EXHIBIT 4.1.5
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REGISTRATION RIGHTS AGREEMENT
Dated as of June 25, 2004
By and Among
RANGE RESOURCES CORPORATION as Issuer,
and
J.P. MORGAN SECURITIES INC.,
on behalf of itself and the
Initial Purchasers listed on Schedule I hereto
7 %% Senior Subordinated Notes due 2013
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TABLE OF CONTENTS
Section 1. Definitions........................................................................................... 1
Section 2. Exchange Offer........................................................................................ 4
Section 3. Shelf Registration.................................................................................... 8
Section 4. Liquidated Damages.................................................................................... 8
Section 5. Registration Procedures............................................................................... 10
Section 6. Registration Expenses................................................................................. 18
Section 7. Indemnification....................................................................................... 19
Section 8. Rules 144 and 144A.................................................................................... 22
Section 9. Underwritten Registrations............................................................................ 23
Section 10. Miscellaneous........................................................................................ 23
(a) No Inconsistent Agreements..................................................................... 23
(b) Adjustments Affecting Registrable Notes........................................................ 23
(c) Amendments and Waivers......................................................................... 23
(d) Notices........................................................................................ 24
(e) Successors and Assigns......................................................................... 25
(f) Counterparts................................................................................... 25
(g) Headings....................................................................................... 25
(h) Governing Law.................................................................................. 25
(i) Severability................................................................................... 25
(j) Securities Held by the Issuer or Its Affiliates................................................ 25
(k) Third-Party Beneficiaries...................................................................... 25
(l) Attorneys' Fees................................................................................ 26
(m) Entire Agreement............................................................................... 26
SIGNATURES....................................................................................................... S-1
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated as of
June 25, 2004, by and between Range Resources Corporation, a Delaware
corporation (the "Issuer"), on the one hand, and J.P. Morgan Securities Inc., on
behalf of itself and the Initial Purchasers listed on Schedule I hereto (the
"Initial Purchasers"), on the other hand.
This Agreement is entered into in connection with the Purchase
Agreement, dated as of June 22, 2004, by and among the Issuer and the Initial
Purchasers (the "Purchase Agreement"), relating to the offering of $100,000,000
aggregate principal amount of the Issuer's 7 %% Senior Subordinated Notes due
2013 (the "Notes"). The execution and delivery of this Agreement is a condition
to the Initial Purchasers' obligation to purchase the Notes under the Purchase
Agreement.
The parties hereby agree as follows:
Section 1. Definitions.
As used in this Agreement, the following terms shall have the
following meanings:
"ACTION" shall have the meaning set forth in Section 7(c) hereof.
"ADVICE" shall have the meaning set forth in Section 5 hereof.
"AGREEMENT" shall have the meaning set forth in the first
introductory paragraph hereto.
"APPLICABLE PERIOD" shall have the meaning set forth in Section 2(b)
hereof.
"BOARD OF DIRECTORS" shall have the meaning set forth in Section 5
hereof.
"BUSINESS DAY" shall mean a day that is not a Legal Holiday.
"COMMISSION" shall mean the Securities and Exchange Commission.
"DAY" shall mean a calendar day.
"DAMAGES PAYMENT DATE" shall have the meaning set forth in Section
4(b) hereof.
"DELAY PERIOD" shall have the meaning set forth in Section 5 hereof.
"EFFECTIVENESS PERIOD" shall have the meaning set forth in Section
3(b) hereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
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"EXCHANGE NOTES" shall have the meaning set forth in Section 2(a)
hereof. "Exchange Offer" shall have the meaning set forth in Section 2(a)
hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall have the meaning set
forth in Section 2(a) hereof.
"GUARANTEES" shall have the meaning set forth in the Indenture.
"HOLDER" shall mean any holder of a Registrable Note or Registrable
Notes.
"INDENTURE" shall mean the Indenture, dated as of July 21, 2003, by
and between the Issuer, the Subsidiary Guarantors named therein and Bank One, NA
as trustee, pursuant to which the Notes are being issued, as amended or
supplemented from time to time in accordance with the terms thereof.
"INITIAL PURCHASERS" shall have the meaning set forth in the first
introductory paragraph hereof.
"INSPECTORS" shall have the meaning set forth in Section 5(n)
hereof.
"ISSUE DATE" shall mean June 25, 2004, the date of original issuance
of the Notes.
"ISSUER" shall have the meaning set forth in the introductory
paragraph hereto and shall also include the Issuer's permitted successors and
assigns.
"LEGAL HOLIDAY" shall mean a Saturday, a Sunday or a day on which
banking institutions in New York, New York are required by law, regulation or
executive order to remain closed.
"LIQUIDATED DAMAGES" shall have the meaning set forth in Section
4(a) hereof. "Losses" shall have the meaning set forth in Section 7(a) hereof.
"NASD" shall have the meaning set forth in Section 5(s) hereof.
"NOTES" shall have the meaning set forth in the second introductory
paragraph hereto.
"PARTICIPANT" shall have the meaning set forth in Section 7(a)
hereof.
"PARTICIPATING BROKER-DEALER" shall have the meaning set forth in
Section 2(b) hereof.
"PERSON" shall mean an individual, corporation, partnership, joint
venture association, joint stock company, trust, unincorporated limited
liability company, government or any agency or political subdivision thereof or
any other entity.
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"PRIVATE EXCHANGE" shall have the meaning Set forth in Section 2(b)
hereof.
"PRIVATE EXCHANGE NOTES" shall have the meaning set forth in Section
2(b) hereof.
"PROSPECTUS" shall mean the prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
"PURCHASE AGREEMENT" shall have the meaning set forth in the second
introductory paragraph hereof.
"RECORDS" shall have the meaning set forth in Section 5(n) hereof.
"REGISTRABLE NOTES" shall mean each Note upon its original issuance
and at all times subsequent thereto, each Exchange Note as to which Section
2(c)(iii) hereof is applicable upon original issuance and at all times
subsequent thereto and each Private Exchange Note upon original issuance thereof
and at all times subsequent thereto, in each case until (i) a Registration
Statement (other than, with respect to any Exchange Note as to which Section
2(c)(iii) hereof is applicable, the Exchange Offer Registration Statement)
covering such Note, Exchange Note or Private Exchange Note has been declared
effective by the Commission and such Note, Exchange Note or such Private
Exchange Note, as the case may be, has been disposed of in accordance with such
effective Registration Statement, (ii) such Note has been exchanged pursuant to
the Exchange Offer for an Exchange Note or Exchange Notes that may be resold
without restriction under state and federal securities laws, (iii) such Note,
Exchange Note or Private Exchange Note, as the case may be, ceases to be
Outstanding for purposes of the Indenture or (iv) such Note, Exchange Note or
Private Exchange Note has been sold in compliance with Rule 144 or is salable
pursuant to Rule 144(k).
"REGISTRATION DEFAULT" shall have the meaning set forth in Section
4(a) hereof.
"REGISTRATION STATEMENT" shall mean any appropriate registration
statement of the Issuer covering any of the Registrable Notes filed with the
Commission under the Securities Act, and all amendments and supplements to any
such Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"REQUESTING PARTICIPATING BROKER-DEALER" shall have the meaning set
forth in Section 2(b) hereof.
"RULE 144" shall mean Rule 144 promulgated under the Securities Act,
as such Rule may be amended from time to time, or any similar rule (other than
Rule 144A) or regulation hereafter adopted by the Commission providing for
offers and sales of securities made in compliance therewith
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resulting in offers and sales by subsequent holders that are not affiliates of
an issuer of such securities being free of the registration and prospectus
delivery requirements of the Securities Act.
"RULE 144A" shall mean Rule 144A promulgated under the Securities
Act, as such Rule may be amended from time to time, or any similar rule (other
than Rule 144) or regulation hereafter adopted by the Commission.
"RULE 415" shall mean Rule 415 promulgated under the Securities Act,
as such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"SHELF FILING EVENT" shall have the meaning set forth in Section
2(c) hereof.
"SHELF REGISTRATION" shall have the meaning set forth in Section
3(a) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a Registration Statement
filed in connection with a Shelf Registration.
"SUBSIDIARY GUARANTOR" shall have the meaning set forth in the
Indenture.
"TIA" shall mean the Trust Indenture Act of 1939, as amended.
"TRUSTEE" shall mean the trustee under the Indenture and the trustee
(if any) under any indenture governing the Exchange Notes and Private Exchange
Notes.
"UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING" shall mean a
registration in which securities of the issuer is sold to an underwriter for
reoffering to the public.
Section 2. Exchange Offer.
(a) The Issuer shall (i) file a Registration Statement (the
"Exchange Offer Registration Statement") within 90 days after the issue Date
with the Commission on an appropriate registration form with respect to a
registered offer (the "Exchange Offer") to exchange any and all of the
Registrable Notes for a like aggregate principal amount of notes (the "Exchange
Notes") that are identical in all material respects to the Notes (except that
the Exchange Notes shall not contain terms with respect to transfer restrictions
or Liquidated Damages upon a Registration Default), (ii) use its best efforts to
cause the Exchange Offer Registration Statement to be declared effective under
the Securities Act within 180 days after the Issue Date and (iii) use its
reasonable best efforts to consummate the Exchange Offer within 210 days after
the Issue Date. Upon the Exchange Offer Registration Statement being declared
effective by the Commission, the issuer will offer the Exchange Notes in
exchange for surrender of the Notes. The Issuer shall keep the Exchange Offer
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open for not less than 30 days (or longer if required by applicable law) after
the date notice of the Exchange Offer is mailed to Holders.
Each Holder that participates in the Exchange Offer will be required
to represent to the Issuer in writing that (i) any Exchange Notes to be received
by it will be acquired in the ordinary course of its business, (ii) it has no
arrangement or understanding with any Person to participate in the distribution
(within the meaning of the Securities Act) of the Exchange Notes in violation of
the provisions of the Securities Act or, if it is an affiliate, it will comply
with the registration and prospectus delivery requirements of the Securities Act
to the extent applicable, (iii) it is not an affiliate of the Issuer, as defined
in Rule 405 under the Securities Act, (iv) if such Holder is not a
broker-dealer, it is not engaged in, and does not intend to engage in, a
distribution of Exchange Notes, (v) if such Holder is a broker-dealer that will
receive Exchange Notes for its own account in exchange for Notes that were
acquired as a result of market-making or other trading activities, it will
deliver a prospectus in connection with any resale of such Exchange Notes and
(vi) such Holder has full power and authority to transfer the Notes in exchange
for the Exchange Notes and that the Issuer will acquire .good and unencumbered
title thereto free and clear of any liens, restrictions, charges or encumbrances
and not subject to any adverse claims.
(b) The Issuer and the Initial Purchasers acknowledge that the staff
of the Commission has taken the position that any broker-dealer that elects to
exchange Notes that were acquired by such broker-dealer for its own account as a
result of market-making or other trading activities for Exchange Notes in the
Exchange Offer (a "Participating Broker-Dealer") may be deemed to be an
"underwriter" within the meaning of the Securities Act and must deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Notes (other than a resale of an unsold allotment
resulting from the original offering of the Notes).
The Issuer and the Initial Purchasers also acknowledge that the
staff of the Commission has taken the position that if the Prospectus contained
in the Exchange Offer Registration Statement includes a plan of distribution
containing a statement to the above effect and the means by which Participating
Broker-Dealers may resell the Exchange Notes, without naming the Participating
Broker-Dealers or specifying the amount of Exchange Notes owned by them, such
Prospectus may be delivered by Participating Broker-Dealers to satisfy their
prospectus delivery obligations under the Securities Act in connection with
resales of Exchange Notes for their own accounts, so long as the Prospectus
otherwise meets the requirements of the Securities Act.
In light of the foregoing, if requested by a Participating
Broker-Dealer (a "Requesting Participating Broker-Dealer"), the Issuer agrees to
use its reasonable best efforts to keep the Exchange Offer Registration
Statement continuously effective for a period not to exceed 180 days after the
date on which the Exchange Registration Statement is declared effective, or such
longer period if extended pursuant to the last paragraph of Section 5 hereof
(such period, the "Applicable Period"), or such earlier date as all Requesting
Participating Broker-Dealers shall have notified the Issuer in writing that such
Requesting Participating Broker-Dealers have resold all Exchange Notes acquired
in the Exchange Offer. The Issuer shall include a plan of distribution in such
Exchange Offer Registration Statement that meets the requirements set forth in
the preceding paragraph.
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If, prior to consummation of the Exchange Offer, any initial
Purchaser or any Holder, as the case may be, holds any Notes acquired by it that
have, or that are reasonably likely to be determined to have, the status of an
unsold allotment in an initial distribution, or if any Holder is not entitled to
participate in the Exchange Offer, the Issuer upon the request of the Initial
Purchasers or any such Holder, as the case may be, shall simultaneously with the
delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the
Initial Purchasers or any such Holder, as the case may be, in exchange (the
"Private Exchange") for such Notes held by the Initial Purchasers or any such
Holder, as the case may be, a like principal amount of notes (the "Private
Exchange Notes") of the Issuer that are identical in all material respects to
the Exchange Notes except that the Private Exchange Notes may be subject to
restrictions on transfer and bear a legend to such effect. The Private Exchange
Notes shall be issued pursuant to the same indenture as the Exchange Notes and
bear the same CUSIP number as the Exchange Notes.
For each Note surrendered in the Exchange Offer, the Holder will
receive an Exchange Note having a principal amount equal to that of the
surrendered Note. Interest on each Exchange Note and Private Exchange Note
issued pursuant to the Exchange Offer and in the Private Exchange will accrue
from the last interest payment date on which interest was paid on the Notes
surrendered in exchange therefor or, if no interest has been paid on the Notes,
from the Issue Date.
Upon consummation of the Exchange Offer in accordance with this
Section 2, the Issuer shall have no further registration obligations other than
the Issuer's continuing registration obligations with respect to (i) Private
Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and
(iii) Notes or Exchange Notes as to which clause (c)(iii) of this Section 2
applies.
In connection with the Exchange Offer, the Issuer shall:
(1) mail or cause to be mailed to each Holder entitled to
participate in the Exchange Offer a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York time, on the last Business Day on
which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all
applicable laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer and the
Private Exchange, if any, the Issuer shall:
(1) accept for exchange all Notes validly tendered and not
validly withdrawn by the Holders pursuant to the Exchange Offer and the
Private Exchange, if any;
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(2) deliver or cause to be delivered to the Trustee for
cancellation all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to
each such Holder of Notes, Exchange Notes or Private Exchange Notes, as
the case may be, equal in principal amount to the Registrable Notes of
such Holder so accepted for exchange.
The Exchange Offer and the Private Exchange shall not be subject to
any conditions, other than that (i) the Exchange Offer or Private Exchange, as
the case may be, does not violate applicable law or any applicable
interpretation of the staff of the Commission, (ii) no action or proceeding
shall have been instituted or threatened in any court or by any governmental
agency which might materially impair the ability of the Issuer to proceed with
the Exchange Offer or the Private Exchange, and no material adverse development
shall have occurred in any existing action or proceeding with respect to the
Issuer and (iii) all governmental approvals shall have been obtained, which
approvals the Issuer deems necessary for the consummation of the Exchange Offer
or Private Exchange.
The Exchange Notes and the Private Exchange Notes shall be issued
under (i) the Indenture or (ii) an indenture identical in all material respects
to the Indenture (in either case, with such changes as are necessary to comply
with any requirements of the Commission to effect or maintain the qualification
thereof under the TIA) and which, in either case, has been qualified under the
TIA and shall provide that (a) the Exchange Notes shall not be subject to the
transfer restrictions set forth in the Indenture and (b) the Private Exchange
Notes shall be subject to the transfer restrictions set forth in the Indenture.
The Exchange Notes and the Private Exchange Notes will be guaranteed by the
Subsidiary Guarantors to the same extent as the Notes. The indenture or such
indenture shall provide that the Exchange Notes, the Private Exchange Notes and
the Notes shall vote and consent together on all matters as one class and that
none of the Exchange Notes, the Private Exchange Notes or the Notes will have
the right to vote or consent as a separate class on any matter. The issuer will
cause the Subsidiary Guarantors to become co-registrants under the Exchange
Offer Registration Statement with respect to the Guarantees.
(c) In the event that (i) any changes in law or the applicable
interpretations of the staff of the Commission do not permit the Issuer to
effect the Exchange Offer, (ii) for any reason the Exchange Offer is not
consummated within 210 days of the Issue Date, (iii) any Holder, other than the
Initial Purchasers, notifies the Issuer prior to the 20th Business Day following
the consummation of the Exchange Offer that it is prohibited by law or the
applicable interpretations of the staff of the Commission from participating in
the Exchange Offer, (iv) in the case of any Holder who participates in the
Exchange Offer, such Holder does not receive Exchange Notes on the date of the
exchange that may be sold without restriction under state and federal securities
laws (other than due solely to the status of such holder as an affiliate of the
Issuer within the meaning of the Securities Act) or (v) the Initial Purchaser so
requests with respect to Notes or Private Exchange Notes that have, or that are
reasonably likely to be determined to have, the status of unsold allotments in
an initial distribution (each such event referred to in clauses (i) through (v)
of this sentence, a "Shelf Filing Event"), then the Issuer shall file a Shelf
Registration pursuant to Section 3 hereof.
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Section 3. Shelf Registration.
If at any time a Shelf Filing Event shall occur, then:
(a) Shelf Registration. The Issuer shall file with the Commission a
Registration Statement for an offering to be made on a continuous basis pursuant
to Rule 415 covering all of the Registrable Notes not exchanged in the Exchange
Offer, Private Exchange Notes and Exchange Notes as to which Section 2(c)(iii)
is applicable (the "Shelf Registration"). The Issuer shall use its reasonable
best efforts to file with the Commission the Shelf Registration as promptly as
practicable. The Shelf Registration shall be on Form S-3 or another appropriate
form permitting registration of such Registrable Notes for resale by Holders in
the manner or manners designated by them (including, without limitation, one or
more underwritten offerings). The Issuer shall not permit any securities other
than the Registrable Notes to be included in the Shelf Registration. The Issuer
will cause the Subsidiary Guarantors to become co-registrants under the Shelf
Registration Statement with respect to the Guarantees.
(b) The Issuer shall use its reasonable best efforts (x) to cause
the Shelf Registration to be declared effective under the Securities Act on or
prior to the later of 180 calendar days after the Issue Date or 90 days after
the Shelf Registration is required to be filed with the Commission and (y) to
keep the Shelf Registration continuously effective under the Securities Act for
the period ending on the date which is two years from the Issue Date, subject to
extension pursuant to the penultimate paragraph of Section 5 hereof (the
"Effectiveness Period"), or such shorter period ending when all Registrable
Notes covered by the Shelf Registration have been sold in the manner set forth
and as contemplated in the Shelf Registration; provided, however, that (1) the
Effectiveness Period in respect of the Shelf Registration shall be extended to
the extent required to permit dealers to comply with the applicable prospectus
delivery requirements of Rule 174 under the Securities Act and as otherwise
provided herein and (ii) the Issuer may suspend the effectiveness of the Shelf
Registration Statement by written notice to the Holders (A) as a result of the
filing of a post-effective amendment to the Shelf Registration Statement to
incorporate annual audited financial information with respect to the Issuer
where such post-effective amendment is not yet effective and needs to be
declared effective to permit Holders to use the related Prospectus or (B) for
any purpose and for so long as permitted pursuant to the penultimate paragraph
of Section 5 hereof, including a bona fide business purpose.
(c) Supplements and Amendments. The Issuer 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 for
such Shelf Registration Statement or by the Securities Act or rules and
regulations thereunder for shelf registration, or if reasonably requested by the
Holders of a majority in aggregate principal amount of the Registrable Notes
covered by such Registration Statement or by any underwriter of such Registrable
Notes.
Section 4. Liquidated Damages.
(a) The Issuer and the Initial Purchasers agree that the Holders
will suffer damages if the Issuer fails to fulfill its obligations under Section
2 or Section 3 hereof and that it
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would not be feasible to ascertain the extent of such damages with precision.
Accordingly, the Issuer agrees that if:
(i) the Exchange Offer Registration Statement is not declared
effective on or prior to the 180th day following the Issue Date (the
"Effectiveness Deadline") or, if that day is not a Business Day, the next
day that is a Business Day,
(ii) the Exchange Offer is not consummated on or prior to the
earlier of the 30th Business Day following the Effectiveness Deadline or
the 210th day following the Issue Date, or, if that day is not a Business
Day, the next day that is a Business Day; or
(iii) the Shelf Registration Statement is required to be filed
but is not declared effective by the later of 180 calendar days after the
Issue Date or 90 days after the Shelf Registration is required to be filed
with the Commission, or, if either such day is not a Business Day, the
next day that is a Business Day, or is declared effective by such date but
thereafter ceases to be effective or usable, except if the Shelf
Registration ceases to be effective or usable as specifically permitted by
the penultimate paragraph of Section 5 hereof
(each such event referred to in clauses (i) through (iii) a "Registration
Default"), liquidated damages in the form of additional cash interest
("Liquidated Damages") will accrue on the affected Notes and the affected
Exchange Notes, as applicable. The rate of Liquidated Damages will be 0.25% per
annum for the first 90-day period immediately following the occurrence of a
Registration Default, increasing by an additional 0.25% per annum with respect
to each subsequent 90-day period up to a maximum amount of additional interest
of 0.50% per annum, from and including the date on which any such Registration
Default shall occur to, but excluding, the earlier of(1) the date on which all
Registration Defaults have been cured or (2) the date on which all the Notes and
Exchange Notes otherwise become freely transferable by Holders other than
affiliates of the Issuer without further registration under the Securities Act.
Notwithstanding the foregoing, (1) the amount of Liquidated Damages payable
shall not increase because more than one Registration Default has occurred and
is pending and (2) a Holder of Notes or Exchange Notes who is not entitled to
the benefits of the Shelf Registration Statement (i.e., such Holder has not
elected to include information) shall not be entitled to Liquidated Damages with
respect to a Registration Default that pertains to the Shelf Registration
Statement.
(b) So long as Notes remain outstanding, the Issuer shall notify the
Trustee within five Business Days after each and every date on which an event
occurs in respect of which Liquidated Damages is required to be paid. Any
amounts of Liquidated Damages due pursuant to clauses (a)(i), (a)(ii) or
(a)(iii) of this Section 4 will be payable in cash semi-annually on each January
15 and July 15 (each a "Damages Payment Date"), commencing with the first such
date occurring after any such Liquidated Damages commence to accrue, to Holders
to whom regular interest is payable on such Damages Payment Date with respect to
Notes that are Registrable Securities. The amount of Liquidated Damages for
Registrable Notes will be determined by multiplying the applicable rate of
Liquidated Damages by the aggregate principal amount of all such
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Registrable Notes outstanding on the Damages Payment Date following such
Registration Default in the case of the first such payment of Liquidated Damages
with respect to a Registration Default (and thereafter at the next succeeding
Damages Payment Date until the cure of such Registration Default), multiplied by
a fraction, the numerator of which is the number of days such Liquidated Damages
rate was applicable during such period (determined on the basis of a 360-day
year comprised of twelve 30-day months and, in the case of a partial month, the
actual number of days elapsed), and the denominator of which is 360.
Section 5. Registration Procedures.
In connection with the filing of any Registration Statement pursuant
to Section 2 or 3 hereof, the Issuer shall effect such registrations to permit
the sale of the securities covered thereby in accordance with the intended
method or methods of disposition thereof, and pursuant thereto and in connection
with any Registration Statement filed by the Issuer hereunder, the Issuer shall:
(a) Prepare and file with the Commission the Registration Statement
or Registration Statements prescribed by Section 2 or 3 hereof, and use
its reasonable best efforts to cause each such Registration Statement to
become effective and remain effective as provided herein; provided,
however, that if (1) such filing is pursuant to Section 3 hereof, or (2) a
Prospectus contained in the Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period relating thereto, before
filing any Registration Statement or Prospectus or any amendments or
supplements thereto, the Issuer shall furnish to and afford the Holders of
the Registrable Notes covered by such Registration Statement or each such
Participating Broker-Dealer, as the case may be, its counsel (if such
counsel is known to the Issuer) and the managing underwriters, if any, a
reasonable opportunity to review copies of all such documents (including
copies of any documents to be incorporated by reference therein and all
exhibits thereto) proposed to be filed (in each case at least five
Business Days prior to such filing or such later date as is reasonable
under the circumstances). The Issuer shall not file any Registration
Statement or Prospectus or any amendments or supplements thereto if the
Holders of a majority in aggregate principal amount of the Registrable
Notes covered by such Registration Statement, or any such Participating
Broker-Dealer, as the case may be, its counsel, or the managing
underwriters, if any, shall reasonably object on a timely basis.
(b) Prepare and file with the Commission such amendments and
post-effective amendments to each Shelf Registration Statement or Exchange
Offer Registration Statement, as the case may be, as may be necessary to
keep such Registration Statement continuously effective for the
Effectiveness Period or the Applicable Period, as the case may be; cause
the related Prospectus to be supplemented by any Prospectus supplement
required by applicable law, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provisions then in force) promulgated under the
Securities Act; and comply with the provisions of the Securities Act and
the Exchange Act applicable to it with respect to the disposition of all
securities covered by such Registration Statement as so amended or in such
Prospectus as so
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supplemented and with respect to the subsequent resale of any securities
being sold by a Participating Broker-Dealer covered by any such
Prospectus, in each case, in accordance with the intended methods of
distribution set forth in such Registration Statement or Prospectus, as so
amended.
(c) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period relating thereto from
whom the Issuer has received written notice that such Broker-Dealer will
be a Participating Broker-Dealer in the applicable Exchange Offer, notify
the selling Holders of Registrable Notes, or each such Participating
Broker-Dealer, as the case may be, their counsel and the managing
underwriters, if any, as promptly as possible, and, if requested by any
such Person, confirm such notice in writing, (i) when a Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and,
with respect to a Registration Statement or any post-effective amendment,
when the same has become effective under the Securities Act (including in
such notice a written statement that any Holder may, upon request, obtain,
at the sole expense of the Issuer, one conformed copy of such Registration
Statement or post-effective amendment including financial statements and
schedules, documents incorporated or deemed to be incorporated by
reference and exhibits), (ii) of the issuance by the Commission of any
stop order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of any preliminary prospectus
or the initiation of any proceedings for that purpose, (iii) if at any
time when a Prospectus is required by the Securities Act to be delivered
in connection with sales of the Registrable Notes or resales of Exchange
Notes by Participating Broker-Dealers the representations and warranties
of the Issuer contained in any agreement (including any underwriting
agreement) contemplated by Section 5(m)(i) hereof cease to be true and
correct in all material respects, (iv) of the receipt by the Issuer of any
notification with respect to the suspension of the qualification or
exemption from qualification of a Registration Statement or any of the
Registrable Notes or the Exchange Notes for offer or sale in any
jurisdiction, or the initiation or threatening of any proceeding for such
purpose, (v) of the happening of any event, the existence of any condition
or any information becoming known to the Issuer that makes any statement
made in such Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in
any material respect or that requires the making of any changes in or
amendments or supplements to such Registration Statement, Prospectus or
documents so that, in the case of the Registration Statement, it will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and that in the case of the Prospectus,
it will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, and (vi) of the Issuer's determination that a
post-effective amendment to a Registration Statement would be appropriate.
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(d) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, use its reasonable best
efforts to prevent the issuance of any order suspending the effectiveness
of a Registration Statement or of any order preventing or suspending the
use of a Prospectus or suspending the qualification (or exemption from
qualification) of any of the Registrable Notes or the Exchange Notes, as
the case may be, for sale in any jurisdiction, and, if any such order is
issued, to use its reasonable best efforts to obtain the withdrawal of any
such order at the earliest practicable moment.
(e) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period and if reasonably
requested by the managing underwriter or underwriters (if any), the
Holders of a majority in aggregate principal amount of the Registrable
Notes covered by such Registration Statement or any Participating
Broker-Dealer, as the case may be, (i) promptly incorporate in such
Registration Statement or Prospectus a prospectus supplement or
post-effective amendment such information as the managing underwriter or
underwriters (if any), such Holders or any Participating Broker-Dealer, as
the case may be (based upon advice of counsel), determine is reasonably
necessary to be included therein and (ii) make all required filings of
such prospectus supplement or such post-effective amendment as soon as
practicable after the Issuer has received notification of the matters to
be incorporated in such prospectus supplement or post-effective amendment;
provided, however, that the Issuer shall not be required to take any
action hereunder that would, in the written opinion of counsel to the
Issuer, violate applicable laws.
(f) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, furnish to each selling
Holder of Registrable Notes or each such Participating Broker-Dealer, as
the case may be, who so requests, its counsel and each managing
underwriter, if any, at the sole expense of the Issuer, one conformed copy
of the Registration Statement or Registration Statements and each
post-effective amendment thereto, including financial statements and
schedules, and, if requested, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, deliver to each selling
Holder of Registrable Notes or each such Participating Broker-Dealer, as
the
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case may be, its respective counsel, and the underwriters, if any, at the
sole expense of the Issuer, as many copies of the Prospectus or
Prospectuses (including each form of preliminary prospectus) and each
amendment or supplement thereto and any documents incorporated by
reference therein as such Persons may reasonably request; and, subject to
the last paragraph of this Section 5, the Issuer hereby consents to the
use of such Prospectus and each amendment or supplement thereto by each of
the selling Holders of Registrable Notes or each such Participating
Broker-Dealer, as the case may be, and the underwriters or agents, if any,
and dealers (if any), in connection with the offering and sale of the
Registrable Notes covered by, or the sale by Participating Broker-Dealers
of the Exchange Notes pursuant to, such Prospectus and any amendment or
supplement thereto.
(h) Prior to any public offering of Registrable Notes or Exchange
Notes or any delivery of a Prospectus contained in the Exchange Offer
Registration Statement by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, use its reasonable best
efforts to register or qualify, and to cooperate with the selling Holders
of Registrable Notes or each such Participating Broker-Dealer, as the case
may be, the managing underwriter or underwriters, if any, and its
respective counsel in connection with the registration or qualification
(or exemption from such registration or qualification) of such Registrable
Notes or Exchange Notes, as the case may be, for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States
as any selling Holder, Participating Broker-Dealer, or the managing
underwriter or underwriters reasonably request; provided, however, that
where Exchange Notes or Registrable Notes are offered other than through
an underwritten offering, the Issuer agrees to use its reasonable best
efforts to cause the Issuer's counsel to perform Blue Sky investigations
and file registrations and qualifications required to be filed pursuant to
this Section 5(h); keep each such registration or qualification (or
exemption therefrom) effective during the period such Registration
Statement is required to be kept effective and do any and all other acts
or things reasonably necessary or advisable to enable the disposition in
such jurisdictions of such Exchange Notes or Registrable Notes covered by
the applicable Registration Statement, provided, however, that the Issuer
shall not be required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any action that
would subject it to general service of process in any such jurisdiction
where it is not then so subject or (C) subject itself to taxation in
excess of a nominal dollar amount in any such jurisdiction where it is not
then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3 hereof,
cooperate with the selling Holders of Registrable Notes and the managing
underwriter or underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Regisirable Notes to be sold,
which certificates shall not bear any restrictive legends and shall be in
a form eligible for deposit with The Depository Trust Company and enable
such Registrable Notes to be in such denominations and registered in such
names as the managing underwriter or underwriters, if any, or selling
Holders may request at least five Business Days prior to any sale of such
Registrable Notes.
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(j) Use its reasonable best efforts to cause the Registrable Notes
or Exchange Notes covered by any Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may
be reasonably necessary to enable the seller or sellers thereof or the
underwriter or underwriters, if any, to consummate the disposition of such
Registrable Notes or Exchange Notes, except as may be required solely as a
consequence of the nature of such selling Holder's business, in which case
the Issuer will cooperate in all reasonable respects with the filing of
such Registration Statement and the granting of such approvals.
(k) If (l) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, upon the occurrence of
any event contemplated by Section 5(c)(v) or 5(c)(vi) hereof, as promptly
as practicable prepare and (subject to Section 5(a) and the penultimate
paragraph of this Section 5) file with the Commission, at the sole expense
of the Issuer, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference,
or file any other required document so that, as thereafter delivered to
the purchasers of the Registrable Notes being sold thereunder or to the
purchasers of the Exchange Notes to whom such Prospectus will be delivered
by a Participating Broker-Dealer, any such Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(l) Prior to the effective date of the first Registration Statement
relating to the Registrable Notes, (i) provide the Trustee with
certificates for the Registrable Notes in a form eligible for deposit with
The Depository Trust Company and (ii) provide a CUSIP number for the
Registrable Notes.
(m) In connection with any underwritten offering of Registrable
Notes pursuant to a Shelf Registration, enter into an underwriting
agreement as is customary in underwritten offerings of debt securities
similar to the Notes arid take all such other actions as are reasonably
requested by the managing underwriter or underwriters in order to expedite
or facilitate the registration or the disposition of such Registrable
Notes and, in such connection, (i) make such representations and
warranties to, and covenants with, the underwriters with respect to the
business of the Issuer and its subsidiaries, as then conducted (including
any acquired business, properties or entity, if applicable), and the
Registration Statement, Prospectus and documents, if any, incorporated or
deemed to be incorporated by reference therein, in each case, as are
customarily made by issuers to underwriters in underwritten offerings of
debt securities similar to the Notes, and confirm the same in writing if
and when requested; (ii) use its reasonable best efforts to obtain the
written opinions of counsel to the Issuer and written updates thereof in
form, scope and substance reasonably satisfactory to the managing
underwriter or underwriters, addressed to the underwriters covering the
matters
-15-
customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by the managing
underwriter or underwriters; (iii) use its reasonable best efforts to
obtain "cold comfort" letters and updates thereof in form, scope and
substance reasonably satisfactory to the managing underwriter or
underwriters from the independent certified public accountants of the
Issuer (and, if necessary, any other independent certified public
accountants of any subsidiary of the Issuer or of any business acquired by
the Issuer for which financial statements and financial data are, or are
required to be, included or incorporated by reference in the Registration
Statement), addressed to each of the underwriters, such letters to be in
customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with underwritten offerings; and (iv)
if an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable than those set
forth in Section 7 hereof (or such other provisions and procedures
acceptable to Holders of a majority in aggregate principal amount of
Registrable Notes covered by such Registration Statement and the managing
underwriter or underwriters or agents) with respect to all parties to be
indemnified pursuant to said Section; provided that the Issuer shall not
be required to provide indemnification to any underwriter selected in
accordance with the provisions of Section 9 hereof with respect to
information relating to such underwriter furnished in writing to the
Issuer by or on behalf of such underwriter expressly for inclusion in such
Registration Statement. The above shall be done at each closing under such
underwriting agreement, or as and to the extent required thereunder.
(n) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, make available for
inspection by any selling Holder of such Registrable Notes being sold or
each such Participating Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Registrable Notes, if any, and
any attorney, accountant or other agent retained by any such selling
Holder or each such Participating Broker-Dealer, as the case may be, or
underwriter (collectively, the "Inspectors"), at the offices where
normally kept, during reasonable business hours, all financial and other
records, pertinent corporate documents and instruments of the Issuer and
its subsidiaries (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of the
Issuer and its subsidiaries to supply all information reasonably requested
by any such Inspector in connection with such Registration Statement and
Prospectus. Each Inspector shall agree in writing that it will keep the
Records confidential and that it will not disclose, or use in connection
with any market transactions in violation of any applicable securities
laws, any Records that the Issuer determines, in good faith, to be
confidential and that it notifies the Inspectors in writing are
confidential unless (i) the disclosure of such Records is necessary to
avoid or correct a misstatement or omission in such Registration Statement
or Prospectus, (ii) the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction, (iii)
disclosure of such information is necessary or advisable in the opinion of
counsel for an Inspector in
-16-
connection with any action, claim, suit or proceeding, directly or
indirectly, involving or potentially involving such Inspector and arising
out of, based upon, relating to, or involving this Agreement or the
Purchase Agreement, or any transactions contemplated hereby or thereby or
arising hereunder or thereunder, or (iv) the information in such Records
has been made generally available to the public; provided, however, that
(I) each Inspector shall agree to use reasonable best efforts to provide
notice to the Issuer of the potential disclosure of any information by
such Inspector pursuant to clause (i), (ii) or (iii) of this sentence to
permit the Issuer to obtain a protective order (or waive the provisions of
this paragraph (n)) and (ii) each such Inspector shall take such actions
as are reasonably necessary to protect the confidentiality of such
information (if practicable) to the extent such action is otherwise not
inconsistent with, an impairment of or in derogation of the rights and
interests of the Holder or any Inspector.
(o) Provide an indenture trustee for the Registrable Notes or the
Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(a) hereof to be qualified under the
TIA not later than the effective date of the Exchange Offer or the first
Registration Statement relating to the Registrable Notes; and in
connection therewith, cooperate with the trustee under any such indenture
and the Holders of the Registrable Notes or Exchange Notes, as applicable,
to effect such changes to such indenture as may be required for such
indenture to be so qualified in accordance with the terms of the TIA; and
execute, and use its reasonable best efforts to cause such trustee to
execute, all documents as may be required to effect such changes, and all
other forms and documents required to be filed with the Commission to
enable such indenture to be so qualified in a timely manner.
(p) Comply with all applicable rules and regulations of the
Commission and make generally available to the Issuer's security holders
earnings statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated
under the Securities Act) no later than 45 days after the end of any
12-month period (or 90 days after the end of any 12-month period if such
period is a fiscal year) (i) commencing at the end of any fiscal quarter
in which Registrable Notes or Exchange Notes are sold to underwriters in a
firm commitment or best efforts underwritten offering and (ii) if not sold
to underwriters in such an offering, commencing on the first day of the
first fiscal quarter of the Issuer after the effective date of a
Registration Statement, which statements shall cover said 12-month periods
consistent with the requirements of Rule 158.
(q) Upon the request of a Holder, upon consummation of the Exchange
Offer or a Private Exchange, use its reasonable best efforts to obtain an
opinion of counsel to the Issuer, in a form customary for underwritten
transactions, addressed to the Trustee for the benefit of all Holders of
Registrable Notes participating in the Exchange Offer or the Private
Exchange, as the case may be, that the Exchange Notes or Private Exchange
Notes, as the case may be, and the related indenture constitute legal,
valid arid binding obligations of the Issuer, enforceable against the
Issuer in accordance with its respective terms, subject to customary
exceptions and qualifications.
-17-
(r) If the Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the
Issuer (or to such other Person as directed by the Issuer) in exchange for
the Exchange Notes or the Private Exchange Notes, as the case may be,
mark, or cause to be marked, on such Registrable Notes that such
Registrable Notes are being cancelled in exchange for the Exchange Notes
or the Private Exchange Notes, as the case may be; provided that in no
event shall such Registrable Notes be marked as paid or otherwise
satisfied.
(s) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Notes and their respective counsel in
connection with any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD").
(t) Use its reasonable best efforts to take all other steps
reasonably necessary or advisable to effect the registration of the
Exchange Notes and/or Registrable Notes covered by a Registration
Statement contemplated hereby.
The Issuer may require each seller of Registrable Notes or Exchange
Notes as to which any registration is being effected to furnish to the Issuer
such information regarding such seller and the distribution of such Registrable
Notes or Exchange Notes as the Issuer may, from time to time, reasonably
request. The Issuer may exclude from such registration the Registrable Notes of
any seller so long as such seller fails to furnish such information within a
reasonable time after receiving such request and in the event of such an
exclusion, the Issuer shall have no further obligation under this Agreement
(including, without limitation, the obligations under Section 4) with respect to
such seller or any subsequent Holder of such Registrable Notes. Each seller as
to which any Shelf Registration is being effected agrees to furnish promptly to
the Issuer all information required to be disclosed in order to make any
information previously furnished to the Issuer by such seller not materially
misleading.
If any such Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Issuer, then such Holder shall
have the right to require (i) the insertion therein of language, in form and
substance reasonably satisfactory to such Holder, to the effect that the holding
by such Holder of such securities is not to be construed as a recommendation by
such Holder of the investment quality of the securities covered thereby and that
such holding does not imply that such Holder will assist in meeting any future
financial requirements of the Issuer, or (ii) in the event that such reference
to such Holder by name or otherwise is not required by the Securities Act or any
similar federal statute then in force, the deletion of the reference to such
Holder in any amendment or supplement to the applicable Registration Statement
filed or prepared subsequent to the time that such reference ceases to be
required.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by acquisition of such Registrable Notes or Exchange Notes
that, upon actual receipt of any notice from the Issuer (x) of the happening of
any event of the kind described in Section 5(c)(ii), 5(c)(iii), 5(c)(iv), or
5(c)(v) hereof, or (y) that the Board of Directors of the Issuer (the "Board of
Directors") has
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resolved that the Issuer has a bona fide business purpose for doing so, then the
Issuer may delay the filing or the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement (if not then filed or
effective, as applicable) and shall not be required to maintain the
effectiveness thereof or amend or supplement the Exchange Offer Registration
Statement or the Shelf Registration, in all cases, for a period (a "Delay
Period") expiring upon the earlier to occur of (i) in the case of the
immediately preceding clause (x), such Holder's or Participating Broker-Dealer's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 5(k) hereof or until it is advised in writing (the "Advice") by the
Issuer that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto or (ii) in the case of
the immediately preceding clause (y), the date which is the earlier of (A) the
date on which such business purpose ceases to interfere with the Issuer's
obligations to file or maintain the effectiveness of any such Registration
Statement pursuant to this Agreement or (B) 60 days after the Issuer notifies
the Holders of such good faith determination. There shall not be more than 60
days of Delay Periods during any 12-month period. Each of the Effectiveness
Period and the Applicable Period, if applicable, shall be extended by the number
of days during any Delay Period. Any Delay Period will not alter the obligations
of the Issuer to pay Liquidated Damages under the circumstances set forth in
Section 4 hereof.
In the event of any Delay Period pursuant to clause (y) of the
preceding paragraph, notice shall be given as soon as practicable after the
Board of Directors makes such a determination of the need for a Delay Period and
shall state, to the extent practicable, an estimate of the duration of such
Delay Period and shall advise the recipient thereof of the agreement of such
Holder provided in the next succeeding sentence. Each Holder, by his acceptance
of any Registrable Note, agrees that during any Delay Period, each Holder will
discontinue disposition of such Notes or Exchange Notes covered by such
Registration Statement or Prospectus or Exchange Notes to be sold by such Holder
or Participating Broker-Dealer, as the case may be.
Section 6. Registration Expenses.
All fees and expenses incident to the performance of or compliance
with this Agreement by the issuer (other than any underwriting discounts or
commissions) shall be borne by the Issuer, whether or not the Exchange Offer
Registration Statement or the Shelf Registration is filed or becomes effective
or the Exchange Offer is consummated, including, without limitation, (i) all
registration and filing fees (including, without limitation, (A) fees with
respect to filings required to be made with the NASD in connection with an
underwritten offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation, reasonable fees and
disbursements of one counsel in connection with Blue Sky qualifications of the
Registrable Notes or Exchange Notes and determination of the eligibility of the
Registrable Notes or Exchange Notes for investment under the laws of such
jurisdictions (x) where the holders of Registrable Notes are Located, in the
case of an Exchange Offer, or (y) as provided in Section 5(h) hereof, in the
case of a Shelf Registration or in the case of Exchange Notes to be sold by a
Participating Broker-Dealer during the Applicable Period)), (ii) printing
expenses, including, without limitation, expenses of printing a certificate or
certificates for Registrable Notes or Exchange Notes in a form eligible for
deposit with The Depository Trust Company and of printing prospectuses if the
printing of
-19-
prospectuses is requested by the managing underwriter or underwriters, if any,
or by the Holders of a majority in aggregate principal amount of the Registrable
Notes included in any Registration Statement or in respect of Exchange Notes to
be sold by any Participating Broker-Dealer during the Applicable Period, as the
case may be, (iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Issuer and reasonable fees and disbursements of
one special counsel for all of the sellers of Registrable Notes (exclusive of
any counsel retained pursuant to Section 7 hereof), (v) fees and disbursements
of all independent certified public accountants referred to in Section 5(m)(iii)
hereof (including, without limitation, the expenses of any special audit and
"cold comfort" letters required by or incident to such performance), (vi)
Securities Act liability insurance, if the Issuer desires such insurance, (vii)
fees and expenses of all other Persons retained by the Issuer, (viii) internal
expenses of the Issuer (including, without limitation, all salaries and expenses
of officers and employees of the Issuer performing legal or accounting duties),
(ix) the expense of any annual audit, (x) the fees and expenses incurred in
connection with the listing of the securities to be registered on any securities
exchange, and the obtaining of a rating of the securities, in each case, if
applicable, and (xi) the expenses relating to printing, word processing and
distributing all Registration Statements, underwriting agreements, indentures
and any other documents necessary in order to comply with this Agreement.
Notwithstanding the foregoing or anything to the contrary, each Holder shall pay
all underwriting discounts and commissions of any underwriters with respect to
any Registrable Notes sold by or on behalf of it.
Section 7. Indemnification.
(a) The Issuer agrees to indemnify and hold harmless each Holder of
Registrable Notes and each Participating Broker-Dealer selling Exchange Notes
during the Applicable Period, each Person, if any, who controls any such Person
within the meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act, the agents, employees, officers and directors of each Holder and
each such Participating Broker-Dealer and the agents, employees, officers and
directors of any such controlling Person (each, a "Participant") from and
against any and all losses, liabilities, claims, damages and expenses
(including, but not limited to, reasonable attorneys' fees and any and all
reasonable out-of-pocket expenses actually incurred in investigating, preparing
or defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all reasonable amounts paid in settlement of any claim
or litigation (in the manner set forth in clause (c) below) (collectively,
"Losses") to which they or any of them may become subject under the Securities
Act, the Exchange Act or otherwise insofar as such Losses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement (or any
amendment thereto) or Prospectus (as amended or supplemented if the Issuer shall
have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by, arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the case of the Prospectus, in the
light of the circumstances under which they were made, not misleading, provided
that (i) the foregoing indemnity shall not be available to any Participant
insofar as such Losses are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to such Participant furnished to the Issuer in writing by
or on behalf of such Participant expressly for use therein, and (ii) that the
foregoing indemnity
-20-
with respect to any preliminary prospectus shall not inure to the benefit of any
Participant from whom the Person asserting such Losses purchased Registrable
Notes if (x) it is established in the related proceeding that such Participant
failed to send or give a copy of the Prospectus (as amended or supplemented if
such amendment or supplement was furnished to such Participant prior to the
written confirmation of such sale) to such Person with or prior to the written
confirmation of such sale, if required by applicable law, and (y) the untrue
statement or omission or alleged untrue statement or omission was completely
corrected in the Prospectus (as amended or supplemented if amended or
supplemented as aforesaid) and such Prospectus does not contain any other untrue
statement or omission or alleged untrue statement or omission that was the
subject matter of the related proceeding. This indemnity agreement will be in
addition to any liability that the Issuer may otherwise have, including, but not
limited to, liability under this Agreement.
(b) Each Participant agrees, severally and not jointly, to indemnify
and hold harmless the Issuer, each Person, if any, who controls the Issuer
within the meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act, and each of its agents, employees, officers who sign the
Registration Statement and directors and the agents, employees, officers and
directors of any such controlling Person from and against any Losses to which
they or any of them may become subject under the Securities Act, the Exchange
Act or otherwise insofar as such Losses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement (or any amendment thereto)
or Prospectus (as amended or supplemented if the Issuer shall have furnished any
amendments or supplements thereto) or any preliminary prospectus, or caused by,
arising out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the case of the Prospectus, in the light of the circumstances under
which they were made, not misleading, in each case to the extent, but only to
the extent, that any such Loss arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
reliance upon and in conformity with information relating to such Participant
furnished in writing to the Issuer by or on behalf of such Participant expressly
for use therein.
(c) Promptly after receipt by an indemnified party under subsection
7(a) or 7(b) above of notice of the commencement of any action, suit or
proceeding (collectively, an "action"), such indemnified party shall, if a claim
in respect thereof is to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is to be sought in
writing of the commencement of such action (but the failure so to notify an
indemnifying party shall not relieve such indemnifying party from any liability
that it may have under this Section 7 except to the extent that such
Indemnifying Party has been prejudiced in any material respect (through the
forfeiture of substantive rights or defenses) by such failure) and provided,
that the failure to notify the Indemnifying Party shall not relieve it from any
liability that it might have to an Indemnifying Party otherwise than under this
Section 7. In case any such action is brought against any indemnified party, and
it notifies an indemnifying party of the commencement of such action, the
indemnifying party will be entitled to participate in such action, and to the
extent it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense of such action with counsel reasonably satisfactory to such
indemnified party. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or
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their own counsel in any such action, but the reasonable fees and expenses of
such counsel shall be at the expense of such indemnified party or parties unless
(i) the employment of such counsel shall have been authorized in writing by the
indemnifying parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to take charge of the
defense of such action within a reasonable time after notice of commencement of
the action, or (iii) the named parties to such action (including any impleaded
parties) include such indemnified party and the indemnifying party or parties
(or such indemnifying parties have assumed the defense of such action), and such
indemnified party or parties shall have reasonably concluded, after consultation
with counsel, that there may be defenses available to it or them that are
different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such reasonable fees and expenses of counsel
shall be borne by the indemnifying parties. In no event shall the indemnifying
party be liable for the reasonable fees and expenses of more than one counsel
(together with appropriate local counsel) at any time for all indemnified
parties in connection with any one action or separate but substantially similar
or related actions arising in the same jurisdiction out of the same general
allegations or circumstances. Any such separate firm for the Participants shall
be designated in writing by Participants who sold a majority in interest of
Registrable Notes sold by all such Participants and shall be reasonably
acceptable to the Issuer and any such separate firm for the Issuer, its
affiliates, officers, directors, representatives, employees and agents and such
control Person of the Issuer shall be designated in writing by the Issuer and
shall be reasonably acceptable to the Holders. An indemnifying party shall not
be liable for any settlement of any claim or action effected without its written
consent, which consent may not be unreasonably withheld. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) In order to provide for contribution in circumstances in which
the indemnification provided for in this Section 7 is for any reason held to be
unavailable from the indemnifying party, or is insufficient to hold harmless a
party indemnified under this Section 7, each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of such
aggregate Losses (i) in such proportion as is appropriate to reflect the
relative benefits received by each indemnifying party, on the one hand, and each
indemnified party, on the other hand, from the sale of the Notes to the Initial
Purchasers or the resale of the Registrable Notes by such Holder, as applicable,
or (ii) if such allocation is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (1) above but also the relative fault of each indemnified party, on
the one hand, and each indemnifying party, on the other hand, in connection with
the statements or omissions that resulted in such Losses, as well as any other
relevant equitable considerations. The relative benefits received by the Issuer,
on the one hand, and each Participant, on the other hand, shall be deemed to be
in the same proportion as (x) the total proceeds from the sale of the Notes to
the Initial Purchasers (net of discounts and commissions but before deducting
expenses) received by the Issuer are to (y) the total net profit received by
such Participant in connection with the sale of the Registrable Notes. The
relative fault of the parties shall
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be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Issuer or such
Participant and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission or alleged
statement or omission.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
or by any other method of allocation that does not take into account the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 7, (1) in no case shall any Participant be required to contribute
any amount in excess of the amount by which the net profit received by such
Participant in connection with the sale of the Registrable Notes exceeds the
amount of any damages that such Participant has otherwise been required to pay
by reason of any untrue or alleged untrue statement or omission or alleged
omission and (ii) 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. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action against such party in respect of
which a claim for contribution may be made against another party or parties
under this Section 7, notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any obligation it
or they may have under this Section 7 or otherwise, except to the extent that it
has been prejudiced in any material respect by such failure; provided, however,
that no additional notice shall be required with respect to any action for which
notice has been given under this Section 7 for purposes of indemnification.
Anything in this section to the contrary notwithstanding, no party shall be
liable for contribution with respect to any action or claim settled without its
written consent, provided, however, that such written consent was not
unreasonably withheld.
Section 8. Rules 144 and 144A.
The Issuer covenants that it will file the reports required, if any,
to be filed by it under the Securities Act and the Exchange Act and the rules
and regulations adopted by the Commission thereunder in a timely manner in
accordance with the requirements of the Securities Act and the Exchange Act and,
if at any time the Issuer is not required to file such reports, it will, upon
the request of any Holder or beneficial owner of Registrable Notes, make
available such information necessary to permit sales pursuant to Rule 144A under
the Securities Act. The Issuer further covenants that for so long as any
Registrable Notes remain outstanding it will take such further action as any
Holder of Registrable Notes may reasonably request from time to time to enable
such Holder to sell Registrable Notes without registration under the Securities
Act within the limitation of the exemptions provided by (a) Rule 144(k) and Rule
144A under the Securities Act, as such Rules may be amended from time to time,
or (b) any similar rule or regulation hereafter adopted by the Commission.
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Section 9. Underwritten Registrations.
If any of the Registrable Notes covered by any Shelf Registration
are to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will manage the offering will be selected
by the Holders of a majority in aggregate principal amount of such Registrable
Notes included in such offering and shall be reasonably acceptable to the
Issuer.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder if such Holder does not (a) agree to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
complete and execute all questionnaires, powers of attorney, indemnities,
Underwriting agreements and other documents required under the terms of such
underwriting arrangements.
Section 10. Miscellaneous.
(a) No Inconsistent Agreements. The Issuer has not, as of the date
hereof, and shall not have, after the date of this Agreement, entered into any
agreement with respect to any of its securities that is inconsistent with the
rights granted to the Holders of Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not conflict with and are not inconsistent with, in any
material respect, the rights granted to the holders of any of the Issuer's other
issued and outstanding securities under any such agreements. The Issuer has not
entered and will not enter into any agreement with respect to any of its
securities which will grant to any Person piggy-back registration rights with
respect to any Registration Statement.
(b) Adjustments Affecting Registrable Notes. The Issuer shall not,
directly or indirectly, take any action with respect to the Registrable Notes as
a class that would adversely affect the ability of the Holders of Registrable
Notes to include such Registrable Notes in a registration undertaken pursuant to
this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given except pursuant to a written agreement
duly signed and delivered by (I) the Issuer and (II)(A) the Holders of not less
than a majority in aggregate principal amount of the then outstanding
Registrable Notes and (B) in circumstances that would adversely affect the
Participating Broker-Dealers, the Participating Broker-Dealers holding not less
than a majority in aggregate principal amount of the Exchange Notes held by all
Participating Broker-Dealers; provided, however, that Section 7 and this Section
10(c) may not be amended, modified or supplemented except pursuant to a written
agreement duly signed and delivered by the Issuer and each Holder and each
Participating Broker-Dealer (including any Person who was a Holder or
Participating Broker-Dealer of Registrable Notes or Exchange Notes, as the case
may be, disposed of pursuant to any Registration Statement) affected by any such
amendment, modification, supplement or waiver. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter
that
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relates exclusively to the rights of Holders of Registrable Notes whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect, impair, limit or compromise the rights of other
Holders of Registrable Notes may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Notes being sold pursuant to such
Registration Statement.
(d) Notices. All notices and other communications (including,
without limitation, any notices or other communications to the Trustee) provided
for or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or telecopier:
(i) if to a Holder of the Registrable Notes or any Participating
Broker-Dealer, at the most current address of such Holder or Participating
Broker-Dealer, as the case may be, set forth on the records of the
registrar under the Indenture.
(ii) if to the Issuer, at the address as follows:
Range Resources Corporation
777 Main Street, Suite 800
Fort Worth, TX 76102
Telephone: (817) 870-2601
Fax: (817)810-1950
Attention: Rodney L. Waller
(iii) if to the Initial Purchasers, at the address as follows:
J.P. MORGAN SECURITIES INC
270 Park Avenue
New York, NY 10017
Telephone: (212) 270-3800
Fax number: (212) 270-1063
Attention: Larry Landry
With a copy at such address to the attention of Sandy
Whitman, Davis Polk & Wardwell, fax number (212)
450-3800
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; five Business Days
after being deposited in the mail, postage prepaid, if mailed; when receipt is
acknowledged by the recipient's telecopier machine, if telecopied; and on the
next Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
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Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto, the Holders and the Participating Broker-Dealers; provided, however,
that this Agreement shall not inure to the benefit of or be binding upon a
successor or assign of a Holder unless and to the extent such successor or
assign holds Registrable Notes.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not Limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK.
(i) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Securities Held by the Issuer or Its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Issuer or any of its
affiliates (as such term is defined in Rule 405 under the Securities Act) shall
not be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
(k) Third-Party Beneficiaries. Holders and beneficial owners of
Registrable Notes and Participating Broker-Dealers are intended third-party
beneficiaries of this Agreement, and this Agreement may be enforced by such
Persons. No other Person is intended to be, or shall be construed as, a
third-party beneficiary of this Agreement.
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(l) Attorneys' Fees. As between the parties to this Agreement, in
any action or proceeding brought to enforce any provision of this Agreement, or
where any provision hereof is validly asserted as a defense, the successful
party shall be entitled to recover reasonable attorneys' fees actually incurred
in addition to its costs and expenses and any other available remedy.
(m) Entire Agreement. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Holders on the one hand
and the Issuer on the other, or between or among any agents, representatives,
parents, subsidiaries, affiliates, predecessors in interest or successors in
interest with respect to the subject matter hereof and thereof are merged herein
and replaced hereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
RANGE RESOURCES CORPORATION,
By: /s/ John H. Pinkerton
-----------------------------------------
Name: John H. Pinkerton
Title: President
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J.P. MORGAN SECURITIES INC.,
on behalf of itself and the other Initial
Purchasers
By: /s/ G. S. Benson
-----------------------------------------
Name: G. S. Benson
Title Vice President
SCHEDULE I
Initial Purchasers
J.P. MORGAN SECURITIES INC.
UBS SECURITIES LLC
BANC OF AMERICA SECURITIES LLC
HARRIS NESBITT CORP.
CALYON SECURITIES (USA) INC.
WACHOVIA CAPITAL MARKETS, LLC
FORTIS SECURITIES LLC
HIBERNIA SOUTHEAST CAPITAL, INC.
KEYBANC CAPITAL MARKETS, A DIVISION OF
MCDONALD INVESTMENTS INC.
SCOTIA CAPITAL (USA) INC.