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EXHIBIT 4.4
TRANSAMERICAN ENERGY CORPORATION
$475,000,000 11 1/2% Senior Secured Notes due 2002
$1,130,000,000 13% Senior Secured Discount Notes due 2002
REGISTRATION RIGHTS AGREEMENT
June 5, 1997
Jefferies & Company, Inc.
11100 Santa Monica Boulevard
10th Floor
Los Angeles, California 90025
Ladies and Gentlemen:
TransAmerican Energy Corporation, a Delaware corporation (the
"Company"), is issuing and selling to Jefferies & Company, Inc. (the
"Purchaser"), upon the terms set forth in the Purchase Agreement (as defined
below), (i) $475,000,000 aggregate principal amount of its 11 1/2% Senior
Secured Notes due 2002, Series A (the "Senior Secured Notes"), and (ii)
$1,130,000,000 aggregate principal amount of its 13% Senior Secured Discount
Notes due 2002, Series A (the "Senior Secured Discount Notes" and together with
the Senior Secured Notes, the "Notes"). As an inducement to the Purchaser to
enter into the Purchase Agreement, the Company, TransTexas Gas Corporation, a
Delaware corporation ("TransTexas"), and TransAmerican Refining Corporation, a
Texas corporation ("TARC"), agree with the Purchaser, for the benefit of the
holders of the Securities (as defined below) (including, without limitation,
the Purchaser), as follows:
1. Definitions. Capitalized terms used but not defined herein
have the respective meanings given to such terms in the Purchase Agreement. As
used in this Agreement, the following terms shall have the following meanings:
"Advice" has the meaning given to such term in Section 6.
"Agreement" means this Registration Rights Agreement.
"Applicable Period" has the meaning given to such term in Section
2(f).
"Business Day" means any day other than (i) Saturday or Sunday, or
(ii) a day on which banking institutions in the State of New York are
authorized or obligated by law or executive order to be closed.
"Closing Date" means June 13, 1997.
"Company" has the meaning given to such term in the introductory
paragraph hereof.
"Companies" means the Company, TransTexas and TARC, collectively.
"Effectiveness Date" means the 180th day following the Closing Date.
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"Effectiveness Period" has the meaning given to such term in Section
3(a).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Exchange Offer" has the meaning given to such term in Section 2(a).
"Exchange Offer Registration Statement" has the meaning given to such
term in Section 2(a).
"Exchange Securities" means (i) with respect to the Senior Secured
Notes, 11 1/2% Senior Secured Notes due 2002, Series B, of the Company,
identical in all respects to the Senior Secured Notes, except for references to
series and restrictive legends and (ii) with respect to the Senior Secured
Discount Notes, 13% Senior Secured Discount Notes due 2002, Series B, of the
Company, identical in all respects to the Senior Secured Discount Notes, except
for references to series and restrictive legends.
"Filing Date" means the 120th day following the Closing Date.
"Holder" means each holder of Registrable Securities.
"Indemnified Party" has the meaning given to such term in Section
8(c).
"Indemnifying Party" has the meaning given to such term in Section
8(c).
"Indenture" means the Indenture dated the date hereof between the
Company and Firstar Bank of Minnesota, N.A., as trustee, pursuant to which the
Notes are being issued, as amended or supplemented from time to time, in
accordance with the terms thereof.
"Initial Shelf Registration" has the meaning given to such term in
Section 3(a).
"Losses" has the meaning given to such term in Section 8(a).
"NASD" means the National Association of Securities Dealers, Inc.
"Notes" has the meaning given to such term in the introductory
paragraph hereof.
"Participating Broker-Dealer" has the meaning given to such term in
Section 2(f).
"Person" means an individual, trustee, corporation, partnership, joint
stock company, joint venture, trust, unincorporated organization or government
or any agency or political subdivision thereof, union, business association,
firm or other entity.
"Private Exchange" has the meaning given to such term in Section 2(g).
"Private Exchange Securities" has the meaning given to such term in
Section 2(g).
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any
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portion of the Securities covered by such Registration Statement, and all other
amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
"Purchaser" has the meaning given to such term in the introductory
paragraph hereof.
"Purchase Agreement" means the Purchase Agreement dated as of June 5,
1997 by and among the Companies and Jefferies.
"Registrable Securities" means (i) Notes, (ii) Private Exchange
Securities and (iii) Exchange Securities received in the Exchange Offer that
may not be sold without restriction under federal or state securities law.
"Registration Default Date" has the meaning given to such term in
Section 4(a).
"Registration Statement" means any registration statement of the
Company that covers any of the Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by
reference in such registration statement.
"Rule 144" means Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC.
"Rule 144A" means Rule 144A under the Securities Act, as such Rule may
be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
"Rule 415" means Rule 415 under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Notes, the Private Exchange Securities and the
Exchange Securities, collectively.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"Senior Secured Discount Notes" has the meaning given to such term in
the introductory paragraph hereof.
"Senior Secured Notes" has the meaning given to such term in the
introductory paragraph hereof.
"Shelf Notice" has the meaning given to such term in Section 2(i).
"Shelf Registration" means the Initial Shelf Registration and any
Subsequent Shelf Registration.
"Special Counsel" means counsel chosen by the holders of a majority in
aggregate principal amount of Securities.
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"Subsequent Shelf Registration" has the meaning given to such term in
Section 3(b).
"TARC" has the meaning given to such term in the introductory
paragraph hereof.
"TIA" means the Trust Indenture Act of 1939, as amended.
"TransTexas" has the meaning given to such term in the introductory
paragraph hereof.
"Trustee" means the trustee under the Indenture and, if any, the
trustee under any indenture governing the Exchange Securities or the Private
Exchange Securities.
"Underwritten Registration" or "Underwritten Offering" means a
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
"Weekly Liquidated Damages Amount" has the meaning given to such term
in Section 4(a).
2. Exchange Offer.
(a) The Company shall (i) prepare and file with the SEC
promptly after the date hereof, but in no event later than the Filing
Date, a registration statement (the "Exchange Offer Registration
Statement") on an appropriate form under the Securities Act with
respect to a proposed offer (the "Exchange Offer") to the Holders to
issue and deliver to such Holders, in exchange for the Notes, a like
aggregate principal amount of Exchange Securities, (ii) use its best
efforts to cause the Exchange Offer Registration Statement to become
effective as promptly as practicable after the filing thereof, but in
no event later than the Effectiveness Date, (iii) keep the Exchange
Offer Registration Statement effective until the consummation of the
Exchange Offer pursuant to its terms, and (iv) unless the Exchange
Offer would not be permitted by a policy of the SEC, commence the
Exchange Offer and use its best efforts to issue, on or prior to 30
Business Days after the date on which the Exchange Offer Registration
Statement is declared effective, Exchange Securities in exchange for
all Notes tendered prior thereto in the Exchange Offer. The Exchange
Offer shall not be subject to any conditions, other than (i) that the
Exchange Offer does not violate applicable law or any applicable
interpretation of the staff of the SEC and (ii) as otherwise expressed
herein.
(b) The Exchange Securities shall be issued under, and
entitled to the benefits of, the Indenture or a trust indenture that
is identical to the Indenture (other than such changes as are
necessary to comply with any requirements of the SEC to effect or
maintain the qualification thereof under the TIA).
(c) In connection with the Exchange Offer, the Company
shall:
(i) mail to each Holder a copy of the Prospectus
forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal that is an
exhibit to the Exchange Offer Registration Statement and
related documents;
(ii) keep the Exchange Offer open for not less
than 30 days after the date notice thereof is mailed to the
Holders (or longer if required by applicable law);
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(iii) utilize the services of a depository for the
Exchange Offer with an address in the Borough of Manhattan,
The City of New York;
(iv) permit Holders to withdraw tendered Notes at
any time prior to the close of business, New York time, on the
last Business Day on which the Exchange Offer shall remain
open; and
(v) otherwise comply with all laws applicable to
the Exchange Offer.
(d) As soon as practicable after the close of the
Exchange Offer, the Company shall:
(i) accept for exchange all Notes validly
tendered and not validly withdrawn pursuant to the Exchange
Offer;
(ii) deliver to the Trustee for cancellation all
Notes so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate
and deliver to each Holder of Notes, Exchange Securities equal
in aggregate principal amount to the Notes of such Holder so
accepted for exchange.
(e) Interest on each Exchange Security and Private
Exchange Security will accrue (or principal will accrete, as
applicable) from the last interest payment date on which interest was
paid on the Notes surrendered in exchange therefor or, if no interest
has been paid on the Notes, from the date of original issue of the
Notes. Each Exchange Security and Private Exchange Security shall
bear interest at the rate set forth thereon; provided, that interest
with respect to the period prior to the issuance thereof shall accrue
at the rate or rates borne by the Notes from time to time during such
period.
(f) The Company shall include within the Prospectus
contained in the Exchange Offer Registration Statement a section
entitled "Plan of Distribution," containing a summary statement of the
positions taken or policies made by the staff of the SEC with respect
to the potential "underwriter" status of any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
Exchange Securities received by such broker-dealer in the Exchange
Offer (a "Participating Broker-Dealer"). Such "Plan of Distribution"
section shall also allow the use of the Prospectus by all Persons
subject to the prospectus delivery requirements of the Securities Act,
including (without limitation) all Participating Brokers-Dealers, and
include a statement describing the means by which Participating
Broker-Dealers may resell the Exchange Securities. The Company shall
use its best efforts to keep the Exchange Offer Registration Statement
effective and to amend and supplement the Prospectus to be lawfully
delivered by all Persons subject to the prospectus delivery
requirement of the Securities Act for such period of time as such
Persons must comply with such requirements in order to resell the
Exchange Securities; provided that such period shall not exceed 180
days after consummation of the Exchange Offer (as such period may be
extended pursuant to the last paragraph of Section 6 (the "Applicable
Period")).
(g) If, prior to consummation of the Exchange Offer, the
Purchaser holds any Securities acquired by it and having the status as
an unsold allotment in the initial distribution, the Company shall,
upon the request of the Purchaser, simultaneously with the delivery of
the
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Exchange Securities in the Exchange Offer, issue (pursuant to the same
indenture as the Exchange Securities) and deliver to the Purchaser, in
exchange for the Securities held by the Purchaser (the "Private
Exchange"), a like principal amount of debt securities of the Company
that are identical to the Exchange Securities (the "Private Exchange
Securities"). The Private Exchange Securities shall bear the same
CUSIP number as the Exchange Securities.
(h) The Company may require each Holder participating in
the Exchange Offer to represent to the Company that at the time of the
consummation of the Exchange Offer (i) any Exchange Securities
received by such Holder in the Exchange Offer will be acquired in the
ordinary course of its business, (ii) such Holder will have no
arrangement or understanding with any Person to participate in the
distribution of the Exchange Securities within the meaning of the
Securities Act or resale of the Exchange Securities in violation of
the Securities Act, (iii) if such Holder is not a broker-dealer, that
it is not engaged in and does not intend to engage in, the
distribution of the Exchange Securities, (iv) if such Holder is a
broker-dealer that will receive Exchange Securities for its own
account in exchange for Notes that were acquired as a result of
market- making or other trading activities, that it will deliver a
prospectus, as required by law, in connection with any resale of such
Exchange Securities and (v) if such Holder is an affiliate of the
Company, that it will comply with the registration and prospectus
delivery requirements of the Securities Act applicable to it.
(i) If (i) prior to the consummation of the Exchange
Offer, either the Company or the Holders of a majority in aggregate
principal amount of Registrable Securities determines in its or their
reasonable judgment that (A) the Exchange Securities would not, upon
receipt, be tradeable by the Holders thereof without restriction under
the Securities Act and the Exchange Act and without material
restrictions under applicable Blue Sky or state securities laws, or
(B) the interests of the Holders under this Agreement, taken as a
whole, would be materially adversely affected by the consummation of
the Exchange Offer, (ii) applicable interpretations of the staff of
the SEC would not permit the consummation of the Exchange Offer prior
to 90 days after the Effectiveness Date, (iii) subsequent to the
consummation of the Private Exchange but within one year of the
Closing Date, the Purchaser so requests, (iv) the Exchange Offer is
not consummated within 270 days of the Closing Date for any reason or
(v) in the case of any Holder not permitted to participate in the
Exchange Offer or of any Holder participating in the Exchange Offer
that receives Exchange Securities that may not be sold without
material restriction under state and federal securities laws (other
than due solely to the status of such Holder as an affiliate of the
Company within the meaning of the Securities Act) and, in either case
contemplated by this clause (v), such Holder notifies the Company
within six months of consummation of the Exchange Offer, then the
Company shall promptly deliver to the Holders (or in the case of any
occurrence of the event described in clause (v) of this Section 2(i),
to any such Holder) and the Trustee notice thereof (the "Shelf
Notice") and shall as promptly as possible thereafter file an Initial
Shelf Registration pursuant to Section 3.
3. Shelf Registration. If a Shelf Notice is required to be
delivered pursuant to Section 2(i)(i), (ii), (iii) or (iv), then this Section
3 shall apply to all Registrable Securities. Otherwise, upon consummation of
the Exchange Offer in accordance with Section 2, the provisions of this Section
3 shall apply solely with respect to (i) Notes held by any Holder thereof not
permitted to participate in the Exchange Offer and (ii) Exchange Securities
that are not freely tradeable as contemplated by Section 2(i)(v).
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(a) Initial Shelf Registration. The Company shall use
its best efforts to prepare and file with the SEC a Registration
Statement for an offering to be made on a continuous basis pursuant to
Rule 415 covering all of the Registrable Securities (the "Initial
Shelf Registration"). If the Company has not yet filed an Exchange
Offer Registration Statement, the Company shall use its best efforts
to file with the SEC the Initial Shelf Registration on or prior to the
Filing Date. Otherwise, the Company shall use its best efforts to
file the Initial Shelf Registration within 20 days of the delivery of
the Shelf Notice or as promptly as possible following the request of
the Purchaser. The Initial Shelf Registration shall be on Form S-1 or
another appropriate form permitting registration of such Registrable
Securities for resale by such holders in the manner or manners
designated by them (including, without limitation, one or more
underwritten offerings). The Company shall (i) not permit any
securities other than the Registrable Securities to be included in any
Shelf Registration, and (ii) use its best efforts to cause the Initial
Shelf Registration to be declared effective under the Securities Act
as promptly as practicable after the filing thereof and to keep the
Initial Shelf Registration continuously effective under the Securities
Act until the date that is 24 months from the Effectiveness Date
(subject to extension pursuant to the last paragraph of Section 6)
(the "Effectiveness Period"), or such shorter period ending when (i)
all Registrable Securities covered by the Initial Shelf Registration
have been sold or (ii) a Subsequent Shelf Registration covering all of
the Registrable Securities has been declared effective under the
Securities Act.
(b) Subsequent Shelf Registrations. If any Shelf
Registration ceases to be effective for any reason at any time during
the Effectiveness Period (other than because of the sale of all of the
Registrable Securities registered thereunder), the Company shall use
its best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within 30
days of such cessation of effectiveness amend the Shelf Registration
in a manner reasonably expected to obtain the withdrawal of the order
suspending the effectiveness thereof, or file an additional "shelf"
Registration Statement pursuant to Rule 415 covering all of the
Registrable Securities (a "Subsequent Shelf Registration"). If a
Subsequent Shelf Registration is filed, the Company shall use its best
efforts to cause the Subsequent Shelf Registration to be declared
effective as soon as practicable after such filing and to keep such
Subsequent Shelf Registration continuously effective for a period
equal to the number of days in the Effectiveness Period less the
aggregate number of days during which the Initial Shelf Registration,
and any Subsequent Shelf Registration, was previously effective.
4. Liquidated Damages.
(a) The Company acknowledges and agrees that the holders
of Registrable Securities will suffer damages, and that it would not
be feasible to ascertain the extent of such damages with precision, if
the Company fails to fulfill its obligations hereunder. Accordingly,
in the event of such failure, the Company agrees to pay liquidated
damages to each Holder under the circumstances and to the extent set
forth below:
(i) if neither the Exchange Offer Registration
Statement nor the Initial Shelf Registration has been filed
with the SEC on or prior to the Filing Date; or
(ii) if neither the Exchange Offer Registration
Statement nor the Initial Shelf Registration is declared
effective by the SEC on or prior to the Effectiveness Date; or
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(iii) if the Company has not accepted for exchange
Exchange Securities for all Notes validly tendered in
accordance with the terms of the Exchange Offer within 30 days
after the date on which an Exchange Offer Registration
Statement is declared effective by the SEC; or
(iv) if a Shelf Registration is filed and declared
effective by the SEC but thereafter ceases to be effective
without being succeeded within 30 days by a Subsequent Shelf
Registration filed and declared effective;
(each of the foregoing a "Registration Default," and the date on which
the Registration Default occurs being referred to herein as a
"Registration Default Date").
Upon the occurrence of any Registration Default, the
Company shall be obligated to pay, or cause to be paid, in addition to
amounts otherwise due under the Indenture and the Registrable
Securities, as liquidated damages, and not as a penalty, to each
holder of a Registrable Security, an additional amount (the "Weekly
Liquidated Damages Amount") equal to (A) for each weekly period
beginning on the Registration Default Date for the first 120-day
period immediately following such Registration Default Date, $0.05 per
week per $1,000 principal amount of Registrable Securities held by
such holder, and (B) for each weekly period beginning with the first
full week after the 120-day period set forth in the foregoing clause
(A), $0.15 per week per $1,000 principal amount of Registrable
Securities held by such holder; provided that such liquidated damages
will, in each case, cease to accrue (subject to the occurrence of
another Registration Default) on the date on which all Registration
Defaults have been cured. A Registration Default under clause (i)
above shall be cured on the date that either the Exchange Offer
Registration Statement or the Initial Shelf Registration is filed with
the SEC; a Registration Default under clause (ii) above shall be cured
on the date that either the Exchange Offer Registration Statement or
the Initial Shelf Registration is declared effective by the SEC; a
Registration Default under clause (iii) above shall be cured on the
earlier of the date (A) the Exchange Offer is consummated with respect
to all Notes validly tendered or (B) the Company delivers a Shelf
Notice to the Holders; and a Registration Default under clause (iv)
above shall be cured on the earlier of (A) the date on which the
applicable Shelf Registration is no longer subject to an order
suspending the effectiveness thereof or proceedings relating thereto
or (B) a Subsequent Shelf Registration is declared effective.
(b) The Company shall notify the Trustee within five
Business Days after each Registration Default Date. The Company shall
pay the liquidated damages due on the Registrable Securities by
depositing with the Trustee, in trust, for the benefit of the Holders
thereof, by 12:00 noon, New York City time, on or before the
semi-annual interest payment date for any of the Registrable
Securities, immediately available funds in sums sufficient to pay the
liquidated damages then due. With respect to the Senior Secured Notes
(and with respect to the Senior Secured Discount Notes after June 15,
1999), the liquidated damages amount due shall be payable on each
interest payment date to the Holder entitled to receive the interest
payment to be made on such date as set forth in the Indenture. With
respect to the Senior Secured Discount Notes on or prior to June 15,
1999, the liquidated damages amount due shall be payable on each June
15 and December 15 to the Holder of record on the immediately
preceding June 1 or December 1, respectively.
5. Hold-Back Agreements. The Company agrees (i) without the
prior written consent of the Holders of a majority of the aggregate principal
amount of the then outstanding Securities, not to effect
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any public or private sale or distribution (including a sale pursuant to
Regulation D under the Securities Act) of any securities the same as or
substantially similar to those covered by a Registration Statement filed
pursuant to Section 2 or 3, or any securities convertible into or exchangeable
or exercisable for such securities, during the 10 days prior to, and during the
90-day period beginning on, (A) the effective date of any Registration
Statement filed pursuant to Sections 2 and 3, unless the Holders of a majority
in aggregate principal amount of Registrable Securities to be included in such
Registration Statement consent or (B) the commencement of an underwritten
public distribution of Registrable Securities, where the managing underwriter
so requests; and (ii) to cause each holder of such securities that are the same
as or substantially similar to Registrable Securities issued at any time after
the date of this Agreement (other than securities purchased in a registered
public offering) to agree, unless prevented by applicable statute or
regulation, not to effect any public sale or distribution of any such
securities during such periods, including a sale pursuant to Rule 144 or Rule
144A.
6. Registration Procedures. In connection with the registration
of any Securities pursuant to Sections 2 or 3, the Company shall effect such
registrations to permit the sale of such Securities in accordance with the
intended method or methods of disposition thereof, and pursuant thereto the
Company shall:
(a) Prepare and file with the SEC, as soon as practicable
after the date hereof but in any event on or prior to the Filing Date,
a Registration Statement or Registration Statements as prescribed by
Section 2 or 3, and use its best efforts to cause each such
Registration Statement to become effective and remain effective as
provided herein; provided, that, if (i) such filing is pursuant to
Section 3 or (ii) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Securities during the Applicable Period,
before filing any Registration Statement or Prospectus or any
amendments or supplements thereto, the Companies shall, if requested,
furnish to and afford the Holders of the Registrable Securities
covered by such Registration Statement, their Special Counsel, each
Participating Broker-Dealer, the managing underwriters, if any, and
their counsel, a reasonable opportunity to review and make available
for inspection by such Persons copies of all such documents (including
copies of any documents to be incorporated by reference therein and
all exhibits thereto) proposed to be filed, such financial and other
information and books and records of the Companies, and cause the
officers, directors and employees of the Companies, Company counsel
and independent certified public accountants of the Company, to
respond to such inquiries, as shall be necessary, in the opinion of
respective counsel to such holders, Participating Broker-Dealer and
underwriters, to conduct a reasonable investigation within the meaning
of the Securities Act. The Company may require each Holder to agree
to keep confidential any non-public information relating to the
Company received by such Holder and not disclose such information
(other than to an Affiliate or prospective purchaser who agrees to
respect the confidentiality provisions of this Section 6(a)) until
such information has been made generally available to the public
unless the release of such information is required by law or necessary
to respond to inquiries of regulatory authorities (including the
National Association of Insurance Commissioners, or similar
organizations or their successors). The Company shall not file any
Registration Statement or Prospectus or any amendments or supplements
thereto in respect of which the Holders must be afforded an
opportunity to review prior to the filing of such document, if the
Holders of a majority in aggregate principal amount of the Registrable
Securities covered by such Registration Statement, their Special
Counsel, any Participating Broker-Dealer or the managing underwriters,
if any, or their counsel shall reasonably object.
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(b) Provide an indenture trustee for the Registrable
Securities or the Exchange Securities, as the case may be, and cause
the Indenture (or other indenture relating to the Registrable
Securities) to be qualified under the TIA not later than the effective
date of the first Registration Statement; and in connection therewith,
to effect such changes to such indenture as may be required for such
indenture to be so qualified in accordance with the terms of the TIA;
and execute, and use its best efforts to cause such trustee to
execute, all documents as may be required to effect such changes, and
all other forms and documents required to be filed with the SEC to
enable such indenture to be so qualified in a timely manner.
(c) Prepare and file with the SEC such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep such Registration Statement continuously effective
for the time periods required hereby; cause the related Prospectus to
be supplemented by any Prospectus supplement required by applicable
law, and as so supplemented to be filed pursuant to Rule 424 (or any
similar provisions then in force) under the Securities Act; and comply
in all material respects with the provisions of the Securities Act and
the Exchange Act applicable thereto with respect to the disposition of
all securities covered by such Registration Statement, as so amended,
or in such Prospectus, as so supplemented, in accordance with the
intended methods of distribution set forth in such Registration
Statement or Prospectus as so amended.
(d) Furnish to such selling Holders and Participating
Broker-Dealers who so request (i) upon the Company's receipt, a copy
of the order of the SEC declaring such Registration Statement and any
post-effective amendment thereto effective and (ii) such reasonable
number of copies of such Registration Statement and of each amendment
and supplement thereto (in each case including any documents
incorporated therein by reference and all exhibits), (iii) such
reasonable number of copies of the Prospectus included in such
Registration Statement (including each preliminary Prospectus), and
such reasonable number of copies of the final Prospectus as filed by
the Company pursuant to Rule 424(b) under the Securities Act, in
conformity with the requirements of the Securities Act, and (iv) such
other documents (including any amendments required to be filed
pursuant to clause (c) of this Section), as any such Person may
reasonably request. The Companies hereby consent to the use of the
Prospectus by each of the selling Holders of Registrable Securities or
each such Participating Broker-Dealer, as the case may be, and the
underwriters or agents, if any, and dealers (if any), in connection
with the offering and sale of the Registrable Securities covered by,
or the sale by Participating Broker- Dealers of the Exchange
Securities pursuant to, such Prospectus and any amendment thereto.
(e) If (A) a Shelf Registration is filed pursuant to
Section 3 or (B) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Securities during the Applicable Period,
notify the selling Holders of Registrable Securities, their Special
Counsel, each Participating Broker- Dealer and the managing
underwriters, if any, promptly (but in any event within two Business
Days), and confirm such notice in writing, (i) when a Prospectus has
been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective under the
Securities Act, (ii) of the issuance by the SEC of any stop order
suspending the effectiveness of a Registration Statement or of any
order preventing or suspending the use of any Prospectus or the
initiation of any proceedings for that purpose, (iii) if, at any time
when a Prospectus is required by the Securities Act to be delivered in
connection with sales of the Registrable Securities, the
representations and warranties of any of the Companies contained in
any
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agreement (including any underwriting agreement) contemplated by
Section 6(n) below cease to be true and correct in any material
respect, (iv) of the receipt by any of the Companies of any
notification with respect to the suspension of the qualification or
exemption from qualification of a Registration Statement or any of the
Registrable Securities or the Exchange Securities to be sold by any
Participating Broker-Dealer for offer or sale in any jurisdiction, or
the contemplation, initiation or threatening of any proceeding for
such purpose, (v) of the happening of any event that makes any
statement made in such Registration Statement or related Prospectus or
any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the making
of any changes in such Registration Statement, Prospectus or documents
so that it will not contain any untrue statement of a material fact or
omit to state any 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, and (vi) of
the Company's reasonable determination that a post- effective
amendment to a Registration Statement would be appropriate.
(f) Use its reasonable efforts to register or qualify,
and, if applicable, to cooperate with the selling Holders of
Registrable Securities, the underwriters, if any, and their respective
counsel in connection with the registration or qualification (or
exemption from such registration or qualification) of, Securities to
be included in a Registration Statement for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United
States as any selling Holder, Participating Broker-Dealer or the
managing underwriters reasonably request in writing; and, if
Securities are offered other than through an Underwritten Offering,
the Company shall cause its counsel to perform Blue Sky investigations
and file registrations and qualifications required to be filed
pursuant to this Section 6(f) at the expense of the Company; keep each
such registration or qualification (or exemption therefrom) effective
during the period such Registration Statement is required to be kept
effective and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the
Securities covered by the applicable Registration Statement, provided,
however, that none of the Companies shall be required to (i) qualify
generally to do business in any jurisdiction where it is not then so
qualified, (ii) to take action that would subject it to general
service of process in any jurisdiction where it is not so subject or
(iii) subject it to taxation in excess of a nominal dollar amount in
any such jurisdiction where it is not then subject.
(g) Use its best efforts to prevent the issuance of any
order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of a Prospectus or
suspending the qualification (or exemption from qualification) of any
of the Securities for sale in any jurisdiction, and, if any such order
is issued, to use its best efforts to obtain the withdrawal of any
such order at the earliest possible time.
(h) If (A) a Shelf Registration is filed pursuant to
Section 3 or (B) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Securities during the Applicable Period,
and if requested by the managing underwriters, if any, or the Holders
of a majority in aggregate principal amount of the Registrable
Securities, (i) promptly incorporate in a Prospectus or post-effective
amendment such information as the managing underwriters, if any, or
such Holders reasonably request to be included therein required to
comply with any applicable law and (ii) make all required filings of
such Prospectus or such post-effective amendment as soon as
practicable after the Company has received notification of
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such matters required by Applicable Law to be incorporated in such
Prospectus or post-effective amendment.
(i) If (A) a Shelf Registration is filed pursuant to
Section 3 or (B) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Securities during the Applicable Period,
cooperate with the selling Holders and the managing underwriters, if
any, to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold, which certificates
shall not bear any restrictive legends and shall be in a form eligible
for deposit with The Depository Trust Company ("DTC"); and enable such
Registrable Securities to be in such denominations and registered in
such names as the managing underwriters, if any, or Holders may
reasonably request.
(j) If (i) a Shelf Registration is filed pursuant to
Section 3 or (ii) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Securities during the Applicable Period,
upon the occurrence of any event contemplated by paragraph 6(e)(v) or
6(e)(vi) above, as promptly as practicable prepare a supplement or
post-effective amendment to the Registration Statement or a supplement
to the related Prospectus or any document incorporated or deemed to be
incorporated therein by reference, or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable
Securities being sold thereunder or to the purchasers of the Exchange
Securities to whom such Prospectus will be delivered by a
Participating Broker-Dealer, such Prospectus will not 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, in light of the circumstances under which they were made, not
misleading.
(k) Use its best efforts to cause the Securities covered
by a Registration Statement to be rated with the appropriate rating
agencies, if appropriate, if so requested by the Holders of a majority
in aggregate principal amount of Securities covered by such
Registration Statement or the managing underwriters, if any.
(l) Prior to the effective date of the first Registration
Statement relating to the Securities, (i) provide the applicable
trustee with printed certificates for the Securities in a form
eligible for deposit with DTC and (ii) provide a CUSIP number for each
of the Securities.
(m) Use its best efforts to cause all Securities covered
by such Registration Statement to be listed on each securities
exchange, if any, on which similar debt securities issued by the
Company are then listed.
(n) If a Shelf Registration is filed pursuant to Section
3, enter into such agreements (including an underwriting agreement in
form, scope and substance as is customary in Underwritten Offerings)
and take all such other actions in connection therewith (including
those reasonably requested by the managing underwriters, if any, or
the Holders of a majority in aggregate principal amount of the
Registrable Securities being sold) in order to expedite or facilitate
the registration or the disposition of such Registrable Securities,
and in such connection, regardless of whether an underwriting
agreement is entered into and regardless of whether the registration
is an Underwritten Registration, (i) make such representations and
warranties to the Holders and the underwriters, if any, with respect
to the business of the Company and its
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subsidiaries, and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, in form, substance and scope as are
customarily made by issuers to underwriters in Underwritten Offerings,
and confirm the same if and when reasonably requested; (ii) 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, and the Holders of
a majority in aggregate principal amount of the Registrable Securities
being sold), addressed to each selling Holder and each of the
underwriters, if any, covering the matters customarily covered in
opinions requested in Underwritten Offerings; (iii) obtain "cold
comfort" letters and updates thereof (which letters and updates (in
form, scope and substance) shall be reasonably satisfactory to the
managing underwriters) from the independent certified public
accountants of the Company (and, if necessary, any other independent
certified 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 each of the underwriters and
each selling Holder, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with Underwritten Offerings and such other matters as
reasonably requested by underwriters; and (iv) deliver such documents
and certificates as may be reasonably requested by the Holders of a
majority in principal amount of the Registrable Securities being sold
and the managing underwriters, if any, to evidence the continued
validity of the representations and warranties of the Company and its
subsidiaries made pursuant to clause (i) above and to evidence
compliance with any conditions contained in the underwriting agreement
or other similar agreement entered into by the Company.
(o) Comply with all applicable rules and regulations of
the SEC and make generally available to its security holders earnings
statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 days after the
end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing on the first
day of the fiscal quarter following each fiscal quarter in which
Registrable Securities are sold to underwriters in a firm commitment
or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the
first fiscal quarter of the Company after the effective date of a
Registration Statement, which statements shall cover said 12-month
periods.
(p) Upon consummation of an Exchange Offer or Private
Exchange, obtain an opinion of counsel to the Company (in form, scope
and substance reasonably satisfactory to the Purchaser), addressed to
all Holders participating in the Exchange Offer or Private Exchange,
as the case may be, to the effect that (i) the Company has duly
authorized, executed and delivered the Exchange Securities or the
Private Exchange Securities, as the case may be, and the Indenture,
(ii) the Exchange Securities or the Private Exchange Securities, as
the case may be, and the Indenture constitute legal, valid and binding
obligations of the Company, enforceable against the Company in
accordance with their respective terms, except as such enforcement may
be subject to (x) applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors' rights and remedies
generally and (y) general principles of equity (regardless of whether
such enforcement is sought in a proceeding in equity or at law), and
(iii) all obligations of the Company under the Exchange Securities or
the Private Exchange Securities, as the case may be, and the Indenture
are secured by Liens on the assets securing the obligations of the
Company under the Notes.
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(q) If an Exchange Offer or Private Exchange is to be
consummated, upon delivery of the Registrable Securities by such
Holders to the Company (or to such other Person as directed by the
Company) in exchange for the Exchange Securities or the Private
Exchange Securities, as the case may be, the Company shall mark, or
caused to be marked, on such Registrable Securities that such
Registrable Securities are being cancelled in exchange for the
Exchange Securities or the Private Exchange Securities, as the case
may be; in no event shall such Registrable Securities be marked as
paid or otherwise satisfied.
(r) Cooperate with each seller of Registrable Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Securities and
their respective counsel in connection with any filings required to be
made with the NASD.
(s) Use its best efforts to take all other steps
reasonably necessary to effect the registration of the Registrable
Securities covered by a Registration Statement contemplated hereby.
The Company may require each seller of Registrable Securities
or Participating Broker-Dealer as to which any registration is being effected
to furnish to the Company such information regarding such seller or
Participating Broker-Dealer and the distribution of such Registrable Securities
or Exchange Securities as the Company may, from time to time, reasonably
request in writing. The Company may exclude from such registration the
Registrable Securities of any seller or Exchange Securities of any
Participating Broker-Dealer who unreasonably fails to furnish such information.
Each Holder and each Participating Broker-Dealer agrees by
acquisition of such Registrable Securities or Exchange Securities of any
Participating Broker-Dealer that, upon receipt of written notice from the
Company of the happening of any event of the kind described in Section
6(e)(ii), 6(e)(iv), 6(e)(v) or 6(e)(vi), such Holder will forthwith discontinue
disposition (in the jurisdictions specified in a notice of a 6(e)(iv) event,
and elsewhere in a notice of a 6(e)(ii), 6(e)(v) or 6(e)(vi) event) of such
Securities covered by such Registration Statement or Prospectus until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 6(j), or until it is advised in writing (the "Advice")
by the Company that offers or sales in a particular jurisdiction may be resumed
or that the use of the applicable Prospectus may be resumed, as the case may
be, and has received copies of any amendments or supplements thereto. If the
Company shall give such notice, each of the Effectiveness Period and the
Applicable Period shall be extended by the number of days during such periods
from and including the date of the giving of such notice to and including the
date when each seller of such Securities covered by such Registration Statement
shall have received (x) the copies of the supplemented or amended Prospectus
contemplated by Section 6(j) or (y) the Advice.
7. Registration Expenses.
(a) All fees and expenses incident to the performance of
or compliance with this Agreement by the Companies shall be borne by
the Company, regardless of whether the Exchange Offer or a Shelf
Registration is filed or becomes effective, including, without
limitation:
(i) all registration and filing fees (including,
without limitation, (A) fees with respect to filings required
to be made with the NASD and (B) fees and expenses of
compliance with state securities or Blue Sky laws (including,
without limitation,
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reasonable fees and disbursements of counsel in connection
with Blue Sky qualifications of the Registrable Securities or
Exchange Securities and determination of the eligibility of
the Registrable Securities or Exchange Securities for
investment under the laws of such jurisdictions (x) where the
Holders are located, in the case of the Exchange Securities,
or (y) as provided in Section 6(f), in the case of Registrable
Securities or Exchange Securities to be sold by a
Participating Broker-Dealer during the Applicable Period);
(ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable
Securities or Exchange Securities in a form eligible for
deposit with DTC and of printing Prospectuses if the printing
of Prospectuses is requested by the managing underwriters, if
any, or, in respect of Registrable Securities or Exchange
Securities to be sold by a Participating Broker-Dealer during
the Applicable Period, by the Holders of a majority in
aggregate principal amount of the Registrable Securities
included in any Registration Statement or of such Exchange
Securities, as the case may be);
(iii) messenger, telephone, duplication, word
processing and delivery expenses incurred by the Company in
the performance of its obligations hereunder;
(iv) fees and disbursements of counsel for the
Company;
(v) fees and disbursements of all independent
certified public accountants referred to in Section 6(n)(iii)
(including, without limitation, the expenses of any special
audit and "cold comfort" letters required by or incident to
such performance);
(vi) fees and expenses of any "qualified
independent underwriter" or other independent appraiser
participating in an offering pursuant to Section 3 of Schedule
E to the By-laws of the NASD, but only where the need for such
a "qualified independent underwriter" arises due to a
relationship with the Company;
(vii) Securities Act liability insurance, if the
Company so desires such insurance;
(viii) fees and expenses of all other Persons
retained by the Company; internal expenses of the Company
(including, without limitation, all salaries and expenses of
officers and employees of the Company performing legal or
accounting duties); and the expense of any annual audit; and
(ix) rating agency fees and the fees and expenses
incurred in connection with the listing of the Securities to
be registered on any securities exchange.
(b) The Company shall reimburse the Holders for the
reasonable fees and disbursements of not more than one counsel (in
addition to appropriate local counsel) chosen by the Holders of a
majority in aggregate principal amount of the Registrable Securities
to be included in any Registration Statement and other reasonable and
necessary out-of-pocket expenses of the Holders incurred in connection
with the registration of the Registrable Securities.
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8. Indemnification.
(a) Indemnification by the Companies. Each of the
Companies, jointly and severally, shall, without limitation as to
time, indemnify and hold harmless each Holder and each Participating
Broker-Dealer selling Exchange Securities during the Applicable
Period, each Person who controls each such Holder (within the meaning
of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act) and the officers, directors, partners, employees, representatives
and agents of each such Holder, Participating Broker-Dealer and
controlling person, to the fullest extent lawful, from and against any
and all losses, claims, damages, liabilities, costs (including,
without limitation, reasonable costs of preparation and reasonable
attorneys' fees) and expenses (including, without limitation,
reasonable costs and expenses incurred in connection with
investigating, preparing, pursuing or defending against any of the
foregoing) (collectively, "Losses"), as incurred, directly or
indirectly caused by, related to, based upon, arising out of or in
connection with any untrue or alleged untrue statement of a material
fact contained in any Registration Statement, Prospectus or form of
prospectus, or in any amendment or supplement thereto, or in any
preliminary prospectus, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, except insofar as such Losses
are based upon information relating to such Holder or Participating
Broker-Dealer and furnished in writing to the Company by such Holder
or Participating Broker-Dealer expressly for use therein; provided,
however, that none of the Companies shall be liable to any Indemnified
Party to the extent that any such losses arise solely out of an untrue
statement or alleged untrue statement or omission or alleged omission
made in any preliminary prospectus if (i) such Indemnified Party or
related holder of a Registrable Security failed to send or deliver a
copy of the Prospectus with or prior to the delivery of written
confirmation of the sale by such Indemnified Party or the related
holder of a Registrable Security to the person asserting the claim
from which such Losses arise, (ii) the Prospectus would have corrected
such untrue statement or alleged untrue statement or omission or
alleged omission, and (iii) the Company has complied with its
obligations under Section 6(e). Each of the Companies shall also,
jointly and severally, indemnify underwriters, selling brokers, dealer
managers and similar securities industry professionals participating
in the distribution, their officers, directors, agents and employees
and each Person who controls such Persons (within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange Act)
to the same extent as provided above with respect to the
indemnification of the Holders or the Participating Broker-Dealer.
Notwithstanding any provision hereof to the contrary, the liability of
each of TARC and TransTexas pursuant to this Section 8(a) shall be
limited to the amount of proceeds of the Offering (as defined in the
Purchase Agreement) received directly or indirectly by such
corporation, including without limitation pursuant to the transactions
contemplated hereby, by the Purchase Agreement or by the Offering
Circular (as defined in the Purchase Agreement).
(b) Indemnification by Holder of Registrable Securities.
In connection with any Registration Statement, Prospectus or form of
prospectus, any amendment or supplement thereto, or any preliminary
prospectus in which a Holder is participating, such Holder shall
furnish to the Company in writing such information as the Company
reasonably requests for use in connection with any Registration
Statement, Prospectus or form of prospectus, any amendment or
supplement thereto, or any preliminary prospectus and shall, without
limitation as to time, indemnify and hold harmless the Company, its
officers, directors, partners, employees, representatives and agents,
each Person, if any, who controls the Company (within the meaning of
Section 15 of the Securities Act and Section 20(a) of the Exchange
Act), and the officers, directors, partners,
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employees, representatives and agents of such controlling persons, to
the fullest extent lawful, from and against all Losses arising out of
or based upon any untrue or alleged untrue statement of a material
fact contained in any Registration Statement, Prospectus or form of
prospectus or in any amendment or supplement thereto or in any
preliminary prospectus, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading to the extent, but only to the
extent, that such untrue statement or alleged untrue statement of a
material fact or omission or alleged omission of a material fact is
contained in any information so furnished in writing by such holder to
the Company expressly for use therein. In no event shall the
liability of any selling Holder be greater in amount than the dollar
amount of the proceeds (net of payment of all expenses) received by
such Holder upon the sale of the Registrable Securities giving rise to
such indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any
Proceeding shall be brought or asserted against any Person entitled to
indemnity hereunder (an "Indemnified Party"), such Indemnified Party
shall promptly notify the party or parties from which such indemnity
is sought (the "Indemnifying Parties") in writing; provided, that the
failure to so notify the Indemnifying Parties shall not relieve the
Indemnifying Parties from any obligation or liability except to the
extent that it shall be finally determined by a court of competent
jurisdiction (which determination is not subject to appeal) that the
Indemnifying Parties have been prejudiced materially by such failure.
The Indemnifying Party shall have the right,
exercisable by giving written notice to an Indemnified Party, within
20 Business Days after receipt of written notice from such Indemnified
Party of such Proceeding, to assume, at its expense, the defense of
any such Proceeding, provided, that an Indemnified Party shall have
the right to employ separate counsel in any such Proceeding and to
participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Party or parties
unless: (1) the Indemnifying Party has agreed to pay such fees and
expenses; or (2) the Indemnifying Party shall have failed promptly to
assume the defense of such Proceeding or shall have failed to employ
counsel reasonably satisfactory to such Indemnified Party; or (3) the
named parties to any such Proceeding (including any impleaded parties)
include both such Indemnified Party and the Indemnifying Party or any
of its affiliates or controlling persons, and such Indemnified Party
shall have been advised by counsel that there may be one or more
defenses available to such Indemnified Party that are in addition to,
or in conflict with, those defenses available to the Indemnifying
Party or such affiliate or controlling person (in which case, if such
Indemnified Party notifies the Indemnifying Parties in writing that it
elects to employ separate counsel at the expense of the Indemnifying
Parties, the Indemnifying Parties shall not have the right to assume
the defense thereof and the reasonable fees and expenses of such
counsel shall be at the expense of the Indemnifying Party; it being
understood, however, that, the Indemnifying Party shall not, in
connection with any one such Proceeding or separate but substantially
similar or related Proceedings in the same jurisdiction, arising out
of the same general allegations or circumstances, be liable for the
fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time for such
Indemnified Parties).
No Indemnifying Party shall be liable for any
settlement of any such Proceeding effected without its written
consent, but if settled with its written consent, or if there be a
final judgment for the plaintiff in any such Proceeding, each
Indemnifying Party jointly and severally agrees, subject to the
exceptions and limitations set forth above, to indemnify and hold
harmless
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each Indemnified Party from and against any and all Losses by reason
of such settlement or judgment. The Indemnifying Party shall not
consent to the entry of any judgment against an indemnified party or
enter into any settlement that imposes any obligation on any
indemnified party that does not include as a term thereof the giving
by the claimant or plaintiff to each Indemnified Party of a release,
in form and substance reasonably satisfactory to the Indemnified
Party, from all liability in respect of such Proceeding for which such
Indemnified Party would be entitled to indemnification hereunder
(regardless of whether any Indemnified Party is a party thereto).
(d) Contribution. If the indemnification provided for in
this Section 8 is unavailable to an Indemnified Party or is
insufficient to hold such Indemnified Party harmless for any Losses in
respect of which this Section 8 would otherwise apply by its terms
(other than by reason of exceptions provided in this Section 8), then
each applicable Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall have a joint and several obligation to
contribute to the amount paid or payable by such Indemnified Party as
a result of such Losses, 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 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, shall be determined by reference to, among other
things, whether any untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact 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 statement
or omission. The amount paid or payable by an Indemnified Party as a
result of any Losses shall be deemed to include any legal or other
fees or expenses incurred by such party in connection with any
Proceeding, to the extent such party would have been indemnified for
such fees or expenses if the indemnification provided for in Section
8(a) or 8(b) was available to such party.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were
determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to
in the immediately preceding paragraph. Notwithstanding the provisions
of this Section 8(d), an Indemnifying Party that is a selling Holder
shall not be required to contribute, in the aggregate, any amount in
excess of such Holder's Maximum Contribution Amount. A selling
Holder's "Maximum Contribution Amount" shall equal the excess of (i)
the aggregate proceeds received by such Holder pursuant to the sale of
such Registrable Securities over (ii) the aggregate amount of damages
that such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
The indemnity and contribution agreements contained in this
Section 8 are in addition to any liability that the Indemnifying Parties may
have to the Indemnified Parties.
9. Rule 144 and Rule 144A. Each of the Companies covenants that
it shall (a) file the reports required to be filed by it (if so required) under
the Securities Act and the Exchange Act in a timely manner and, if at any time
any such Person is not required to file such reports, it will, upon the request
of any Holder, make publicly available other information necessary to permit
sales pursuant to
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Rule 144 and Rule 144A and (b) take such further action as any Holder may
reasonably request, all to the extent required from time to time to enable such
Holder to sell Registrable Securities without registration under the Securities
Act pursuant to the exemptions provided by Rule 144 and Rule 144A. Upon the
request of any Holder, the Companies shall deliver to such Holder a written
statement as to whether they have complied with such information and
requirements.
10. Underwritten Registrations. If any of the Registrable
Securities covered by any Shelf Registration are to be sold in an Underwritten
Offering, the investment banker or investment bankers and manager or managers
that will manage the offering will be selected by the Holders of a majority in
aggregate principal amount of such Registrable Securities included in such
offering. No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Registrable Securities on
the basis provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements and (b) completes and executes
all questionnaires, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
11. Miscellaneous.
(a) Remedies. In the event of a breach by any of the
Companies of any of its respective obligations under this Agreement,
each Holder, in addition to being entitled to exercise all rights
provided herein, in the Indenture or, in the case of the Purchaser, in
the Purchase Agreement, or granted by law, including recovery of
damages, will be entitled to specific performance of its rights under
this Agreement. Each of the Companies agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of
a breach by it of any of the provisions of this Agreement and hereby
further agrees that, in the event of any action for specific
performance in respect of such breach, it shall waive the defense that
a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company has not
entered into, as of the date hereof, and shall not enter into, after
the date of this Agreement, any agreement with respect to any of its
securities that is inconsistent with the rights granted to the holders
of Registrable Securities in this Agreement or otherwise conflicts
with the provisions hereof.
(c) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the
Company has obtained the written consent of Holders of at least a
majority of the then outstanding aggregate principal amount of
Registrable Securities; provided, that Sections 6(a) and 8 shall not
be amended, modified or supplemented, and waivers or consents to
departures from this proviso may not be given, unless the Company has
obtained the written consent of each Holder affected thereby.
Notwithstanding the foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to
the rights of Holders whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect
the rights of other Holders may be given by Holders of at least a
majority in aggregate principal amount of the Registrable Securities
being sold by such Holders pursuant to such Registration Statement,
provided that the provisions of this sentence may not be amended,
modified or supplemented except in accordance with the provisions of
the immediately preceding sentence.
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(d) Notices. All notices and other communications
(including, without limitation, any notices or other communications to
the Trustee) provided for or permitted hereunder shall be made in
writing by hand- delivery, certified first-class mail, return receipt
requested, next-day air courier or facsimile:
(i) if to a Holder, at the most current address
given by such Holder to the Company in accordance with the
provisions of this Section 11(d), which address initially is,
with respect to each Holder, the address of such holder
maintained by the Registrar under the Indenture, with a copy
to Skadden, Arps, Slate, Meagher & Flom LLP, 300 South Grand
Avenue, Los Angeles, California 90071, telecopy number (213)
687-5600, Attention: Rodrigo A. Guerra, Jr.; and
(ii) if to any of the Companies, initially to such
Company at 1300 North Sam Houston Parkway East, Suite 310,
Houston, Texas 77032-2949, telecopy number (281) 986-8865,
Attention: President, with a copy to Gardere & Wynne, L.L.P.,
3000 Thanksgiving Tower, Dallas, Texas 75201, telecopy number
(214) 999-4667, Attention: C. Robert Butterfield;
and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 11(d).
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if
mailed; one Business Day after being timely delivered to a next-day
air courier; and when receipt is acknowledged by the addressee, if
telecopied. Copies of all such notices, demands or other
communications shall be concurrently delivered by the Person giving
the same to the Trustee under the Indenture at the address specified
in such Indenture.
(e) Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors and assigns of
each of the parties, including, without limitation and without the
need for an express assignment, subsequent Holders.
(f) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the
same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE
COMPANIES HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW
YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF
NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY
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ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. EACH OF THE
COMPANIES IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY
DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. EACH OF THE COMPANIES IRREVOCABLY
CONSENTS, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE
COMPANY AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS
AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY
HOLDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY OF THE
COMPANIES IN ANY OTHER JURISDICTION.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, 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, and 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. It is hereby stipulated and
declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid,
illegal, void or unenforceable.
(j) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement, and is intended to
be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter
contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein, with
respect to the registration rights granted by the Company in respect
of securities sold pursuant to the Purchase Agreement. This Agreement
supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
(k) Attorneys' Fees. In any Proceeding brought to
enforce any provision of this Agreement, or where any provision hereof
is validly asserted as a defense, the prevailing party, as determined
by the courts, shall be entitled to recover reasonable attorneys' fees
in addition to its costs and expenses and any other available remedy.
(l) Securities Held by the Company or its Affiliates.
Whenever the consent or approval of Holders of a specified percentage
of Registrable Securities is required hereunder, Registrable
Securities held by the Company or its affiliates (as such term is
defined in Rule 405 under the Securities Act) (other than Holders
deemed to be such affiliates solely by reason of their holdings of
such Registrable Securities) shall not be counted in determining
whether such consent or approval was given by the holders of such
required percentage.
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[Signature Page Follows]
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REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
TRANSAMERICAN ENERGY CORPORATION
By:
---------------------------------
Name:
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Title:
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TRANSTEXAS GAS CORPORATION
By:
--------------------------------
Name:
------------------------------
Title:
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TRANSAMERICAN REFINING CORPORATION
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Accepted and Agreed to:
JEFFERIES & COMPANY, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------