EXHIBIT 10.36
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
GIANT INDUSTRIES, INC.,
THE SUBSIDIARY GUARANTORS
LISTED ON SCHEDULE A HERETO,
AND
BANC OF AMERICA SECURITIES LLC
BNP PARIBAS SECURITIES CORP.
FLEET SECURITIES, INC.
DATED AS OF MAY 14, 2002
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made
and entered into as of May 14, 2002, by and among Giant Industries, Inc., a
Delaware corporation (the "Company"), the subsidiary guarantors listed on
Schedule A hereto (the "Subsidiary Guarantors"), and Banc of America Securities
LLC, BNP Paribas Securities Corp. and Fleet Securities, Inc. (each a "Purchaser"
and, collectively, the "Purchasers"), each of whom has agreed to purchase the
Company's 11% Senior Subordinated Notes due 2012 (the "Notes") pursuant to the
Purchase Agreement (as defined below).
The payment of principal of, premium and Liquidated Damages
(as defined below), if any, and interest on the Notes and the Exchange Notes (as
defined below) will be fully and unconditionally guaranteed on a senior
subordinated basis, jointly and severally by each of the Subsidiary Guarantors
pursuant to their guarantees (the "Guarantees"). The Company and the Subsidiary
Guarantors are herein collectively referred to as the "Companies"; the Notes and
the Guarantees thereof are herein collectively referred to as the "Securities";
and the Exchange Notes and the Guarantees thereof are herein collectively
referred to as the "Exchange Securities".
This Agreement is made pursuant to the Purchase Agreement,
dated as of April , 2002 (the "Purchase Agreement"), by and among the Companies
and the Purchasers (i) for your benefit and for the benefit of each other
Purchaser and (ii) for the benefit of the holders from time to time of the
Securities and Exchange Securities (including you and each other Purchaser). In
order to induce the Purchasers to purchase the Securities, the Companies have
agreed to provide the registration rights set forth in this Agreement. The
execution and delivery of this Agreement is a condition to the obligations of
the Purchasers set forth in the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms
shall have the following meanings:
Advice: As defined in Section 6(d) hereto.
Agreement: As defined in the preamble hereto.
Broker-Dealer: Any broker or dealer registered under the
Exchange Act.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Company: As defined in the preamble hereto.
Companies: As defined in the preamble hereto.
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Consummate: A registered Exchange Offer shall be deemed
"Consummated" for purposes of this Agreement upon the occurrence of (i)
the filing and effectiveness under the Securities Act of the Exchange
Offer Registration Statement relating to the Exchange Securities to be
issued in the Exchange Offer, (ii) the maintenance of such Registration
Statement continuously effective and the keeping of the Exchange Offer
open for a period not less than the minimum period required pursuant to
Section 3(b) hereof, and (iii) the delivery by the Companies to the
Registrar under the Indenture of Exchange Securities in the same
aggregate principal amount as the aggregate principal amount of
Securities that were tendered by Holders thereof pursuant to the
Exchange Offer.
Effectiveness Target Date: As defined in Section 3(a) hereof
with respect to the Exchange Offer Registration Statement and as
defined in Section 4(a) hereof with respect to the Shelf Registration
Statement.
Exchange Act: The Securities Exchange Act of 1934 (15 U.S.C.,
Sections 78a to 78jj), as amended.
Exchange Notes: The 11% Senior Subordinated Notes due 2012, of
the same series under the Indenture as the Notes, to be issued to
Holders in exchange for Transfer Restricted Securities pursuant to this
Agreement, with the Exchange Notes having substantially identical terms
to the Notes.
Exchange Offer: The registration by the Companies under the
Securities Act of the Exchange Securities pursuant to a Registration
Statement pursuant to which the Companies offer the Holders of all
outstanding Transfer Restricted Securities the opportunity to exchange
all such outstanding Transfer Restricted Securities held by such
Holders for Exchange Securities in an aggregate principal amount equal
to the aggregate principal amount of the Transfer Restricted Securities
tendered in such exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration
Statement relating to the Exchange Offer, including the related
Prospectus.
Exchange Securities: As defined in the preamble hereto.
Exempt Resales: The transactions in which the Purchasers
propose to sell the Securities to certain "qualified institutional
buyers," as such term is defined in Rule 144A under the Securities Act,
and to non-U.S. persons pursuant to Regulation S under the Securities
Act.
Guarantees: As defined in the preamble hereto.
Holder: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of April , 2002, among the
Company, as issuer, the Subsidiary Guarantors, as guarantors, and The
Bank of New York, as trustee
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(the "Trustee"), pursuant to which the Securities and the Exchange
Securities are to be issued, as such Indenture is amended or
supplemented from time to time in accordance with the terms thereof.
Initial Placement: The issuance and sale by the Companies of
the Securities to the Purchasers pursuant to the Purchase Agreement.
Liquidated Damages: As defined in Section 5 hereof.
NASD: The National Association of Securities Dealers, Inc.
Notes: As defined in the preamble hereto.
Person: An individual, partnership, corporation, limited
liability company, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
Prospectus: The prospectus included in a Registration
Statement, as amended or supplemented by any prospectus supplement and
by all other amendments thereto, including post-effective amendments,
and all material incorporated by reference into such prospectus.
Purchase Agreement: As defined in the preamble hereto.
Purchasers: As defined in the preamble hereto.
Registrar: As defined in the Indenture.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the
Companies relating to (a) an offering of Exchange Securities pursuant
to an Exchange Offer or (b) the registration for resale of Transfer
Restricted Securities pursuant to the Shelf Registration Statement,
which is filed pursuant to the provisions of this Agreement, in each
case, including the Prospectus included therein, all amendments and
supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein.
Securities: As defined in the preamble hereto.
Securities Act: The Securities Act of 1933 (15 U.S.C.,
Sections 77a to 77aa), as amended.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
Subsidiary Guarantors: As defined in the preamble hereto.
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Suspension Period: As defined in Section 4(a) hereof.
Transfer Restricted Security: Each Security, until the
earliest to occur of (a) the date on which such Security is exchanged
in the Exchange Offer and entitled to be resold to the public by the
Holder thereof without complying with the prospectus delivery
requirements of the Securities Act, (b) the date on which such Security
has been effectively registered under the Securities Act and disposed
of in accordance with a Shelf Registration Statement and (c) the date
on which such Security is distributed to the public pursuant to Rule
144 under the Securities Act or by a Broker-Dealer pursuant to the
"Plan of Distribution" contemplated by the Exchange Offer Registration
Statement (including delivery of the Prospectus contained therein).
Trust Indenture Act: The Trust Indenture Act of 1939 (15
U.S.C. Sections 77aaa to 77bbbb), as in effect on the date of the
Indenture.
Underwritten Registration or Underwritten Offering: A
registration in which Securities are sold to an underwriter for
reoffering to the public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities
entitled to the benefits of this Agreement are the Transfer Restricted
Securities.
(b) Holders of Transfer Restricted Securities. A
Person is deemed to be a holder of Transfer Restricted Securities
(each, a "Holder") whenever such Person owns Transfer Restricted
Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be
permissible under applicable law or Commission policy (after the
procedures set forth in Section 6(a) below have been complied with),
the Companies shall (i) cause to be filed with the Commission as soon
as practicable after the Closing Date, but in no event later than 60
days after the Closing Date (or, if the 60th day is not a business day,
the first business day thereafter), a Registration Statement under the
Securities Act relating to the Exchange Securities and the Exchange
Offer, (ii) use its best efforts to cause such Registration Statement
to become effective at the earliest possible time, but in no event
later than 150 days after the Closing Date (or, if the 150th day is not
a business day, the first business day thereafter) (as such date
relates to the Exchange Offer Registration Statement, the
"Effectiveness Target Date"), (iii) in connection with the foregoing,
file (A) all pre-effective amendments to such Registration Statement as
may be necessary in order to cause such Registration Statement to
become effective, (B) if applicable, a post-effective amendment to such
Registration Statement pursuant to Rule 430A under the Securities Act
and (C) all necessary filings in connection with the registration and
qualification of the Exchange Securities to be made under the Blue Sky
laws of such jurisdictions as are necessary to permit Consummation of
the Exchange Offer, and (iv) upon the effectiveness of such
Registration Statement, commence the Exchange Offer. The Exchange Offer
shall be on the appropriate form permitting registration of the
Exchange Securities to be offered in
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exchange for the Transfer Restricted Securities and to permit resales
of Exchange Securities held by Broker-Dealers as contemplated by
Section 3(c) below.
(b) The Companies shall cause the Exchange Offer
Registration Statement to be effective continuously and shall keep the
Exchange Offer open for a period of not less than the minimum period
required under applicable federal and state securities laws to
Consummate the Exchange Offer; provided, however, that in no event
shall such period be less than 30 days after the date notice of the
Exchange Offer is mailed to the Holders. The Companies shall cause the
Exchange Offer to comply with all applicable federal and state
securities laws. No securities other than the Exchange Securities shall
be included in the Exchange Offer Registration Statement. The Companies
shall use their best efforts to cause the Exchange Offer to be
Consummated on the earliest practicable date after the Exchange Offer
Registration Statement has become effective, but in no event later than
30 business days after the Effectiveness Target Date with respect to
the Exchange Offer Registration Statement.
(c) The Companies shall indicate in a "Plan of
Distribution" section contained in the Prospectus forming a part of the
Exchange Offer Registration Statement that any Broker-Dealer who holds
Securities that are Transfer Restricted Securities and that were
acquired for its own account as a result of market-making activities or
other trading activities (other than Transfer Restricted Securities
acquired directly from the Companies), may exchange such Securities
pursuant to the Exchange Offer; however, such Broker-Dealer may be
deemed to be an "underwriter" within the meaning of the Securities Act
and must, therefore, deliver a prospectus meeting the requirements of
the Securities Act in connection with any resales of the Exchange
Securities received by such Broker-Dealer in the Exchange Offer, which
prospectus delivery requirement may be satisfied by the delivery by
such Broker-Dealer of the Prospectus contained in the Exchange Offer
Registration Statement. Such "Plan of Distribution" section shall also
contain all other information with respect to such resales by
Broker-Dealers that the Commission may require in order to permit such
resales pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of Exchange
Securities held by any such Broker-Dealer except to the extent required
by the Commission as a result of a change in policy after the date of
this Agreement.
The Companies shall use their best efforts to keep
the Exchange Offer Registration Statement continuously effective,
supplemented and amended as required by the provisions of Section 6(c)
below to the extent necessary to ensure that it is available for
resales of Exchange Securities received in exchange for Securities
acquired by Broker-Dealers for their own accounts as a result of
market-making activities or other trading activities, and to ensure
that it conforms with the requirements of this Agreement, the
Securities Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period ending on the
earlier of (i) 180 days from the date on which the Exchange Offer
Registration Statement is declared effective and (ii) the date on which
a Broker-Dealer is no longer required to deliver a prospectus in
connection with market-making or other trading activities.
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The Companies shall provide sufficient copies of the
latest version of such Prospectus to Broker-Dealers promptly upon
request at any time during such 180-day (or shorter as provided in the
foregoing sentence) period in order to facilitate such resales.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Companies are not
required to file an Exchange Offer Registration Statement or to
consummate the Exchange Offer because the Exchange Offer is not
permitted by applicable law or Commission policy (after the procedures
set forth in Section 6(a) below have been complied with), (ii) for any
reason the Exchange Offer is not Consummated within 180 days after the
Closing Date, or (iii) any Holder of Transfer Restricted Securities
shall notify the Company prior to the 20th day following the
Consummation of the Exchange Offer that (A) such Holder is prohibited
by applicable law or Commission policy from participating in the
Exchange Offer, or (B) such Holder may not resell the Exchange
Securities acquired by it in the Exchange Offer to the public without
delivering a prospectus and that the Prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available
for such resales by such Holder, or (C) such Holder is a Broker-Dealer
and holds Securities acquired directly from the Companies or one of
their affiliates, then, upon such Holder's request, the Companies
shall:
(x) cause to be filed a shelf registration
statement pursuant to Rule 415 under the Securities Act, which
may be an amendment to the Exchange Offer Registration
Statement (in either event, the "Shelf Registration
Statement") on or prior to the earliest to occur of (1) the
45th day after the date on which the Companies determine that
they are not required to file the Exchange Offer Registration
Statement and (2) the 45th day after the date on which the
Companies receive the notice from a Holder of Transfer
Restricted Securities as contemplated by clause (iii) above
(such earliest date being the "Shelf Filing Deadline"), which
Shelf Registration Statement shall provide for resales of all
Transfer Restricted Securities the Holders of which shall have
provided the information required pursuant to Section 4(b)
hereof; and
(y) use their best efforts to cause such
Shelf Registration Statement to be declared effective by the
Commission on or before the 90th day after the Shelf Filing
Deadline (as such date relates to the Shelf Registration
Statement, the "Effectiveness Target Date").
The Companies shall use their best efforts to keep such Shelf
Registration Statement continuously effective, supplemented and amended
as required by the provisions of Sections 6(b) and (c) hereof to the
extent necessary to ensure that it is available for resales of
Securities and Exchange Securities by the Holders of Transfer
Restricted Securities entitled to the benefit of this Section 4(a), and
to ensure that it conforms with the requirements of this Agreement, the
Securities Act and the policies, rules and
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regulations of the Commission as announced from time to time, for a
period of at least two years following the Closing Date (or shorter
period that will terminate when all the Securities and Exchange
Securities covered by such Shelf Registration Statement have been sold
pursuant to such Shelf Registration Statement); provided, however, that
the Companies shall not be obligated to keep the Shelf Registration
Statement effective if (i) the Company determines, in its reasonable
judgment, upon advice of counsel, as authorized by a resolution of its
Board of Directors, that the continued effectiveness and usability of
the Shelf Registration Statement would (x) require the disclosure of
material information, which the Company has a bona fide business reason
for preserving as confidential, or (y) interfere with any financing,
acquisition, corporate reorganization or other material transaction
involving the Company or any of its subsidiaries or its parent,
provided that the failure to keep the Shelf Registration Statement
effective and usable for offers and sales of Securities for such
reasons shall last no longer than 45 days in any 12-month period
(whereafter Liquidated Damages shall accrue and be payable), and (ii)
the Companies promptly thereafter comply with the requirements of
Section 6(c)(i) hereof, if applicable. Any such period during which the
Companies are excused from keeping the Shelf Registration Statement
effective and usable for offers and sales of Securities is referred to
herein as a "Suspension Period." A Suspension Period shall commence on
and include the date that the Company gives notice that the
Registration Statement is no longer effective or the Prospectus
included therein is no longer usable for offers and sales of Securities
and shall end on the earlier to occur of (1) the date on which each
seller of Securities covered by the Shelf Registration Statement either
receives the copies of the supplemented or amended prospectus
contemplated by Section 6(c)(i) hereof or is advised in writing by the
Company that use of the Prospectus may be resumed and (2) the
expiration of 45 days in any 12-month period during which one or more
Suspension Periods has been in effect. The Companies shall be deemed
not to have used their best efforts to keep the Shelf Registration
Statement effective during the requisite period if any of the Companies
voluntarily takes any action (other than actions which trigger a
Suspension Period) that would result in Holders of Securities covered
thereby not being able to offer and sell such securities during that
period, unless such action is required by applicable law.
(b) Provision by Holders of Certain Information in
Connection with the Shelf Registration Statement. No Holder of Transfer
Restricted Securities may include any of its Transfer Restricted
Securities in any Shelf Registration Statement pursuant to this
Agreement unless and until such Holder furnishes to the Company in
writing, within 20 business days after receipt of a request therefor,
such information as the Company may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or
preliminary Prospectus included therein. Each Holder as to which any
Shelf Registration Statement is being effected agrees to furnish
promptly to the Company all information required to be disclosed in
order to make the information previously furnished to the Company by
such Holder not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any of the Registration Statements required by this
Agreement is not filed with the Commission on or prior to the date specified for
such filing in this Agreement, (ii) any
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of such Registration Statements has not been declared effective by the
Commission on or prior to the applicable Effectiveness Target Date, (iii) the
Exchange Offer has not been Consummated within 30 business days after the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (iv) any Registration Statement required by this Agreement is filed
and declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose during the periods specified herein (other than
during a Suspension Period with respect to a Shelf Registration Statement) and
the Companies do not immediately file a post-effective amendment to such
Registration Statement that cures such failure and that is itself immediately
declared effective (each such event referred to in clauses (i) through (iv), a
"Registration Default"), the Companies hereby agree that the interest rate borne
by the Transfer Restricted Securities shall be increased by 0.5% per annum
during the 90-day period immediately following the occurrence of any
Registration Default and shall increase by 0.5% per annum at the end of each
subsequent 90-day period, but in no event shall such increase exceed 1.50% per
annum (any such interest assessed upon the occurrence of a Registration Default
is referred to as "Liquidated Damages"). Following the cure of all Registration
Defaults relating to any particular Transfer Restricted Securities, the interest
rate borne by the relevant Transfer Restricted Securities shall be reduced to
the original interest rate borne by such Transfer Restricted Securities;
provided, however, that, if after any such reduction in interest rate, a
different Registration Default occurs, the interest rate borne by the relevant
Transfer Restricted Securities shall again be increased pursuant to the
foregoing provisions.
All obligations of the Companies set forth in the preceding
paragraph that are outstanding with respect to any Transfer Restricted Security
at the time such security ceases to be a Transfer Restricted Security shall
survive until such time as all such obligations with respect to such Security
shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In
connection with the Exchange Offer, the Companies shall comply with all
of the provisions of Section 6(c) below, shall use their best efforts
to effect such exchange to permit the sale of Transfer Restricted
Securities being sold in accordance with the intended method or methods
of distribution thereof, and shall comply with all of the following
provisions:
(i) If in the reasonable opinion of counsel to the
Companies (which may be in-house counsel) there is a question
as to whether the Exchange Offer is permitted by applicable
law, the Companies hereby agree to seek a no-action letter or
other favorable decision from the Commission allowing the
Companies to Consummate an Exchange Offer for such Securities.
The Companies hereby agree to pursue the issuance of such a
decision to the Commission staff level but shall not be
required to take commercially unreasonable action to effect a
change of Commission policy. The Companies hereby agree,
however, to (A) participate in telephonic conferences with the
Commission, (B) deliver to the Commission staff an analysis
prepared by counsel to the Companies (which may be in-house
counsel) setting forth the legal bases, if any, upon which
such counsel has concluded that such an Exchange Offer should
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be permitted and (C) diligently pursue a favorable resolution
by the Commission staff of such submission.
(ii) As a condition to its participation in the
Exchange Offer pursuant to the terms of this Agreement, each
Holder of Transfer Restricted Securities shall furnish, upon
the request of the Companies, prior to the Consummation
thereof, a written representation to the Companies (which may
be contained in the letter of transmittal contemplated by the
Exchange Offer Registration Statement) to the effect that (A)
it is not an affiliate of any of the Companies, (B) it is not
engaged in, and does not intend to engage in, and has no
arrangement or understanding with any person to participate
in, a distribution of the Exchange Securities to be issued in
the Exchange Offer and (C) it is acquiring the Exchange
Securities in its ordinary course of business. In addition,
all such Holders of Transfer Restricted Securities shall
otherwise cooperate in the Companies' preparations for the
Exchange Offer. Each Holder hereby acknowledges and agrees
that any Broker-Dealer and any such Holder using the Exchange
Offer to participate in a distribution of the securities to be
acquired in the Exchange Offer (1) could not under Commission
policy as in effect on the date of this Agreement rely on the
position of the Commission enunciated in Morgan Stanley and
Co., Inc. (available June 5, 1991) and Exxon Capital Holdings
Corporation (available May 13, 1988), as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993,
and similar no-action letters (which may include any no-action
letter obtained pursuant to clause (i) above), and (2) must
comply with the registration and prospectus delivery
requirements of the Securities Act in connection with a
secondary resale transaction and that such a secondary resale
transaction should be covered by an effective registration
statement containing the selling security holder information
required by Item 507 or 508, as applicable, of Regulation S-K
if the resales are of Exchange Securities obtained by such
Holder in exchange for Securities acquired by such Holder
directly from the Companies.
(b) Shelf Registration Statement. In connection with
the Shelf Registration Statement, the Companies shall comply with all
the provisions of Section 6(c) below and shall use their best efforts
to effect such registration to permit the sale of the Transfer
Restricted Securities being sold in accordance with the intended method
or methods of distribution thereof, and pursuant thereto the Companies
will prepare and file with the Commission prior to the Shelf Filing
Deadline a Registration Statement relating to the registration on any
appropriate form under the Securities Act, which form shall be
available for the sale of the Transfer Restricted Securities in
accordance with the intended method or methods of distribution thereof.
(c) General Provisions. In connection with any
Registration Statement and any Prospectus required by this Agreement to
permit the sale or resale of Transfer Restricted Securities (including,
without limitation, any Registration Statement and the related
Prospectus required to permit resales of Securities and Exchange
Securities by Broker-Dealers), the Companies shall:
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(i) use their best efforts to keep such Registration
Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3 or
4 of this Agreement, as applicable; upon the occurrence of any
event that would cause any such Registration Statement or the
Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not to be effective and usable
for resale of Transfer Restricted Securities during the period
required by this Agreement, the Companies shall file promptly
an appropriate amendment to such Registration Statement, in
the case of clause (A), correcting any such misstatement or
omission, and, in the case of either clause (A) or (B), use
its best efforts to cause such amendment to be declared
effective and such Registration Statement and the related
Prospectus to become usable for their intended purpose(s) as
soon as practicable thereafter;
(ii) prepare and file with the Commission such
amendments and post-effective amendments to the Registration
Statement as may be necessary to keep the Registration
Statement effective for the applicable period set forth in
Section 3 or 4 hereof, as applicable, or such shorter period
as will terminate when all Transfer Restricted Securities
covered by such Registration Statement have been sold; cause
the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Securities Act, and to comply fully with
the applicable provisions of Rules 424 and 430A under the
Securities Act in a timely manner; and comply with the
provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers
thereof set forth in such Registration Statement or supplement
to the Prospectus;
(iii) advise the underwriter(s), if any, and selling
Holders promptly and, if requested by such Persons, to confirm
such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been
filed, and, with respect to any Registration Statement or any
post-effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for amendments
to the Registration Statement or amendments or supplements to
the Prospectus or for additional information relating thereto,
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement
under the Securities Act or of the suspension by any state
securities commission of the qualification of the Transfer
Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of
the preceding purposes, (D) of the existence of any fact or
the happening of any event that makes any statement of a
material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any
document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the
Registration Statement or the Prospectus in order to make the
statements therein not misleading. If at any time the
Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption from
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qualification of the Transfer Restricted Securities under
state securities or Blue Sky laws, the Companies shall use
their best efforts to obtain the withdrawal or lifting of such
order at the earliest possible time;
(iv) furnish without charge to each of the
Purchasers, each selling Holder named in any Registration
Statement, and each of the underwriter(s), if any, before
filing with the Commission, copies of any Registration
Statement or any Prospectus included therein or any amendments
or supplements to any such Registration Statement or
Prospectus (including all documents incorporated by reference
after the initial filing of such Registration Statement),
which documents will be subject to the review of such Holders
and underwriter(s) in connection with such sale, if any, for a
period of at least five business days, and the Companies will
not file any such Registration Statement or Prospectus or any
amendment or supplement to any such Registration Statement or
Prospectus (including all such documents incorporated by
reference) to which a Purchaser of Transfer Restricted
Securities covered by such Registration Statement or the
underwriter(s), if any, shall reasonably object in writing
within five business days after the receipt thereof (such
objection to be deemed timely made upon confirmation of
telecopy transmission within such period). The objection of a
Purchaser or underwriter, if any, shall be deemed to be
reasonable if such Registration Statement, amendment,
Prospectus or supplement, as applicable, as proposed to be
filed, contains a material misstatement or omission;
(v) promptly prior to the filing of any document that
is to be incorporated by reference into a Registration
Statement or Prospectus, provide copies of such document to
the Purchasers, each selling Holder named in any Registration
Statement, and to the underwriter(s), if any, make the
respective representatives of the Companies available for
discussion of such document and other customary due diligence
matters, and include such information in such document prior
to the filing thereof as such selling Holders or
underwriter(s), if any, reasonably may request;
(vi) make available at reasonable times for
inspection by the Purchasers, any managing underwriter
participating in any disposition pursuant to such Registration
Statement and any attorney or accountant retained by such
Purchasers or any of the underwriter(s), all financial and
other records, pertinent corporate documents and properties of
the Companies and cause the respective officers, directors and
employees of the Companies to supply all information
reasonably requested by any such Holder, underwriter, attorney
or accountant in connection with such Registration Statement
subsequent to the filing thereof and prior to its
effectiveness;
(vii) if requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in any
Registration Statement or Prospectus, pursuant to a supplement
or post-effective amendment if necessary, such information as
such selling Holders and underwriter(s), if any, may
reasonably request to have included therein, including,
without limitation, information relating to the "Plan
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of Distribution" of the Transfer Restricted Securities,
information with respect to the principal amount of Transfer
Restricted Securities being sold to such underwriter(s), the
purchase price being paid therefor and any other terms of the
offering of the Transfer Restricted Securities to be sold in
such offering; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as
practicable after the Company is notified of the matters to be
incorporated in such Prospectus supplement or post-effective
amendment;
(viii) use their best efforts to either (A) confirm
that the ratings obtained for the Securities prior to the
initial sale of the Securities will apply to the Transfer
Restricted Securities covered by the Registration Statement or
(B) cause the Transfer Restricted Securities covered by the
Registration Statement to be rated with the appropriate rating
agencies, if so requested by the Holders of a majority in
aggregate principal amount of Securities covered thereby or
the underwriter(s), if any;
(ix) furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of
the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including financial
statements and schedules, all documents incorporated by
reference therein and all exhibits (including exhibits
incorporated therein by reference);
(x) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may
request; the Companies hereby consent to the use of the
Prospectus and any amendment or supplement thereto by each of
the selling Holders and each of the underwriter(s), if any, in
connection with the offering and the sale of the Transfer
Restricted Securities covered by the Prospectus or any
amendment or supplement thereto;
(xi) enter into an underwriting agreement, in
customary form, if requested in writing by Holders of a
majority in aggregate principal amount of Securities eligible
for inclusion in the Shelf Registration Statement; and take
all such other actions in connection therewith in order to
expedite or facilitate the disposition of the Transfer
Restricted Securities pursuant to any Registration Statement
contemplated by this Agreement; and whether or not an
underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, the Companies
shall:
(1) furnish to each Purchaser, each selling
Holder and each underwriter, if any, in such
substance and scope as they may request and as are
customarily made by issuers to underwriters in
primary underwritten offerings, upon the date of the
Consummation of the Exchange Offer and, if
applicable, the effectiveness of the Shelf
Registration Statement:
12
(A) a certificate, dated the date of
Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as
the case may be, signed by (y) the President or any
Vice President and (z) a principal financial or
accounting officer of each of the Companies,
confirming, as of the date thereof, the matters set
forth in Section 8 (f) of the Purchase Agreement, and
such other matters as such parties may reasonably
request;
(B) an opinion, dated the date of
Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as
the case may be, of counsel for the Companies (which
may be in-house counsel), covering the matters set
forth in Section 8(d), (e) and (f) of the Purchase
Agreement and such other matters as such parties may
reasonably request, and in any event including a
statement to the effect that such counsel has
participated in conferences with the respective
officers and other representatives of the Companies,
representatives of the independent public accountants
for the Companies, the Purchasers' representatives
and the Purchasers' counsel in connection with the
preparation of such Registration Statement and the
related Prospectus and have considered the matters
required to be stated therein and the statements
contained therein, although such counsel has not
independently verified the accuracy, completeness or
fairness of such statements (except as otherwise
stated in such opinion); and that such counsel
advises that, on the basis of the foregoing (relying
as to materiality upon facts provided to such counsel
by the respective officers and other representatives
of the Companies and without independent check or
verification), no facts came to such counsel's
attention that caused such counsel to believe that
the applicable Registration Statement, at the time
such Registration Statement or any post-effective
amendment thereto became effective, and, in the case
of the Exchange Offer Registration Statement, as of
the date of Consummation, contained an untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, or that the Prospectus contained in such
Registration Statement as of its date and, in the
case of the opinion dated the date of Consummation of
the Exchange Offer, as of the date of Consummation,
contained an untrue statement of a material fact or
omitted to state a material fact necessary in order
to make the statements therein, in light of the
circumstances under which they were made, not
misleading. Without limiting the foregoing, such
counsel may state further that such counsel assumes
no responsibility for, and has not independently
verified, the accuracy, completeness or fairness of
the financial statements, notes and schedules and
other historical or pro forma financial data
13
included in any Registration Statement contemplated
by this Agreement or the related Prospectus; and
(C) a customary comfort letter, dated as of
the date of Consummation of the Exchange Offer or the
date of effectiveness of the Shelf Registration
Statement, as the case may be, from the Companies'
independent accountants, in the customary form and
covering matters of the type customarily covered in
comfort letters by underwriters in connection with
primary underwritten offerings, and affirming the
matters set forth in the comfort letters delivered
pursuant to Section 8(h) and (j) of the Purchase
Agreement, without exception;
(2) set forth in full or incorporate by reference in
the underwriting agreement, if any, the indemnification
provisions and procedures of Section 8 hereof with respect to
all parties to be indemnified pursuant to said Section; and
(3) deliver such other documents and certificates as
may be reasonably requested by such parties to evidence
compliance with clause (A) above and with any customary
conditions contained in the underwriting agreement or other
agreement entered into by the Companies pursuant to this
clause (xi), if any.
If at any time the representations and warranties of the
Companies contemplated in this clause (xi) cease to be true and
correct, the Companies shall so advise the Purchasers and the
underwriter(s), if any, and each selling Holder promptly and, if
requested by such Persons, shall confirm such advice in writing;
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriter(s), if
any, and their respective counsel in connection with the registration
and qualification (or exemption from such registration and
qualification or preemption of such registration and qualification by
federal law) of the Transfer Restricted Securities under the securities
or Blue Sky laws of such jurisdictions as the selling Holders or
underwriter(s) reasonably request in writing and do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the
Shelf Registration Statement; provided, however, that none of the
Companies shall be required to register or qualify as a foreign
corporation where it is not then so qualified or to take any action
that would subject it to the service of process in suits or to
taxation, other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not then so
subject;
(xiii) shall issue, upon the request of any Holder of
Securities covered by the Shelf Registration Statement, Exchange
Securities having an aggregate principal amount equal to the aggregate
principal amount of Securities
14
surrendered to the Company by such Holder in exchange therefor or being
sold by such Holder; such Exchange Securities to be registered in the
name of such Holder or in the name of the purchaser(s) of such
Securities, as the case may be; in return, the Securities held by such
Holder shall be surrendered to the Company for cancellation;
(xiv) cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities to
be sold and not bearing any restrictive legends; and enable such
Transfer Restricted Securities to be in such denominations and
registered in such names as the Holders or the underwriter(s), if any,
may request at least two business days prior to any sale of Transfer
Restricted Securities made by such underwriter(s);
(xv) if any fact or event contemplated by Section 6(c)(iii)(D)
above shall exist or have occurred, prepare a supplement or
post-effective amendment to the Registration Statement or related
Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading;
(xvi) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the Registration
Statement and provide the Trustee under the Indenture with printed
certificates for the Transfer Restricted Securities which are in a form
eligible for deposit with the Depositary Trust Company;
(xvii) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation
by any underwriter (including any "qualified independent underwriter")
that is required to be retained in accordance with the rules and
regulations of the NASD, and use its reasonable best efforts to cause
such Registration Statement to become effective and approved by such
governmental agencies or authorities as may be necessary to enable the
Holders selling Transfer Restricted Securities to consummate the
disposition of such Transfer Restricted Securities;
(xviii) otherwise use their best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) for the twelve-month period (A) commencing
at the end of any fiscal quarter in which Transfer Restricted
Securities are sold to underwriters in a firm or best efforts
Underwritten Offering or (B) if not sold to underwriters in such an
offering, beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of the Registration
Statement;
15
(xix) cause the Indenture to be qualified under the Trust
Indenture Act not later than the effective date of the first
Registration Statement required by this Agreement, and, in connection
therewith, cooperate with the Trustee and the Holders of Securities and
Exchange Securities to effect such changes to the Indenture as may be
required for such Indenture to be so qualified in accordance with the
terms of the Trust Indenture Act; and to execute and use its best
efforts to cause the Trustee to execute all documents that 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;
(xx) cause all Transfer Restricted Securities covered by the
Registration Statement to be listed on each securities exchange on
which similar securities issued by the Company are then listed, if any,
if requested by the Holders of a majority in aggregate principal amount
of Securities or the managing underwriter(s), if any; and
(xxi) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the requirements of
Section 13 and Section 15 of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition
of a Transfer Restricted Security that, upon receipt of any notice from the
Companies of the existence of any fact of the kind described in Section
6(c)(iii)(D) hereof, such Holder will forthwith discontinue disposition of
Transfer Restricted Securities pursuant to the applicable Registration Statement
until such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(xvi) hereof, or until it is advised in
writing (the "Advice") by the Companies that the use of the Prospectus may be
resumed, and has received copies of any additional or supplemental filings that
are incorporated by reference in the Prospectus. If so directed by the
Companies, each Holder will deliver to the Companies (at the Companies' expense)
all copies, other than permanent file copies then in such Holder's possession,
of the Prospectus covering such Transfer Restricted Securities that was current
at the time of receipt of such notice. In the event the Companies shall give any
such notice, the time period regarding the effectiveness of such Registration
Statement set forth in Section 3 or 4 hereof, as applicable, shall be extended
by the number of days during the period from and including the date of the
giving of such notice pursuant to Section 6(c)(iii)(D) hereof to and including
the date when each selling Holder covered by such Registration Statement shall
have received the copies of the supplemented or amended Prospectus contemplated
by Section 6(c)(xvi) hereof or shall have received the Advice; however, no such
extension shall be taken into account in determining whether Liquidated Damages
are due pursuant to Section 5 hereof or the amount of such Liquidated Damages,
it being agreed that the Companies' option to suspend use of a Registration
Statement pursuant to this paragraph shall be treated as a Registration Default
for purposes of Section 5.
16
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Companies' performance of or
compliance with this Agreement will be borne by the Companies,
regardless of whether a Registration Statement becomes effective,
including without limitation: (i) all registration and filing fees and
expenses (including filings made by any Purchaser or Holder with the
NASD (and, if applicable, the fees and expenses of any "qualified
independent underwriter" and its counsel that may be required by the
rules and regulations of the NASD)); (ii) all fees and expenses of
compliance with federal securities and state Blue Sky or securities
laws; (iii) all expenses of printing (including printing certificates
for the Exchange Securities to be issued in the Exchange Offer and
printing of Prospectuses), messenger and delivery services and
telephone; (iv) all fees and disbursements of counsel for the Companies
and, subject to Section 7(b) below, the Holders of Transfer Restricted
Securities; and (v) all fees and disbursements of independent certified
public accountants of the Companies (including the expenses of any
special audit and comfort letters required by or incident to such
performance).
The Companies will, in any event, bear their internal expenses
(including, without limitation, all salaries and expenses of their
respective officers and employees performing legal or accounting
duties), the expenses of any annual audit and the fees and expenses of
any Person, including special experts, retained by any of the
Companies.
(b) In connection with any Registration Statement required by
this Agreement (including, without limitation, the Exchange Offer
Registration Statement and the Shelf Registration Statement), the
Companies will jointly and severally reimburse the Purchasers and the
Holders of Transfer Restricted Securities being tendered in the
Exchange Offer and/or resold pursuant to the "Plan of Distribution"
contained in the Exchange Offer Registration Statement or registered
pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who
shall be Shearman & Sterling or such other counsel as may be chosen by
the Holders of a majority in principal amount of the Transfer
Restricted Securities for whose benefit such Registration Statement is
being prepared.
SECTION 8. INDEMNIFICATION
(a) The Companies jointly and severally agree to indemnify and
hold harmless (i) each Holder and (ii) each person, if any, who
controls (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) any Holder (any of the persons referred
to in this clause (ii) being hereinafter referred to as a "controlling
person") and (iii) the respective officers, directors, partners,
employees, representatives and agents of any Holder or any controlling
person (any person referred to in clause (i), (ii) or (iii) may
hereinafter be referred to as an "Indemnified Holder"), to the fullest
extent lawful, from and against any and all losses, claims, damages,
liabilities, judgments, actions and expenses (including without
limitation and as incurred, reimbursement of all reasonable costs of
investigating, preparing, pursuing, settling, compromising, paying or
defending any claim or action, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, including the
reasonable fees and expenses of
17
counsel to any Indemnified Holder), joint or several, directly or
indirectly caused by, related to, based upon, arising out of or in
connection with any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or Prospectus (or
any amendment or supplement thereto), or any omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages, liabilities or expenses are
caused by an untrue statement or omission or alleged untrue statement
or omission that is made in reliance upon and in conformity with
information relating to any of the Holders furnished in writing to the
Company by any of the Holders expressly for use therein; provided,
however, that the Companies will not be liable to any Purchaser, Holder
(in its capacity as Holder) or underwriter (or any person who controls
such party within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) with respect to any untrue statement or
alleged untrue statement or omission or alleged omission of a material
fact made in any preliminary Prospectus to the extent that the
Companies shall sustain the burden of proving that any such loss,
liability, claim, damage or expense resulted from the fact that such
Purchaser, Holder (in its capacity as Holder), or underwriter, as the
case may be, sold Transfer Restricted Securities to a Person to whom
such Purchaser, Holder (in its capacity as Holder) or underwriter, as
the case may be, failed to send or give, at or prior to the written
confirmation of sale of such Securities a copy of the final Prospectus
(as amended or supplemented) if the Companies have previously furnished
copies thereof (sufficiently in advance of the closing of such sale to
allow for distribution of the final Prospectus in a timely manner) to
such Purchaser, Holder (in its capacity as Holder) or underwriter, as
the case may be, and the loss, liability, claim, damage or expense of
such Purchaser, Holder (in its capacity as Holder) or underwriter, as
the case may be, resulted solely from an untrue statement or alleged
untrue statement or omission or alleged omission of a material fact
contained in or omitted from such preliminary Prospectus which was
corrected in the final Prospectus. This indemnity agreement shall be in
addition to any liability which any of the Companies may otherwise
have.
In case any action or proceeding (including any governmental
or regulatory investigation or proceeding) shall be brought or asserted
against any of the Indemnified Holders with respect to which indemnity
may be sought against any of the Companies, such Indemnified Holder (or
the Indemnified Holder controlled by such controlling person) shall
promptly notify the Company in writing (provided that the failure to
give such notice shall not relieve any of the Companies of its
obligations pursuant to this Agreement). The Companies shall be jointly
and severally liable for any settlement of any such action or
proceeding effected with the Company's prior written consent, which
consent shall not be withheld unreasonably, and the Companies jointly
and severally agree to indemnify and hold harmless any Indemnified
Holder from and against any loss, claim, damage, liability or expense
by reason of any settlement of any action effected with the written
consent of the Company. The Companies shall not, without the prior
written consent of each Indemnified Holder, settle or compromise or
consent to the entry of judgment in or otherwise seek to terminate any
pending or threatened action, claim, litigation or proceeding in
respect of which indemnification or contribution may be sought
hereunder (whether or not any Indemnified Holder is a party thereto),
unless such settlement, compromise, consent or termination includes an
18
unconditional release of each Indemnified Holder from all liability
arising out of such action, claim, litigation or proceeding.
(b) Each Holder of Transfer Restricted Securities agrees,
severally and not jointly, to indemnify and hold harmless each of the
Companies, and its directors and officers who sign a Registration
Statement, and any person controlling (within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act) each of the
Companies and the respective officers, directors, partners, employees,
representatives and agents of each such person, to the same extent as
the foregoing indemnity from the Companies to each of the Indemnified
Holders, but only with respect to claims and actions based on
information relating to such Holder furnished in writing by such Holder
expressly for use in any Registration Statement. In case any action or
proceeding shall be brought against any of the Companies or its
directors or officers or any such controlling person in respect of
which indemnity may be sought against a Holder of Transfer Restricted
Securities, such Holder shall have the rights and duties given each of
the Companies and each of the Companies or its directors or officers or
such controlling person shall have the rights and duties given to each
Holder by the preceding paragraph. In no event shall the liability of
any selling Holder hereunder be greater in amount than the dollar
amount of the proceeds received by such Holder upon the sale of the
Securities and Exchange Securities giving rise to such indemnification
obligation.
(c) In case any action is brought against any indemnified
party and such indemnified party seeks or intends to seek indemnity
from an indemnifying party, the indemnifying party will be entitled to
participate in and, to the extent that it shall elect, jointly with all
other indemnifying parties similarly notified, by written notice
delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense
thereof with counsel reasonably satisfactory to such indemnified party;
provided, however, if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that a conflict may arise between
the positions of the indemnifying party and the indemnified party in
conducting the defense of any such action or that there may be legal
defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to select
separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified
party or parties. Upon receipt of notice from the indemnifying party to
such indemnified party of such indemnifying party's election so to
assume the defense of such action and approval by the indemnified party
of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel
(together with local counsel), approved by the indemnifying party,
representing the indemnified parties who are parties to such action) or
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the
action,
19
in each of which cases the fees and expenses of counsel shall be at the
expense of the indemnifying party.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under Section 8(a) or Section 8(b)
hereof (other than by reason of exceptions provided in those Sections)
in respect of any losses, claims, damages, liabilities, judgments,
actions or expenses referred to therein, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative
benefits received by the Companies, on the one hand, and the Holders,
on the other hand, from (x) the Initial Placement (which in the case of
the Companies shall be deemed to be equal to the total gross proceeds
from the Initial Placement as set forth on the cover page of the
Offering Memorandum (as defined in the Purchase Agreement)), (y) the
amount of Liquidated Damages which did not become payable as a result
of the filing of the Registration Statement resulting in such losses,
claims, damages, liabilities, judgments actions or expenses, and (z)
such Registration Statement, or if such allocation is not permitted by
applicable law, the relative fault of the Companies, on the one hand,
and of the Indemnified Holder, on the other hand, in connection with
the statements or omissions which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of the Companies, on the
one hand, and of the Indemnified Holder, on the other, shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
any of the Companies or by the Indemnified Holder and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or
payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in the second paragraph of Section
8(a), any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action or
claim.
The Companies and each Holder of Transfer Restricted
Securities agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages, liabilities or expenses
referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, none of the Holders
(and its related Indemnified Holders) shall be required to contribute,
in the aggregate, any amount in excess of the amount by which the net
proceeds received by such Holder from the sale of the Securities
exceeds the amount of any damages which such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
20
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute pursuant to this Section 8(c) are several in
proportion to the respective principal amount of Securities held by
each of the Holders hereunder and not joint.
SECTION 9. RULE 144A
The Companies hereby agree with each Holder, for so long as
any Transfer Restricted Securities remain outstanding, and during any period the
Companies (i) are not subject to Section 13 or 15(d) of the Exchange Act, to
make available to any Holder or beneficial owner of Transfer Restricted
Securities in connection with any sale thereof and any prospective purchaser of
such Transfer Restricted Securities from such Holder or beneficial owner, the
information required by Rule 144A(d)(4) under the Securities Act in order to
permit resales of such Transfer Restricted Securities pursuant to Rule 144A and
(ii) are subject to Section 13 or Section 15(d) of the Exchange Act, to make all
filings required thereunder in a timely manner in order to permit resales of
such Transfer Restricted Securities pursuant to Rule 144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN
REGISTRATIONS
No Holder may participate in any Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the
Shelf Registration Statement who desire to do so may sell such Transfer
Restricted Securities in an Underwritten Offering. In any such Underwritten
Offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be selected by the Holders of a majority
in aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided, that such investment bankers and managers must be
reasonably satisfactory to the Companies.
SECTION 12. MISCELLANEOUS
(a) Remedies. The Companies hereby agree that monetary damages
would not be adequate compensation for any loss incurred by reason of a
breach by it of the provisions of this Agreement and hereby agree to
waive the defense in any action for specific performance that a remedy
at law would be adequate.
(b) No Inconsistent Agreements. The Companies will not, on or
after the date of this Agreement, enter into any agreement with respect
to its securities that is inconsistent with the rights granted to the
Holders in this Agreement or otherwise conflicts with the provisions
hereof. The rights granted to the Holders hereunder do not
21
in any way conflict with and are not inconsistent with the rights
granted to the holders of any of the Companies' securities under any
agreement in effect on the date hereof.
(c) Adjustments Affecting the Securities. The Companies will
not take any action, or permit any change to occur, with respect to the
Securities that would materially and adversely affect the ability of
the Holders to Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents
to or departures from the provisions hereof may not be given unless the
Companies have obtained the written consent of Holders of a majority of
the outstanding principal amount of Transfer Restricted Securities.
Notwithstanding the foregoing, a waiver or consent to departure from
the provisions hereof that relates exclusively to the rights of Holders
whose securities are being tendered pursuant to the Exchange Offer and
that does not affect directly or indirectly the rights of other Holders
whose securities are not being tendered pursuant to such Exchange Offer
may be given by the Holders of a majority of the outstanding principal
amount of Transfer Restricted Securities being tendered or registered;
provided that, with respect to any matter that directly or indirectly
affects the rights of any Purchaser hereunder, the Companies shall
obtain the written consent of each such Purchaser with respect to which
such amendment, qualification, supplement, waiver, consent or departure
is to be effective.
(e) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery,
first-class mail (registered or certified, return receipt requested),
facsimile or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the Registrar under the Indenture, with a copy to the Registrar under
the Indenture; and
(ii) if to the Companies:
Giant Industries, Inc.
23733 North Scottsdale Road
Scottsdale, Arizona 85255
Facsimile: (602) 585-8985
Attention: General Counsel
with a copy to:
Fennemore Craig, P.C.
3003 North Central Avenue
Suite 2600
Facsimile: (602) 916-5507
Attention: Karen C. McConnell
22
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if faxed; and on the next business day, if timely delivered to an
air courier guaranteeing overnight delivery.
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 specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities; 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 acquired
Transfer Restricted Securities from such Holder.
(g) 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.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement together with the Purchase
Agreement, the DTC Letter of Representations, the Securities, the Exchange
Securities, and the Indenture (each as defined in the Purchase Agreement) is
intended by the parties as a final expression of their agreement and intended to
be a complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein with respect to the registration rights granted by the
Companies with respect to the Transfer Restricted Securities. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
23
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
GIANT INDUSTRIES, INC.
By: /s/ Mark B. Cox
-------------------------------------------
Name: Mark B. Cox
Title: Chief Financial Officer
THE SUBSIDIARY GUARANTORS:
GIANT INDUSTRIES ARIZONA, INC.,
an Arizona corporation
By: /s/ Mark B. Cox
-------------------------------------------
Name: Mark B. Cox
Title: Chief Financial Officer and Director
CINIZA PRODUCTION COMPANY,
a New Mexico corporation
By: /s/ Mark B. Cox
-------------------------------------------
Name: Mark B. Cox
Title: Chief Financial Officer and Director
GIANT STOP-N-GO OF NEW MEXICO, INC.,
a New Mexico corporation
By: /s/ Mark B. Cox
-------------------------------------------
Name: Mark B. Cox
Title: Chief Financial Officer and Director
24
GIANT FOUR CORNERS, INC.,
an Arizona corporation
By: /s/ Mark B. Cox
-------------------------------------------
Name: Mark B. Cox
Title: Chief Financial Officer and Director
PHOENIX FUEL CO., INC.,
an Arizona corporation
By: /s/ Mark B. Cox
-------------------------------------------
Name: Mark B. Cox
Title: Chief Financial Officer and Director
SAN JUAN REFINING COMPANY,
a New Mexico corporation
By: /s/ Mark B. Cox
-------------------------------------------
Name: Mark B. Cox
Title: Chief Financial Officer and Director
GIANT MID-CONTINENT, INC.,
an Arizona corporation
By: /s/ Mark B. Cox
-------------------------------------------
Name: Mark B. Cox
Title: Chief Financial Officer and Director
GIANT PIPELINE COMPANY,
a New Mexico corporation
By: /s/ Mark B. Cox
-------------------------------------------
Name: Mark B. Cox
Title: Chief Financial Officer and Director
25
DEGUELLE OIL COMPANY,
a Colorado corporation
By: /s/ Mark B. Cox
-------------------------------------------
Name: Mark B. Cox
Title: Chief Financial Officer and Director
GIANT YORKTOWN, INC.,
a Delaware corporation
By: /s/ Mark B. Cox
-------------------------------------------
Name: Mark B. Cox
Title: Chief Financial Officer and Director
GIANT YORKTOWN HOLDING COMPANY,
A Delaware corporation
By: /s/ Mark B. Cox
-------------------------------------------
Name: Mark B. Cox
Title: Chief Financial Officer and Director
26
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first above
written.
BANC OF AMERICA SECURITIES LLC
BNP PARIBAS SECURITIES CORP.
FLEET SECURITIES, INC.
BY: BANC OF AMERICA SECURITIES LLC
By: /s/ Lily Chang
-------------------------------
Name: Lily Chang
Title: Principal
27
SCHEDULE A
SUBSIDIARY GUARANTORS
GIANT INDUSTRIES ARIZONA, INC., an Arizona corporation
CINIZA PRODUCTION COMPANY, a New Mexico corporation
GIANT STOP-N-GO OF NEW MEXICO, INC., a New Mexico corporation
GIANT FOUR CORNERS, INC., an Arizona corporation
PHOENIX FUEL CO., INC., an Arizona corporation
SAN JUAN REFINING COMPANY, a New Mexico corporation
GIANT MID-CONTINENT, INC., an Arizona corporation
GIANT PIPELINE COMPANY, a New Mexico corporation
DEGUELLE OIL COMPANY, a Colorado corporation
GIANT YORKTOWN, INC., a Delaware corporation
GIANT YORKTOWN HOLDING COMPANY, a Delaware corporation