, however, that the Shareholder
Representative shall not amend, modify or supplement this Agreement in a manner
that is detrimental to the Shareholders without first obtaining the written
consent of the Majority Holders to such amendment, modification or supplement;
provided further, however, that any amendment, modification or supplement made
by the Shareholder Representative with such consent shall bind all Shareholders.
7.2 Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto pertaining to its subject matter, and
supersedes and replaces all prior agreements and understandings of the parties
in connection with such subject matter.
7.3 Notices. All notices and other communications hereunder
shall be given in writing and delivered personally, by registered or certified
mail (postage prepaid, return receipt requested), by overnight courier (postage
prepaid), facsimile transmission or similar means, to the party to receive such
notices or communications at the address set forth below (or such other address
as shall from time to time be designated by such party to the other parties in
accordance with this Section 6.3):
If to the Shareholder Representative or any Shareholder:
Goelet, LLC
425 Park Avenue
28th Floor
New York, NY 10022
Telecopy: (212) 588-9499
Attention: Robert W. Kiley
with a copy to:
Shearman & Sterling
599 Lexington Avenue
New York, NY 10022
Telecopy: (212) 848-7179
Attention: Whitney D. Pidot, Esq.
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If to the Company:
Pogo Producing Company
5 Greenway Plaza, Suite 2700
P.O. Box 2504
Houston, Texas 77252-2504
Telecopy: (713) 297-4970
Attention: Gerald A. Morton, Vice President-Law
and Corporate Secretary
with a copy to:
Baker Botts, L.L.P.
One Shell Plaza
910 Louisiana
Houston, Texas 77002
Telecopy: (713) 229-1522
Attention: Stephen A. Massad
All such notices and communications hereunder shall be deemed given when
received, as evidenced by the signed acknowledgment of receipt of the person to
whom such notice or communication shall have been personally delivered, the
acknowledgment of receipt returned to the sender by the applicable postal
authorities, the confirmation of delivery rendered by the applicable overnight
courier service, or the confirmation of a successful facsimile transmission of
such notice or communication. A copy of any notice or other communication given
by any party to any other party hereto, with reference to this Agreement, shall
be given at the same time to the other parties to this Agreement.
7.4 GOVERNING LAW. THE PARTIES HERETO AGREE THAT THIS
AGREEMENT, AND THE RESPECTIVE RIGHTS, DUTIES AND OBLIGATIONS OF THE PARTIES
HEREUNDER, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
7.5 Transfer or Assignment of Registration Rights. The
registration rights set forth in this Agreement shall be transferable or
assignable by the Shareholders, in whole or in part and from time to time, but
only in connection with a transfer or assignment of Registrable Securities under
circumstances in which such securities remain Registrable Securities in the
hands of the transferee; provided that each transferee agrees in writing to be
subject to all the terms and conditions of this Agreement; provided, however,
that no such assignment of registration rights shall be made of such rights
associated with a transfer of fewer than 150,000 shares of Common Stock to any
one Person (appropriately adjusted for any stock splits, stock dividends,
subdivisions, combinations or the like) unless such assignment relates to all
the Registrable Securities then owned by the transferor; and provided, further,
that in connection with any such
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assignment, the transferee shall be required to enter into the Standstill and
Voting Agreement dated as of the date hereof among the Company and the
Shareholders.
7.6 Severability. Whenever possible, each provision or
portion of any provision of this Agreement will be interpreted in such manner as
to be effective and valid under applicable law. If any provision or portion of
any provision of this Agreement is held to be invalid, illegal or unenforceable
in any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
7.7 No Waiver. The failure of any party hereto to exercise
any right, power or remedy provided under this Agreement or otherwise available
in respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
7.8 No Third Party Beneficiaries. This Agreement is not
intended to be for the benefit of, and shall not be enforceable by, any Person
(whether or not listed on Schedule A hereto) who or which is not a party hereto.
Any Person (whether or not listed on Schedule A hereto) who or which is not a
party hereto shall not be entitled to any benefit hereunder except, in the case
of any Person listed on Schedule A hereto, such Person shall be entitled to
become a party hereto by executing a counterpart to this Agreement. If any
Person listed on Schedule A hereto executes a counterpart to this Agreement,
such Person shall thereafter be deemed to have agreed to be bound by the
provisions hereof, as if such Person was an original party hereto and such
Person shall thereafter be entitled to any benefit accorded to the Shareholders
hereunder.
7.9 Headings. The Section headings in this Agreement are for
convenience of reference only and are not intended to be a part of this
Agreement or to affect the meaning or interpretation of this Agreement.
7.10 Counterparts. This Agreement may be executed in one or
more counterparts, all of which taken together shall constitute one agreement.
[The remainder of this page has been intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement as of the date first set forth above.
POGO PRODUCING COMPANY
By: /s/ James P. Ulm, II
-----------------------------
Name: James P. Ulm, II
Title: Vice President and Chief
Financial Officer
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THE SHAREHOLDERS LISTED ON SCHEDULE A
BY GOELET, LLC, AS
SHAREHOLDER REPRESENTATIVE
By: /s/ Robert W. Kiley
------------------------
Name: Robert W. Kiley
Title: President and Chief
Operating Officer
By: /s/ Mark Rosenbaum
--------------------
Name: Mark Rosenbaum
Title: Vice President, Chief
Financial Officer and
Treasurer
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SCHEDULE A
1. Trust under the Agreement dated August 26, 1930 for the benefit of
Beatrice G. Manice
2. Trust under the Agreement dated July 27, 1935 for the benefit of
Beatrice G. Manice
3. Trust under the Will of Robert Walton Goelet for the benefit of Beatrice
G. Manice
4. Trust under the Agreement dated August 26, 1930 for the benefit of
Robert G. Goelet
5. Trust under the Agreement dated July 27, 1935 for the benefit of Robert
G. Goelet
6. Trust under the Will of Robert Walton Goelet for the benefit of Robert
G. Goelet
7. Trust under the Agreement dated July 27, 1935 for the benefit of Francis
Goelet
8. Trust under the Agreement dated December 18, 1931 for the benefit of
John Goelet
9. Trust under the Agreement dated December 17, 1976 for the benefit of
Grandchildren of John Goelet
10. Trust under the Agreement dated July 27, 1935 for the benefit of John
Goelet
11. Trust under the Will of Robert Walton Goelet for the benefit of John
Goelet
12. Robert G. Goelet
13. John H. Manice
14. Trust under the Agreement dated September 4, 1980 for the benefit of
Anne de La Haye Jousselin
15. Robert G. Manice
16. Robert G. Manice, as custodian for Henry W. Manice under the New York
Uniform Transfers to Minors Act
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17. Robert G. Manice, as custodian for Emily P. Manice under the New York
Uniform Transfers to Minors Act
18. Robert G. Manice, as custodian for Harriet W. Manice under the New York
Uniform Transfers to Minors Act
19. Amelia M. Berkowitz
20. Pamela Manice
21. Alexandra G. Goelet
22. Robert Gardiner Goelet
23. Philip Goelet
24. Christopher Goelet
25. Gilbert Kerlin
26. Windward Oil & Gas Corporation
27. Arthur Field
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