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EXHIBIT 10.4
REGISTRATION RIGHTS AGREEMENT
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REGISTRATION RIGHTS AGREEMENT
AMONG
WEATHERFORD ENTERRA COMPRESSION COMPANY, L.P.,
A DELAWARE LIMITED PARTNERSHIP,
GLOBAL COMPRESSION SERVICES, INC.,
A DELAWARE CORPORATION,
AND
WEATHERFORD GLOBAL COMPRESSION SERVICES, L.P.,
A DELAWARE LIMITED PARTNERSHIP
DATED AS OF FEBRUARY 2, 1999
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
ARTICLE II
REGISTRATION RIGHTS
2.1 REGISTRATION RIGHTS.....................................................5
(a) IPO Notice.....................................................5
(b) Demand Rights..................................................7
(c) Certain Limitations............................................7
(d) Piggyback Rights...............................................8
2.2 REGISTRATION STATEMENT FORM.............................................9
2.3 EXPENSES................................................................9
2.4 EFFECTIVE REGISTRATION..................................................9
2.5 UNDERWRITERS...........................................................10
2.6 APPORTIONMENT IN REGISTRATIONS REQUESTED...............................10
ARTICLE III
REGISTRATION PROCEDURES
3.1 PROCEDURES.............................................................10
3.2 UNDERWRITING AGREEMENT.................................................14
3.3 SELLER'S INFORMATION...................................................15
3.4 PREPARATION; REASONABLE INVESTIGATION..................................15
3.5 NOMINEES FOR BENEFICIAL OWNERS.........................................15
ARTICLE IV
INDEMNIFICATION
4.1 INDEMNIFICATION BY THE REGISTRANT......................................15
4.2 INDEMNIFICATION BY THE SELLERS OF REGISTRABLE SECURITIES...............16
4.3 CONTRIBUTION...........................................................17
4.4 NOTICES OF CLAIMS, ETC.................................................18
ARTICLE V
MISCELLANEOUS
5.1 SALES COMPLIANCE.......................................................19
5.2 COMPLETE AGREEMENT; AMENDMENT..........................................19
5.3 NOTICES................................................................20
(a) Addresses.....................................................20
(b) Effective Date of Notices, etc................................20
(c) Changes.......................................................20
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5.4 ASSIGNMENT; OTHER BENEFITS.............................................21
5.5 AMENDMENTS AND WAIVERS.................................................21
5.6 HEADINGS...............................................................21
5.7 SEVERABILITY OF PROVISIONS.............................................21
5.8 COUNTERPARTS...........................................................21
5.9 GOVERNING LAW..........................................................21
5.10 ADDITIONAL AGREEMENTS..................................................21
ANNEX A Newco Adoption Agreement
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of
February 2, 1999, between Weatherford Enterra Compression Company, L.P., a
Delaware limited partnership ("WECC"), Global Compression Services, Inc., a
Delaware corporation ("Global") (collectively, the "Limited Partners") and
Weatherford Global Compression Services, L.P., a Delaware limited partnership
(the "Partnership").
W I T N E S S E T H:
WHEREAS, Weatherford International, Inc., WECC, Global, and GE Capital
(as defined in the Formation Agreement) are parties to that certain Formation
Agreement dated February 2, 1999 (the "Formation Agreement") providing for the
contribution to the Partnership of certain gas compression assets of WECC and
the Transferring Weatherford Entities (as defined in the Formation Agreement)
and Global in exchange for Partnership Interests (as defined in the Formation
Agreement);
WHEREAS, the Limited Partners are parties to that certain Limited
Partnership Agreement dated February 2, 1999 (the "LP Agreement") governing the
Partnership;
WHEREAS, WECC and Global are parties to that certain Limited Liability
Company Agreement dated February 2, 1999 (the "LLC Agreement"), providing for
the formation and governance of Weatherford Global Compression Holding, L.L.C.,
a Delaware limited liability company and the General Partner of the Partnership
(the "General Partner"); and
WHEREAS, it is a condition precedent to the consummation of the
transactions contemplated by the Formation Agreement that the Partnership and
the Limited Partners enter into this Agreement;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements hereinafter set forth and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby covenant and agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used in this Agreement shall include the singular as
well as the plural, include the masculine as well as the feminine and neutral
and have the meanings given to them in this ARTICLE I, unless defined elsewhere
in this Agreement.
"Affiliate" means, with respect to any Person, (i) each Person that,
directly or indirectly, owns or controls, whether beneficially or as a trustee,
guardian or other fiduciary, 50% or more of the Stock having ordinary voting
power in the election of directors of such Person, (ii) each Person that
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controls, is controlled by or is under common control with such Person or any
Affiliate of such Person or (iii) each of such Person's officers, directors,
joint venturers and partners. For purposes solely of the foregoing definition,
(a) "Stock" shall mean all shares, options, warrants, general or limited
partnership interests, participations or other equivalents (regardless of how
designated) of or in a corporation, partnership or equivalent entity, whether
voting or nonvoting, including, without limitation, common stock, preferred
stock, or any other "equity security" (as such term is defined in Rule 3a11-1 of
the General Rules and Regulations promulgated by the Commission under the
Exchange Act, regardless of whether the Registrant shall at any time be subject
to the requirements of the Exchange Act) and (b) "control" of a Person shall
mean the possession, directly or indirectly, of the power to direct or cause the
direction of its management or policies, whether through the ownership of voting
securities, by contract or otherwise.
"Agreement" shall have the meaning assigned to such term in the
introductory paragraph hereof.
"Affiliated Group", with respect to any Person, means such Person and
each Affiliate and Associate of such Person and each other Person with whom such
Person is acting "as a partnership, limited partnership, syndicate, or other
group for the purpose of acquiring, holding, or disposing of" Securities (within
the meaning of Section 13(d)(3) of the Exchange Act, regardless of whether the
Company shall at any time be subject to the requirements of the Exchange Act).
"Associate" has the meaning given such term in Rule 12b-2 under the
Exchange Act.
"Board of Directors" means (i) in the case of a Person that is a
corporation, the board of directors of such Person and (ii) in the case of any
other Person, the board of directors, board of managers, management committee or
similar governing body of such Person (or in the case of a limited partnership,
of such Person's general partner, or in the case of a limited liability company,
of such Person's manager if such manager(s) is not an individual), or any
authorized committee thereof responsible for the management of the business and
affairs of such Person.
"Business Day" means any day except Saturdays, Sundays and days on
which the offices of the Commission are not open for business.
"Code" shall have the meaning assigned to such term in Section 2.1(a)
hereof.
"Commission" means the Securities and Exchange Commission of the United
States of America or any other federal agency at the time administering the
Securities Act.
"Common Stock" means (x) all shares now or hereafter authorized and
designated as the Common Stock of Newco, including (without limitation) the
Common Stock held by each of WECC and Global, and (y) any securities issued or
issuable with respect to any such securities by way of a distribution or split
or in connection with a combination or subdivision of shares, reclassification,
recapitalization, merger, consolidation, or reorganization or otherwise upon any
required adjustments,
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and securities of any other class with which such securities may hereafter have
been exchanged or reclassified.
"Delay Notice" shall have the meaning assigned to such term in Section
2.1(c) hereof.
"Demand Notice" shall have the meaning assigned to such term in Section
2.1(b) hereof.
"Disadvantageous Condition" shall have the meaning assigned to such
term in Section 2.1(c) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the regulations promulgated from time to time thereunder.
"Formation Agreement" shall have the meaning assigned to such term in
the recitals to this Agreement.
"Global" shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.
"Governmental Entity" means the United States of America, any state,
province, territory, county, city, municipality and any subdivision thereof, any
court, administrative or regulatory agency, commission, department or body or
other governmental authority or instrumentality, the Commission, or any entity
or person exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Indemnified Party" shall have the meaning assigned to such term in
Section 4.4 hereof.
"Indemnifying Party" shall have the meaning assigned to such term in
Section 4.4 hereof.
"IPO" means a firm commitment underwritten initial public offering of
Registrable Securities of the Registrant registered under the Securities Act
that is consummated.
"IPO Notice" shall have the meaning assigned to such term in Section
2.1(a) hereof.
"LLC Agreement" shall have the meaning assigned to such term in the
recitals to this Agreement.
"LP Agreement" shall have the meaning assigned to such term in the
recitals to this Agreement.
"Newco" shall mean any new entity specified in the IPO Notice, which
entity's securities are to be registered under the Securities Act.
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"Organizational Restructure" shall mean any reorganization,
restructure, reclassification, merger, consolidation, combination, conversion or
other fundamental organizational transaction, whether to be effected in one
transaction or a series of related transactions, involving the Partnership
and/or any of its subsidiaries and specified by Global in the IPO Notice to be
effected in connection with a public offering of the Registrant's equity
securities under the Securities Act, including without limitation (i) any
restructuring of the organizational structure of the Partnership and/or any of
its subsidiaries, (ii) any reorganization, merger, consolidation, combination or
conversion of the Partnership and/or any of its subsidiaries with and/or into
Newco, (iii) any transaction or transactions establishing an organizational
structure whereby the Partnership and/or its subsidiaries are owned, directly or
indirectly, by a newly-formed holding company and (iv) any transaction whereby
Newco purchases Global's interest in the Partnership with proceeds generated
from other steps in the Organizational Restructure.
"Party" means the Partnership, any Limited Partner party hereto or
Newco (in the event Newco becomes a signatory hereto pursuant to Section 2.1(a)
hereof).
"Permitted Transferee" shall mean with respect to any Registrable
Securities, (i) with respect to Partnership Interests, transferees thereof
permitted pursuant to the terms and conditions of the LP Agreement, and (ii)
with respect to any other Registrable Securities, any subsidiary of the Partner
owning such Registrable Securities to which subsidiary such Registrable
Securities are transferred, so long as a majority of the issued and outstanding
equity securities of such subsidiary are directly owned by such Partner.
"Person" shall mean an individual, partnership, corporation, business
trust, limited liability company, limited liability partnership, joint stock
company, trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.
"Piggyback Registration" shall have the meaning assigned to such term
in Section 2.1(d) hereof.
"Registrable Securities" shall mean, with respect to each Partner (as
defined in the LP Agreement), all Partnership Interests and equity securities of
Newco owned or acquired by the Partners in connection with an Organizational
Restructure and any equity securities issued or issuable in respect of such
Partnership Interests or equity securities by way of a distribution or split or
in connection with a combination or subdivision thereof, reclassification,
recapitalization, merger, consolidation or other reorganization of the
Partnership or Newco. As to any particular Registrable Securities, such
securities shall cease to be Registrable Securities when (i) a registration
statement with respect to the offering and sale of such securities shall have
become effective under the Securities Act and such securities shall have been
disposed of in accordance with such registration statement, (ii) they shall have
been distributed to the public pursuant to Rule 144 (or any successor provision)
under the Securities Act, (iii) they shall have been otherwise transferred and
subsequent disposition of them shall not require registration or qualification
of them under the Securities Act or
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any similar law then in force, (iv) they shall have been otherwise transferred
to any Person other than a Permitted Transferee, or (v) they shall have ceased
to be outstanding.
"Registrant" shall mean the Partnership or, if specified in the IPO
Notice, Newco.
"Registration Expenses" means all out-of-pocket expenses incident to
the Registrant's performance of or compliance with ARTICLE II or ARTICLE III,
including, without limitation, all registration, filing and National Association
of Securities Dealers, Inc. fees, all fees and expenses of complying with
securities or blue sky laws (including reasonable fees and disbursements of
underwriters' counsel in connection with any blue sky memoranda), all word
processing, duplicating and printing expenses, all listing fees, internal
expenses of the Partnership, fees and disbursements of counsel for the
Partnership, the fees and expenses of any special experts retained by the
Partnership in connection with the registration, any special audits or "cold
comfort" letters required by or incident to such performance and compliance and
the out-of-pocket expenses of underwriters typically paid by issuers of
securities, but excluding Selling Expenses, if any.
"Requesting Holders" shall have the meaning assigned to such term in
Section 2.1(b) hereof.
"Rule 144" means Rule 144 under the Securities Act, or any successor
provision.
"Securities Act" means the Securities Act of 1933, as amended, and the
regulations promulgated from time to time thereunder.
"Selling Expenses" shall mean any underwriting discounts or
commissions, any selling commissions and stock transfer taxes attributable to
sales of Registrable Securities and the fees and expenses of counsel for any
holder thereof.
"Shelf Registration" shall have the meaning assigned to such term in
Section 2.1(d) hereof.
"WECC" shall have the meaning assigned to such term in the introductory
paragraph of this agreement and include any successor thereto.
ARTICLE II
REGISTRATION RIGHTS
2.1 REGISTRATION RIGHTS.
(a) IPO Notice. At any time from and after February 2, 2001,
Global shall have the right, by providing written notice to the Partnership (an
"IPO Notice"), (i) to require that the Partnership effect an Organizational
Restructure, subject to the provisions below, and (ii) that the Registrant, as
expeditiously as possible, register under the Securities Act the Registrant's
equity securities and/or that amount of Registrable Securities owned or to be
owned by Global as a result
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of the Organizational Restructure and specified in the IPO Notice, in any case
for the public offering and sale of such securities. If Global exercises such
right:
(i) the Partnership, the General Partner (as defined
in the LP Agreement) and all other Limited Partners will cooperate with
Global to promptly effect such registration, offering and sale,
including without limitation (A) subject to the provisions below,
implementing and consummating any such Organizational Restructure, (B)
causing Newco to become a signatory to this Agreement and be bound by
the all terms hereof applicable to the Partnership, and (C) executing
all documents, instruments and taking all other actions reasonably
necessary in connection with such registration, offering and sale, and
any such Organizational Restructure; and
(ii) if the IPO Notice contemplates a public offering
and sale of Registrable Securities by Global, each other Limited
Partner shall have the right to include its Registrable Securities in
such offering on a pro rata basis.
Global's rights pursuant to this Section 2.1(a) shall be subject to the
provisions of Section 11.1 of the LP Agreement. Notwithstanding the foregoing,
WECC and Global shall not be obligated to effect an Organizational Restructure
if as a result of the Organizational Restructure or the subsequent sale of
shares of Common Stock by Global or Newco under the Code, WECC or any of its
Affiliates that are a party to the Organizational Restructure would recognize
any gain; provided, however, an Organizational Restructure may be effected if
(i) Global provides WECC with a private letter ruling of the Internal Revenue
Service in a form reasonably acceptable to WECC and based upon representations
reasonably acceptable to WECC, stating that, as a result of the Organizational
Restructure or IPO WECC will not recognize any gain, or (ii) GE Capital agrees
to fully indemnify WECC and its Affiliates that are a party to the
Organizational Restructure from and against any and all Taxes, expenses,
including reasonable attorneys' fees, penalties and interests, costs, losses,
damages and other liabilities that may arise, be paid or be payable as a result
of the Organizational Restructure and IPO, provided, however, that in the event
that GE Capital agrees to indemnify WECC pursuant to this provision, WECC shall
make such factual representations as reasonably requested by Global, which
representations shall be comparable to representations WECC would reasonably
have been expected to make in connection with a ruling request by Global. WECC
agrees that it will cooperate in such form of Organizational Restructure and IPO
as Global reasonably shall request to insure that WECC will not recognize any
gain, specifically including, without limitation, the following: (i) not
transferring liabilities to Newco that would result in gain recognition under
Section 357(c) of the Code, and (ii) agreeing to reasonable restrictions on the
sale of its Common Stock of Newco to the extent such sale, in addition to the
sales contemplated in the Organizational Restructure and IPO, would result in
the recognition of gain by WECC. WECC and Global acknowledge that each of them
will be required to make representations as part of any ruling request and agree
to make such factual representations as may be reasonably requested in
connection with such ruling request. For purposes of this Section, the term IPO
includes the sale of any shares held by Global or Newco for its own account in
the IPO.
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(b) Demand Rights. At any time from and after 180 days
following the consummation of an IPO, upon the written request to the Registrant
(a "Demand Notice") of the holder or holders of Registrable Securities holding
at least 15% of the Registrable Securities then outstanding (the "Requesting
Holders"), specifying the intended method of disposition of such Registrable
Securities, the Registrant shall effect the registration under the Securities
Act of the portion of such holders' Registrable Securities specified in the
Demand Notice for disposition in accordance with the intended method of
disposition as specified in the Demand Notice. The Registrant shall promptly
give written notice of any requested registration to the other holders of
Registrable Securities and shall use its reasonable best efforts to effect, as
expeditiously as possible, the registration under the Securities Act of:
(i) the Registrable Securities that the Registrant has been so
requested to register by such Requesting Holder; and
(ii) such Registrable Securities owned by other holders that
such holders request in writing to the Registrant, within 15 days after
receipt of written notice from the Registrant, to be registered,
all to the extent requisite to permit the disposition of the Registrable
Securities to be registered; provided that Registrable Securities registered
pursuant to subsections (i) and (ii) of this Section 2.1(b) shall be registered
on a pro rata basis according to such holders' ownership percentages of
Registrable Securities. Any sale of Registrable Securities by the Registrant or
any holders of Registrable Securities (other than Global) subsequent to an IPO
shall only be effected pursuant to a firm commitment underwritten distribution,
provided that such restriction shall terminate with respect to a particular
holder of Registrable Securities at the time such holder shall own less than 15%
of the Common Stock.
(c) Certain Limitations. The Registrant shall not be obligated
to effect more than (i) one (1) registration pursuant to Section 2.1(a) or (ii)
four (4) registrations pursuant to Section 2.1(b), two of which four shall be
allocated to WECC and two of which four shall be allocated to Global. In
addition, with respect to any registration statement to be filed pursuant to
Section 2.1(b), if the Board of Directors of the Registrant determines, in the
good faith exercise of its reasonable business judgment, that the filing of a
registration statement would (i) materially interfere with any bona fide
financing, acquisition or other material business plans of the Registrant, (ii)
require disclosure of material non-public information the premature disclosure
of which could materially adversely affect the Registrant or (iii) require any
financial statements that, for reasons beyond the Registrant's control, are
unavailable (a "Disadvantageous Condition"), the Registrant shall,
notwithstanding any other provision of this ARTICLE II, be entitled, upon the
giving of a written notice of such Disadvantageous Condition (a "Delay Notice")
to each holder of Registrable Securities included or requested to be included in
such registration statement, to cause the filing (but not the preparation) of
such registration statement to be delayed for a reasonable period of time until,
in the good faith exercise of the reasonable business judgment of the Board of
Directors, such
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Disadvantageous Condition no longer exists (written notice of which the
Registrant shall promptly deliver to each holder of Registrable Securities with
respect to which any such registration statement has been filed, or was
requested to have been filed). Upon the reasonable request of any holder of
Registrable Securities included or requested to be included in such registration
statement, the Registrant will disclose to such holder the nature of such
Disadvantageous Condition in reasonable detail, but only to the extent such
information has been publicly disclosed or would otherwise not constitute
material, non-public information that the Registrant has an interest in keeping
confidential. Upon receipt of any written notice from the Registrant to the
holders of Registrable Securities included in an effective registration
statement of the happening of any event which 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, in the case of the registration statement, 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 not misleading, and that in the case of a prospectus, 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, such
holders of Registrable Securities selling securities pursuant to an effective
registration statement will forthwith discontinue use of the prospectus
contained in such registration statement until such holder's receipt of the
supplemented or amended prospectus contemplated by Section 3.1(g) hereof and, if
so directed by the Registrant, each such holder of Registrable Securities will
deliver to the Registrant all copies, other than permanent file copies then in
such holder's possession, of the most recent prospectus then covering such
Registrable Securities at the time of receipt of such notice. Notwithstanding
the foregoing provisions of this subparagraph (c), the Registrant shall not be
entitled to delay any registration of Registrable Securities requested pursuant
to Section 2.1(b) for a period of more than 90 consecutive days from the giving
of its Delay Notice to the holders of such Registrable Securities with respect
to a Disadvantageous Condition, as above provided.
(d) Piggyback Rights. If at any time following the
consummation of an IPO, the Registrant shall propose the registration under the
Securities Act of shares of Common Stock for sale through underwriters
(including the registration for a delayed offering (a "Shelf Registration")) for
its own account (excluding any employee benefit or compensation programs), the
Registrant shall give written notice of such proposed registration (a "Piggyback
Registration") to WECC and Global and will include in any such registration
Registrable Securities of any of the Parties that, within 15 days after the
giving of such notice, shall request (in a written notice to the Registrant)
such inclusion, and the Registrant shall use its reasonable efforts to cause the
managing underwriters of the proposed offering to permit such Registrable
Securities to be included in the registration statement for such offering and to
be included in such offering on substantially the same terms and conditions as
those of the Registrant; provided that if in the opinion of the managing
underwriter for such offering the inclusion of such Registrable Securities
therein would adversely affect the number of securities the Registrant could
sell or the price the Registrant could receive for such securities or would in
any other manner adversely affect such offering, the number of Registrable
Securities to be so included shall be reduced on a pro rata basis (based on the
number of Registrable Securities requested to be
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included) so that such holders of Registrable Securities shall be entitled to
include only such number of Registrable Securities, if any, as such managing
underwriter has advised may be included in such registration without adversely
affecting the offering or the price or the number of securities to be sold in
such registration by the Registrant. In the event Registrable Securities are
included in a Shelf Registration and the holders of such Registrable Securities
subsequently elect not to sell such Registrable Securities thereunder, the
Registrant will de-register such Registrable Securities (including filing a
post-effective amendment to the Registration Statement for such Shelf
Registration) and such election shall not affect the rights of such holders
hereunder. Each holder of securities included in a Piggyback Registration shall
sell its Registrable Securities through the underwriters for the securities
otherwise sold thereunder pursuant to an underwriting agreement acceptable to
such underwriters and on substantially the same terms and conditions as the
Registrant. Each holder of Registrable Securities included in such registration
shall otherwise be entitled to all the benefits of this Agreement. A holder who
has given notice to the Registrant hereunder requesting inclusion of any
Registrable Securities in a Piggyback Registration shall have the right to
withdraw all or part of its Registrable Securities from the Piggyback
Registration at any time prior to the effective date of the registration
statement for such Piggyback Registration. The Registrant shall have the right
to delay or cancel any offering to which this Section 2.1(d) relates or to
withdraw any registration statement to which this Section 2.1(d) relates at any
time prior to the effective date thereof.
2.2 REGISTRATION STATEMENT FORM. Registrations under this ARTICLE II,
shall be on such appropriate registration form of the Commission as agreed to by
Global and the Registrant. The Registrant agrees to include in any such
registration statement all information that holders of Registrable Securities
being registered thereby shall reasonably request.
2.3 EXPENSES. The Registrant shall pay all Registration Expenses in
connection with registrations hereunder whether or not any registration
statement becomes effective and whether or not any securities are sold pursuant
to any registration statement (including without limitation all salaries and
expenses of its officers performing any legal and accounting functions).
2.4 EFFECTIVE REGISTRATION. A registration pursuant to Section 2.1(a)
or 2.1(b) hereof shall not be deemed to have been effected unless and until (i)
the registration statement has become effective pursuant to the Securities Act
and (ii) after it has become effective, the offering of Registrable Securities
pursuant to such registration statement is not materially interfered with by any
stop order, injunction or other order or requirement of the Commission or other
governmental agency or court and (iii) all Registrable Securities offered in
such registration are sold at the price (or within the range) set forth on the
cover page of the prospectus included in the registration statement, in the form
thereof declared effective by the Commission, as amended by any post-effective
amendments thereto, filed with respect to such offering. In the event that any
such registration pursuant to Section 2.1(a) or 2.1(b) is not so deemed to have
been effected, the registration right relied upon with respect thereto shall be
deemed not to have been exercised and shall be reinstated for all purposes and
may again be exercised in accordance with such Section 2.1(a) or 2.1(b), as the
case may be; provided, however, that if Global's first request for a
registration pursuant to Section 2.1(a) is withdrawn by
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Global for any reason (in which case the Registrant will withdraw the related
registration statement), Global may at any time thereafter make a second request
for a registration under Section 2.1(a), however, such second request shall
extinguish Global's rights to make any additional requests for a registration
pursuant to Section 2.1(a) (but not Section 2.1(b)) and shall be deemed (so long
as the conditions set forth in clauses (i), (ii) and (iii) of the first sentence
of this Section 2.4 have been met), for purposes of Section 2.1(c), to
constitute Global's right to request a registration pursuant to Section 2.1(a).
2.5 UNDERWRITERS. The managing underwriter or underwriters of any
underwritten public offering effected pursuant to Sections 2.1(a) or 2.1(b)
hereof shall be determined by Global and shall be reasonably acceptable to WECC
and the Registrant.
2.6 APPORTIONMENT IN REGISTRATIONS REQUESTED. With respect to any
registration requested pursuant to Section 2.1(a) or (b), if the managing
underwriter shall advise the Registrant in writing (with a copy to each holder
including or requesting the inclusion of its Registrable Securities in such
registration statement) that, in its opinion, the number of securities requested
to be included in such registration exceeds the number that can be sold in such
offering within a price range acceptable to Global or would in any other manner
adversely affect such offering, the number of Registrable Securities requested
to be so included shall be reduced so that each seller shall be entitled to
include such number of Registrable Securities, as the case may be, determined by
multiplying the number of Registrable Securities that such managing underwriter
has advised may be included in such registration without so adversely affecting
the offering or the price range thereof by a fraction, the numerator of which is
the number of Registrable Securities held by such seller of Registrable
Securities and the denominator of which is the total number of Registrable
Securities held by all Persons who have requested to sell Registrable Securities
in the offering.
ARTICLE III
REGISTRATION PROCEDURES
3.1 PROCEDURES. If and whenever the Registrant is required to effect
the registration of any Registrable Securities under the Securities Act as
provided in ARTICLE II, the Registrant shall as expeditiously as possible:
(a) in the case of a registration of Registrable Securities pursuant to
Section 2.1(a), promptly prepare and as soon thereafter as is reasonably
practicable, but no later than 90 days following the date of the IPO Notice,
file with the Commission the requisite Registration Statement to effect such
registration and use its reasonable best efforts to cause such Registration
Statement to become effective as promptly as practicable after the filing
thereof; provided that all holders of Registrable Securities being registered
thereby shall have a reasonable opportunity to review and comment on such
Registration Statement prior to the filing thereof with the Commission, and
provided that the Registrant shall make all changes thereto that any such holder
may request in
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writing to the extent that such changes are required, in the judgment of the
Registrant, by the Securities Act;
(b) in the case of a registration of Registrable Securities pursuant to
Section 2.1(b), promptly prepare and as soon thereafter as is reasonably
practicable, but no later than 90 days following the date of the Demand Notice,
file with the Commission the requisite Registration Statement to effect such
registration and thereafter use its reasonable best efforts to cause such
Registration Statement to become effective as promptly as practicable after the
filing thereof; provided that all holders of Registrable Securities being
registered thereby shall have a reasonable opportunity to review and comment on
such Registration Statement prior to the filing thereof with the Commission, and
provided that the Registrant shall make all changes thereto that any such holder
may request in writing to the extent that such changes are required, in the
judgment of the Registrant, by the Securities Act;
(c) prepare and file with the Commission such amendments (including
post-effective amendments) and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep such
registration statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement until such time as all of such securities have been
disposed of in accordance with the intended method of disposition set forth in
such registration statement or 90 days after the effective date of the
registration statement, whichever is shorter (but not before the expiration of
the applicable period referred to in Section 4(3) of the Securities Act and Rule
174 thereunder);
(d) furnish without charge to each seller of Registrable Securities
covered by such registration statement such number of conformed copies of such
registration statement and of each such amendment and supplement thereto, such
number of copies of the prospectus contained in such registration statement
(including each preliminary prospectus and any summary prospectus) and any other
prospectus filed under Rule 424, Rule 430A or Rule 464 under the Securities Act,
conforming with the requirements of the Securities Act and such other documents
as such seller of Registrable Securities may reasonably request;
(e) use its reasonable best efforts to register or qualify all
Registrable Securities and other securities covered by such registration
statement under such other securities or blue sky laws of such jurisdictions in
the United States as each seller of Registrable Securities shall reasonably
request, keep such registration or qualification in effect for so long as such
registration statement remains in effect and take any other action that may be
reasonably necessary or advisable to enable such seller of Registrable
Securities to consummate the disposition in such jurisdictions of the securities
owned by such seller of Registrable Securities, except that the Registrant shall
not for any such purpose be required to qualify generally to do business as a
foreign corporation or other entity in any jurisdiction wherein it would not,
but for the requirements of this Section 3.1, be obligated to be so qualified or
to consent to general service of process in any such jurisdiction;
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(f) furnish to each seller of Registrable Securities and the
underwriters (if applicable) a signed copy, addressed to such seller, except as
provided in Section 3.1 below, and the underwriters, of
(i) an opinion of outside counsel for the Registrant, dated
the effective date of such registration statement (or, if such
registration involves an underwritten public offering, dated the date
of the closing under the underwriting agreement), reasonably
satisfactory in form, scope and substance to the sellers of Registrable
Securities and the underwriters, and
(ii) a "comfort" letter, dated the effective date of such
registration statement (and, if such registration includes an
underwritten public offering, dated the date of the closing under the
underwriting agreement), signed by the independent public accountants
who have certified the Registrant's financial statements included in
such registration statement, addressed to the underwriters and, to the
extent the same can be reasonably obtained, to each seller, covering
substantially the same matters with respect to such registration
statement (and the prospectus included therein) and with respect to
events subsequent to the date of such financial statements, as are
customarily covered in accountants' letters delivered to underwriters
in underwritten public offerings of securities and such other
financial, tabular and statistical matters as are typically covered in
such a "comfort" letter as the underwriters may reasonably request;
(g) immediately notify each seller of Registrable Securities covered by
such registration statement, and (if requested by any such Person) confirm such
notice in writing, (i) when a prospectus or any prospectus supplement or
post-effective amendment 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 and each applicable state law, (ii) of any request by
the Commission or any other Federal or state governmental authority for
amendments or supplements to a registration statement or related prospectus or
for additional information, (iii) if at any time any of the representations or
warranties of the Registrant contained in any agreement (including any
underwriting agreement) contemplated by Section 3.1(1) or Section 3.2 below
ceases to be true and correct in any material respect, (iv) of the receipt by
the Registrant of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (v) of the Registrant's reasonable determination
that a post-effective amendment to a registration statement would be appropriate
and (vi) at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, upon discovery that, or upon the happening
of any event as a result of which, the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
under which they were made, and, in any such event, at the request of any such
seller or holder of Registrable Securities promptly prepare and furnish to such
seller or holder of Registrable Securities a reasonable number of copies of a
supplement to or an amendment of such prospectus, and use its best efforts to
cause any such amendment, if a post-effective amendment, to promptly be declared
effective, as may be necessary
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so that, as thereafter delivered to the purchasers of such securities, such
prospectus, as amended or supplemented, shall not include 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 in the light of the
circumstances under which they were made;
(h) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least 12 months, but not more than 18 months,
beginning with the first full calendar month after the effective date of such
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act;
(i) in the event of the issuance or threatened issuance of any stop
order suspending the effectiveness of a Registration Statement, or any order
suspending or preventing the use of any related prospectus or suspending the
qualification of any Registrable Securities included in such Registration
Statement for sale in any jurisdiction, promptly notify each holder of
Registrable Securities of the issuance or threatened issuance of such order and
use its reasonable best efforts promptly to prevent the entry of such order or
obtain the withdrawal of such order if issued;
(j) use its reasonable best efforts to cause such Registrable
Securities covered by such Registration Statement to be registered with or
approved by such other United States governmental agencies or authorities as may
be necessary to enable the holders thereof to consummate the disposition of such
Registrable Securities;
(k) make reasonably available for any holder of Registrable Securities,
any underwriter participating in any disposition pursuant to such Registration
Statement, and any attorney, accountant or other agent retained by any such
holder or underwriter (collectively, the "Inspectors"), all relevant financial
and other records, corporate documents and properties of the Registrant
(collectively, the "Records"), and cause the officers, members of the Board of
Directors and employees of the Registrant to supply all information reasonably
requested by any such Inspector in connection with such Registration Statement
prior to its effectiveness, in each case to the extent that such Records and
Information are pertinent to the information disclosed in the Registration
Statement; provided, that each such Inspector shall execute and deliver to the
Registrant a Confidentiality Agreement in form reasonably satisfactory to the
Registrant. Records which the Registrant determines, in good faith, to be
confidential and which the Registrant notifies the Inspectors are confidential
shall not be disclosed by the Inspectors unless (i) the disclosure of such
Records is necessary to avoid or correct a material misstatement or material
omission in the Registration Statement or (ii) the release of such Records is
ordered pursuant to a subpoena or other order from a court of competent
jurisdiction. Each holder of Registrable Securities agrees that it will, upon
learning that disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Registrant and allow the Registrant, at the
Registrant's expense, to undertake appropriate action to prevent disclosure of
the Records deemed confidential;
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(l) enter into such customary agreements (including, without
limitation, underwriting agreements in customary form, substance and scope) and
take all such other actions as the holders of the Registrable Securities being
sold or the underwriters, if any, reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities.
(m) use its reasonable best efforts to cause all such Registrable
Securities to be listed or quoted on a securities exchange, automated quotation
system or over-the-counter market upon which Global requests, in the case of an
IPO, or, in any other case, upon which similar securities issued by the
Registrant are then listed or quoted;
(n) cooperate with the holders of Registrable Securities being sold and
the managing underwriter or underwriters 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; and enable such
Registrable Securities to be registered in such names as the managing
underwriter or underwriters may request at least one (1) business day prior to
the sale of Registrable Securities;
(o) cooperate and assist in any filing required to be made with the
National Association of Securities Dealers, Inc. and the performance of any due
diligence investigation by any underwriter, including any "qualified independent
underwriter," or any holder of Registrable Securities being sold; and
(p) cooperate with the marketing and sale of securities in accordance
with this Agreement including, without limitation, providing reasonable
marketing support and causing appropriate member(s) of management of the
Registrant to be reasonably available to participate in "road show"
presentations and attend meetings with underwriters as reasonably requested by
Global or the underwriters.
3.2 UNDERWRITING AGREEMENT. If requested by the underwriters for any
offering pursuant to a registration requested under Sections 2.1(a) or 2.1(b),
the Registrant shall enter into an underwriting agreement with such underwriters
for such offering, such agreement to contain such representations and warranties
by the Registrant and such other terms as are generally prevailing in agreements
of this type, including, without limitation, indemnities to the effect and to
the extent provided in ARTICLE IV below. In connection with any registration
pursuant to ARTICLE II hereof, each holder of Registrable Securities agrees, if
so required by the managing underwriter, not to effect any sale or distribution
(including any sale pursuant to Rule 144) of Registrable Securities (other than
as part of such underwritten public offering) from the date of the IPO Notice or
Demand Notice, as applicable, to 180 days after the effective date of such
registration statement. The Registrant agrees, if so required by the managing
underwriters, not to effect any public sale or distribution for its own account
of any of its equity securities or securities convertible into or exchangeable
or exercisable for any of such equity securities from the date of the IPO Notice
or Demand Notice, as applicable, to 180 days (or such other number of days as
the Registrant and such managing underwriters may agree) after the effective
date of any such registration statement, except
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in connection with a stock option plan, stock purchase plan, savings or similar
employee benefit or director plan, or in connection with an acquisition, merger
or exchange offer.
3.3 SELLER'S INFORMATION. The Registrant may require each proposed
seller of Registrable Securities as to which any registration is being effected
to promptly furnish the Registrant, as a condition precedent to including such
Person's Registrable Securities in any registration, such information regarding
such seller of Registrable Securities as the Registrant may from time to time
reasonably request in writing and as may be necessary in order for the
Registrant to comply with its obligations hereunder.
3.4 PREPARATION; REASONABLE INVESTIGATION. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Registrant shall give the sellers of Registrable
Securities, their underwriters and their respective counsel and accountants, the
opportunity to participate in the preparation of such registration statement,
each prospectus included therein or filed with the Commission, and each
amendment thereof or supplement thereto, and will give them such access to its
books and records and such opportunities to discuss the business of the
Registrant with its officers and the independent public accountants who have
certified its financial statements as shall be necessary to conduct a reasonable
investigation within the meaning of the Securities Act, including, without
limitation, as provided in Section 3.1(k) hereof.
3.5 NOMINEES FOR BENEFICIAL OWNERS. If any Registrable Securities are
held by a nominee for the holder as the beneficial owner thereof, the holder
may, upon the giving of written notice to the Registrant, at its election be
treated as the holder of such Registrable Securities for purposes of any request
or other action by it pursuant to this Agreement or any determination of any
number or percentage of shares of Registrable Securities held by the holders
contemplated by this Agreement. Without limiting the foregoing, the Limited
Partners and the Registrant understand that the Limited Partners may choose to
hold their respective shares of Common Stock in one or more corporations or
entities controlled by such Limited Partners. For the purposes of this
Agreement, such shares held by such corporations or entities shall be deemed to
be beneficially owned by the Limited Partners. The Registrant may require
assurances reasonably satisfactory to it of such owner's beneficial ownership of
such Registrable Securities.
ARTICLE IV
INDEMNIFICATION
4.1 INDEMNIFICATION BY THE REGISTRANT. In the event of any registration
of Registrable Securities under the Securities Act pursuant to this Agreement,
the Registrant shall to the fullest extent permitted by law, indemnify and hold
harmless the seller of any Registrable Securities covered by such registration
statement, its directors and officers, general and limited partners (and
directors and officers thereof), their respective agents, each other Person who
participates as an underwriter in the offering or sale of such securities, each
officer and director of each such underwriter, and each
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such other Person, if any, who controls such seller of Registrable Securities or
any such underwriter within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, against any losses, claims, damages, liabilities
and expenses, joint or several, to which such seller of Registrable Securities
or any such director or officer or other indemnified Person or underwriter or
controlling Person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any document incorporated by reference therein, or 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 and
any violation by the Registrant of any Federal, state or common law rule or
regulation applicable to the Registrant and relating to any action or inaction
by the Registrant in connection with any such registration, and in any such case
the Registrant shall reimburse such seller of Registrable Securities and each
such director, officer or other indemnified Person, underwriter and controlling
Person for any legal or any other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, liability,
action or proceeding; provided that The Registrant shall not be liable in any
such case to the extent that any such loss, claim, damage, liability (or action
or proceeding in respect thereof) or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement, any such preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement in reliance upon and in
conformity with written information furnished to the Registrant for use in the
preparation thereof by such seller of Registrable Securities or underwriter, as
the case may be; and, provided further, that the foregoing indemnity agreement
with respect to any preliminary prospectus shall not inure to the benefit of any
underwriter from whom the Person asserting any such losses, claims, damages or
liabilities purchased Registrable Securities, or any Person controlling such
underwriter, if a copy of the final prospectus (as then amended or supplemented
if the Registrant shall have furnished any amendments or supplements thereto)
was not sent or given by or on behalf of such underwriter to such Person, if
required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Registrable Securities to such Person, and if
the final prospectus (as so amended or supplemented) would have cured the defect
giving rise to such losses, claims, damages or liabilities. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of such seller of Registrable Securities or any such director, officer,
agent, partner, underwriter or controlling Person and shall survive the transfer
of such securities by such seller of Registrable Securities.
4.2 INDEMNIFICATION BY THE SELLERS OF REGISTRABLE SECURITIES. Each
seller of such Registrable Securities, as a condition to the inclusion of their
Registrable Securities in the registration statement, shall severally (and not
jointly or jointly and severally) indemnify and hold harmless (in the same
manner and to the same extent as set forth in Section 4.1), the Registrant, each
director of the Registrant, each officer of the Registrant and each other
Person, if any, who controls the Registrant within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, and all
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other prospective sellers of Registrable Securities and their respective
directors, officers, agents, general and limited partners (and directors and
officers thereof and their respective controlling Persons with respect to any
statement or alleged statement in, or omission or alleged omission from, such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, if such
statement or alleged statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Registrant by such seller of Registrable Securities or underwriter specifically
stating that it is for use in the preparation of such registration statement,
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement. Such indemnity shall remain in full force and effect, regardless of
any investigation made by or on behalf of the Registrant or any such director,
officer, agent or controlling Person and shall survive the transfer of such
securities by such seller of Registrable Securities. No Person selling
Registrable Securities shall be liable hereunder for any amount in excess of the
product obtained by multiplying (x) the purchase price per Registrable Security
so sold by such Person by (y) the number of Registrable Securities so sold by
such Person.
4.3 CONTRIBUTION. If the indemnification provided for in this ARTICLE
IV is unavailable to the indemnified party or parties in respect of any losses,
claims, damages or liabilities referred to therein, then the Registrant, the
sellers of Registrable Securities and the underwriters shall contribute to the
amount of such losses, claims, damages or liabilities (x) as between the
Registrant and the sellers of Registrable Securities covered by a registration
statement, on the one hand, and the underwriters, on the other, in such
proportion as is appropriate to reflect the relative benefits received by the
Registrant and such sellers of Registrable Securities, on the one hand, and the
underwriters, on the other, from the offering of the Registrable Securities, or
if such allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits but also the relative
fault of the Registrant and such sellers of Registrable Securities, on the one
hand, and of the underwriters, on the other, in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations, and (y) as between the
Registrant, on the one hand, and each seller of Registrable Securities covered
by a registration statement, on the other, in such proportion as is appropriate
to reflect the relative fault of the Registrant and of each such seller of
Registrable Securities in connection with such statements or omissions, as well
as any other relevant equitable considerations. The relative benefits received
by the Registrant and such sellers of Registrable Securities, on the one hand,
and the underwriters, on the other, shall be deemed to be in the same proportion
as the total proceeds from the offering (before underwriting discounts and
commissions and expenses) received by the Registrant and such sellers of
Registrable Securities bear to the total underwriting discounts and commissions
received by the underwriters. The relative fault of the Registrant and such
sellers of Registrable Securities, on the one hand, and of the underwriters, on
the other, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Registrant and such sellers of Registrable Securities or by the underwriters.
The relative fault of the Registrant, on the one hand, and of each such seller
of Registrable Securities, on the other, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact relates to information supplied by such party, any action or inaction by
such party, and the parties'
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relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Registrant and the sellers of Registrable Securities agree that it
would not be just and equitable if contribution pursuant to this Section 4.3
were determined by pro rata allocation (even if the underwriters were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in the next preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the next preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 4.3, no underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and no seller of
Registrable Securities shall be required to contribute any amount in excess of
the amount by which the total price at which the Registrable Securities of such
seller were offered to the public exceeds the amount of any damages that such
seller 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. Each seller's obligation to contribute pursuant to
this Section 4.3 is several in the proportion that the proceeds of the offering
received by such seller bears to the total proceeds of the offering received by
all of the sellers and not joint.
4.4 NOTICES OF CLAIMS, ETC. In case any proceeding (including any
governmental investigation) shall be instituted involving any Person in respect
of which indemnity may be sought pursuant to Section 4.1 or 4.2, such Person
(the "indemnified party") shall promptly notify the Person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and such counsel for the
indemnified party is of the opinion that representation of both parties by the
same counsel would be inappropriate due to material differing interests between
them. It is understood that the indemnifying party shall not in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
(x) the fees and expenses of more than one separate firm (in addition to any
local counsel) for all underwriters and all Persons, if any, who control any
underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, (y) the fees and expenses of more
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than one separate firm (in addition to any local counsel) for the Registrant,
its directors, its officers who sign the registration statement and each Person,
if any, who controls the Registrant within the meaning of either such Section
and (z) the fees and expenses of more than one separate firm (in addition to any
local counsel) for all sellers of Registrable Securities and all Persons, if
any, who control any seller of Registrable Securities within the meaning of
either such Section, and that all such fees and expenses shall be reimbursed as
they are incurred. In the case of any such separate firm for the underwriters
and such control Persons of underwriters, such firm shall be designated in
writing by the managing underwriter. In the case of any such separate firm for
the Registrant, and such directors, officers and control Persons of the
Registrant, such firm shall be designated in writing by the Registrant. In the
case of any such separate firm for the sellers of Registrable Securities and
such controlling Persons of the sellers of Registrable Securities, such firm
shall be designated in writing by the sellers of a majority of the Registrable
Securities covered by the registration statement. The indemnifying party shall
not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
ARTICLE V
MISCELLANEOUS
5.1 SALES COMPLIANCE. The Limited Partners agree, and each holder of
Registrable Securities (including Registrable Securities in any Registration
Statement filed pursuant to this Agreement) will be deemed to have agreed, as
follows:
(a) if any Registrable Securities are being registered in any
registration pursuant to this Agreement, the holder thereof will comply with all
anti-stabilization, manipulation, and similar provisions of Section 10 of the
Exchange Act, and any rules and regulations promulgated thereunder by the
Commission, and at the request of the Registrant, will execute and deliver to
the Registrant and to any underwriter participating in such offering, an
appropriate agreement to such effect; and
(b) at the end of any period during which the Registrant is
obligated to keep a Registration Statement current and effective as described
herein, the holders of Registrable Securities included in the Registration
Statement shall discontinue sales therefor pursuant to such Registration
Statement.
5.2 COMPLETE AGREEMENT; AMENDMENT. This Agreement, together with the
Formation Agreement and the LP Agreement, constitutes the entire agreement of
the Parties with respect to the subject matter hereof and supersedes all other
agreements, representations, warranties, statements, promises and
understandings, whether oral or written, with respect to the subject matter
hereof.
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5.3 NOTICES.
(a) Addresses. All notices under this Agreement shall be in
writing and shall be delivered by personal service, certified or
registered mail, postage prepaid, return receipt requested,
nationally-recognized overnight courier, courier charges prepaid, or
facsimile transmission (followed by telephone confirmation of receipt),
to WECC, the Registrant or Global, as applicable, at the addresses
herein set forth.
The addresses for notices are as follows:
Weatherford Enterra Compression Company L.P.
5 Post Oak Park, Suite 1760
Houston, Texas 77027
Attention: General Counsel
Facsimile: (713) 297-8488
Weatherford Global Compression Services, L.P.
1231 Greenway Drive, Suite 550
Irving, Texas 75038
Attention: General Counsel
Facsimile: (972) 714-0102
Global Compression Services, Inc.
c/o General Electric Capital Corporation
260 Long Ridge Road
Stamford, Connecticut 06927
Attention: General Counsel
Facsimile: (203) 357-3365
(b) Effective Date of Notices, etc. All notices, demands and
requests shall be effective upon actual receipt or, in the case of
delivery by facsimile transmission, the completion of such transmission
during the normal business hours of the recipient. Rejection or other
refusal to accept or the inability to deliver because of changed
address of which no notice was given as provided in Section 5.2(c)
shall be deemed to be receipt of the notice, demand or request sent.
(c) Changes. By giving to the other Parties at least 30 days'
prior written notice thereof, the Parties and their respective
permitted successors and permitted assigns shall have the right from
time to time and at any time during the term of this Agreement to
change their respective addresses for notices and each shall have the
right to specify as its or his address for notices any other address
within the United States of America.
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5.4 ASSIGNMENT; OTHER BENEFITS. This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the Parties and their
respective heirs, executors, successors and permitted assigns. No Limited
Partner may assign its rights under this Agreement, except to Permitted
Transferees of Registrable Securities, without the prior written consent of the
Partnership or, after its formation and adoption of this Agreement, if
applicable, Newco.
5.5 AMENDMENTS AND WAIVERS. This Agreement may be amended and the
Partnership or, after its formation and adoption of this Agreement, if
applicable, Newco, may take any action herein prohibited or omit to perform any
act herein required to be performed by it, only if the Partnership or Newco, as
applicable, shall have obtained the written consent to such amendment, action or
omission to act, of each Limited Partner then holding outstanding Registrable
Securities. No waiver of any of the provisions of this Agreement shall be deemed
to or shall constitute a waiver of any other provisions hereof (whether or not
similar) or the same provision hereof at a later time. No failure by a Party to
insist upon the strict performance of any term, covenant or condition of this
Agreement, or to exercise any right or remedy upon breach of any provision, and
no acceptance of payment or performance during the continuation of any such
breach, shall constitute a waiver of any term, covenant or condition herein or a
waiver of any subsequent breach or default in the performance of any term,
covenant or condition herein.
5.6 HEADINGS. The headings of the Articles and Sections of this
Agreement are included for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction hereof or
thereof.
5.7 SEVERABILITY OF PROVISIONS. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic and legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any Party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the Parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the Parties as closely as possible in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the extent possible.
5.8 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument.
5.9 GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the internal laws of the state of Texas, without reference
to or application of any conflicts of laws principles.
5.10 ADDITIONAL AGREEMENTS. From and after the date of this Agreement,
the Registrants will not, without the prior written consent of the holders of
all Registrable Securities then outstanding, enter into any agreement with
respect to its securities which is inconsistent with or violates the rights
granted to the holders of Registrable Securities in this Agreement.
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IN WITNESS WHEREOF, the Parties have hereunto executed this Agreement
as of the date first set forth in the introduction to this Agreement.
WEATHERFORD GLOBAL COMPRESSION SERVICES, L.P.,
By: Weatherford Global Compression Holding, L.L.C.,
its General Partner
By: /s/ ROBERT STILES
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Name: Robert Stiles
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Title: President
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WEATHERFORD ENTERRA COMPRESSION COMPANY, L.P.,
By: Enterra Compression Company, its General Partner
By: /s/ CURTIS W. HUFF
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Curtis W. Huff
Senior Vice President
GLOBAL COMPRESSION SERVICES, INC.,
By: /s/ PAUL J. FRIESEN
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Name: Paul J. Friesen
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Title: President and Chief Executive Officer
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