EXHIBIT 4.3
Registration Rights Agreement
ENCORE ACQUISITION COMPANY
6.25% SENIOR SUBORDINATED NOTES DUE 2014
UNCONDITIONALLY GUARANTEED AS TO THE
PAYMENT OF PRINCIPAL, PREMIUM,
IF ANY, AND INTEREST BY
ENCORE OPERATING, L.P.
EAP OPERATING, INC.
EAP PROPERTIES, INC.
EAP ENERGY, INC.
EAP ENERGY SERVICES, L.P.
ENCORE OPERATING LOUISIANA LLC
REGISTRATION RIGHTS AGREEMENT
April 2, 2004
Goldman, Sachs & Co.
Credit Suisse First Boston LLC
Deutsche Bank Securities Inc.
Fleet Securities, Inc.
J.P. Morgan Securities Inc.
KeyBanc Capital Markets, a Division of McDonald Investments Inc.
BNP Paribas Securities Corp.
Fortis Investment Services LLC
Stanford Group Company
c/o Goldman Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Encore Acquisition Company, a Delaware corporation (the "Company"),
proposes to issue and sell to the Purchasers (as defined herein) upon the terms
set forth in the Purchase Agreement (as defined herein) its 6.25% Senior
Subordinated Notes due 2014, which are unconditionally guaranteed by Encore
Operating, L.P., a Texas limited partnership, EAP Operating, Inc., a Delaware
corporation, EAP Properties, Inc., a Delaware corporation, EAP Energy, Inc., a
Delaware corporation, EAP Energy Services, L.P , a Texas limited partnership,
and Encore Operating Louisiana LLC, a Delaware limited liability company. As an
inducement to the Purchasers to enter into the Purchase Agreement and in
satisfaction of a condition to the obligations of the Purchasers thereunder, the
Company agrees with the Purchasers for the benefit of holders (as defined
herein) from time to time of the Registrable Securities (as defined herein) as
follows:
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Registration Rights Agreement
1. Certain Definitions. For purposes of this Registration Rights
Agreement, the following terms shall have the following respective meanings:
"Additional Interest" shall have the meaning assigned thereto in Section 2(c)
hereof.
"Base Interest" shall mean the interest that would otherwise accrue
on the Securities under the terms thereof and the Indenture, without
giving effect to the provisions of this Agreement.
The term "broker-dealer" shall mean any broker or dealer registered
with the Commission under the Exchange Act.
"Closing Date" shall mean the date on which the Securities are
initially issued.
"Commission" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the
Exchange Act or the Securities Act, whichever is the relevant statute for
the particular purpose.
"Effective Time," in the case of (i) an Exchange Registration, shall
mean the time and date as of which the Commission declares the Exchange
Offer Registration Statement effective or as of which the Exchange Offer
Registration Statement otherwise becomes effective and (ii) a Shelf
Registration, shall mean the time and date as of which the Commission
declares the Shelf Registration Statement effective or as of which the
Shelf Registration Statement otherwise becomes effective.
"Electing Holder" shall mean any holder of Registrable Securities
that has returned a completed and signed Notice and Questionnaire to the
Company in accordance with Section 3(d)(ii) or 3(d)(iv) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or
any successor thereto, as the same shall be amended from time to time.
"Exchange Offer" shall have the meaning assigned thereto in Section
2(a) hereof.
"Exchange Offer Registration Statement" shall have the meaning
assigned thereto in Section 2(a) hereof.
"Exchange Registration" shall have the meaning assigned thereto in
Section 3(c) hereof.
"Exchange Securities" shall have the meaning assigned thereto in
Section 2(a) hereof.
The term "holder" shall mean each of the Purchasers and other
persons who acquire Registrable Securities from time to time (including
any successors or assigns), in each case for so long as such person owns
any Registrable Securities.
"Indenture" shall mean the Indenture, dated as of April 2, 2004,
among the Company, the Subsidiary Guarantors and Wells Fargo Bank, N.A.,
as Trustee, as the same shall be amended from time to time.
"Notice and Questionnaire" means a Notice of Registration Statement
and Selling Securityholder Questionnaire substantially in the form of
Exhibit A hereto.
The term "person" shall mean a corporation, association,
partnership, organization, business, individual, government or political
subdivision thereof or governmental agency.
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Registration Rights Agreement
"Purchase Agreement" shall mean the Purchase Agreement, dated as of
March 30, 2004, among the Purchasers, the Subsidiary Guarantors and the
Company relating to the Securities.
"Purchasers" shall mean the Purchasers named in Schedule A to the
Purchase Agreement.
"Registrable Securities" shall mean the Securities; provided,
however, that a Security shall cease to be a Registrable Security when (i)
in the circumstances contemplated by Section 2(a), the Security has been
exchanged for an Exchange Security in an Exchange Offer as contemplated in
Section 2(a) (provided that any Exchange Security that, pursuant to the
last two sentences of Section 2(a), is included in a prospectus for use in
connection with resales by broker-dealers shall be deemed to be a
Registrable Security with respect to Sections 5, 6 and 9 until resale of
such Registrable Security has been effected within the period referred to
in Section 2(a)); (ii) in the circumstances contemplated by Section 2(b),
a Shelf Registration Statement registering such Security under the
Securities Act has been declared or becomes effective and such Security
has been sold or otherwise transferred by the holder thereof pursuant to
and in a manner contemplated by such effective Shelf Registration
Statement; (iii) such Security is sold pursuant to Rule 144 under
circumstances in which any legend borne by such Security relating to
restrictions on transferability thereof, under the Securities Act or
otherwise, is removed by the Company or pursuant to the Indenture; (iv)
such Security is eligible to be sold pursuant to paragraph (k) of Rule
144; or (v) such Security shall cease to be outstanding.
"Registration Default" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in Section
2(a) hereof.
"Restricted Holder" shall mean (i) a holder that is an affiliate of
the Company within the meaning of Rule 405, (ii) a holder who acquires
Exchange Securities outside the ordinary course of such holder's business,
(iii) a holder who has arrangements or understandings with any person to
participate in the Exchange Offer for the purpose of distributing Exchange
Securities and (iv) a holder that is a broker-dealer, but only with
respect to Exchange Securities received by such broker-dealer pursuant to
an Exchange Offer in exchange for Registrable Securities acquired by the
broker-dealer directly from the Company.
"Rule 144," "Rule 405" and "Rule 415" shall mean, in each case, such
rule promulgated under the Securities Act (or any successor provision), as
the same shall be amended from time to time.
"Securities" shall mean, collectively, the 6.25% Senior Subordinated
Notes due 2014 of the Company to be issued and sold to the Purchasers, and
securities issued in exchange therefor or in lieu thereof pursuant to the
Indenture. Each Security is entitled to the benefit of each subsidiary
guaranty by each Subsidiary Guarantor provided for in the Indenture (the
"Subsidiary Guaranties") and, unless the context otherwise requires, any
reference herein to a "Security," an "Exchange Security" or a "Registrable
Security" shall include a reference to the Subsidiary Guaranties.
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Registration Rights Agreement
"Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto in
Section 2(b) hereof.
"Shelf Registration Suspension" shall have the meaning assigned
thereto in Section 3(i) hereof.
"Shelf Registration Statement" shall have the meaning assigned
thereto in Section 2(b) hereof.
"Subsidiary Guarantor" shall mean each Subsidiary (as such term is
defined in the Indenture) of the Company that executes the Indenture as a
guarantor on the date of issue of the Securities and each other Subsidiary
of the Company that thereafter guarantees the Securities pursuant to the
terms of the Indenture, in each case unless and until such Subsidiary is
released from its obligations under its Subsidiary Guaranty pursuant to
the terms of the Indenture. As of the issue date, the Subsidiary
Guarantors are EAP Energy, Inc., EAP Energy Services, L.P., EAP Operating,
Inc., EAP Properties, Inc., Encore Operating, L.P and Encore Louisiana
Operating LLC.
"Suspension Notice" shall have the meaning assigned thereto in
Section 3(i) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Registration Rights Agreement, and the words "herein," "hereof" and "hereunder"
and other words of similar import refer to this Registration Rights Agreement as
a whole and not to any particular Section or other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Company agrees
to file under the Securities Act, no later than 90 days after the Closing
Date, a registration statement relating to an offer to exchange (such
registration statement, the "Exchange Offer Registration Statement", and
such offer, the "Exchange Offer") any and all of the Securities for a like
aggregate principal amount of debt securities issued by the Company and
guaranteed by the Subsidiary Guarantors, which debt securities and
subsidiary guaranties are substantially identical to the Securities (and
are entitled to the benefits of a trust indenture which is substantially
identical to the Indenture or is the Indenture and which has been
qualified under the Trust Indenture Act), except that they have been
registered pursuant to an effective registration statement under the
Securities Act and do not contain provisions for the additional interest
contemplated in Section 2(c) below (such new debt securities hereinafter
called "Exchange Securities"). The Company agrees to use its reasonable
best efforts to cause the Exchange Offer Registration Statement to become
effective under the Securities Act no later than 180 days after the
Closing Date. The Exchange Offer will be registered under the Securities
Act on the appropriate form and will comply with all applicable tender
offer rules and regulations under the Exchange Act. The Company further
agrees to use its reasonable best efforts to commence and complete the
Exchange Offer as soon as practicable after such registration statement
has become effective, hold the
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Registration Rights Agreement
Exchange Offer open for at least 30 days and exchange the Exchange
Securities for all Registrable Securities that may legally be exchanged in
the Exchange Offer and that have been properly tendered and not withdrawn
on or prior to the expiration of the Exchange Offer. The Exchange Offer
will be deemed to have been "completed" only if the debt securities and
subsidiary guaranties received by holders other than Restricted Holders in
the Exchange Offer for Registrable Securities are, upon receipt,
transferable by each such holder without restriction under the Securities
Act (except for the requirement to deliver a prospectus included in the
Exchange Offer Registration Statement applicable to resales by
broker-dealers of Exchange Securities received by them pursuant to the
Exchange Offer in exchange for Securities other than those acquired by
such broker-dealers directly from the Company) and the Exchange Act and
without material restrictions under the blue sky or securities laws of a
substantial majority of the States of the United States of America. The
Exchange Offer shall be deemed to have been completed upon the earlier to
occur of (i) the Company having exchanged the Exchange Securities for all
outstanding Registrable Securities pursuant to the Exchange Offer and (ii)
the Company having exchanged, pursuant to the Exchange Offer, Exchange
Securities for all Registrable Securities that may legally be exchanged in
the Exchange Offer and that have been properly tendered and not withdrawn
before the expiration of the Exchange Offer, which shall be on a date that
is at least 30 days following the commencement of the Exchange Offer. The
Company agrees (x) (other than resales by broker-dealers of Exchange
Securities received by them pursuant to the Exchange Offer in exchange for
Securities acquired by them directly from the Company) to include in the
Exchange Offer Registration Statement a prospectus for use in any resales
by any holder of Exchange Securities that is a broker-dealer and (y) to
keep such Exchange Offer Registration Statement effective, and to amend
and supplement the prospectus contained therein as necessary, for a period
(the "Resale Period") beginning when Exchange Securities are first issued
in the Exchange Offer and ending upon the earlier of the expiration of the
180th day after the Exchange Offer has been completed or such time as such
broker-dealers no longer own any Registrable Securities (or for such
longer period if extended pursuant to the terms of this Agreement). With
respect to such Exchange Offer Registration Statement, such holders shall
have the benefit of the rights of indemnification and contribution set
forth in Sections 6(a), (c), (d) and (e) hereof. If, upon consummation of
the Exchange Offer, any Purchaser holds Securities acquired as part of its
initial distribution, the Company, simultaneously with the delivery of the
Exchange Securities pursuant to the Exchange Offer, shall issue and
deliver to such Purchaser, upon written request of such Purchaser, in
exchange for the Securities held by such Purchaser, a like principal
amount of debt securities of the Company issued under the Indenture and
identical in all material respects to the Securities (the "Private
Exchange Securities").
(b) Subject to Section 3(i), if (i) on or prior to the time the
Exchange Offer is completed existing Commission interpretations are
changed such that the debt securities or the Subsidiary Guaranties
received by holders other than Restricted Holders in the Exchange Offer
for Registrable Securities are not or would not be, upon receipt,
transferable by each such holder without restriction under the Securities
Act (except for the requirement to deliver a prospectus included in the
Exchange Offer Registration Statement applicable to resales by
broker-dealers of Exchange Securities received by them pursuant to the
Exchange Offer in exchange for Securities other than those acquired by
such broker-dealers directly from the Company), (ii) the Exchange Offer
has not been completed within 220 days following the Closing Date, (iii)
any Purchaser so requests with respect to the Securities not eligible to
be exchanged for Exchange Securities in the Exchange Offer and held by it
following consummation of the Exchange Offer or (iv) the Exchange Offer is
not available to any holder of the Securities (other than a broker-dealer
participating in the
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Registration Rights Agreement
Exchange Offer), the Company shall, in lieu of (or, in the case of clause
(iii) or (iv), in addition to) conducting the Exchange Offer contemplated
by Section 2(a), file under the Securities Act no later than the later of
75 days after the time such obligation to file arises, a "shelf"
registration statement providing for the registration of, and the sale on
a continuous or delayed basis by the holders of, all of the Registrable
Securities, pursuant to Rule 415 or any similar rule that may be adopted
by the Commission (such filing, the "Shelf Registration" and such
registration statement, the "Shelf Registration Statement"). The Company
agrees to use its reasonable best efforts (x) to cause the Shelf
Registration Statement to become or be declared effective (a) in the case
of clause (i) above, no later than 180 days after the Closing Date, and
(b) in the case of clause (ii), (iii) or (iv) above, no later than 75 days
after the date such Shelf Registration Statement is filed; and, subject to
Section 3(i), to keep such Shelf Registration Statement continuously
effective for a period ending on the earlier of the second anniversary of
the Effective Time (or for such longer period if extended pursuant to the
terms of this Agreement) or such time as there are no longer any
Registrable Securities outstanding; provided, however, that no holder
shall be entitled to be named as a selling securityholder in the Shelf
Registration Statement or to use the prospectus forming a part thereof for
resales of Registrable Securities unless such holder agrees in writing to
be bound by all of the provisions of this Agreement and such holder is an
Electing Holder, and (y) after the Effective Time of the Shelf
Registration Statement, promptly upon the request of any holder of
Registrable Securities that is not then an Electing Holder, to take any
action reasonably necessary to enable such holder to use the prospectus
forming a part thereof for resales of Registrable Securities, including,
without limitation, any action necessary to identify such holder as a
selling securityholder in the Shelf Registration Statement; provided,
however, that nothing in this Clause (y) shall relieve any such holder of
the obligation to return a completed and signed Notice and Questionnaire
to the Company in accordance with Section 3(d)(iii) hereof. The Company
further agrees to supplement or make amendments to the Shelf Registration
Statement, as and when required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement or by the Securities Act or rules and regulations
thereunder for shelf registration, and the Company agrees to furnish to
each Electing Holder copies of any such supplement or amendment prior to
its being used or promptly following its filing with the Commission.
(c) In the event that (i) the Company has not filed the Exchange
Offer Registration Statement or Shelf Registration Statement on or before
the date on which such registration statement is required to be filed
pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange
Offer Registration Statement or Shelf Registration Statement has not
become effective or been declared effective by the Commission on or before
the date on which such registration statement is required to become or be
declared effective pursuant to Section 2(a) or 2(b), respectively, or
(iii) the Exchange Offer has not been completed on or before the 40th day
after the initial effective date of the Exchange Offer Registration
Statement relating to the Exchange Offer (if the Exchange Offer is then
required to be made) or (iv) any Shelf Registration Suspension exceeds the
number of days permitted for such suspension under Section 3(i), or (v)
any Exchange Offer Registration Statement or Shelf Registration Statement
required by Section 2(a) or 2(b) hereof is filed and declared effective
but shall thereafter either be withdrawn by the Company or shall become
subject to an effective stop order issued pursuant to Section 8(d) of the
Securities Act suspending the effectiveness of such registration statement
(except as specifically permitted herein) without being succeeded as
promptly as practicable by an additional registration statement filed and
declared effective (each such event referred to in clauses (i) through
(v), a "Registration Default" and each period during which a Registration
Default has occurred and is
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Registration Rights Agreement
continuing, a "Registration Default Period"), then, as liquidated damages
for such Registration Default, subject to the provisions of Section 9(b),
additional interest ("Additional Interest"), in addition to the Base
Interest, shall accrue at a per annum rate of 0.25% for the first 90 days
of the Registration Default Period, at a per annum rate of 0.50% for the
second 90 days of the Registration Default Period, at a per annum rate of
0.75% for the third 90 days of the Registration Default Period and at a
per annum rate of 1.0% thereafter for the remaining portion of the
Registration Default Period.
(d) The Company shall take, and shall cause the Subsidiary
Guarantors to take, all actions reasonably necessary or advisable to be
taken by it to ensure that the transactions contemplated herein are
effected as so contemplated.
(e) Any reference herein to a registration statement as of any
time shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time and any reference
herein to any post-effective amendment to a registration statement as of
any time shall be deemed to include any document incorporated, or deemed
to be incorporated, therein by reference as of such time.
3. Registration Procedures.
If the Company files a registration statement pursuant to
Section 2(a) or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the
Shelf Registration, as the case may be, the Company shall qualify the
Indenture under the Trust Indenture Act of 1939.
(b) In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall
appoint a new trustee thereunder pursuant to the applicable provisions of
the Indenture.
(c) In connection with the Company's obligations with respect to
the registration of Exchange Securities as contemplated by Section 2(a)
(the "Exchange Registration"), if applicable, the Company shall:
(i) prepare and file with the Commission no later than
90 days after the Closing Date, an Exchange Offer Registration
Statement on any form which may be utilized by the Company and
which shall permit the Exchange Offer and resales of Exchange
Securities by broker-dealers during the Resale Period to be
effected as contemplated by Section 2(a), and use its
reasonable best efforts to cause such Exchange Offer
Registration Statement to become effective no later than 180
days after the Closing Date;
(ii) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Exchange
Offer Registration Statement and the prospectus included
therein as may be necessary to effect and maintain the
effectiveness of such Exchange Offer Registration Statement
for the periods and purposes contemplated in Section 2(a)
hereof and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable
to the form of such Exchange Offer Registration Statement, and
promptly provide each broker-dealer holding Exchange
Securities with such number of copies of the prospectus
included therein (as then amended or supplemented), in
conformity in all
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Registration Rights Agreement
material respects with the requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of
the Commission thereunder, as such broker-dealer reasonably
may request prior to the expiration of the Resale Period, for
use in connection with resales of Exchange Securities;
(iii) furnish to each Purchaser, prior to the filing
thereof with the Commission, a copy of the Exchange Offer
Registration Statement and each amendment and each supplement,
if any, and, in the event a Purchaser is participating in the
Exchange Offer, the Company shall use its reasonable best
efforts to reflect in each such document, when so filed with
the Commission, such comments as such Purchaser may reasonably
request in writing to the Company or its counsel, and, if
requested by a Purchaser in writing to the Company or its
counsel, include the information required by Items 507 and 508
of Regulation S-K under the Securities Act, as applicable, and
such other items as may be required by the Securities Act;
(iv) promptly notify each Purchaser, each holder and
each broker-dealer that has requested copies of the prospectus
included in such registration statement and notified the
Company in writing that it will be a broker-dealer
participating in the Exchange Offer, and confirm such notice
in writing, (A) when such Exchange Offer Registration
Statement or the prospectus included therein or any prospectus
amendment or supplement or post-effective amendment has been
filed, and, with respect to such Exchange Offer Registration
Statement or any post-effective amendment, when the same has
become effective, (B) of any comments made to the Company or
its counsel by the Commission and by the blue sky or
securities commissioner or regulator of any state with respect
thereto or any request made to the Company or its counsel by
the Commission for amendments or supplements to such Exchange
Offer Registration Statement or prospectus or for additional
information, (C) of the issuance by the Commission of any stop
order suspending the effectiveness of such Exchange Offer
Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the Company
becomes aware that the representations and warranties of the
Company contemplated by Section 5 cease to be true and correct
in all material respects, (E) of the receipt by the Company or
its legal counsel of any notification with respect to the
suspension of the qualification of the Exchange Securities for
sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose, or (F) at any time during the
Resale Period when a prospectus is required to be delivered
under the Securities Act, that such Exchange Offer
Registration Statement, prospectus, prospectus amendment or
supplement or post-effective amendment does not conform in all
material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder or contains 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 light of the
circumstances then existing;
(v) in the event that the Company would be required,
pursuant to Section 3(c)(iv)(F) above, to notify any
Purchaser, holder or broker-dealers holding Exchange
Securities, without unreasonable delay prepare and furnish to
each such holder a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to
purchasers of such Exchange Securities during the Resale
Period, such prospectus shall conform in all material respects
to the applicable requirements of the Securities Act and the
Trust Indenture Act and the
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Registration Rights Agreement
rules and regulations of the Commission thereunder and shall
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 not misleading in
light of the circumstances then existing; and in the event the
Purchaser, the holder or the broker dealer must suspend the
use of such prospectus, the period of effectiveness of the
Exchange Offer Registration Statement provided for in 2(a)
shall each be extended by the number of days from and
including the date of giving of such notice to and including
the date the holders of the Securities shall have received
such amended or supplemented prospectus;
(vi) deliver to each Purchaser, each broker-dealer
participating in such Exchange Offer and any other holder who
so requests and any other persons required to deliver a
prospectus following the Registered Exchange Offer, without
charge, at least one copy of the Exchange Offer Registration
Statement and any post-effective amendments thereto, including
financial statements and, if requested, all exhibits thereto,
and as many copies of the final prospectus included in the
Exchange Offer Registration Statement and any amendment or
supplement thereto as such persons may reasonably request;
(vii)use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of such
Exchange Offer Registration Statement or any post-effective
amendment thereto at the earliest practicable date;
(viii) use its reasonable best efforts to (A) register
or qualify the Exchange Securities under the securities laws
or blue sky laws of such jurisdictions as are contemplated by
Section 2(a) no later than the commencement of the Exchange
Offer, (B) keep such registrations or qualifications in effect
and comply with such laws so as to permit the continuance of
offers, sales and dealings therein in such jurisdictions until
the expiration of the Resale Period and (C) take any and all
other actions as may be reasonably necessary or advisable to
enable each broker-dealer holding Exchange Securities to
consummate the disposition thereof in such jurisdictions;
provided, however, that neither the Company nor any Subsidiary
Guarantor shall be required for any such purpose to (1)
qualify as a foreign corporation in any jurisdiction wherein
it would not otherwise be required to qualify but for the
requirements of this Section 3(c)(viii), (2) consent to
general service of process in any such jurisdiction or (3)
make any changes to its certificate of incorporation or
by-laws or any agreement between it and its stockholders,
partners or members, as the case may be;
(ix) use its reasonable best efforts to obtain the
consent or approval of each governmental agency or authority,
whether federal, state or local, which may be required to
effect the Exchange Registration, the Exchange Offer and the
offering and sale of Exchange Securities by broker-dealers
during the Resale Period;
(x) provide a CUSIP number for all Exchange
Securities, not later than the applicable Effective Time;
(xi) permit holders to withdraw tendered securities at
any time prior to the close of business, New York time, on the
last business day on which the Registered Exchange Offer shall
remain open; and
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Registration Rights Agreement
(xii) comply with all applicable rules and regulations
of the Commission, and make generally available to its
securityholders (or otherwise provide in accordance with
Section 11(a) of the Securities Act) as soon as practicable
but no later than 45 days after the end of a 12-month period
(or 90 days if such period is a fiscal year) beginning with
the first month of the Company's fiscal quarter commencing
after the effective date of the Registration Statement, an
earning statement of the Company covering such 12-month period
and complying with Section 11(a) of the Securities Act
(including, at the option of the Company, Rule 158
thereunder).
(d) In connection with the Company's obligations with respect to
the Shelf Registration, if applicable, the Company shall, subject to
Section 3(i):
(i) prepare and file with the Commission within the
time periods specified in Section 2(b), a Shelf Registration
Statement on any form which may be utilized by the Company and
which shall register all of the Registrable Securities for
resale by the holders thereof in accordance with such method
or methods of disposition as may be specified by such of the
holders as, from time to time, may be Electing Holders and use
its reasonable best efforts to cause such Shelf Registration
Statement to become effective within the time periods
specified in Section 2(b);
(ii) not less than 30 calendar days prior to the
Effective Time of the Shelf Registration Statement, mail the
Notice and Questionnaire to the holders of Registrable
Securities; no holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement as
of the Effective Time, and no holder shall be entitled to use
the prospectus forming a part thereof for resales of
Registrable Securities at any time, unless such holder has
returned a completed and signed Notice and Questionnaire to
the Company by the deadline for response set forth therein;
provided, however, holders of Registrable Securities shall
have at least 28 calendar days from the date on which the
Notice and Questionnaire is first mailed to such holders to
return a completed and signed Notice and Questionnaire to the
Company;
(iii)furnish to each Purchaser and any other holder who
so requests in writing, prior to the filing thereof with the
Commission, a copy of the Shelf Registration Statement and
each amendment and each supplement, if any, and, in the event
a Purchaser is participating in the Shelf Registration Offer,
the Company shall use its reasonable best efforts to reflect
in each such document, when so filed with the Commission, such
comments as such Purchaser may reasonably request in writing
to the Company or its counsel;
(iv) after the Effective Time of the Shelf Registration
Statement, upon the request of any holder of Registrable
Securities that is not then an Electing Holder, promptly send
a Notice and Questionnaire to such holder; provided that the
Company shall not be required to take any action to name such
holder as a selling securityholder in the Shelf Registration
Statement or to enable such holder to use the prospectus
forming a part thereof for resales of Registrable Securities
until such holder has returned a completed and signed Notice
and Questionnaire to the Company;
(v) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Shelf
Registration Statement and the prospectus included therein as
may be necessary to effect and maintain the
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Registration Rights Agreement
effectiveness of such Shelf Registration Statement for the
period specified in Section 2(b) hereof and as may be required
by the applicable rules and regulations of the Commission and
the instructions applicable to the form of such Shelf
Registration Statement, and furnish to the Electing Holders
copies of any such supplement or amendment simultaneously with
or prior to its being used or filed with the Commission;
(vi) comply with the provisions of the Securities Act
with respect to the disposition of all of the Registrable
Securities covered by such Shelf Registration Statement in
accordance with the intended methods of disposition by the
Electing Holders provided for in such Shelf Registration
Statement;
(vii) provide (A) the Electing Holders, (B) the
underwriters (which term, for purposes of this Registration
Rights Agreement, shall include a person deemed to be an
underwriter within the meaning of Section 2(a)(11) of the
Securities Act), if any, thereof, (C) any sales or placement
agent therefor, (D) not more than one counsel for any such
underwriter or agent and (E) not more than one counsel for all
the Electing Holders the opportunity to participate in the
preparation of such Shelf Registration Statement, each
prospectus included therein or filed with the Commission and
each amendment or supplement thereto;
(viii) for a reasonable period prior to the filing of
such Shelf Registration Statement, and throughout the period
specified in Section 2(b), make available at reasonable times
at the Company's principal place of business or such other
reasonable place for inspection by the persons referred to in
Section 3(d)(vii) who shall certify to the Company that they
have a current intention to sell the Registrable Securities
pursuant to the Shelf Registration such financial and other
information and books and records of the Company, and cause
the officers, employees, counsel and independent certified
public accountants of the Company to respond to such
inquiries, as shall be reasonably necessary, in the judgment
of the respective counsel referred to in such Section, to
conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act; provided, however, that each
such party shall be required to maintain in confidence and not
to disclose to any other person any information or records
reasonably designated by the Company as being confidential,
until such time as (A) such information becomes a matter of
public record (whether by virtue of its inclusion in such
registration statement or otherwise, but not because of
disclosure, unauthorized by the Company or its
representatives, by such person or its representatives), or
(B) such person shall be required so to disclose such
information pursuant to a subpoena or order of any court or
other governmental agency or body having jurisdiction over the
matter (subject to the requirements of such order, and only
after such person shall have given the Company prompt prior
written notice of such requirement), or (C) such information
is required to be set forth in such Shelf Registration
Statement or the prospectus included therein or in an
amendment to such Shelf Registration Statement or an amendment
or supplement to such prospectus in order that such Shelf
Registration Statement, prospectus, amendment or supplement,
as the case may be, complies with applicable requirements of
the federal securities laws and the rules and regulations of
the Commission and does not contain an untrue statement of a
material fact or omit to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading in light of the
circumstances then existing;
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Registration Rights Agreement
(ix) promptly notify each of the Electing Holders, any
sales or placement agent therefor and any underwriter thereof
(which notification may be made through any managing
underwriter that is a representative of such underwriter for
such purpose) and confirm such advice in writing, (A) when
such Shelf Registration Statement or the prospectus included
therein or any prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect to
such Shelf Registration Statement or any post-effective
amendment, when the same has become effective, (B) of any
comments made to the Company or its counsel by the Commission
and by the blue sky or securities commissioner or regulator of
any state with respect thereto or any request made to the
Company or its counsel by the Commission for amendments or
supplements to such Shelf Registration Statement or prospectus
or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of
such Shelf Registration Statement or the initiation or
threatening of any proceedings for that purpose, (D) if at any
time the Company becomes aware that the representations and
warranties of the Company contemplated by Section 3(d)(xviii)
or Section 5 cease to be true and correct in all material
respects, (E) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose, or (F) if at any time when a
prospectus is required to be delivered under the Securities
Act, that such Shelf Registration Statement, prospectus,
prospectus amendment or supplement or post-effective amendment
does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder or
contains 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
light of the circumstances then existing;
(x) use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of such
registration statement or any post-effective amendment thereto
at the earliest practicable date;
(xi) if requested by any managing underwriter or
underwriters, any placement or sales agent or any Electing
Holder, promptly incorporate in a prospectus supplement or
post-effective amendment such information as is required by
the applicable rules and regulations of the Commission and as
such managing underwriter or underwriters, such agent or such
Electing Holder reasonably specifies should be included
therein relating to the terms of the sale of such Registrable
Securities, including information with respect to the
principal amount of Registrable Securities being sold by such
Electing Holder or agent or to any underwriters, the name and
description of such Electing Holder, agent or underwriter, the
offering price of such Registrable Securities and any
discount, commission or other compensation payable in respect
thereof, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the
offering of the Registrable Securities to be sold by such
Electing Holder or agent or to such underwriters; and make all
required filings of such prospectus supplement or
post-effective amendment promptly after notification of the
matters to be incorporated in such prospectus supplement or
post-effective amendment;
(xii) furnish to each Electing Holder, each placement or
sales agent, if any, therefor, each underwriter, if any,
thereof and the respective counsel referred to in
12
Registration Rights Agreement
Section 3(d)(vii) an executed copy (or, in the case of an
Electing Holder, a conformed copy) of such Shelf Registration
Statement, each such amendment and supplement thereto (in each
case including all exhibits thereto (in the case of an
Electing Holder of Registrable Securities, upon request) and
documents incorporated by reference therein) and such number
of copies of such Shelf Registration Statement (excluding
exhibits thereto and documents incorporated by reference
therein unless specifically so requested by such Electing
Holder, agent or underwriter, as the case may be) and of the
prospectus included in such Shelf Registration Statement
(including each preliminary prospectus and any summary
prospectus), in conformity in all material respects with the
applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder, and such other documents, as such Electing Holder,
agent, if any, and underwriter, if any, may reasonably request
in order to facilitate the offering and disposition of the
Registrable Securities owned by such Electing Holder, offered
or sold by such agent or underwritten by such underwriter and
to permit such Electing Holder, agent and underwriter to
satisfy the prospectus delivery requirements of the Securities
Act; and the Company hereby consents to the use of such
prospectus (including such preliminary and summary prospectus)
and any amendment or supplement thereto by each such Electing
Holder and by any such agent and underwriter, in each case in
the form most recently provided to such person by the Company,
in connection with the offering and sale of the Registrable
Securities covered by the prospectus (including such
preliminary and summary prospectus) or any supplement or
amendment thereto;
(xiii) use its reasonable best efforts to (A) register
or qualify the Registrable Securities to be included in such
Shelf Registration Statement under such securities laws or
blue sky laws of such jurisdictions as any Electing Holder and
each placement or sales agent, if any, therefor and
underwriter, if any, thereof shall reasonably request, (B)
keep such registrations or qualifications in effect and comply
with such laws so as to permit the continuance of offers,
sales and dealings therein in such jurisdictions during the
period the Shelf Registration is required to remain effective
under Section 2(b) above and for so long as may be necessary
to enable any such Electing Holder, agent or underwriter to
complete its distribution of Securities pursuant to such Shelf
Registration Statement (so long as such distribution is
commenced during the period during which the Shelf
Registration Statement is required to remain effective
pursuant to Section 2(b)) and (C) take any and all other
actions as may be reasonably necessary or advisable to enable
each such Electing Holder, agent, if any, and underwriter, if
any, to consummate the disposition in such jurisdictions of
such Registrable Securities; provided, however, that neither
the Company nor any Subsidiary Guarantor shall be required for
any such purpose to (1) qualify as a foreign corporation in
any jurisdiction wherein it would not otherwise be required to
qualify but for the requirements of this Section 3(d)(xiii),
(2) consent to general service of process in any such
jurisdiction or (3) make any changes to its certificate of
incorporation or by-laws or any agreement between it and its
stockholders, partners or members, as the case may be;
(xiv)use its reasonable best efforts to obtain the
consent or approval of each governmental agency or authority,
whether federal, state or local, which may be required to
effect the Shelf Registration or the offering or sale in
connection therewith or to enable the selling holder or
holders to offer, or to consummate the disposition of, their
Registrable Securities;
13
Registration Rights Agreement
(xv) unless any Registrable Securities shall be in
book-entry only form, cooperate with the Electing Holders and
the managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates, if so
required by any securities exchange upon which any Registrable
Securities are listed, shall be penned, lithographed or
engraved, or produced by any combination of such methods, on
steel engraved borders, and which certificates shall not bear
any restrictive legends; and, in the case of an underwritten
offering, enable such Registrable Securities to be in such
denominations and registered in such names as the managing
underwriters may request at least two business days prior to
any sale of the Registrable Securities;
(xvi) provide a CUSIP number for all Registrable
Securities, not later than the applicable Effective Time;
(xvii) enter into one or more underwriting agreements,
engagement letters, agency agreements, "best efforts"
underwriting agreements or similar agreements, as appropriate,
including customary provisions relating to indemnification and
contribution, and take such other actions in connection
therewith as any Electing Holders aggregating at least 20% in
aggregate principal amount of the Registrable Securities at
the time outstanding shall request and as are customarily
taken in order to expedite or facilitate the disposition of
such Registrable Securities;
(xviii) whether or not an agreement of the type referred
to in Section 3(d)(xvii) hereof is entered into and whether or
not any portion of the offering contemplated by the Shelf
Registration is an underwritten offering or is made through a
placement or sales agent or any other entity, (A) make such
representations and warranties to the Electing Holders and the
placement or sales agent, if any, therefor and the
underwriters, if any, thereof in form, substance and scope as
are customarily made in connection with an offering of debt
securities pursuant to any appropriate agreement or to a
registration statement filed on the form applicable to the
Shelf Registration; (B) obtain an opinion of counsel to the
Company in customary form and covering such matters, of the
type customarily covered by such an opinion, as the managing
underwriters, if any, or as any Electing Holders of at least
20% in aggregate principal amount of the Registrable
Securities at the time outstanding may reasonably request,
addressed to such Electing Holder or Electing Holders and the
placement or sales agent, if any, therefor and the
underwriters, if any, thereof and dated the effective date of
such Shelf Registration Statement (and if such Shelf
Registration Statement contemplates an underwritten offering
of a part or all of the Registrable Securities, dated the date
of the closing under the underwriting agreement relating
thereto) (it being agreed that the matters to be covered by
such opinion shall include the due incorporation and good
standing of the Company and its subsidiaries; the due
authorization, execution and delivery of the relevant
agreement of the type referred to in Section 3(d)(xvii)
hereof; the due authorization, execution and issuance, and the
validity and enforceability, of the Securities; the absence of
material legal or governmental proceedings involving the
Company; the absence of a breach by the Company or any of its
subsidiaries of, or a default under, material agreements
binding upon the Company or any subsidiary of the Company; the
absence of certain governmental approvals required to be
obtained in connection with the Shelf Registration, the
offering and sale of the Registrable Securities, this
Registration Rights Agreement or any agreement of the type
referred to in Section 3(d)(xvii) hereof, except such
approvals as may be required under state securities or
14
Registration Rights Agreement
blue sky laws; the material compliance as to form of such
Shelf Registration Statement and any documents incorporated by
reference therein and of the Indenture with the requirements
of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder,
respectively; and, a statement that as of the date of the
opinion and of the Shelf Registration Statement or most recent
post-effective amendment thereto, as the case may be, no facts
have come to the attention of such counsel that would lead
such counsel to believe that such Shelf Registration Statement
and the prospectus included therein, as then amended or
supplemented, and the documents incorporated by reference
therein (in each case other than the financial statements or
schedules, including the notes thereto and auditors' reports
thereon, oil and natural gas reserve evaluations and related
calculations and other information of a financial or reserve
nature (including production data)) contained an untrue
statement of a material fact or the omission to state therein
a material fact necessary to make the statements therein not
misleading (in the case of such documents, in the light of the
circumstances existing at the time that such documents were
filed with the Commission under the Exchange Act)); (C) obtain
a "cold comfort" letter or letters from the independent
certified public accountants of the Company addressed to the
selling Electing Holders, the placement or sales agent, if
any, therefor or the underwriters, if any, thereof, dated (i)
the effective date of such Shelf Registration Statement and
(ii) the effective date of any prospectus supplement to the
prospectus included in such Shelf Registration Statement or
post-effective amendment to such Shelf Registration Statement
which includes unaudited or audited financial statements as of
a date or for a period subsequent to that of the latest such
statements included in such prospectus (and, if such Shelf
Registration Statement contemplates an underwritten offering
pursuant to any prospectus supplement to the prospectus
included in such Shelf Registration Statement or
post-effective amendment to such Shelf Registration Statement
which includes unaudited or audited financial statements as of
a date or for a period subsequent to that of the latest such
statements included in such prospectus, dated the date of the
closing under the underwriting agreement relating thereto),
such letter or letters to be in customary form and covering
such matters of the type customarily covered by letters of
such type; (D) deliver such documents and certificates,
including officers' certificates, as may be reasonably
requested by any Electing Holders of at least 20% in aggregate
principal amount of the Registrable Securities at the time
outstanding or the placement or sales agent, if any, therefor
and the managing underwriters, if any, thereof to evidence the
accuracy of the representations and warranties made pursuant
to clause (A) above or those contained in Section 5(a) hereof
and the compliance with or satisfaction of any agreements or
conditions contained in the underwriting agreement or other
agreement entered into by the Company or the Subsidiary
Guarantor; and (E) undertake such obligations relating to
expense reimbursement, indemnification and contribution as are
provided in Section 6 hereof;
(xix)notify in writing each holder of Registrable
Securities affected thereby of any proposal by the Company to
amend or waive any provision of this Registration Rights
Agreement pursuant to Section 9(h) hereof and of any amendment
or waiver effected pursuant thereto, each of which notices
shall contain the text of the amendment or waiver proposed or
effected, as the case may be;
(xx) in the event that any broker-dealer registered
under the Exchange Act shall underwrite any Registrable
Securities or participate as a member of an underwriting
15
Registration Rights Agreement
syndicate or selling group or "assist in the distribution"
(within the meaning of the Conduct Rules (the "Conduct Rules)
of the National Association of Securities Dealers, Inc.
("NASD") or any successor thereto, as amended from time to
time) thereof, whether as a holder of such Registrable
Securities or as an underwriter, a placement or sales agent or
a broker or dealer in respect thereof, or otherwise, assist
such broker-dealer in complying with the requirements of such
Conduct Rules, including by (A) if such Conduct Rules shall so
require, engaging a "qualified independent underwriter" (as
defined in such Conduct Rules) to participate in the
preparation of the Shelf Registration Statement relating to
such Registrable Securities, to exercise usual standards of
due diligence in respect thereto and, if any portion of the
offering contemplated by such Shelf Registration Statement is
an underwritten offering or is made through a placement or
sales agent, to recommend the yield of such Registrable
Securities, (B) indemnifying any such qualified independent
underwriter to the extent of the indemnification of
underwriters provided in Section 6 hereof, and (C) providing
such information to such broker-dealer as may be required in
order for such broker-dealer to comply with the requirements
of the Conduct Rules;
(xxi)permit holders to withdraw tendered securities at
any time prior to the close of business, New York time, on the
last business day on which the Registered Exchange Offer shall
remain open; and
(xxii) comply with all applicable rules and regulations
of the Commission, and make generally available to its
securityholders as soon as practicable but in any event not
later than eighteen months after the effective date of such
Shelf Registration Statement, an earning statement of the
Company complying with Section 11(a) of the Securities Act
(including, at the option of the Company, Rule 158
thereunder).
(e) Subject to Section 3(i), in the event that the Company would
be required, pursuant to Section 3(d)(ix)(F) above, to notify the Electing
Holders, the placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof, the Company shall without unreasonable
delay prepare and furnish to each of the Electing Holders, to each
placement or sales agent, if any, and to each such underwriter, if any, a
reasonable number of copies of a prospectus supplemented or amended so
that, as thereafter delivered to purchasers of Registrable Securities,
such prospectus shall conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder and shall 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
not misleading in light of the circumstances then existing. Each Electing
Holder agrees that upon receipt of any notice from the Company pursuant to
Section 3(d)(ix)(F) hereof, such Electing Holder shall forthwith
discontinue the disposition of Registrable Securities pursuant to the
Shelf Registration Statement applicable to such Registrable Securities
until such Electing Holder shall have received copies of such amended or
supplemented prospectus, and if so directed by the Company, such Electing
Holder shall deliver to the Company (at the Company's expense) all copies,
other than permanent file copies, then in such Electing Holder's
possession of the prospectus covering such Registrable Securities at the
time of receipt of such notice and, the period of effectiveness of the
Shelf Registration Statement provided for in 2(b) shall each be extended
by the number of days from and including the date of giving of such notice
to and
16
Registration Rights Agreement
including the date the holders of the Securities shall have received such
amended or supplemented prospectus.
(f) In the event of a Shelf Registration, in addition to the
information required to be provided by each Electing Holder in its Notice
Questionnaire, the Company may require such Electing Holder to furnish to
the Company such additional information regarding such Electing Holder and
such Electing Holder's intended method of distribution of Registrable
Securities as may be required in order to comply with the Securities Act.
Each such Electing Holder agrees to notify the Company as promptly as
practicable of any inaccuracy or change in information previously
furnished by such Electing Holder to the Company or of the occurrence of
any event in either case as a result of which any prospectus relating to
such Shelf Registration contains or would contain an untrue statement of a
material fact regarding such Electing Holder or such Electing Holder's
intended method of disposition of such Registrable Securities or omits to
state any material fact regarding such Electing Holder or such Electing
Holder's intended method of disposition of such Registrable Securities
required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing, and promptly
to furnish to the Company any additional information required to correct
and update any previously furnished information or required so that such
prospectus shall not contain, with respect to such Electing Holder or the
disposition of such Registrable Securities, 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
light of the circumstances then existing.
(g) As soon as practicable after the close of an Exchange Offer,
the Company shall deliver to the Trustee for cancellation all Securities
so accepted for exchange and cause the Trustee to authenticate and deliver
promptly to each Holder of the Securities, Exchange Securities or Private
Securities, as the case may be, equal in principal amount to the
Securities of such holder so accepted for exchange.
(h) Until the expiration of two years after the Closing Date, the
Company will not, and will not permit any of its "affiliates" (as defined
in Rule 144) to, resell any of the Securities that have been reacquired by
any of them except pursuant to an effective registration statement under
the Securities Act.
(i) Notwithstanding anything in Section 2(b) or Section 3(d) or
(e) to the contrary, if the Company determines in good faith that the
filing of any supplement or amendment to a Shelf Registration Statement,
including without limitation a supplement or amendment contemplated by
Section 3(e) hereof, would require the disclosure of information that the
Company has a bona fide business reason to preserve as confidential, or
the disclosure of which would materially adversely affect the Company's
ability to consummate a transaction (whether or not a final decision has
been made to undertake such transaction), then upon written notice of such
determination by the Company (a "Suspension Notice") to the Electing
Holders, the obligation of the Company to supplement or amend the Shelf
Registration Statement (including any action with respect thereto
contemplated by Section 3(e)) will be suspended until the Company notifies
the Electing Holders (a "Suspension Termination Notice") that the reasons
for suspension of such obligations on the part of the Company no longer
exist and the Company amends or supplements the Shelf Registration
Statement as may be required (such suspension, a "Shelf Registration
Suspension"); provided that the aggregate number of days (whether or not
consecutive) during which the Company may delay the filing of any such
supplement or amendment shall in no event exceed (i) 30 days during any
period of 90 consecutive days or (ii) 90 days during any period of 12
consecutive
17
Registration Rights Agreement
months, and the suspension of the Company's obligation to supplement or
amend the Shelf Registration Statement under the preceding sentence shall
not result in any obligation of the Company to pay Additional Interest
pursuant to Section 2(c). If the Company delivers a Suspension Notice in
accordance with this Section 3(i), then the Electing Holders shall suspend
use of the prospectus until the Company delivers a Suspension Termination
Notice in accordance with this Section 3(i).
(j) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Exchange and Registration Rights Agreement,
each holder of Registrable Securities shall furnish, upon the request of
the Company, prior to the consummation thereof, written representations to
the Company (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) in form and
substance customary for exchange offers similar to the Exchange Offer,
including without limitation representations to the effect that such
holder (i) is not an affiliate of the Company or any Subsidiary Guarantor,
(ii) is not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any person to participate in, a
distribution of the Exchange Securities to be issued in the Exchange Offer
and (iii) is acquiring the Exchange Securities in its ordinary course of
business.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly
all expenses incident to the Company's performance of or compliance with this
Registration Rights Agreement, including (a) all Commission and any NASD
registration, filing and review fees and expenses including reasonable fees and
disbursements of not more than one counsel for the placement or sales agent or
underwriters in connection with such registration, filing and review, (b) all
fees and expenses in connection with the qualification of the Securities for
offering and sale under the State securities and blue sky laws referred to in
Section 3(d)(xiii) hereof and determination of their eligibility for investment
under the laws of such jurisdictions as any managing underwriters or the
Electing Holders may designate, including any reasonable fees and disbursements
of not more than one counsel for the Electing Holders or underwriters in
connection with such qualification and determination, (c) all expenses relating
to the preparation, printing, production, distribution and reproduction of each
registration statement required to be filed hereunder, each prospectus included
therein or prepared for distribution pursuant hereto, each amendment or
supplement to the foregoing, the expenses of preparing the Securities for
delivery and the expenses of printing or producing any underwriting agreements,
agreements among underwriters, selling agreements and blue sky or legal
investment memoranda and all other documents in connection with the offering,
sale or delivery of Securities to be disposed of (including certificates
representing the Securities), (d) messenger, telephone and delivery expenses
relating to the offering, sale or delivery of Securities and the preparation of
documents referred in clause (c) above, (e) fees and expenses of the Trustee
under the Indenture, any agent of the Trustee and any counsel for the Trustee
and of any collateral agent or custodian, (f) internal expenses of the Company
(including all salaries and expenses of the Company's officers and employees
performing legal or accounting duties), (g) fees, disbursements and expenses of
counsel and independent certified public accountants of the Company (including
the expenses of any opinions or "cold comfort" letters required by or incident
to such performance and compliance), (h) reasonable fees, disbursements and
expenses of any "qualified independent underwriter" engaged pursuant to Section
3(d)(xx) hereof, (i) reasonable fees, disbursements and expenses of one counsel
for the Electing Holders retained in connection with a Shelf Registration, as
selected by the Electing Holders of at least a majority in aggregate principal
amount of the Registrable Securities held by Electing
18
Registration Rights Agreement
Holders (which counsel shall be reasonably satisfactory to the Company), (j) any
fees charged by securities rating services for rating the Securities, and (k)
fees, expenses and disbursements of any other persons, including special
experts, retained by the Company in connection with such registration
(collectively, the "Registration Expenses"). To the extent that any Registration
Expenses are reasonably incurred, assumed or paid by any holder of Registrable
Securities or any placement or sales agent therefor or underwriter thereof, the
Company shall reimburse such person for the full amount of the Registration
Expenses so incurred, assumed or paid promptly after receipt of a request
therefor. Notwithstanding the foregoing, the holders of the Registrable
Securities being registered shall pay all agency fees and commissions and
underwriting discounts and commissions attributable to the sale of such
Registrable Securities and the fees and disbursements of any counsel or other
advisors or experts retained by such holders (severally or jointly), other than
the counsel and experts specifically referred to above.
5. Representations and Warranties.
The Company and each Subsidiary Guarantor represents and
warrants to, and agrees with, each Purchaser and each of the holders from time
to time of Registrable Securities that:
(a) Each registration statement covering Registrable Securities
and each prospectus (including any preliminary or summary prospectus)
contained therein or furnished pursuant to Section 3(d) or Section 3(c)
hereof and any further amendments or supplements to any such registration
statement or prospectus, when it becomes effective or is filed with the
Commission, as the case may be, and, in the case of an underwritten
offering of Registrable Securities, at the time of the closing under the
underwriting agreement relating thereto, will conform in all material
respects to the requirements of the Securities Act and the Trust Indenture
Act and the rules and regulations of the Commission thereunder and 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 not misleading; and at all times subsequent to the
Effective Time when a prospectus would be required to be delivered under
the Securities Act, other than from (i) such time as a notice has been
given to holders of Registrable Securities pursuant to Section 3(d)(ix)(F)
or Section 3(c)(iv)(F) hereof until (ii) such time as the Company
furnishes an amended or supplemented prospectus pursuant to Section 3(e)
or Section 3(c)(v) hereof, each such registration statement, and each
prospectus (including any summary prospectus) contained therein or
furnished pursuant to Section 3(d) or Section 3(c) hereof, as then amended
or supplemented, will conform in all material respects to the requirements
of the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and 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 not
misleading in the light of the circumstances then existing; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by a holder of Registrable
Securities expressly for use therein.
(b) Any documents incorporated by reference in any prospectus
referred to in Section 5(a) hereof, when they become or became effective
or are or were filed with the Commission, as the case may be, will conform
or conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and none of such
documents will contain or contained an untrue statement of a material fact
or will omit or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty
19
Registration Rights Agreement
shall not apply to any statements or omissions made in reliance upon and
in conformity with information furnished in writing to the Company by a
holder of Registrable Securities expressly for use therein.
(c) The compliance by the Company with all of the provisions of
this Registration Rights Agreement and the consummation of the
transactions herein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any subsidiary of the
Company is a party or by which the Company or any subsidiary of the
Company is bound or to which any of the property or assets of the Company
or any subsidiary of the Company is subject, nor will such action result
in any violation of the provisions of the certificate of incorporation, as
amended, or the by-laws of the Company or any Subsidiary Guarantor or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any subsidiary of
the Company or any of their properties except, in each case other than
with respect to such certificate of incorporation or by-laws, for any such
conflict, breach, violation or default that would not, individually or in
the aggregate, have a material adverse effect on the condition (financial
or other), business, properties, earnings, assets, stockholders' equity,
prospects or results of operations of the Company and its subsidiaries
taken as a whole; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the consummation by the Company and the
Subsidiary Guarantors of the transactions contemplated by this
Registration Rights Agreement, except the registration under the
Securities Act of the Securities, qualification of the Indenture under the
Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under State securities
or blue sky laws in connection with the offering and distribution of the
Securities.
(d) This Registration Rights Agreement has been duly authorized,
executed and delivered by the Company and each Subsidiary Guarantor.
6. Indemnification.
(a) Indemnification by the Company and the Subsidiary Guarantors.
The Company and each Subsidiary Guarantor, jointly and severally, will
indemnify and hold harmless each of the holders of Registrable Securities
included in an Exchange Offer Registration Statement, each of the Electing
Holders of Registrable Securities included in a Shelf Registration
Statement and each person who participates as a placement or sales agent
or as an underwriter in any offering or sale of such Registrable
Securities against any losses, claims, damages or liabilities, joint or
several, to which such holder, agent or underwriter may become subject
under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in any Exchange Offer Registration Statement or Shelf
Registration Statement, as the case may be, under which such Registrable
Securities were registered under the Securities Act, or any preliminary,
final or summary prospectus contained therein or furnished by the Company
to any such holder, Electing Holder, agent or underwriter, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and will reimburse such holder, such Electing Holder, such
agent and such underwriter for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such
action or claim as such expenses are incurred;
20
Registration Rights Agreement
provided, however, that neither the Company nor any Subsidiary Guarantor
shall be liable to any such person in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, or preliminary, final or
summary prospectus, or amendment or supplement thereto, in reliance upon
and in conformity with written information furnished to the Company by
such person expressly for use therein; provided, further, that neither the
Company nor any Subsidiary Guarantor shall be liable for any losses,
claims, damages or liabilities, joint or several, arising out of an offer
or sale of Registrable Securities (i) during any Shelf Registration
Suspension in accordance with Section 3(i) hereof during the permitted
time periods provided for therein; provided the Company provides the
Suspension Notice, or (ii) under the circumstances described in Section
3(c)(iv) hereof, during the period following any notification in writing
of Purchasers, holders and broker-dealers referred to therein, provided
such period is not unreasonably long.
(b) Indemnification by the Holders and any Agents and
Underwriters. The Company may require, as a condition to including any
Registrable Securities in any registration statement filed pursuant to
Section 2(b) hereof and to entering into any underwriting agreement with
respect thereto, that the Company shall have received an undertaking
reasonably satisfactory to it from the Electing Holder of such Registrable
Securities and from each underwriter named in any such underwriting
agreement, severally and not jointly, to (i) indemnify and hold harmless
the Company and each Subsidiary Guarantor, and all other holders of
Registrable Securities, against any losses, claims, damages or liabilities
to which the Company, the Subsidiary Guarantors or such other holders of
Registrable Securities may become subject, joint or several, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
an untrue statement or alleged untrue statement of a material fact
contained in such registration statement, or any preliminary, final or
summary prospectus contained therein or furnished by the Company to any
such Electing Holder, agent or underwriter, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to
the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon
and in conformity with written information furnished to the Company by
such Electing Holder or underwriter expressly for use therein, and (ii)
reimburse the Company and the Subsidiary Guarantors for any legal or other
expenses reasonably incurred by the Company and the Subsidiary Guarantors
in connection with investigating or defending any such action or claim as
such expenses are incurred; provided, however, that no such Electing
Holder shall be required to undertake liability to any person under this
Section 6(b) for any amounts in excess of the dollar amount of the
proceeds to be received by such Electing Holder from the sale of such
Electing Holder's Registrable Securities pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an
indemnified party under subsection (a) or (b) above of written notice of
the commencement of any action, such indemnified party shall, if a claim
in respect thereof is to be made against an indemnifying party pursuant to
the indemnification provisions of or contemplated by this Section 6,
notify such indemnifying party in writing of the commencement of such
action; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party
otherwise than under the indemnification provisions of or contemplated by
Section 6(a) or 6(b) hereof. In case any such action shall be brought
against any
21
Registration Rights Agreement
indemnified party and it shall notify an indemnifying party of the
commencement thereof, such indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof, such indemnifying party shall not be liable to such
indemnified party for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of
the indemnified party, effect the settlement or compromise of, or consent
to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or claim
and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) are unavailable to or
insufficient to hold harmless an indemnified party in respect of any
losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions in respect thereof) in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified party in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party
and indemnified party shall be determined by reference to, among other
things, whether the 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 by such indemnified
party, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 6(d) were determined by pro rata
allocation (even if the holders or any agents or underwriters or all of
them were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to in this Section 6(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, or
liabilities (or actions in respect thereof) referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred
by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section
6(d), no holder shall be required to contribute any amount in excess of
the amount by which the dollar amount of the proceeds received by such
holder from the sale of any Registrable Securities (after deducting any
fees, discounts and commissions applicable thereto) exceeds the amount of
any damages which such holder has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged
omission, and 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 which such underwriter has
otherwise been required to pay by reason of such untrue or
22
Registration Rights Agreement
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 holders' and any
underwriters' obligations in this Section 6(d) to contribute shall be
several in proportion to the principal amount of Registrable Securities
registered or underwritten, as the case may be, by them and not joint.
(e) The obligations of the Company and each Subsidiary Guarantor
under this Section 6 shall be in addition to any liability which the
Company or any Subsidiary Guarantor may otherwise have and shall extend,
upon the same terms and conditions, to each officer, director and partner
of each holder, agent and underwriter and each person, if any, who
controls any holder, agent or underwriter within the meaning of the
Securities Act; and the obligations of the holders and any agents or
underwriters contemplated by this Section 6 shall be in addition to any
liability which the respective holder, agent or underwriter may otherwise
have and shall extend, upon the same terms and conditions, to each
officer, director, manager and partner, as the case may be, of the Company
or any Subsidiary Guarantor and to each person, if any, who controls the
Company or any Subsidiary Guarantor within the meaning of the Securities
Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable
Securities covered by the Shelf Registration are to be sold pursuant to an
underwritten offering, the managing underwriter or underwriters thereof
shall be designated by Electing Holders holding at least a majority in
aggregate principal amount of the Registrable Securities to be included in
such offering, provided that such designated managing underwriter or
underwriters is or are reasonably acceptable to the Company.
(b) Participation by Holders. Each holder of Registrable
Securities hereby agrees with each other such holder that no such holder
may participate in any underwritten offering hereunder unless such holder
(i) 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 (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents reasonably required under the terms of such
underwriting arrangements.
8. Rule 144.
The Company covenants to the holders of Registrable Securities
that to the extent it shall be required to do so under the Exchange Act, the
Company shall timely file the reports required to be filed by it under the
Exchange Act or the Securities Act (including the reports under Section 13 and
15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted
by the Commission under the Securities Act) and the rules and regulations
adopted by the Commission thereunder, and shall take such further action as any
holder of Registrable Securities 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 within the limitations of the
exemption provided by Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar or successor rule or regulation
hereafter adopted by the Commission. Upon the request of any holder of
Registrable Securities in connection with that holder's sale pursuant to Rule
144, the Company shall deliver to such holder a written statement as to whether
it has complied with such requirements.
23
Registration Rights Agreement
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant,
registration rights with respect to Registrable Securities or any other
securities which would be inconsistent with the terms contained in this
Registration Rights Agreement.
(b) Specific Performance. The parties hereto acknowledge that
there would be no adequate remedy at law if the Company fails to perform
any of its obligations hereunder and that the Purchasers and the holders
from time to time of the Registrable Securities may be irreparably harmed
by any such failure, and accordingly agree that the Purchasers and such
holders, in addition to any other remedy to which they may be entitled at
law or in equity, shall be entitled to compel specific performance of the
obligations of the Company under this Registration Rights Agreement in
accordance with the terms and conditions of this Registration Rights
Agreement, in any court of the United States or any State thereof having
jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and
other communications hereunder shall be in writing and shall be deemed to
have been duly given when delivered by hand, if delivered personally or by
courier, or three days after being deposited in the mail (registered or
certified mail, postage prepaid, return receipt requested) as follows: If
to the Company, to it at Encore Acquisition Company, 777 Main Street,
Suite 1400, Ft. Worth, Texas 76102, Attention: President, and if to a
holder, to the address of such holder set forth in the security register
or other records of the Company, or to such other address as the Company
or any such holder may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be
effective only upon receipt.
(d) Parties in Interest. All the terms and provisions of this
Registration Rights Agreement shall be binding upon, shall inure to the
benefit of and shall be enforceable by the parties hereto and the holders
from time to time of the Registrable Securities and the respective
successors and assigns of the parties hereto and such holders. In the
event that any transferee of any holder of Registrable Securities shall
acquire Registrable Securities, in any manner, whether by gift, bequest,
purchase, operation of law or otherwise, such transferee shall, without
any further writing or action of any kind, be deemed a beneficiary hereof
for all purposes and such Registrable Securities shall be held subject to
all of the terms of this Registration Rights Agreement, and by taking and
holding such Registrable Securities such transferee shall be entitled to
receive the benefits of, and be conclusively deemed to have agreed to be
bound by all of the applicable terms and provisions of this Registration
Rights Agreement. If the Company shall so request, any such successor,
assign or transferee shall agree in writing to acquire and hold the
Registrable Securities subject to all of the applicable terms hereof.
(e) Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this
Registration Rights Agreement or made pursuant hereto shall remain in full
force and effect regardless of any investigation (or statement as to the
results thereof) made by or on behalf of any holder of Registrable
Securities, any director, officer or partner of such holder, any agent or
underwriter or any director, officer or partner thereof, or any
controlling person of any of the foregoing, and shall survive delivery of
and payment for the Registrable Securities pursuant to the Purchase
Agreement and the transfer and registration of Registrable Securities by
such holder and the consummation of an Exchange Offer.
24
Registration Rights Agreement
(f) GOVERNING LAW. THIS REGISTRATION RIGHTS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Registration Rights Agreement are inserted for
convenience only, do not constitute a part of this Registration Rights
Agreement and shall not affect in any way the meaning or interpretation of
this Registration Rights Agreement.
(h) Entire Agreement; Amendments. This Registration Rights
Agreement and the other writings referred to herein (including the
Indenture and the form of Securities) or delivered pursuant hereto which
form a part hereof contain the entire understanding of the parties with
respect to its subject matter. This Registration Rights Agreement
supersedes all prior agreements and understandings between the parties
with respect to its subject matter. This Registration Rights Agreement may
be amended and the observance of any term of this Registration Rights
Agreement may be waived (either generally or in a particular instance and
either retroactively or prospectively) only by a written instrument duly
executed by the Company and the holders of at least a majority in
aggregate principal amount of the Registrable Securities at the time
outstanding. Each holder of any Registrable Securities at the time or
thereafter outstanding shall be bound by any amendment or waiver effected
pursuant to this Section 9(h), whether or not any notice, writing or
marking indicating such amendment or waiver appears on such Registrable
Securities or is delivered to such holder.
(i) Inspection. For so long as this Registration Rights Agreement
shall be in effect, this Registration Rights Agreement and a complete list
of the names and addresses of all the holders of Registrable Securities
shall be made available for inspection and copying on any business day by
any holder of Registrable Securities for proper purposes only (which shall
include any purpose related to the rights of the holders of Registrable
Securities under the Securities, the Indenture and this Agreement) at the
offices of the Company at the address thereof set forth in Section 9(c)
above and at the office of the Trustee under the Indenture.
(j) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all
such respective counterparts shall together constitute one and the same
instrument.
25
Registration Rights Agreement
If the foregoing is in accordance with your understanding, please
sign and return to us one for the Company, the Subsidiary Guarantors and each of
the Representatives plus one for each counsel counterparts hereof, and upon the
acceptance hereof by you, on behalf of each of the Purchasers, this letter and
such acceptance hereof shall constitute a binding agreement between each of the
Purchasers, the Subsidiary Guarantors, and the Company. It is understood that
your acceptance of this letter on behalf of each of the Purchasers is pursuant
to the authority set forth in a form of Agreement among Purchasers, the form of
which shall be submitted to the Company for examination upon request, but
without warranty on your part as to the authority of the signers thereof.
Very truly yours,
ENCORE ACQUISITION COMPANY
By: /s/ Roy W. Jageman
-------------------------------------------------
Roy W. Jageman
Executive Vice President, Chief Financial
Officer, Treasurer and Corporate Secretary
EAP ENERGY, INC.
By: /s/ Roy W. Jageman
-------------------------------------------------
Roy W. Jageman
Executive Vice President, Chief Financial
Officer, Treasurer and Corporate Secretary
EAP ENERGY SERVICES, L.P.
By: EAP Energy, Inc., its general partner
By: /s/ Roy W. Jageman
-------------------------------------------------
Roy W. Jageman
Executive Vice President, Chief Financial
Officer, Treasurer and Corporate Secretary
EAP OPERATING, INC.
By: /s/ Roy W. Jageman
-------------------------------------------------
Roy W. Jageman
Executive Vice President, Chief Financial
Officer, Treasurer and Corporate Secretary
Registration Rights Agreement
EAP PROPERTIES, INC.
By: /s/ Robert A. Sagedy
-------------------------------------------------
Robert A. Sagedy
Vice President
ENCORE OPERATING, L.P.
By: EAP Operating, Inc., its general partner
By: /s/ Roy W. Jageman
-------------------------------------------------
Roy W. Jageman
Executive Vice President, Chief Financial
Officer, Treasurer and Corporate Secretary
ENCORE OPERATING LOUISIANA LLC
By: /s/ Tom Olle
-------------------------------------------------
Tom Olle
President
Accepted as of the date hereof:
Goldman, Sachs & Co.
Credit Suisse First Boston LLC
Deutsche Bank Securities Inc.
Fleet Securities, Inc.
J.P. Morgan Securities Inc.
KeyBanc Capital Markets, a Division of McDonald Investments Inc.
BNP Paribas Securities Corp.
Fortis Investment Services LLC
Stanford Group Company
/s/ Goldman, Sachs & Co.
- -------------------------------------------------
Goldman, Sachs & Co.
EXHIBIT A
ENCORE ACQUISITION COMPANY
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE] *
The Depository Trust Company ("DTC") has identified you as a DTC Participant
through which beneficial interests in the Encore Acquisition Company (the
"Company") 6.25% Senior Subordinated Notes due 2014 (the "Securities") are held.
The Company is in the process of registering the Securities under the Securities
Act of 1933 for resale by the beneficial owners thereof. In order to have their
Securities included in the registration statement, beneficial owners must
complete and return the enclosed Notice of Registration Statement and Selling
Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy of the
enclosed materials as soon as possible as their rights to have the Securities
included in the registration statement depend upon their returning the Notice
and Questionnaire by [DEADLINE FOR RESPONSE]. Please forward a copy of the
enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact Encore Acquisition
Company, 777 Main Street, Suite 1400, Ft. Worth, Texas 76102, (817) 877-9955.
___________________________
*Not less than 28 calender days from date of mailing.
A-1
Registration Rights Agreement
ENCORE ACQUISITION COMPANY
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Registration Rights Agreement (the "Registration
Rights Agreement") between Encore Acquisition Company (the "Company") and the
Purchasers named therein. Pursuant to the Registration Rights Agreement, the
Company has filed with the United States Securities and Exchange Commission (the
"Commission") a registration statement on Form [__] (the "Shelf Registration
Statement") for the registration and resale under Rule 415 of the Securities Act
of 1933, as amended (the "Securities Act"), of the Company's 6.25% Senior
Subordinated Notes due 2014 (the "Securities"). A copy of the Registration
Rights Agreement is attached hereto. All capitalized terms not otherwise defined
herein shall have the meanings ascribed thereto in the Registration Rights
Agreement.
Each beneficial owner of Registrable Securities (as defined below) is entitled
to have the Registrable Securities beneficially owned by it included in the
Shelf Registration Statement. In order to have Registrable Securities included
in the Shelf Registration Statement, this Notice of Registration Statement and
Selling Securityholder Questionnaire ("Notice and Questionnaire") must be
completed, executed and delivered to the Company's counsel at the address set
forth herein for receipt ON OR BEFORE [DEADLINE FOR RESPONSE]. Beneficial owners
of Registrable Securities who do not complete, execute and return this Notice
and Questionnaire by such date (i) will not be named as selling securityholders
in the Shelf Registration Statement and (ii) may not use the Prospectus forming
a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and related Prospectus. Accordingly, holders
and beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Shelf Registration Statement and
related Prospectus.
The term "Registrable Securities" is defined in the Registration Rights
Agreement.
A-2
Registration Rights Agreement
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable Securities
hereby elects to include in the Shelf Registration Statement the Registrable
Securities beneficially owned by it and listed below in Item (3). The
undersigned, by signing and returning this Notice and Questionnaire, agrees to
be bound with respect to such Registrable Securities by the terms and conditions
of this Notice and Questionnaire and the Registration Rights Agreement,
including, without limitation, Section 6 of the Registration Rights Agreement,
as if the undersigned Selling Securityholder were an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
and Trustee the Notice of Transfer set forth in Appendix A to the Prospectus and
as Exhibit B to the Registration Rights Agreement.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
A-3
Registration Rights Agreement
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
--------------------------------------------------------------------
(b) Full Legal Name of Registered Holder (if not the same as in (a)
above) of Registrable Securities Listed in Item (3) below:
--------------------------------------------------------------------
(c) Full Legal Name of DTC Participant (if applicable and if not the
same as (b) above) Through Which Registrable Securities Listed in
Item (3) below are Held:
--------------------------------------------------------------------
(2) Address for Notices to Selling Securityholder:
---------------------------------------
---------------------------------------
---------------------------------------
Telephone: ---------------------------------------
Fax: ---------------------------------------
Contact Person: ---------------------------------------
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Principal amount of Registrable Securities beneficially owned:
------------------
CUSIP No(s). of such Registrable Securities:
-----------------------
(b) Principal amount of Securities other than Registrable Securities
beneficially owned:
--------------------------------------------------------------------
CUSIP No(s). of such other Securities:
-----------------------------
(c) Principal amount of Registrable Securities which the undersigned
wishes to be included in the Shelf Registration Statement:
-------------------------
CUSIP No(s). of such Registrable Securities to be included in the
Shelf Registration Statement:
--------------------------------------
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any
other securities of the Company, other than the Securities listed
above in Item (3).
State any exceptions here:
A-4
Registration Rights Agreement
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor
any of its affiliates, officers, directors or principal equity
holders (5% or more) has held any position or office or has had any
other material relationship with the Company (or its predecessors or
affiliates) during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in
Item (3) only as follows (if at all): Such Registrable Securities
may be sold from time to time directly by the undersigned Selling
Securityholder or, alternatively, through underwriters,
broker-dealers or agents. Such Registrable Securities may be sold in
one or more transactions at fixed prices, at prevailing market
prices at the time of sale, at varying prices determined at the time
of sale, or at negotiated prices. Such sales may be effected in
transactions (which may involve crosses or block transactions) (i)
on any national securities exchange or quotation service on which
the Registered Securities may be listed or quoted at the time of
sale, (ii) in the over-the-counter market, (iii) in transactions
otherwise than on such exchanges or services or in the
over-the-counter market, or (iv) through the writing of options. In
connection with sales of the Registrable Securities or otherwise,
the Selling Securityholder may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the
Registrable Securities in the course of hedging the positions they
assume. The Selling Securityholder may also sell Registrable
Securities short and deliver Registrable Securities to close out
such short positions, or loan or pledge Registrable Securities to
broker-dealers that in turn may sell such securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
In the event that the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Company, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Registration Rights
Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
A-5
Registration Rights Agreement
In accordance with the Selling Securityholder's obligation under Section 3(d) of
the Registration Rights Agreement to provide such information as may be required
by law for inclusion in the Shelf Registration Statement, the Selling
Securityholder agrees to promptly notify the Company of any inaccuracies or
changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Registration Rights Agreement
shall be made in writing, by hand-delivery, first-class mail, or air courier
guaranteeing overnight delivery as follows:
(i) To the Company:
Encore Acquisition Company
Houston, Texas 77024
777 Main Street, Suite 1400
Ft. Worth, Texas 76102
Attn: Jon Brumley
Fax No.: 817-877-1655
(ii) With a copy to:
Sean T. Wheeler
Baker Botts L.L.P.
One Shell Plaza, 910 Louisiana
Houston, Texas 77002
Fax No.: 713-229-7868
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Company and the
Selling Securityholder (with respect to the Registrable Securities beneficially
owned by such Selling Securityholder and listed in Item (3) above. This
Agreement shall be governed in all respects by the laws of the State of New
York.
A-6
Registration Rights Agreement
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated: __________________________
______________________________________________________________
Selling Securityholder
(Print/type full legal name of beneficial owner of Registrable
Securities)
By: ______________________________________________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
___________________________
___________________________
___________________________
___________________________
___________________________
A-7
Registration Rights Agreement
EXHIBIT B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
Wells Fargo Bank, N.A.
Encore Acquisition Company
c/o Wells Fargo Bank, N.A.
505 Main Street, Suite 301
Fort Worth, Texas 76102
Attention: Trust Officer
Re: Encore Acquisition Company (the "Company")
6.25% Senior Subordinated Notes due 2014
Dear Sirs:
Please be advised that _______________________ has transferred $
____________________ aggregate principal amount of the above-referenced Notes
pursuant to an effective Registration Statement on Form [____] (File No.
333-______) filed by the Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Notes is named as a "Selling Holder" in the Prospectus
dated [DATE] or in supplements thereto, and that the aggregate principal amount
of the Notes transferred are the Notes listed in such Prospectus opposite such
owner's name.
Dated:
Very truly yours,
_________________________
(Name)
By: _________________________
(Authorized Signature)
B-1