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Exhibit 10.3
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Dated as of October 31, 1997
among
Huntway Partners, L.P.,
Lighthouse Investors, L.L.C.,
B III Capital Partners, L.P.,
Contrarian Capital Fund I, L.P.,
Contrarian Capital Fund II, L.P.,
Mellon Bank, N.A., as trustee for First Plaza Group Trust,
Oppenheimer & Company, Inc., for itself and as agent for certain affiliates,
The IBM Retirement Plan Trust,
First Chicago Equity Corporation
and
Madison Dearborn Partners, III
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THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"AGREEMENT") is entered into as of October 31, 1997, by and among Huntway
Partners, L.P., a Delaware limited partnership (including its corporate
successor, the "COMPANY"), on the one hand, and Lighthouse Investors, L.L.C., a
Delaware limited liability company ("LIGHTHOUSE"), B III Capital Partners,
L.P., a Delaware limited partnership ("B III"), Contrarian Capital Fund I,
L.P., a Delaware limited partnership ("CONTRARIAN I"), Contrarian Capital Fund
II, L.P., a Delaware limited partnership ("CONTRARIAN II"), Mellon Bank, N.A.,
as trustee for First Plaza Group Trust ("MELLON"), Oppenheimer & Company, Inc.,
for itself and as agent for certain affiliates as listed under the signature of
Contrarian Capital Advisers, L.L.C. on the signature page of this Agreement
("OPPENHEIMER"), The IBM Retirement Plan Trust ("IBM"), First Chicago Equity
Corporation ("FIRST CHICAGO"), and Madison Dearborn Partners, III ("MADISON
DEARBORN"; Lighthouse, B III, Contrarian I, Contrarian II, Mellon, Oppenheimer,
IBM, First Chicago and Madison Dearborn are each referred to as a "HOLDER"),
with reference to the following facts:
Mellon, Oppenheimer, First Chicago and Madison Dearborn (collectively,
the "INITIAL HOLDERS") acquired Common Units of the Company pursuant to the
Prepackaged Plan of Reorganization of the Company under Chapter 11 of the
United States Bankruptcy Code (the "PLAN"). The Initial Holders, Bankers Trust
Company, Massachusetts Mutual Life Insurance Company (Bankers Trust Company and
Massachusetts Mutual Life Insurance Company are referred to as the "EXCHANGING
HOLDERS") and the Company entered into a Registration Rights Agreement, dated
as of December 12, 1996 (the "ORIGINAL AGREEMENT") pursuant to the Plan.
Lighthouse, B III, Contrarian I, Contrarian II, Oppenheimer, Mellon and IBM
(collectively, the "NEW HOLDERS" AND, TOGETHER WITH THE INITIAL HOLDERS, THE
"HOLDERS") have acquired from the Company 9 1/4% Senior Subordinated Secured
Convertible Notes due 2007 of the Company (the "NOTES") in the principal amount
of $21,750,000 in exchange for cash or for Senior Units (Other) and Common
Units of the Company that they acquired from the Exchanging Holders, subject to
the Original Agreement being amended and restated in the form of this
Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and conditions set forth in this Agreement, the parties agree
as follows:
1. REGISTRATION RIGHTS. The Company covenants and agrees as follows:
1.1 Request for Registration
(a) If the Company shall receive at any time after the date hereof a
written request stating that it is pursuant to this section 1.1(a) from New
Holders holding at least twenty-five percent (25%) of the Registrable Securities
(assuming the conversion into Huntway Equity Securities of all Notes held by
the New Holders) held by the New Holders (such New Holders shall be referred to
as "INITIATING HOLDERS" with respect to registrations requested under this
section 1.1(a)) that the Company file a registration statement under the 1933
Act covering the registration of at least twenty percent (20%) of the
Registrable Securities initially issued to the
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New Holders (assuming the conversion into Huntway Equity Securities of all
Notes held by the New Holders) (or a lesser percent if the anticipated
aggregate offering price would exceed $10,000,000), then the Company shall,
within twenty-one (21) days after the receipt thereof, give written notice of
such request to all Holders and shall, subject to the limitations and pursuant
to the provisions of this section 1.1, file a registration statement under the
1933 Act covering all Registrable Securities which such Holders, within twenty
(20) days after the mailing of such notice by the Company, request to be
registered.
(b) If the Company shall receive at any time after the date hereof, a
written request stating that it is pursuant to this section 1.1(b) from Holders
holding at least sixty-six and two-thirds percent (66-2/3%) of the Registrable
Securities then outstanding (assuming the conversion into Huntway Equity
Securities of all Notes held by the New Holders) (such Holders shall be
referred to as "INITIATING HOLDERS" with respect to registrations requested
under this section 1.1(b)) that the Company file a registration statement under
the 1933 Act covering the registration of at least twenty percent (20%) of the
Registrable Securities initially issued to all of the Holders (assuming the
conversion into Huntway Equity Securities of all Notes held by the New Holders)
(or a lesser percent if the anticipated aggregate offering price would exceed
$10,000,000), then the Company shall, within twenty-one (21) days after the
receipt thereof, give written notice of such request to all Holders and shall,
subject to the limitations and pursuant to the provisions of this section 1.1,
file a registration statement under the 1933 Act covering all Registrable
Securities which such Holders, within twenty (20) days after the mailing of
such notice by the Company, request to be registered.
(c) Notwithstanding the foregoing, the Company shall not be obligated
to take any action to effect any such registration pursuant to this section 1.1:
(i) if the Initiating Holders propose to dispose of Registrable
Securities which may be immediately registered on Form S-3 pursuant to a
request made under section 1.10;
(ii) if Initiating Holders shall have initiated two
registrations pursuant to this section 1.1, which have been declared or ordered
effective and pursuant to which securities have been sold or have been
withdrawn by the Initiating Holders other than as a result of a material
adverse change to the Company; or
(iii) if Initiating Holders shall have previously initiated one
registration pursuant to this section 1.1 in the same calendar year, which has
been declared or ordered effective and pursuant to which securities have been
sold or have been withdrawn by the Initiating Holders other than as a result of
a material adverse change to the Company.
(d) Subject to the provisions of this Agreement, including, but not
limited to, the foregoing section 1.1(c) and section 1.3(a), the Company shall
file a registration statement as soon as reasonably practicable after receipt
of the request or requests of the Initiating Holders
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under this section 1.1, but in any event within ninety (90) days after receipt
of such request or requests.
(e) If the Initiating Holders intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to section 1.1(a)
or section 1.1(b) and the Company shall include such information in the written
notice referred to in section 1.1(a) or section 1.1(b). The underwriter will
be selected by the Company and shall be reasonably acceptable to a majority in
interest of the Initiating Holders. In such event, the right of any Holder to
include his Registrable Securities in such registration shall be conditioned
upon such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting (unless otherwise mutually
agreed by a majority in interest of the Initiating Holders and by such Holder)
to the extent provided herein. All Holders proposing to distribute their
securities through such underwriting shall (together with the Company as
provided in section 1.3(e)) enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for such underwriting.
Notwithstanding any other provision of this section 1.1, if the underwriter
advises the Initiating Holders in writing that marketing factors require a
limitation of the number of shares to be underwritten, then the Initiating
Holders shall so advise all Holders of Registrable Securities that would
otherwise be underwritten pursuant hereto, and the number of shares of
Registrable Securities that may be included in the underwriting shall be
allocated among all Holders thereof (but excluding Holders whose Registrable
Securities are included in such registration pursuant to section 1.2),
including the Initiating Holders, in proportion (as nearly as practicable) to
the amount of Registrable Securities of the Company owned by each Holder;
provided, however, that the number of shares of Registrable Securities to be
included in such underwriting shall not be reduced unless all other securities
are first entirely excluded from the underwriting.
1.2 COMPANY REGISTRATION. If (but without any obligation to do so)
the Company proposes to register (excluding for this purpose a registration
effected by the Company for any shareholders pursuant to section 1.1) any of
its stock or other securities under the 1933 Act in connection with the public
offering of such securities solely for cash (other than a registration on Form
S-8 relating solely to the sale of securities to participants in a Company
benefit plan or a registration on Form S-4 relating solely to a business
combination), the Company shall, at such time, promptly give each Holder
written notice of such registration. Upon the written request of each Holder
given within twenty (20) days after mailing of such notice by the Company, the
Company shall, subject to the provisions of section 1.6, cause to be registered
under the 1933 Act all of the Registrable Securities that each such Holder has
requested to be registered. Notwithstanding section 1.3, the Company may
withdraw any registration that it proposes to make at any time prior to the
effectiveness of that registration.
1.3 OBLIGATIONS OF THE COMPANY. Whenever required under this section
1 to effect the registration of any Registrable Securities, the Company shall,
as expeditiously as reasonably possible:
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(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the
Holders of a majority of the Registrable Securities registered thereunder, keep
such registration statement effective for a period of 120-days or until the
distribution contemplated in the Registration Statement has been completed;
provided, however, that (i) such 120-day period shall be extended for a period
of time equal to the period the Holder refrains from selling any securities
included in such registration at the request of an underwriter of Common Stock
(or other securities) of the Company; and (ii) in the case of any registration
of Registrable Securities on Form S-3 (or any other Form, to the extent
permitted by law) which are intended to be offered on a continuous or delayed
basis, such 120-day period shall be extended, if necessary, to keep the
registration statement effective until all such Registrable Securities are
sold, provided that Rule 415, or any successor rule under the 1933 Act, permits
an offering on a continuous or delayed basis, except to the extent that all
holders of such Registrable Securities may sell those Registrable Securities
without regard to the volume limitations contained in Rule 144 under the 1933
Act. Notwithstanding anything to the contrary in this Agreement, the Company
may delay filing a Registration Statement, and may withhold efforts to cause a
Registration Statement to become effective, for a period not to exceed 120
days, if the Company shall furnish to Holders a certificate signed by the
Chairman of the Board (or, prior to the Conversion, the Huntway Managing
General Partner) stating that in the good faith judgment of the Board of
Directors of the Company (or, prior to the Conversion, the Huntway Managing
General Partner), it would be seriously detrimental to the Company and its
shareholders or limited partners, as the case may be, for such registration
statement to be effected at such time; provided that such right to delay a
request shall be exercised by the Company not more than once in any twelve (12)
month period. If, after a Registration Statement becomes effective, the
Company advises the holders of registered securities that the Company considers
it appropriate for the Registration Statement to be amended or supplemented,
the holders of such securities shall suspend any further sales of their
registered securities pursuant to such registration statement until the Company
advises them that the registration statement has been amended or updated. The
Company shall use its best efforts so that the effectiveness of the
registration is not suspended for a period in excess of 90 days in any 365 day
period.
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
1933 Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
1933 Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities covered by such
registration statement.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such U.S. jurisdictions as
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shall be reasonably requested by the Holders; provided that the Company shall
not be required in connection therewith or as a condition thereto to qualify to
do business or to file a general consent to service of process in any such
states or jurisdictions.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the 1933 Act of the happening of any event as a
result of which the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state 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.
(g) Cause all such Huntway Equity Securities covered by such
registration statement that are not already so listed to be listed on each
securities exchange on which similar securities issued by the Company are then
listed.
(h) Provide a transfer agent and registrar for all Registrable
Securities covered by such registration statement and a CUSIP number for all
such Registrable Securities, in each case not later than the effective date of
such registration.
1.4 FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this section 1 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such
securities as shall be required to effect the registration of such Holder's
Registrable Securities.
1.5 EXPENSES OF COMPANY REGISTRATION. The Company shall bear and
pay all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities pursuant to this section 1 (which right
may be assigned as provided in section 1.11), including (without limitation)
all registration, filing, and qualification fees, printers and accounting fees
relating or apportionable thereto and the fees and disbursements of counsel for
the Company and one separate counsel for the selling Holders thereunder
(selected by the Holders of a majority of the Registrable Securities that are
included therein), but excluding underwriting discounts, commissions and
stock transfer taxes relating to Registrable Securities.
1.6 UNDERWRITING REQUIREMENTS. In connection with any offering
involving an underwriting of Registrable Securities, the Company shall not be
required under section 1.2 to include any of the Holders' securities in such
underwriting unless they accept the terms of the underwriting as reasonably
agreed upon between the Company and the underwriters selected by
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it (or by other Persons entitled to select the underwriters), and then only in
such quantity as the underwriters determine in their sole discretion will not,
jeopardize the success of the offering by the Company. If the total amount of
securities, including Registrable Securities, requested to be included in such
offering exceeds the amount of securities that the underwriters determine in
good faith is compatible with the success of the offering, the amount or number
of Notes or Huntway Equity Securities that may be included in the underwriting
shall be allocated, first, to the Company; second, to the Holders on a pro rata
basis based on the total number of Registrable Securities held by such Holders
(assuming the conversion into Huntway Equity Securities of all Notes held by
the New Holders); and third, to any shareholder of the Company (other than a
Holder) on a pro rata basis. No such reduction shall reduce the amount of
securities of the selling Holders included in the registration below ten
percent (10%) of the total amount of securities included in such registration.
Further, no such reduction shall reduce the amount of securities of the selling
Holders included in such registration if such registration is pursuant to
section 1.1. In no event will securities of any other selling shareholder be
included in such registration which would reduce the number or amount of
securities which may be included by Holders without the written consent of
Holders of not less than two-thirds (66 2/3%) of the Registrable Securities
proposed to be sold in the offering.
If any Holder does not agree to the terms of any such underwriting, the
holder shall be excluded therefrom by written notice from the Company or the
underwriter. Any Registrable Securities or other securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration. If
securities are so withdrawn from the registration and if the number or amount
of Registrable Securities to be included in such registration was previously
reduced as a result of marketing factors, the Company shall then offer to all
Persons who have retained the right to include securities in the registration
the right to include additional securities in the registration in an aggregate
amount equal to the number or amount of securities so withdrawn, with such
securities to be allocated among the Persons requesting additional inclusion
pro rata according to the total amount of securities entitled to be included in
such registration owned by each such Person or in such other proportions as
shall be mutually agreed by such selling holders of Huntway Equity Securities.
1.7 DELAY OF REGISTRATION. No Holder shall have any right to obtain
or seek an injunction restraining or otherwise delaying any such registration
as the result of any controversy that might arise with respect to the
interpretation or implementation of this section 1.
1.8 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under this section 1:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, any underwriter (as defined in the 1933 Act) for such
Holder, and each Person, if any, who controls such Holder or underwriter within
the meaning of the 1933 Act or the 1934 Act, against any losses, claims,
damages, or liabilities joint or several) to which they may become subject
under the 1933 Act, the 1934 Act or other federal or state law, insofar as
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such losses, claims, damages, or liabilities (or actions in respect thereof)
arise out of or are based upon any of the following statements, omissions or
violations (collectively a "VIOLATION"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) 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, or (iii) any violation or alleged
violation by the Company of the 1933 Act, the 1934 Act, any state securities
law or any rule or regulation promulgated under the 1933 Act, the 1934 Act or
any state securities law; and the Company will pay to each such Holder,
underwriter or controlling Person, as incurred, any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this section 1.8(a) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable to a Holder in
any such case for any such loss, claim, damage, liability or action to the
extent that it arises out of or is based upon a Violation which occurs (i) in
reliance upon and in conformity with written information furnished expressly
for use in connection with such registration by any such Holder, underwriter or
controlling Person of such Holder or any brokerage firm acting as underwriter
selected by the Company or any of the Holders or (ii) as a result of such
Holder delivering a prospectus in connection with a transaction entered into
during a period when the Company has advised such Holder that sales of its
registered securities must be suspended. For purposes of this section 1.8,
"Holder" shall include any former Holder of Registrable Securities who has
participated in a registration pursuant to this section 1.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company and the Huntway General Partners, each
of their respective general partners and/or directors, each of their respective
officers who has signed the registration statement, each Person, if any, who
controls the Company within the meaning of the 1933 Act, any underwriter, any
other Holder selling securities in such registration statement and any
controlling Person of any such underwriter or other Holder, against any losses,
claims, damages or liabilities (joint or several) to which any of the foregoing
Persons may become subject, under the 1933 Act, the 1934 Act or other federal
or state law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Holder expressly for use in connection with such registration; and each such
Holder will pay, as incurred, any legal or other expenses reasonably incurred
by any Person intended to be indemnified pursuant to this section 1.8(b), in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement contained
in this section 1.8(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld; provided, that, in no event shall any indemnity under this
section 1.8(b) exceed the net proceeds from the offering received by such
Holder.
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(c) Promptly after receipt by an indemnified party under this section
1.8 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this section 1.8, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by
such counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this section
1.8. The omission so to deliver written notice to the indemnifying party will
not relieve it of any liability that it may have to any indemnified party
otherwise than under this section 1.8.
(d) If the indemnification provided for in this section 1.8 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, liability, claim, damage or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with an underwritten public offering are in conflict
with the foregoing provisions, the provisions in the underwriting agreement
shall control.
(f) The obligations of the Company and Holders under this section 1.8
shall survive the completion of any offering of Registrable Securities in a
registration statement under this section 1, and otherwise.
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1.9 REPORTS UNDER THE 1934 ACT. With a view to making available to
the Holders the benefits of Rule 144 promulgated under the 1933 Act and any
other rule or regulation of the SEC that may at any time permit a Holder to
sell Securities to the public without registration or pursuant to a
registration on Form S-3, the Company agrees to:
(a) file with the SEC in a timely manner all reports and other
documents required of the Company under the 1933 Act and the 1934 Act; and
(b) furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company that
it has complied with the reporting requirements of SEC Rule 144, the 1933 Act
and the 1934 Act, or that it qualifies as a registrant whose securities may be
resold pursuant to Form S-3 (at any time after it so qualifies), (ii) a copy of
the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company, and (iii) such other information
as may be reasonably requested in availing such Holder of any rule or
regulation of the SEC which permits the selling of any such Registrable
Securities without registration or pursuant to such form.
1.10 FORM S-3 REGISTRATION. In case the Company shall receive
written request or requests from New Holders holding at least ten percent (10%)
of the Registrable Securities then outstanding (assuming the conversion into
Huntway Equity Securities of all Notes held by the New Holders) or from Holders
holding at least sixty-six and two-thirds percent (66-2/3%) of the Registrable
Securities then outstanding (assuming the conversion into Huntway Equity
Securities of all Notes held by the New Holders) that the Company effect a
registration on Form S-3 and any related qualification or compliance (subject
to the limits in section 1.3(d)) with respect to all or a part of the
Registrable Securities owned by such Holder or Holders, the Company will:
(a) promptly give written notice of the proposed registration, and
any related qualification or compliance, to all other Holders; and
(b) use its best efforts, as soon as reasonably practicable, to
effect such registration and all such qualifications and compliances as may be
so requested and as would permit or facilitate the sale and distribution of all
such portion of such Holder's or Holders' Registrable Securities as are
specified in such request, together with all or such portion of the Registrable
Securities of any other Holder or Holders joining in such request as are
specified in a written request given within 20 days after effectiveness of such
written notice from the Company; provided, however, that the Company shall not
be obligated to effect any such registration, qualification or compliance
pursuant to this section 1.10: (i) if Form S-3 is not available for such
offering by the Holders; (ii) if the Holders propose to sell Registrable
Securities at any aggregate price to the public of less than $3,000,000; or
(iii) as provided in section 1.3(a) or section 1.3(d).
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(c) Subject to the foregoing, the Company shall file a registration
statement covering the Registrable Securities so requested to be registered as
soon as practicable after receipt of the request or requests of the Holders.
Registrations effected pursuant to this section 1.11 shall not be counted as
demands for registration effected pursuant to section 1.1.
(d) Notwithstanding the foregoing, the Company shall not be obligated
to take any action to effect any such registration or qualification or
compliance pursuant to this section 1.10:
(i) if the Holders shall have initiated eight registrations
pursuant to this section 1.10, which have been declared or ordered effective
and pursuant to which securities have been sold or have been withdrawn by the
Holders other than as a result of a material adverse change to the Company; or
(ii) if the Holders shall have previously initiated two
registrations pursuant to this section 1.10, in the same calendar year, which
have been declared or ordered effective and pursuant to which securities have
been sold or have been withdrawn by the Holders other than as a result of a
material adverse change to the Company.
1.11 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register Registrable Securities pursuant to this section 1 may be
assigned (but only with all related obligations) by a Holder to a transferee or
assignee of such securities (other than a competitor of the Company) who is a
Holder or who, in such assignment or transfer, acquires Notes or Huntway Equity
Securities issued upon conversion of Notes that constitute at least twenty-five
percent of the Registrable Securities initially issued to such Holder provided:
(a) the Company is, within a reasonable time after such transfer, furnished
with written notice of the name and address of such transferee or assignee and
the securities with respect to which such registration rights are being
assigned; (b) such transferee or assignee agrees in writing to be bound by and
subject to the terms and conditions of this section 1; (c) such assignment
shall be effective only if immediately following such transfer the further
disposition of such securities by the transferee or assignee is restricted
under the 1933 Act; and (d) such Holder transferee or assignee owns Registrable
Securities (assuming conversion of the Notes into Huntway Equity Securities)
representing at least 1 million Common Units of the Company (or the equivalent
number of shares of Common Stock following the Conversion). For the purposes
of determining the number or amount of Registrable Securities held by a
transferee or assignee, the holdings of transferees and assignees of a
partnership or limited liability company who are partners or retired partners
of such partnership or members or retired members of such limited liability
company (including spouses and ancestors, lineal descendants and siblings of
such partners, members or spouses who acquire Registrable Securities by gift,
will or intestate succession) shall be aggregated together and with the
partnership or limited liability company; provided that all assignees and
transferees who would not qualify individually for assignment of registration
rights shall have a single attorney-in-fact for the purpose of exercising any
rights, receiving notices or taking any action under this section 1.
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1.12 TERMINATION OF REGISTRATION RIGHTS. The right of any Holder to
request registration or inclusion in any registration pursuant to section 1
shall terminate on such date as all Registrable Securities held or entitled to
be held upon conversion by such Holder may immediately be sold under Rule 144
during any 90 day period.
1.13 OTHER REGISTRATION RIGHTS AGREEMENTS. The Company shall not
grant any rights to register any of its securities, including, without
limitation, the Huntway Equity Securities, without the consent of Two-Thirds in
Interest of the Holders.
2. DEFINITIONS.
2.1 GLOSSARY. For purposes of this Agreement, the following terms
shall have the following meanings, which shall be equally applicable to both
the singular and plural forms of any of such terms.
"CONVERSION" means the anticipated merger of the Company with and into a
newly formed corporation for the purpose of converting the Company into a
corporation.
"FORM S-3" means such form under the 1933 Act as in effect on the date
hereof or any registration form under the 1933 Act subsequently adopted by the
SEC which permits inclusion or incorporation of substantial information by
reference to other documents filed by the Company with the SEC.
"HUNTWAY EQUITY SECURITIES" shall mean the Common Units of the Company,
for as long as the Company is a limited partnership, and the Common Stock of
the Company after the Company has converted to a corporation.
"HUNTWAY GENERAL PARTNERS" means the General Partner, the Special
General Partner, and any other Person made a general partner pursuant to the
terms of the Huntway Partnership Agreement.
"HUNTWAY MANAGING GENERAL PARTNER" means Huntway Managing Partner L.P.,
a Delaware limited partnership, and its permitted successors and assigns.
"HUNTWAY PARTNERSHIP AGREEMENT" means the Amended and Restated Agreement
of Limited Partnership of Huntway Partners, L.P. dated as of November 9, 1988,
among the General Partner and each of the other partners named therein or bound
thereby, as amended.
"PERSON" shall mean a natural person, corporation, partnership, trust,
unincorporated association, joint venture, joint-stock company, limited
liability company, Authority, or any other entity.
"REGISTER", "REGISTERED" AND "REGISTRATION" refer to a registration
effected by preparing and filing a registration statement or similar document
in compliance with the 1933 Act, and the effectiveness of such registration
statement or document.
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"REGISTRABLE SECURITIES" means (i) the Notes, (ii) the Huntway Equity
Securities issued or issuable on conversion of the Notes, (iii) the Huntway
Equity Securities acquired by each Holder from the Company pursuant to the
Plan, and (iv) any Huntway Equity Securities issued as (or issuable upon the
conversion or exercise of any warrant, right or other security which is issued
as) a dividend or other distribution with respect to, or in exchange for or in
replacement of the securities referenced in (i), (ii) or (iii) above, excluding
in all cases, however, any Registrable Securities sold by a Person in a
transaction in which his rights under section 1 are not assigned; provided,
however, that Notes, Huntway Equity Securities or other securities shall not be
treated as Registrable Securities for the purposes of any registration if and
so long as at the time of such registration all transfer restrictions and
restrictive legends with respect thereto have been or, in the opinion of
counsel for the Company, may be removed, and all the Registrable Securities
held by such Holder may be sold without restriction (including any volume
limitations) under Rule 144 or Rule 145 under the 1933 Act and provided that
any Registrable Securities sold by a Person in a transaction in which his or
her rights under section 1 are not assigned or with respect to which the holder
has no rights to request registration or inclusion in any registration under
section 1 pursuant to section 1.12 shall not be included in the term
"REGISTRABLE SECURITIES".
The number of shares of "REGISTRABLE SECURITIES THEN OUTSTANDING" shall be
determined by the number of Huntway Equity Securities outstanding which are,
and the number of shares of Huntway Equity Securities issuable pursuant to then
exercisable or convertible securities which are, Registrable Securities.
"SEC" shall mean the Securities and Exchange Commission.
"SPECIAL GENERAL PARTNER" means Huntway Holdings, L.P., a Delaware limited
partnership.
"TWO-THIRDS IN INTEREST OF THE HOLDERS" on any date means Holders who in
the aggregate own Notes or Huntway Equity Securities or both on that date that
aggregate at least sixty-six and 2/3 percent (66 2/3%) of the Registrable
Securities (assuming conversion of the Notes into Huntway Equity Securities)
owned by all Holders on that date.
"UNDERWRITTEN OFFERING" means an offering of Huntway Equity Securities to
the public pursuant to an effective registration statement that is firmly
underwritten by a United States nationally recognized underwriter or
underwriters that are selected or approved by the Company in accordance with
this Agreement.
"1933 ACT" shall mean the Securities Act of 1933, as amended.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as amended.
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3. MISCELLANEOUS
3.1 POWERS AND RIGHTS NOT WAIVED; REMEDIES CUMULATIVE. No delay or
failure on any Holder's part in the exercise of any power or right shall
operate as a waiver thereof, nor shall any single or partial exercise of the
same preclude any other or further exercise thereof or the exercise of any
other power or right, and the Holders' rights and remedies are cumulative to
and are not exclusive of any rights or remedies the Holders would otherwise
have, and no waiver or consent given or extended pursuant hereto shall extend
to or affect any obligation or right not expressly waived or consented to.
3.2 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and Two-Thirds in
Interest of the Holders. Any amendment or waiver effective in accordance with
this section 3.2 shall be binding upon each holder of any Notes or Huntway
Equity Securities, each future holder of all such Notes or Huntway Equity
Securities and the Company.
3.3 NOTICES. Any notice, consent, authorization or other
communication to be given hereunder shall be in writing and shall be deemed
duly given and received when delivered personally by facsimile transmission or
three days after being mailed by first class mail, or the next Business Day
after being deposited for next-day delivery with a nationally recognized
overnight delivery service, charges and postage prepaid, properly addressed to
the party to receive such notice at the following address for such party (or at
such other address as shall be specified by like notice):
(a) if to the Company, to:
Huntway Partners, L.P.
25129 The Old Road 322
Newhall, CA 91381
Attention: Warren Nelson
Telephone:(805) 254-1220
Facsimile: (805) 286-1588
with copies to:
Kirkland & Ellis
200 East Randolph Drive
Chicago, IL 60601
Attention: Brian Hogan
Telephone: (312) 861-2000
Facsimile: (312) 861-2200
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(b) if to the Holders, to the address set forth below their signature
on this Agreement, with a copy to:
Shartsis, Friese & Ginsburg LLP
One Maritime Plaza, 18th Floor
San Francisco, CA 94111
Attention: Eric M. Sippel, Esq.
Telephone: (415) 421-6500
Facsimile: (415) 421-2922
3.4 ENTIRE AGREEMENT. This Agreement contains the entire agreement of
the parties and supersedes all prior negotiations, correspondence, agreements
and understandings, written and oral, between or among the parties, regarding
the subject matter hereof, including, without limitation, the Original
Agreement.
3.5 SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective permitted successors and
assigns (excluding each successive holder or holders of a Note or Huntway
Equity Securities, except to the extent otherwise expressly provided herein).
3.6 SEVERABILITY. If any provision of this Agreement, or the
application of such provision to any Person or circumstance, shall be held
invalid or unenforceable, the remainder of this Agreement, or the application
of such provision to Persons or circumstances other than those to which it is
held to be invalid or unenforceable, shall not be affected thereby.
3.7 GOVERNING LAW. This Agreement shall be governed by and construed
and interpreted in accordance with the Law of the State of California, without
regard to that state's conflict of laws principles.
3.8 INTERPRETATION. All parties have been assisted by counsel in the
preparation and negotiation of this Agreement and the transactions contemplated
hereby, and this Agreement shall be construed according to its fair language.
The rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this
Agreement.
3.9 FURTHER ASSURANCES. Each party shall execute such other and
further certificates, instruments and other documents as may be necessary and
proper to implement, complete and perfect the transactions contemplated by this
Agreement.
3.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall constitute an original, and all of which
together shall be considered one and the same agreement.
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3.11 ASSIGNMENT. The Company shall not assign this Agreement or any
rights hereunder or delegate any duties hereunder except pursuant to the
Conversion. Any attempted or purported assignment or delegation in violation
of the preceding sentence shall be void.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first set forth above.
HUNTWAY PARTNERS, L.P.
By /s/ Warren J. Nelson
------------------------------------
Name:Warren J. Nelson
Title: Executive Vice President and
Chief Financial Officer
LIGHTHOUSE INVESTORS, L.L.C. B III CAPITAL PARTNERS, L.P.
By Lighthouse Capital, LLC, its By DDJ Capital III, LLC, its General
Manager Partner
By /s/ Richard S. Spender III By DDJ Capital Management, LLC,
---------------------------------- Manager
Richard S. Spencer III
Manager By /s/ Judy K. Mencher
------------------------------------
200 Seventh Avenue, Suite 105 Name: Judy K. Mencher
Santa Cruz, CA 95062 Title: Member
Telephone: (408) 477-4046
Facsimile: (408) 479-3642
CONTRARIAN CAPITAL FUND I, L.P. CONTRARIAN CAPITAL FUND II, L.P.
By Contrarian Capital Management, LLC, By Contrarian Capital Management, LLC,
its general partner its general partner
By /s/ Janice M. Stanton By /s/ Janice M. Stanton
---------------------------------- ------------------------------------
Janice M. Stanton Janice M. Stanton
Partner Partner
Address: 411 West Putnam, Suite Address: 411 West Putnam, Suite
225 225
Greenwich, CT 06830 Greenwich, CT 06830
Telephone: (203) 862-8201 Telephone: (203) 862-8201
Facsimile: (203) 629-1977 Facsimile: (203) 629-1977
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CONTRARIAN CAPITAL ADVISORS, L.L.C., MELLON BANK, N.A., solely in its
as agent for the entities listed below capacity as Trustee for First Plaza Group
its signature attached hereto. Trust (as directed by Contrarian Capital
Advisors, L.L.C.) and not in its individual
capacity
By: /s/ Janice M. Stanton
------------------------------------
Janice M. Stanton By: /s/ Carole Bruno
Partner --------------------------
Name: Carole Bruno
Address: 411 West Putnam, Suite 225 Authorized Signatory
Greenwich, CT 06830 Address: __________________________
__________________________
Telephone: (203) 862-8201
Facsimile: (203) 629-1977 Telephone: __________________________
Facsimile: __________________________
Oppenheimer Horizon Partners, L.P.
Oppenheimer Institutional Horizon Partners,
L.P.
Oppenheimer International Horizon Fund II,
Ltd.
Oppenheimer & Co., Inc.
The & Trust
THE CHASE MANHATTAN BANK As Directed
Trustee For The IBM Retirement Plan
Trust
By: See Rider 1
------------------------------------
Michael Rolling, Vice President
The Chase Manhattan Bank as Directed
Trustee for the IBM Retirement Plan
Trust
Address: __________________________
__________________________
Telephone: __________________________
Facsimile: __________________________
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MADISON DEARBORN PARTNERS III
By: /s/ Samuel M. Mencoff
-----------------------
Name: Samuel M. Mencoff
Its: General Partner
FIRST CHICAGO EQUITY
CORPORATION
By: /s/
-----------------------
Name:
Its:
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RIDER 1
Amended and Restated Registration Rights Agreement dated as of October 31, 1997
among Huntway Partners, L.P. and the Holders
The Chase Manhattan Bank has executed this Agreement in its capacity as Trustee
("Trustee") of the IBM Retirement Plan Trust ("Trust") acting hereunder in such
capacity pursuant to the directions of Budge Collins, Inc., as Investment
Manager as such term is defined in ERISA ("Investment Manager"), in accordance
with the terms of the Trust and without limiting the generality of the
foregoing, any representations or statements made herein have been made for and
on behalf of the Trust in accordance with the directions of the Investment
Manager. Not withstanding any other provision of the Agreement, all actions to
be taken by or notices to be given to the Trust shall be taken by or given to
the Investment Manager.
By: /s/ Michael L. Rohling Date: 10/31/97
------------------------------------ -----------
MICHAEL L. ROHLING, VICE PRESIDENT
CHASE MANHATTAN BANK
AS DIRECTED TRUSTEE FOR
THE IBM RETIREMENT PLAN TRUST